Rewiring Witness Prep: 3 Brain Science Strategies Every Trial Lawyer Needs [Ep 143]

Elizabeth explores the application of brain science in witness preparation, offering trial lawyers strategies to enhance deposition prep. This episode focuses on leveraging the limbic system and amygdala to reduce stress and improve memory retention, moving away from fear-based tactics. Elizabeth discusses the importance of engaging clients by addressing their concerns and shares methods to counteract the forgetting curve through repetition and structured sessions.

Elevate your practice with these insights for building a strong foundation in witness preparation. Elizabeth highlights the significance of understanding and applying brain science to transform the way trial lawyers approach witness prep. By addressing the emotional and cognitive needs of clients, lawyers can create a more supportive and effective preparation process. The episode emphasizes the benefits of using technology and structured repetition to ensure that clients are well-prepared, confident, and able to retain crucial information.

In this episode, you will hear:

  • Transforming witness preparation using brain science techniques
  • Avoiding fear-based tactics to enhance client memory retention
  • Importance of repetition to combat the forgetting curve
  • Empowering clients with confidence and clarity through tailored strategies

Supporting Resources:

Learn more about the Forgetting Curve

Need to earn CLE credit and learn more about witness preparation? Check out my in-depth presentation: Witness Prep That Works through ALI CLE.

Set up a free call to talk to Elizabeth about her witness prep services: www.calendly.com/elizabethlarrick

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    Avoid This Mistake if You Plan to Use Focus Group Clips in Mediation [Ep 142]

    Explore the potential of focus groups to elevate your mediation success with insights from Elizabeth Larrick. This episode is a must-listen for trial lawyers looking to refine their negotiation strategies. Elizabeth shares the strategic advantages of conducting focus groups two to three months before mediation to influence insurance company figures effectively. She distinguishes between focus groups for trial preparation and those tailored specifically for mediation, offering techniques to maintain confidentiality while utilizing focus group findings to drive better settlements.

    Elizabeth emphasizes the critical importance of early preparation, providing ample time to share insights with the opposing side ahead of mediation. This proactive approach enhances negotiation effectiveness and informs decision-making. 

    In this episode, you will hear:

    • Strategic use of focus groups to enhance mediation success
    • Importance of conducting focus groups 2-3 months prior to mediation
    • Differentiating focus groups for mediation from those for trial preparation
    • Techniques for maintaining confidentiality while sharing focus group insights
    • Leveraging mediators to communicate focus group findings effectively

    Supporting Resources:

    In case you missed it, here is Episode 139 that talks about using focus groups in discovery. Listen here.

    Curious about doing a focus group for your upcoming mediation? Schedule a free call to see how Elizabeth can help.

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    – witness preparation, and

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      Hey Lawyers, You Don’t Need a Psych Degree to Run a Focus Group! [Ep 141]

      In this episode of Trial Lawyer Prep, Elizabeth Larrick discusses the importance of focus groups for lawyers and dispels the myth that a psychology degree is necessary to conduct them. She outlines three key steps to running effective focus groups: having a clear goal, making a plan, and doing a test run of the presentation. Larrick emphasizes the need for lawyers to prepare adequately to avoid confusion and ensure they receive valuable feedback. She also addresses the issue of bias and encourages lawyers to seek help if they feel too biased to run a focus group themselves.

      Takeaways:

      • You don’t need a psych degree to run a focus group.
      • Having a clear goal is essential for focus groups.
      • Planning is crucial to avoid confusion during focus groups.
      • A test run can help identify issues in your presentation.
      • Lawyers often talk too much and don’t listen enough.

      Check out my detailed blog about planning and moderating your own virtual focus groups.

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        Episode Transcript

        Elizabeth Larrick (00:25.016)
        Are you putting barriers to starting your own focus groups? Maybe you think you need to be qualified or have some kind of certification before you start? Well tune into this episode and we’ll give you the answer so you can get going right away.

        Hello and welcome to Trial Lawyer Prep. I’m your host, Elizabeth Larrick, and we are here to talk all things preparation. That would be trial prep, trial strategy, focus groups, witness prep, persuasion, courtroom tactics. We are glad that you are here. In this episode, I wanna bust down a myth that you don’t need to have a psych degree in order to run your own focus groups.

        Because I want every lawyer to be running their own focus groups to make better decisions in their cases. If we run focus groups, we can have better direction for where we’re taking our claims. We can have a better understanding of how jurors think about things, because guess what? Lawyers don’t think the same way as jurors. And also I want you to have the confidence that people gain from hearing others talk about their case. So.

        I don’t want you to place any extra barriers in your way. And what I have heard many times talking to folks, talking to lawyers about doing focus groups and really specifically, it’s a question people always ask me. Well, do you have a psych degree? I don’t, but I do have training and that’s what we talk about a lot here to be able to do focus groups in a way.

        So I want to use this episode to give you the three things that you can do right now so you can get over that hurdle that you don’t necessarily have a psych degree, you don’t have any special thoughts or training. Listen, the purpose of a focus group is to get an outside perspective. So there are three things you can do before you begin to help you prepare yourself for a positive and successful focus group.

        Elizabeth Larrick (02:32.008)
        So number one, you want to make sure you have a clear goal in mind. Many times lawyers come to me and they’re not really sure the case has several different issues, but we always want to be able to prioritize what is the thing you need to know right now. What is the decision that you’re having to make right now? Maybe it’s about settlement. Maybe it’s about moving towards spending extra money on experts or trial, or maybe it’s about taking more depositions.

        or pursuing a specific kind of claim, either way, you wanna be able to have a goal in mind. I want feedback on this issue. I want feedback on that issue. When we run virtual focus groups, we look at the collective amount of time that we have, and I tell lawyers point blank, you only have time for one issue, or you only have time for two issues. Or if you’re really just looking for general feedback, like that’s fine, but.

        I think it’s much better if we have a goal in mind. Because once we have our goal in mind, that will then set us up to be able to prepare and plan better. Which is number two thing that you need when you’re starting to do focus groups, or if you’re already doing focus groups, having number one, a clear goal, and number two, having a plan. Now, I see too many lawyers come in and just completely wing it. And let me tell ya.

        It is not helpful because what ends up happening is you, the lawyer, talk way more than our participants. You end up bombarding them with tons of information. Sometimes it’s organized, sometimes it’s not, but really you spend most of the time just talking and not listening. And so a plan can really help us understand we have our goal in mind. Let’s take an example. Let’s say it’s liability. Let’s say it’s a red light.

        he said, she said, she said, he said kind of situation. And you really need to figure out who are they gonna believe. Okay, well that’s our one, our goal is to figure out what are we do on liability here with our swearing match? And so we have a plan. Do we approach it neutrally? Do we approach it from one side only? Do we approach it from two sides? Having that plan and knowing, okay, here’s where we’re gonna go. We’re gonna be neutral, Elizabeth, okay.

        Elizabeth Larrick (04:54.654)
        So let’s get all of our facts and let’s put them in a neutral light. Okay, now that may be difficult for you to do and that’s okay, but what we wanna make sure that we’re doing is we have a plan with how much information we’re gonna give, what we’re gonna stay away from, which is super important, because many times people wanna add in that extra fact that maybe it’s not even allowed into evidence. My example in a liability case is people always wanna talk about in a regular.

        car crash case, people not having a driver’s license, which is not admissible in Texas. And it, I’ve seen it happen and it just tanks the whole focus group, okay, which means it makes it unreliable feedback. You always wanna have reliable feedback. And if you have got a clear goal in mind, you’re making a plan, and then finally, before you even get started, you do a test run of your presentation.

        So I want to give a good example here where I had a younger lawyer who’s coming to me. He’s got two hours to go He’s got a pretty complicated electrocution case With a couple of holes in the facts. They’re just not ever able to fill there were no eyewitnesses And so he creates PowerPoint we walk through it together And I give some ideas I tell him hands a little too much information and to go fix a few of these things Well, he comes to the focus group and it was very clear he had not run through the PowerPoint before he turned on the Zoom to join with people because he just rambled and rambled and went on. And unfortunately, it became very confusing for the group. And so it was difficult to get good feedback when people are just confused. It’s kind of a, I’ll just say it, it’s a cop out. Like, I don’t understand, I’m confused. Or the other one is, well, I have so many more questions.

        I wouldn’t be able to answer how I feel or what I think about it because I have so many questions, right? I don’t want that to happen to you, okay? Psych degree or not, that’s just kinda what happens when we get into a place where we’re not really sure. We just end up talking a little more, lawyer or not, it just happens. So, I want you to be able to do a test run before you jump into that focus group because we don’t wanna miss anything.

        Elizabeth Larrick (07:10.562)
        but also we wanna make sure that we fix anything in our presentation that may need to be fixed. There are plenty of times where I put together a PowerPoint, get going, and I do a test run and I realize, whoa, all these animations are off or there is no animation so they can’t see everything. A test run is a great way and it doesn’t take long. You could just go through your slide deck and then you’re done, right? Just print out your materials and read through it. That is what I mean by a test run. It doesn’t have to be difficult. But what you will find is, I could say that

        with a little more clarity. I can see that we need to add a little more information here or look at me, I’m adding in an extra issue that I may be worried about that we didn’t put into our plan. So it’s really helpful also to avoid wasting any time in a focus group. If you have all of your visuals ready, then you don’t waste any time going to find them or making sure that they work. I’ve seen this happen, unfortunately, too many times where people say, well, I have this picture I want to show you.

        but they don’t have it ready. Or they realize, oh wait, I have another one I wanna show you and they have to go find it, right? Well, all that time that they’re just sitting there staring, right? That’s time that we’re not getting feedback. So I really want you to do a test run to avoid wasting time. So we’ve got our three things that you need to make you feel a little better, get over that barrier of starting a focused group. Number one, have a clear goal in mind. Number two, make a plan. And number three, do a test run.

        Okay, now that’s all gonna get you over that hump of getting that thing started and then that feedback is just gonna roll on in. And from there, it’s just making sure that we don’t pull ourselves back into a place of arguing with others. And that’s a real common pitfall I wanna talk about. Many lawyers come to me and they say, oh, I’m fine, I know this case forward and backwards, I don’t really need to plan, it’ll just come out naturally. Well, what ends up happening is again, you bombard them with so many facts.

        and there’s not a lot of clear organization, because your brain’s jumping around to all the different issues that ends up getting so confusing that you don’t really get any good feedback. I also remind people, you would never walk into court without having a clear plan, a clear opening statement, even at a minimum, an outline, because you don’t have an unlimited amount of time.

        Elizabeth Larrick (09:32.782)
        to talk to these jurors so you always have a plan in mind, an organization. So why would you walk in a folks group without a plan? Okay, the other thing that I hear or a common pitfall that I see is assuming people are a natural presenter. Oh, it’s very natural for me. I don’t really need to do a test run. Again, we run into rambling and also a little bit of a hitch in the get up. If there is a problem, then a little bit of panic sets in.

        And again, I don’t want you to worry about wasting the time when you could be getting feedback. So having that test run solves that whole problem. So you may be thinking though, Elizabeth, if we do all of this, what if you realized, you know what, at the end of the day, I am just way too biased. Like I’m gonna end up arguing with somebody or I’m so entrenched that I’m gonna start asking questions like.

        Well, what if you knew about this fact? Or what if hypothetically this thing happened, right? All those questions are you putting your finger on the scale and weighing them down to bias it. So that is an excellent question to be asking yourself, is am I too biased to even do a focus group? Because, again, the purpose is to find the information, not argue with the people. You don’t always wanna win, sometimes you just need to do the research.

        then you can always find somebody else in your office that can run the focus group or you can hire someone. I don’t know if you know this, but this is something that I do. But also I help people, for example, in some of my focus groups, I help people be able to get through that bias and teach themselves how to get information without revealing their bias. Again, this is where it goes back to our whole theme here. You don’t need a psychic degree to run a focus group. You need a plan.

        You need a clear goal and you need to do a test run just to double check yourself and make sure that you’re giving them all the information in the correct way. All right, if you are curious about more information on planning and preparing for a focus group, I’ve written an in-detail blog that I will put a link to in the show notes if you want more information. And of course, naturally, if you need more help,

        Elizabeth Larrick (11:48.14)
        Don’t hesitate to book a call with me about focus groups. I’m always here and generous with my time to make sure that you can get what you need from a focus group. All right, I hope this episode was helpful and until next time, thank you.

        Replay: Guest Joseph Rosenfeld, Image Consultant, on Personal Image for Lawyers [Ep 140]

        Learn more about Joseph Rosenfeld

        Website for Lawyers & Experts

        LinkedIn

        Email: Joseph@Josephrosenfeld.com

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          Start Your Case on the Right Path: Using a Focus Group Before Discovery [Ep 139]

          In this episode, Elizabeth Larrick discusses the importance of using Zoom focus groups before discovery in trial preparation. She outlines the benefits of these focus groups, including setting the right direction for a case, avoiding wasted time on irrelevant claims, and utilizing feedback effectively. Through a case study involving a school district, she illustrates how focus groups can help identify critical information and prevent surprises during the discovery process.

          Takeaways

          • Using Zoom focus groups can set the right direction for a case.
          • Focus groups help avoid wasting time on irrelevant claims.
          • Even minimal information can yield valuable feedback from focus groups.
          • Feedback from focus groups can be reused throughout the case.

          Follow and Review:

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          Supporting Resources:

          Have questions about Zoom Focus groups? Set up a Free call with Elizabeth here.

          Depositions Are Trial by Sach Oliver

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            Guest Ben Gideon on Helping Trial Lawyers Assess Risk Better [Ep 138]

            Guest Ben Gideon explores the complex world of risk assessment in trial law. Despite their bold reputations, trial lawyers often lean towards risk-averse strategies, favoring settlements over trials. Ben reflects on his recent trial loss to analyze cognitive biases in decision-making and emphasizes the importance of embracing risk to secure significant verdicts.

            Drawing parallels between trial law and high-stakes poker, Ben discusses how both fields rely on probabilistic thinking and expected value calculations. He shares strategies for managing risk across multiple cases, similar to a poker player handling various hands, and highlights the differing risk levels faced by lawyers and their clients.

            In this episode, you will hear:

            • Insights from Ben Gideon on risk assessment in trial law
            • Exploration of trial lawyers’ risk-averse tendencies and the impact of cognitive biases
            • Importance of data-driven approaches and probabilistic thinking in legal decision-making
            • Balancing client emotions and cognitive biases during negotiations and mediations

            Follow and Review:

            We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

            Supporting Resources:

            Guest Ben Gideon of Gideon Asen

            Email: bgideon@gideonasenlaw.com

            Website: https://www.gideonasen.com/our-team/benjamin-gideon/

            Podcast: https://www.elawvate.fm/

            Books referenced in the episode:

            On Edge: The Are of Risking Everything by Nate Silver 

            Thinking, Fast and Slow by Daniel Kahneman

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            – focus groups

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              How to Work in Your Trial Strategy with Your Client’s Testimony [Ep 137]

              In this episode, Elizabeth goes into crafting authentic client testimonies to enhance courtroom success. She emphasizes avoiding scripted testimonies that erode credibility and offers strategies to naturally integrate case themes into client testimonies. Elizabeth outlines three key steps: avoid making clients memorize phrases, review their past statements, and conduct prep sessions to help them organize thoughts on damages or liability. This approach ensures that testimonies subtly echo case themes, maintaining authenticity and strengthening trial strategies. 

              In this episode, you will hear:

              • Crafting authentic and impactful client testimonies for courtroom success
              • Avoiding pitfalls of scripted testimonies to maintain credibility
              • Integrating case themes into all trial stages, from jury selection to opening statements
              • Strategies for making client testimonies resonate with jurors
              • Emphasizing authenticity and emotional connection in witness preparation

              Follow and Review:

              We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

              Supporting Resources:

              Have a challenging client or up-coming trial that you want to polish client testimony?

              Book a free call: https://calendly.com/elizabethlarrick

              Episode 131: What is Trial Strategy and What it is NOT

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                Why Zoom Focus Groups Should Be Your First Thought Compared to In Person [Ep 136]

                In this episode, Elizabeth shares expert insights on transforming your trial preparation with Zoom focus groups. Discover the unique benefits of virtual sessions, including the ability to capture participants’ facial reactions up close, which can’t be replicated in traditional settings. Elizabeth uses her extensive experience and real-world examples to demonstrate how these online gatherings can deepen your understanding of juror behavior, enhancing your courtroom strategies.

                Learn about the convenience and flexibility that Zoom focus groups offer, saving time and resources while allowing you to experiment with different formats. Elizabeth compares virtual and in-person focus groups, highlighting the distinct interactions possible through Zoom. Tune in to explore how these insights can strengthen your connections with clients and juries, ultimately boosting your effectiveness in court. Whether you’re a seasoned lawyer or new to virtual focus groups, this episode offers valuable strategies for your legal practice.

                In this episode, you will hear:

                • Advantages of Zoom focus groups over traditional in-person settings
                • Benefits of capturing close-up participant reactions on Zoom
                • Cost-effectiveness and convenience of online focus groups
                • Flexibility and freedom in structuring virtual sessions
                • Use cases for Zoom focus groups in pre-lawsuit and pre-mediation stages

                Follow and Review:

                We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

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                – trial strategy

                – focus groups

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                  Trial Preparation: Zooming out to see the Jury’s Perspective [Ep 135]

                  In this episode of Trial Lawyer Prep, host Elizabeth Larrick presents a structured approach to mastering trial preparation. She emphasizes starting with a comprehensive review of your case file, scrutinizing key documents like depositions and expert reports to identify core issues in liability and damages. This initial step involves crafting two crucial lists to streamline your strategy: one for liability and one for damages, ensuring you are aware of potential pitfalls and ready to advocate effectively in the courtroom.

                  The second step is to evaluate your case through the lens of a juror, focusing on worst-case scenarios and simplifying complex issues into clear yes-or-no decisions. This perspective helps in assessing the risks and understanding what aspects need reinforcement. Finally, Elizabeth discusses strategies for fixing or neutralizing any identified weaknesses, whether by gathering additional evidence, reconsidering claims, or adjusting your trial strategy. By following these steps, trial lawyers can enhance their preparation, connect better with juries, and confidently navigate courtroom challenges.

                  In this episode, you will hear:

                  • Importance of a comprehensive case file review
                  • Crafting liability and damages lists to identify potential issues
                  • Evaluating trial risks through a juror’s worst-case scenario lens
                  • Techniques for fixing or neutralizing problematic issues

                  Follow and Review:

                  We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

                  Supporting Resources:

                  Need that list of books to get your brain excited about trial prep? Go to Episode 134.

                  Join the
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                  – case preparation

                  – trial strategy

                  – focus groups

                  – witness preparation, and

                  – episodes of my podcast

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                    Your Trial Strategy Shouldn’t Be an Afterthought: Make the Jury’s Job Easy [Ep 134]

                    On this episode of Trial Lawyer Prep, Elizabeth Larrick shares strategies for trial lawyers to develop a winning legal approach from the start of litigation. Drawing from her experience with renowned trial lawyer Don Keenan, Elizabeth explains the dangers of last-minute strategy planning and the confusion that can arise from disorganized opening statements. She emphasizes the need for a clear and cohesive presentation to effectively communicate with juries.

                    Elizabeth shares practical methods to kickstart your trial preparation, including the use of jury research and focus groups, and highlights the benefits of committing to a single persuasive strategy. Discover actionable steps such as writing down ideas, dedicating focused time for evaluation, and seeking inspiration from trial strategy literature or podcasts.

                    In this episode, you will hear:

                    • Importance of early trial strategy development to avoid procrastination pitfalls.
                    • Risks of a disorganized “Frankenstein” approach and cramming strategies into opening statements.
                    • Value of committing to a single, coherent persuasion method for trial success.
                    • Utilization of jury research and focus groups to test and refine trial strategies.
                    • Actionable steps for trial preparation: writing ideas down, setting time blocks, and seeking inspiration.

                    Follow and Review:

                    We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

                    Supporting Resources:

                    Jump to Episode 131 to get an overview of trial strategy.

                    Books to Kickstart your Trial Strategy Planning:

                    Trial by Human by Nick Rowley & Steven Halteman

                    Rules of the Road by Rick Friedman & Patrick Malone

                    Polarizing the Case by Rick Friedman

                    From Hostage to Hero by Sari de la Motte

                    Damages 3 by David Ball

                    Trial by Woman by Courtney Rowley & Theresa Bowen Hatch

                    The Keenan Edge Anthology by Don Keenan and various contributors (including me)

                    Winning Case Preparation by Bozart, Cusimano, Lazarus and Wenner

                    Learn more about how Elizabeth helps trial lawyer here.

                    Connect with Elizabeth on LinkedIn.

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                      Episode Transcript

                      [00:00:00] Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world.

                      Understand the emotional burden of your clients and juries and use focus groups in this process. Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom.

                      Now, here’s Elizabeth. Hello, and welcome to the podcast trial lawyer prep, or welcome back if you’re a continued listener and thanks for doing that. I’m your host, Elizabeth Larrick, and today we are going to dive into trial strategy and how to [00:01:00] not procrastinate, why your trial strategy should not be an afterthought.

                      And we have talked a little bit about trial strategy this year already. If you missed that episode, it’s 1 31. What is trial strategy? What it is not. It’s great conversation, quickly overview about what trial strategy is. And if you missed last episode, please scroll back and listen to that one. We had a wonderful guest, Dina Cataldo, talking about time management and mindset for trial lawyers.

                      Very helpful, easy, small things we can do to help manage our time a little better, which actually fits pretty well with what we are doing here today because lawyers. You all are just really busy folks. We have lots of files in our offices. We have many things that are going to trial or preparing for those mediations.

                      And so when that happens, we can let that strategy piece kind of slide down [00:02:00] the priority list and it’s easy to do. And I don’t think that we are lazy people at all. I just think that sometimes these larger pieces of a trial, the strategy Thinking through some of the bigger pieces of persuasion can go by the wayside because we get inundated with what I call busy work.

                      We have that list of designations we need to do in trade and think about the witnesses and making sure the schedule works and then also finishing up those motions in limine, maybe even getting ready for those last minute hearings on motions for summary judgments or excluding experts. So there’s a lot of busy work that can really lead up to that trial date, including the ever looming settlement talks.

                      So it’s very easy for this trial strategy piece to kind of slide down that priority list. And I really want to just talk about. When we can start doing this and ways to make it [00:03:00] easier, but before we get there, we have to kind of talk about what actually happens sometimes when we do let it slide down that priority list and little procrastination may creep in.

                      Hey, it’s okay. I totally understand. I was there. I helped people who were there. That’s why we have our trial strategy call is to help people who may be in that place. What ends up happening? What I see when we do kind of our focus groups and getting people ready is a big pile of any kind of strategy is kind of crammed into that opening statement and into those jury selection questions without a lot of order.

                      And so it really becomes very confusing. So you may have somebody who is writing an opening statement and they’re using rules of the road and they’re trying to retrofit in some of the reptile stuff. And then they’re trying to fit in some sorry to Lamont and some trial by human. And when you just put it all in there, it becomes such a confusing mess [00:04:00] for the jury to try to untangle.

                      And confusion is our enemy 100%. You know, we get to go first as plaintiffs. We really have to be very clear about our organization and how we’re going to present things to the jury. Because if we don’t. The jury then has to use their own organization, and you won’t know what that is until the end of trial, because they’re trying to carry all this information, and without having a prioritization, what is most important, what is not, without having a clear framework from you as the leader, right, as the teacher in the courtroom, it can, things can get lost and completely forgotten, even though they may be the most important thing in your case.

                      So that really kind of becomes, you know, a machination of just piecing it together, what works, what doesn’t, you know, hey, maybe this will, we’ll try this here, we’ll try this there, uh, really kind of creating a Frankenstein, if you will, of [00:05:00] trial strategy. And that’s really what you want to avoid 100 percent is it just allows too many places where there may be holes.

                      Right. Jury is going to fill in what they think versus what may be the actual truth. And it really becomes difficult for you to then follow through with what organization you may have put out there. And what ends up, I do see happening is people basically. Different cross exam styles for different witnesses.

                      And so again, that still creates a confusing message for the jury. They’re trying to put it all together. You know, they’re trying to see the whole thing and you’d want to create, again, a clear picture for them to follow and understand. And that is why when we wait to make an afterthought and we try to throw, you know, everything in the kitchen sink at it, it really becomes harder for you as the communicator as well.

                      You want to do an amazing presentation, be a clear communicator, you know, be very passionate about what you’re saying, but if you’re [00:06:00] trying to cram so much stuff into like a small space of an opening statement, it’s really difficult for you to even remotely try to memorize even the organization of that.

                      So let’s make it easier on you as well. Okay, I want it to be easy for the jury and I want it to be easy for you as well. And so we know the trouble of waiting, right? It causes lots of problems and disorganization and unclear communication, uh, piecemeal, putting things together. So let’s talk about really then, when do you start looking at trial strategy?

                      And one of the things that I learned when I was doing trials, uh, with Mr. Keenan, Don Keenan, was learning just a very loose framework of starting at the beginning of litigation and knowing that you have the facts, you don’t necessarily have how depo testimony is going to go. But you begin to look and at least ask questions from the beginning of, Ooh, what are the strong points here?

                      And then [00:07:00] making kind of a plan even just to follow it through even a little in deposition to figure out You know, what maybe are the rules or the safety rules, if you’re going to use rules of the road, what are some polarization points or what are some strong principles in your case? But just looking at it from the very beginning and making a few notes right when you are starting litigation, right when you’re filing it, you’re getting that discovery ready to just really see where.

                      The strategy may be, where’s that overall organizational plan for laying this out, if you had to with a jury. That doesn’t have to be the whole thing, but I think when you have a, even just a rough idea early on, and then when you pick that file up again. And you see those notes and you say, Oh, okay, great.

                      Well, I’m getting ready for depo prep. Let me just put in a couple questions here and there to see if this is going to hit, right? If this is going to be something that actually works well based on what the testimony ends up being. And [00:08:00] then you’re just doing a little bite at the apple each way. And I also love hearing about folks, my good friend, Courtney, who likes to basically kind of pick a file in her.

                      Caseload and say, okay, this one, I am going to 100% try this particular strategy. I know that we have this piece of evidence in the case, and so I’m gonna pick this strategy and I’m gonna just go with it. I’m gonna go all in. I’m not gonna try and confuse it and just to try it out as well. You know, we have so many different available thoughts and strategies.

                      And as we are, we try to again, machinate kind of make her a little Frankenstein and like that doesn’t really always work. So I loved her idea. She talked to me about that here recently, and they basically took a case and put it 100 percent through a particular strategy, if you will, or way of persuasion organization is probably the better word to use.

                      And it really helped her work [00:09:00] through from start to beginning, not waiting until she’s sitting at trial or not waiting 30 days out. Okay, here’s this case. How do I retrofit it into this? I’m really taking on one particular road map or. You know, rules the road, like I said, and going through the whole way.

                      And the other thing, of course, is to test it out in jury research, right? Do those focus groups to see if, hey, does this ring for them? Does this make it clear for them? Does this communicate the way that I want? Is it persuasive, right? So, and again, if you have the ability to start early, Knowing, hey, this is going to be one that’s probably likely to be teed up for trial.

                      Not every case I understand is going to be 100 percent guaranteed trial. We all know that, but I think having a little bit of 30 minutes, 15 minutes, hey, you know what, this looks like it might line up really well with, you know, rules of the road or with doing a road map. And so how can I kind of start to [00:10:00] test that out in my depositions, and then of course use it and take it over to the focus group to see if that actually rang true for them.

                      And, you know, getting started early always makes things a little bit easier, doing it a little bit along the way, and having that written down also significantly just reminds you, right, when you pick that file back up. So I know it can be hard to kickstart to get us. away from procrastinating and make time to do this trial strategy, this organization.

                      And so I have three ways that I like to do it. They’re all a little different depending on what’s happening or what kind of file it is. And so number one, I think is to really sit down and write it out. type it out. That really helps me commit to what’s in my mind and getting it out on paper or getting it out, typing it out as well.

                      And I even take that next step of printing it out and going back over it at another time. So I always like to start out early enough where there can be times where I’m thinking through [00:11:00] it or printing it and coming back to it the next week, whether I’m getting ready to do a CLEs. Speaking spot, whether I’m getting ready to do a focus group presentation or helping somebody with their opening statement, I think having it written down, having it typed out is much, much better than just like free flowing thought in your head.

                      The second thing I would advise is just do a time block, you know, have at least one hour that you set aside, nothing else you’re going to do and just think about the evidence Think about trial and, you know, really if you want to write it down at that point, you can, but I, I always found that it was unusual at the time, but now I understood more as we did.

                      Again, when I worked with Mr. Keenan, he would actually spend a lot of time just visualizing the trial, thinking through the evidence that was available, even just looking through Transcripts of the focus group or was significant and just getting the ball rolling like [00:12:00] kickstarting. Like, oh, yeah, someone said that.

                      Oh, yeah, that’s a great spot. So I always enjoy just it’s almost like research, just getting back into the file for an hour, looking at stuff, thinking through it and then, of course, you know, making a note of it so that we don’t forget it for when we pick it back up again. Last thing that I would advise to kind of kickstart your trial strategy ideas and organization for a case is just to pick up a book, right?

                      Pick up Damages 3. Pick up Trial by Human. Go back to Rules of the Road. Pick up Sorry, De La Motte. Like, there are so many amazing books that are out there that just get your mind started thinking about it. And that’s really sometimes the best place for me is when I am reading a book in the morning. It may not be related at all to trial strategy, but.

                      It may be spark an idea and then I have to immediately write it down otherwise it’s lost. So again, three ways to kind of kickstart your trial strategy. One, sit down and just start writing it out. Super helpful. I know people always say, well, I don’t have time to [00:13:00] write it. Type it out. That’s fine too.

                      Print it out. Have something that you can put in your hands and go over later. Number two is just use that time block schedule. Block yourself an hour. Make sure you’re going through things and thinking about and visualizing, but blocking that time, devoted time to do nothing but think about that case is significantly helpful.

                      And number three, pick up a book, right? Or even listen to a podcast. There are so many great podcasts out there where people are either talking about their trial that they just recently won or Talking about picking a jury or, you know, strategies for figuring out principles, lots of great lawyer podcasts that can kind of get you kickstarted, get that creativity going as best as possible.

                      So in just a quick recap, all right, so number one, please don’t wait. Don’t make trial strategy and afterthought because if not, you’re going to be just picking up the puzzle pieces to see where they fit and hoping that it comes together instead of just knowing that it [00:14:00] will. And of course, knowing when to start, which is as early as you can, think about when you’re filing that litigation, making some notes.

                      So when you pick the file back up, you can say, how can I thread in some questions and deposition to see if this strategy is going to line up? Or if it’s not, of course, also working in some jury research to help know that you’re hitting the right button. And then of course, our last one, which was three ways to kickstart our ideas for our trial strategy and get you excited.

                      Okay. Well, I hope that this podcast episode was helpful to you. If you enjoyed it, please like review. We haven’t had a review in a while, so please follow the podcasts and just give us a good review out there. And of course, if you have any questions, any concerns, or want to learn more, just check in those show notes for the website and the email.

                      All right. Thanks so [00:15:00] much.

                      Episode Credits

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