Author: elarrickbrand

Having before and after witnesses is very useful to help tell your client’s story. These witnesses can talk about damages in a way that your client just can’t. Jurors can heavily criticize a client’s testimony and label them a “whiner” or “complainer.” A well-prepared witness is able to talk about the changes in your client’s life in an authentic way.

As trial lawyers, it’s important that we’re able to build a level of trust and comfort with our clients and witnesses. But building that relationship just doesn’t happen overnight. 

In today’s conversation, Courtney Wilson takes a deep dive into the three-step process for building trust with your before and after witnesses. Courtney currently practices personal injury law and medical malpractice law in Mississippi.

In this episode, you will hear:

• Finding two to three people talking about the client’s experience
• How to build trust with your before and after witnesses
• The importance of explaining why testimony is needed for the case
• Assignments for your witnesses to get more information
• Why stories are more compelling than an expert talking about the injury
• Managing the fears and concerns of before and after witnesses

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Supporting Resources:

Courtney Wilson

courtney@tyneslawfirm.com 

Tynes Law Firm

Courtney Parker Wilson

 

 

 

 

Episode Credits:

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Episode Transcript:

Elizabeth Larrick: Hello and welcome back to the podcast. I wanna jump in here real quick to introduce my guest, who is a returning friend to the podcast, Courtney Parker Wilson, who joined us prior to talk about adversarial focus groups.

And she is joining in the trial series that we have [00:01:00] been conducting here on the podcast. And she’s going to talk about before and after witnesses, but just a quick reminder that she practices personal injury law, med mal in Mississippi. If you have a question for her, you can obviously find her information in the show notes, but let’s get right to it and join the interview.

Hello, Courtney. Thank you so much. And welcome back to the podcast. Hi, thank you. We had you here before talking about focus groups, and today we’re talking about something pretty different, but I remember the excitement. You gave me a call and said, Oh my gosh, we’re having a trial. And I came up with this fantastic before and after preparation template before and after witnesses.

That is so, uh, I was excited to have you back. So you can come and talk to us about the template, but before we get to that, let’s just talk in general about using before and after witnesses at trial. So tell me a little bit about your thoughts on that and how you Approach it. So 

Courtney Parker Wilson: I’m not entirely sure I told you that I had come up with this [00:02:00] totally new, fabulous template, but 

Elizabeth Larrick: we’re going to give it to you.

So how about that? 

Courtney Parker Wilson: Before and after witnesses, I think are really very useful to help you tell your client’s story without having your client tell their story. their story. So I see them as able to talk about damages in a way that your client just can’t because when you have the plaintiff themselves sitting up there talking about how hard this has been or how terrible The experience is that can come across as whining and complaining.

And I feel like the before and afters do a really good job at being able to talk about the changes in your client’s life in a way that’s authentic, but doesn’t carry the stigma that your client does when they try to talk about it. So they do the heavy lifting in my mind of telling the story of the damages, if that makes sense.

Elizabeth Larrick: [00:03:00] Yeah, absolutely. So they’re getting up and they’re given examples, things they’ve seen, but from a very uninvested place versus clients are extremely invested. And it’s easy for jurors to basically say, you know what, they could totally just make this whole thing up because that’s what we’re here for, right.

Is them to get money for feeling pain or mental anguish or what not. So yeah, absolutely. So 

Courtney Parker Wilson: ideally, right. You would want to have a few of these people. 

Elizabeth Larrick: That’s going to say, how many do you like to have and how do you kind of gauge thinking about the range of cases? People may know a car wreck case. And again, we’re really kind of thinking more about like maybe the injuries.

So how do you gauge how many before and after witnesses you’d like to have? 

Courtney Parker Wilson: Well, before and after witnesses can come in a couple of varieties, right? Like, sometimes you have people who are also fact witnesses that are before and after witnesses, so they may be doing some different work for you in addition to their before and after [00:04:00] work.

Anytime you can, use witness for two purposes, I like that because I like efficiency and all things, but ideally I would want to have two or three people to talk about the client’s experience. And very often, it takes some work to get to those two or three people. And I don’t have any particular problem with using family members as one witness.

But I feel like getting a little farther outside of the client is better. Do we have a co worker that can come talk about changes? Do we have somebody, you know, that like you go to spend class with? Is there somebody who is a little farther away from you who can talk about the change they’ve seen in you?

Because I think they get more credibility that way. They’re not invested in your client [00:05:00] personally. Or concerned about the outcome for your client, maybe in a sort of tangential way, but it’s not affecting their lives personally. So I feel like they get more credibility that way. Now, I can tell you from my personal experience, it’s really hard to get to those people.

It’s really hard to get your clients to identify somebody that can talk about them that they are not close to. 

Elizabeth Larrick: Right. So I was going to say, do you normally cast a really wide net? So we, sometimes you got to start with a list of people. Like 15 to 20 people sometimes where it’s just like, give me people you just run into in life, right?

Like, and then, you know, we’ve got to figure out a way then to kind of who then has the better experience or has the availability and who is willing to come that really kind of skinnies it down 

Courtney Parker Wilson: pretty quickly. And I feel like with my clients, it’s this exercise in getting them to believe me. Right? Like I know you have friends.

I know you have [00:06:00] family members who have seen what you went through, but I need other people. It’s like, they almost don’t believe you at first. that anybody else would have anything to say that’s useful or relevant. So I feel like you’ve got to do some convincing of your client first to even get to give you the list of people before you can go anywhere.

Once we actually get our grouping of people that we’re going to start talking to, right? And we kind of narrow that list down and we’ve decided who we really want to focus on as our before and afters. Then you get to sort of move on to the next level. If that makes sense. 

Elizabeth Larrick: Yeah. Yeah. So what kind of problems are you, since we’re talking about casting a wide net, like what are some problems that we as lawyers run into when we’re trying to find before and after witnesses other than the client giving us lots of people.

So let’s imagine we’ve got our list of 15, 20 people. What kind of problems do you run into after that point? [00:07:00] 

Courtney Parker Wilson: They are myriad. I have run into the problem of calling up people who say, well, I don’t think she should be in this lawsuit. I don’t think she should be doing this, right? So we can cross them off the list because their opinions about what’s going on are overshadowing anything else, right?

That they might have to say. So we want to not bring anybody who’s really certain that our client just has no business bringing a lawsuit. We get rid of them. And then you talk to some people who are either so wrapped up in themselves that they can’t talk about somebody else. We run into people who are not very educated and then therefore not able to express in words the kinds of things we’re asking for, right?

They want to tell you that yes, their friend or their acquaintance is different, but they can’t articulate what that is or how they even know [00:08:00] that, what it is they’re noticing. So that person’s not going to be a particularly good witness either. So I want to cross them off the list. And then I talked to people who just have these incredibly strong personalities.

And on the one hand, that might be great, but on the other hand, might not be so good. So I think you, you’ve got to make a judgment call. How do you react? To this person, when you meet them, if you’re automatically turned off, like probably don’t want to use them either. So there’s a lot of, I guess, betting that goes on.

Like there’s a lot of phone calls. There’s a lot of meetings. There’s a lot of talking to different people, just trying to get to somebody that seems like they can articulate the change they have recognized and seen the change. and they’re comfortable talking [00:09:00] about it. 

Elizabeth Larrick: Right. And they have a desire to help.

I think that that right. Having that innate desire to help always significantly makes your job easier versus people who just right on the front end, just have kind of like, ah, I don’t know if I want to get involved or right. Just this hesitation just from the, from the jump. Well, yeah, but. I just don’t even know if I want to go down that road because there’s a whole lot of uncertainty.

So I know we’re going to, we’re going to jump to our, our template super shortly, but really quickly, fun example. So it’s helping someone get ready for trial and they had made some videos of their before and after witnesses. And most of these were all family, which again, like we said, sometimes that’s just.

Kind of the nature of the game. And this was an, uh, an older client who didn’t have as friends that were around kind of a sad deal, but had this spitfire of a sister. I mean, just, I mean, she was saying all kinds of stuff. And there was a big hesitation of like, Oh [00:10:00] my gosh, she’s like really putting the client in a whole different light in the sense of she’s not doing enough to get better.

And so we was just kind of like, wow, what do you do with this person? And. The focus group loved her. I mean, they just thought she was the bee’s knees. And I said, you know, what if we thought differently about this person? And instead of feeling like, Hey, oh gosh, this is going to be bad. I said, you know what?

We should just compare to your client and say, you know what? That’s what our client should be. Like, should be the spitfire and going out and doing all this stuff. And she’s just not, but that is a perfect example of look, These sisters, they were a year and a half apart, right? 70 in their seventies. And so it was just kind of like, as we do with older clients, Hey, they’re going to live a lot longer.

Look at the family tree, all these people live into their eighties. And so it was just kind of like, Oh. Well, it’s not canner, [00:11:00] right? Like you said, how can we use this person as much as possible? But I think sometimes it’s kind of like, okay, if this is what we’ve got tested out, but also can we look at this in a different view and still she’s authentic.

They loved her. She’s not a hundred percent saying stuff about the client. That’s great. But she makes a really good comparison for somebody in the same age, if you didn’t know. Right. Like as far as family comparison. So there’s always kind of a, like, okay, if this is what we’ve got, how do we really try to think hard about ways to look at the testimony and sometimes see it in different light so we can use it, what we’ve got.

Courtney Parker Wilson: Yeah, no, I think that’s a great point. I feel like so much of lawyering is. Being able to step back sometimes and say, okay, that’s not what I wanted, but what have I got? And can I use it? 

Elizabeth Larrick: Cause that was what we were testing was okay. I’m not keen on what she’s saying, but maybe they will be. And that was just one of the things I was like, you know, [00:12:00] let’s just take it at face value.

Look at these two women, they’re a year and a half apart. That’s what the life she should be living. And we know because they’re sisters, right? They come from the same, same background, same genes. So, okay. Let’s talk about this template here. Tell me a little bit about, you talked about a couple of phone calls.

So walk us through kind of what you have put together. 

Courtney Parker Wilson: Well, yeah. So I think we have to start with the idea that people do not want to talk to a lawyer, even if you’re the lawyer for their sister or friend or daughter, or what they don’t want to talk to you. Lawyers are not well liked. No. When you call this person up for the first time, they are not going to be real warm and fuzzy with you because they don’t trust you.

And I think that’s the first thing you have to recognize when you’re dealing with this before and after witnesses. And because of that, you have to build some trust with them. [00:13:00] And that is not a process that occurs Over the course of a five minute phone call. So I’ve done several trials where I tried to do before and after witnesses in a day, and it just doesn’t work well because If you’re an intuitive person who can tell when someone else is comfortable and when they’re not right and you spend an hour with this person and now they are really nervous because you have talked to them about the kinds of things you want them to say and how we need to talk about the client and now they realize they don’t know what to do so yeah yeah nothing but make it worse so to avoid that right what I like to do is try to create a level of comfort and a level of trust with the before and after witnesses.

So I look at this as like a process. So I start [00:14:00] out with a phone call, and this is probably a couple of weeks before the trial. And I call this person up and I say, Hey, I’m the lawyer for your friend or for your family member. And we’ve got this trial coming up. And this is how we want you to be involved.

This is what we need from you. And then I try to explain to them why their contribution is going to be valuable. Because I think for a lot of people, if you can tell them the why of something, they are much more likely to invest and trust you. So I try to explain to my before and after witnesses that what I’m going to ask them to do is tell us some stories about their person.

But this is a hard thing for someone to do. If I were to walk up to you and say, Elizabeth, tell me some stories about me. Tell me some [00:15:00] stories about good times we’ve had. Like that would be a hard thing for you to 

Elizabeth Larrick: come up with on the spot. Yeah. So you’d be, you’d really feel on the spot. Yeah. 

Courtney Parker Wilson: So what I do is I call these witnesses and I tell them like, this is who I am.

This is what we’re going to try to do. We’re going to try to tell the story and let you help tell the story. And the way we’re going to do that is have you tell some vignettes. Have you tell some individual stories about what your friend was like? Maybe there was a crazy party you guys went to, like, tell us a silly story about that.

And then after the injury, tell us a story about your friend now. Right. But that is just not something that people are prepared to do off camp. So you got to give them an assignment, right? Yeah. So this is what I want you to do. [00:16:00] And if you would take some time over the next week and sit down and think about it for a few minutes, maybe just make yourself some notes, maybe some stories that you think you would like to tell me, or that a jury might like to hear about this person.

And we’ll talk again. Right. So this first phone call is like 10 or 15 minutes. And I do a lot of talking in the first phone call. It is the Courtney show in the first phone call. And then we set up a time to have another call. Right. Or a zoom meeting, or if they’re local, I try to get them to come into the office.

That’s a big ask of your before and after witnesses often to get them to like take time off from work or something and come to your office. But if they’re local and we can do it early in the morning or in the afternoon or something, like I try to get them to come, but. I do a lot of this. Right. So when we [00:17:00] set up our second meeting, their assignment is to have come up with some stories that they can tell me.

And then when we do the second meeting. That one’s usually much longer because what normally happens is they get this assignment for me and then they go call their person, right? And they say, friend, what have you gotten me into?

And then they talk to them about the case and they talk to them about me and they talk to them about what, what we’re trying to do and why, why are we doing all this? And They have this, what I think of as like a permission granting conversation with the client. And once they have that conversation with the client, they feel at liberty to expose some things.

And when I talked to them the second time, they’ve given it some thought. [00:18:00] They’ve talked to the client. Now they’re actually ready to talk to me. And usually what happens in that second phone call is. We start talking just about the client and they tell me things 

Elizabeth Larrick: and 

Courtney Parker Wilson: I take notes. So the second meeting is usually a lot of the before and after with this talking because now they feel like they can tell me.

And so they, they do. They tell me all kinds of stuff, right? Like about before the incident, about what happened during the incident, about how their friend changed, about things they can’t do anymore, about all kinds of stuff like that. And then they have a lot of questions for me. Oh yeah. What can they talk about?

What should they say? What shouldn’t they say? Is this going to be helpful? Is it going to hurt? And then a lot of really practical questions too. [00:19:00] Where are they supposed to be? What time? How will they know where to go? How do they need to dress? Stuff like that. So I feel like that second conversation is enormous, right?

And very often we don’t actually get to their assignment. in that second call because it’s like the floodgates have been opened and they have something to say now all of a sudden. So I take notes through this whole meeting and I kind of outline in my notes like little groupings of topics or stories or things.

And so at the end of the second meeting I say to them, well, okay, let’s talk again. And we talked about this story, or you kind of mentioned that you guys used to go kayaking, or you kind of talked about this thing. I want you to think about those events and come up with a story that you can tell me about that, like a [00:20:00] specific time that you went and did this thing, and then I want you to fill in all those details.

So now they have second assignment, right? Think about it, Ruthvine. Get me to a real story that we can talk about. And then on our third meeting, right? And I try to get them to come to the office for this one. Like I said, that doesn’t always work. But the third time I talked to them, I feel like it’s when the real, we get to the real thing, which is, Tell me about that kayak trip that you and your friend always did.

And her dad would come as a matter of fact, he’s the one who always set it up. It was a father’s day thing and we would bring the cooler, but we would try to bring wine coolers because her dad was there and we would try to like sneak drinks out of the wine coolers. And like, it becomes this really endearing, charming story because it’s [00:21:00] now real.

about, well, yeah, she is not as outdoorsy as she used to be. 

Elizabeth Larrick: Right, right. Yeah. You’re telling the story, you’re bringing all the details out to the juries, like with them in that story, looking at that cooler, there’s so many, much more real life moments versus like you’re saying a big category. Well, yeah, she just doesn’t do that anymore.

Courtney Parker Wilson: So I think that. What you’ve got to do is allow this before and after witness, right? To become comfortable with you, the lawyer, as a person. And that takes some interaction. It’s not going to happen with one phone call. And they need to trust you. And they need to believe that, first of all, you’re going to be respectful to them.

And by that, I mean that you’re going to listen. About to say. 

Elizabeth Larrick: Yeah. Yeah, exactly. That means you’re gonna give one, you’re devoting time, but you’re also [00:22:00] listening. Yeah. 

Courtney Parker Wilson: Right. You’re not gonna interrupt them, you’re not gonna rush them. You’re not gonna tell them that what they’re saying is wrong, and then once they get that comfort level with you.

Now they believe that you’re really trying to help and that you will be kind and respectful with them. So now they can talk to you, they can open up, they can tell you the story, but I really do believe it takes that commitment, a lead up to a workup to a level of comfort that will allow somebody’s friend to tell you something that exposes their real life.

Mm 

Elizabeth Larrick: hmm. Well, I think also to sometimes what I have seen is lawyers will assign this for a paralegal or another person or even an investigator to do this work and it works for them, they’ll do the follow up, they’ll get the trust and then it doesn’t [00:23:00] translate because when you go into the courtroom.

They’re faced with a lawyer with, just like you said, the very first call they get is what you’re a lawyer. And I, and so there’s a really big disconnect. So I love that in your template, it’s you doing the one on one because then when you guys walk in the courtroom, it’s like, There’s trust, there’s comfort.

And also you have had so much time and experience, you know, how they speak, you know, the questions that they appreciate more. And you know, if I gave them this question, it would stump them. And then when you stump somebody on the stand, Oh boy, you better have a real quick way to get back in, get them back on.

Because if they’re stumped, they’re just, I mean, they’re frozen. I’ve seen them. They freeze. And it’s just like, Oh, I just stumped them. How do we get back? So this, the trust, the kindness is really go such a long way when you finally have to step in that courtroom. And so I love the template in the sense of giving them space.

[00:24:00] And also I absolutely love, I talked about this before when this happens in our client deposition prep, which is basically when you give somebody an assignment. Like, Hey, take this with you, go back, think about it. Even if they’re not thinking about it, their subconscious will continue to try and find the memories and the details.

And so even if they don’t sit down and do it, their brain will work on it and come up with stuff. And so giving that time, even if it’s a week or two weeks in between, still significantly helps people come up with more information. Their brain will continue to try and work on that because you’ve asked them.

I mean, that’s, that’s what a question does to our brains. We want to find that answer. So I think that is super helpful to use that neuroscience, use our brains, trick them into thinking and finding more information. Not really tricking them, but you know what I mean? 

Courtney Parker Wilson: Yeah. So you asked me to be ready to give an example.

Yeah. 

Elizabeth Larrick: [00:25:00] Yeah. Tell, tell us about, and Heather was the example. If you can talk about Heather, it’d be great. 

Courtney Parker Wilson: Is Heather supposed to be the client or the witness? That’s the witness. That’s okay. 

Elizabeth Larrick: That’s the friend. The friend. Yeah. The friend. 

Courtney Parker Wilson: So we had big trial coming up and I had a client who was young when she was injured and she was the mother of two small children.

And so after she had these two children, she moved back home and lived with her dad and kind of left all of her friends. And she suddenly became the stay at her mom. So she was very isolated and trying to get before and after witnesses out of her was a real challenge. But I did get one who was her friend.

And I did a lot of work with the friend, Heather. The first time I called Heather, she was super standoffish. [00:26:00] She did not want to talk to me, was not sure at all that she even remembered anything that would help because she and the client hadn’t been close in a few years. And she also has, she also had a baby who was just turning one and she was very concerned about her baby and the first birthday party that was coming up and things like that.

So I gave her the introduction, the homework assignment, what the plan was, why she was going to be valuable. And then I gave her like a week or so. And in that week, she called and talked to my client. And it was actually the first time she had talked to my client in a few years. They had this great conversation about what’s been going on in each other’s lives and why they haven’t talked in so long and just catching up as old friends [00:27:00] do.

They eventually got around to this case, right? And my client had already heard from me why the before and after witnesses were going to be important. My client then reinforced it for me and told her friend, look, we really need you to come and help tell my story. So she got permission right from my client to talk about their private interactions.

Because I, at least for me, I’m a private person and I would not feel comfortable telling you things about one of my close friends. Unless my friend had indeed said, yes, you can tell people about that. So Heather talked to the client and got that permission. And then we did our second phone call and she had lots of questions for me in the second phone.

What kind of thing I wanted from her. And she had lots of questions [00:28:00] about the case and the trial. Because she was suddenly very invested. Oh, yeah. And she wanted to know what was going to be good for her friend? What was going to be bad for her friend? How could she help? What could she contribute? So we talked about all of that.

And this is the point at which I told her, I need you to come up with some stories. And she and I talked about very generally the change in the client, like what they had done as friends before the injury happened, how their relationship was and what they depended on each other for. They lived together, like when my client was in undergrad and they went to festivals and like down to the beach and all this kind of stuff.

And then that all changes. And we talked about generally. And so I told Heather, like, okay, think about it like this. I want you to come up with a story from [00:29:00] before the injury, when you guys lived together to tell me a story about my client for men, and then tell me a story about my client afterwards. So she says, okay.

And all she goes, we set up the third phone call. When I called her for the third phone call, I could not get a word in edgewise. Okay. She was absolutely gushing. She had sat down and thought about her friend and about what their relationship used to be like, how close they used to be. And by the end of our third phone call, she is thanking me for helping her to understand her friend’s pain and why her friend changed the way that she did.

And it ended up being just this beautiful thing because my client and her friend. had this sort of like [00:30:00] reawakening of their friendship. And the friend, Heather, comes to the trial, which was not, the trial was in Jackson. It wasn’t local on the coast where I am. So we all had to travel three hours up, but she decided this before and after witness to come to the trial, like for the whole thing.

Oh my gosh. Wow. She booked a hotel room, stayed. For the whole time she was with my client, the whole time they went to breakfast together, lunch together, dinner together. She was this incredible support system and she was a fierce advocate. for her friend because she had spent the time thinking about it.

She came and told this great story about after the injury and [00:31:00] she talked about how she asked her friend to come help with her baby’s first birthday party because she needed help and I don’t know how many of your listeners are initiated into the like deep south baby birthday party culture. 

Elizabeth Larrick: I don’t know.

But 

Courtney Parker Wilson: it’s a thing. 

Elizabeth Larrick: It’s a thing. Okay. It’s a big thing. 

Courtney Parker Wilson: There are smash cakes, there are party favors, there are decorations. I mean, it’s a whole thing. So she wanted her friend to come and help. And so she told this story about how she was so frustrated with my client because she did come to help, but she wasn’t any help.

She wasn’t able to lift anything. She wasn’t able to help move anything. She wouldn’t get up in the morning and get going because she was in pain. She wasn’t able to help move all the stuff. To the venue for the [00:32:00] birthday party. She wasn’t able to help put the decorations up and the friend was so frustrated and so mad with my client about coming to help, but then not actually helping just really being more of a pain in the butt than anything.

And she told this story from the position of, I never put it together before. I never realized that it wasn’t that she was being lazy or not wanting to help me, but she was hurting and she couldn’t climb up on the ladder and hang stringers. And she couldn’t do these things and I never thought about it like that before.

And now I feel terrible because I was so hard on her and I was telling her, just get up, just do it, just push through. And she told this beautiful story about how she had discounted her friend’s [00:33:00] pain and her friend’s experience until she really looked at why her friend wasn’t able to be the friend she thought she was supposed to be.

So it was a really beautiful story in the end. And I don’t think we ever would have gotten there. I’m not spent so much time sort of convincing her to open up and convincing her to think about it, convincing her to look at this and get there. 

Elizabeth Larrick: Along with that, like the permission with the client, right?

Them having that conversation and getting that permission, like you said, absolutely. And the details, right? I mean, the devil’s in the details, especially and her thoughts and her feelings. So in the courtroom in this moment, could you tell how the jury was receiving the story? Think her story. came 

Courtney Parker Wilson: off well.

Unfortunately, this is federal court we were in and you’re nailed to the podium in federal court. So that put me in the middle of the courtroom, right? Trying to ask questions to my [00:34:00] right and also look at the jury to the left. Gotcha. Gotcha. Okay. That 

Elizabeth Larrick: helps us understand then. Cause I know sometimes the courtroom, it’s like the witness and then like one foot is then then there’s the jury, right?

So you got opposite sides. 

Courtney Parker Wilson: Yeah. For the, in our federal courthouses. Yes. So it’s really hard to like watch the jury at the same time that you’re talking to this witness over here, but Those kinds of stories are so much more compelling than listening to your expert neurologist. Talk about the injury to T five.

T four, right, right. 

Elizabeth Larrick: Or your client’s point of view on that story. You know, I went to go my friend’s baby shower and I just couldn’t help. It’s like, because the friend told the point of view that the jury would have too, which is like, get up, just come on. Just push through. I, I need your help right now.

Why can’t you just do it? So I love that. That’s because. I mean, that is totally exactly people who haven’t experienced that. That’s the perception that you would have. So I think as far as nailing what the jury would be thinking, and she said it, you couldn’t ask [00:35:00] for anything better than that. 

Courtney Parker Wilson: Well, yeah.

And I loved this testimony because I felt like it wasn’t what you would exactly expect from a before and after witness. When she told me the story about how frustrated and angry she was with my client about this birthday party, I thought that is gold. Because it’s so authentic, right? And I can just imagine the frustration that you would feel if you like brought your friend to help you and they weren’t doing that and you’re so stressed out about this thing you’re trying to get ready for.

It just, it had such a ring of truth to it. And I thought it was so relatable. Like, I thought, this is gonna be compelling. This is gonna be something that is accessible to other people. They are gonna understand what she’s talking about. And it illustrates that Sort of [00:36:00] in a backwards way, right? My client is going through, which is the guilt and shame of not being able to be the right kind of friend in that moment.

Elizabeth Larrick: And I’m sure that’s probably why she isolated herself because she just feels like no one’s going to believe me. So let’s talk, how long did that story take up there? I mean, how long was she on stand? Oh, five minutes, something, maybe it’s short, right? Short and sweet. And to the point it’s, we’re not talking about a long time on the stand.

Courtney Parker Wilson: No, no. I think I had her tell one before story and one after story. And she answered, she was also a joint fact witness. So she had been around when the injury first happened. So she had seen some things early on that she testified to. But yeah, I think in total, her testimony was maybe 10 minutes, something like that.

Elizabeth Larrick: Right. Does she have any questions from opposing [00:37:00] counsel? 

Courtney Parker Wilson: The only question that she really got from opposing counsel was about my client’s Facebook page. Oh, okay. So it was weird. I don’t think it really landed, but 

Elizabeth Larrick: yeah, I’m shocked they even asked anything. Cause I mean, when you have that powerful of a story, you realize, wow, these people, this person is invested.

I mean, that that’s an investment. To come up there, but also to be that vulnerable and tell that story. Cause she’s got to be vulnerable. I mean, the witness has to be vulnerable up in the stand and then really trust that what you’re asking them lawyer, who I don’t know that this is going to actually be helpful because they don’t know.

I mean, that’s the, that’s their fears is that they’re going to get up there and make it worse, which is what they don’t want to do. 

Courtney Parker Wilson: Well, and nobody wants to look stupid. 

Elizabeth Larrick: Oh, absolutely. 

Courtney Parker Wilson: They don’t want to feel like they’re overstepping or they’re saying something that sounds ridiculous. So you’ve got to manage the before and after [00:38:00] witnesses, fears and concerns.

Elizabeth Larrick: As well as their confidence. Yeah. Build their confidence up. Absolutely. Absolutely. Awesome. Well, this has been so helpful. So what I’m hearing from you just to recap is we’ve got like a three step process for building trust, but also comfort and getting the goods, getting the details in the story, right?

So three process, three different calls, looks like time spread out in between those to make sure you’re getting the goods. And then do you do a little brush up? Like right before trial, as far as a check in and like that kind of stuff. 

Courtney Parker Wilson: So once you build a relationship with a witness, they’re not going to leave you alone.

You end up talking to them a lot, actually. Right before trial, leading up to trial. They’re sending you text messages, they’re sending you emails. In my mind, it becomes this real relationship you have with another person who now feels like they’re part of the team 

Elizabeth Larrick: and [00:39:00] 

Courtney Parker Wilson: they want to talk to you about stuff, right?

They want to tell you, Oh, Hey, we got this hotel and we’re going to go get a margarita and like, so yes. I do talk to them quite a lot actually leading up to trial, but I have encouraged all of them to be really clear on which stories it is that I want to pull from them so that they feel like they know what’s expected of them.

They know what questions are going to be asked and they know the answers. So that creates a comfort level and a confidence in them. We talk about what are your two stories? What are your three stories? Like things like that, just to keep it fresh in their mind. 

Elizabeth Larrick: Awesome. Yeah. And I think that always is super helpful, especially when, and then also it really helps because at the end of the day, sometimes with trial, it changes so quickly and it’s like, Oh, sorry, you’re not going to be today.

You’re tomorrow. And they’re totally okay with it. They’re like, Oh, you know what? They’re flexible [00:40:00] because they’re, the investment is there. They trust what you’re telling them. And they still know that they’re ready and willing to come and help. So. Because that happens so often where the judge says, we’ll just move that witness.

And you’re like, Hmm, they don’t, when it comes to your experts or somebody else, like the judge is like, well, they give it more deference, but when it’s a before and after a fact witness, they’re like, we’ll just move up. I’m like, so I think that helps also when you’ve got to like, ask for that favor. Like, can you, can you change your schedule?

Can you come tomorrow afternoon? Yeah, definitely. 

Courtney Parker Wilson: Definitely. I need you to be flexible, please. Don’t be me. 

Elizabeth Larrick: Right. Yeah, absolutely. Awesome. Well, is there anything else that you would add or as far as helping lawyers get there before and afters? And again, like I said, some people defer this to staff, which I think can totally be done for that initial wide cast, getting those, that big list of 20, 30 people and maybe narrowing it down.

Is there anything else that you would suggest or add? 

Courtney Parker Wilson: Well, I mean. [00:41:00] In that way, I’m a complete control freak. Like I think most trial lawyers are. And 

Elizabeth Larrick: yeah, most lawyers. Yes. 

Courtney Parker Wilson: I need to, I need to talk to them. I need to hear them. I need to make a judgment call about what kind of witness this is going to be.

And I might not agree with my paralegal, you know, about that. So I think it’s important for the attorney to do this because you’re the only person who really knows what kind of story you’re trying to tell and if this person is going to help or hurt. So it’s, I feel like it’s hard to delegate that particular task because ultimately you are the conductor, right, of this whole trial.

And you’ve got to know what the moving parts are because you are building it. And if you don’t know what this witness is going to say or how they’re going to come off, You’re not conducting properly, right? [00:42:00] So I think that’s something that you as the attorney really have to be. 

Elizabeth Larrick: Yeah, absolutely. And again, because anything you build directly translates into that courtroom and it’s so worth it.

I mean, the quality you put in ahead of time turns into the quality you get in the courtroom. So it definitely makes a huge difference when you are doing it and it pays off. It’s not like it’s going to be a gamble. I’m glad you agree. Awesome. Well, Courtney, thank you so much for joining the podcast again.

I really appreciate it. Thanks. It was so much fun. Good. Awesome. I’m glad that you had a good time. So, all right. Well, thank everybody else for tuning in. If you want to get ahold of Courtney and talk to more about her before and after, but her content information will be in the show notes. And until next time, thank you so [00:43:00] much.

There are a ton of reasons that a trial could be delayed and reset, whether that’s continuances due to scheduling conflicts, the witnesses being on vacation, or whatever. At a certain point, after the second continuance, you start to get a little fatigued, almost burnt out on the case, and you begin to lose motivation. Burnout is real, and so is trial continuance fatigue. And so, how do we prevent this from happening as trial lawyers and keep the momentum of the case?

In this episode, we’re going to tackle trial continuance fatigue with our guest, Bijan Darvish, who practices employment law in Orange County, California. Prior to lawyering, Bijan was previously a police officer who was unfortunately wrongfully accused and had to go through the process that an employee would have to go through to clear his name. He went through the criminal process where he got fully acquitted, then he had to go through suing his employer, for which he also was successful in doing. All that experience and process that opened his eyes led him to go into law school.

In this episode, you will hear:

• What is continuance fatigue?
• The benefits of creating a schedule
• Switching things up for the focus groups
• The benefits of focus groups 
• How to shorten the opening statement
• The value of having a transcript

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Supporting Resources:

If you have questions or would like to speak with Bijan Darvish, you can reach him:

Email: bijan@darvishlaw.net

Or if you’d like to learn more about his employment law practice visit: www.darvishlaw.net

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.

Episode Transcript:

Elizabeth Larrick: Hello, and welcome back to the podcast. I’m going to jump in real quickly here to do an introduction of our guest, Bijan Darvish.

Bijan practices employment law in Orange County, California. Bijan and I met several years back at an employment law seminar, [00:01:00] and struck up a conversation and have been friends ever since. He has a very interesting and Applicable background to becoming a lawyer. He was first a police officer. I was working as an officer and was unfortunately wrongfully accused and had to go through the process that an employee would have to go through to basically clear his name.

He had to go through the criminal process, which he got fully acquitted. Then he had to go through suing his employer, which he did. Which he also was successful in doing, but that process and that experience really opened his eyes to what happens and led him to go into law school, which I think is amazing.

And so he has a very unique perspective than that. He is a hundred percent gone through what his clients have gone through. And so without further ado, let’s jump into this interview. Bijan, thank you so much for joining the podcast. 

Bijan Darvish.: Thanks for having me, Elizabeth. 

Elizabeth Larrick: Awesome. Well, you are going to tackle a, what [00:02:00] I think is a pretty popular topic because with the pandemic and a few other natural disasters that have been going on across the country, continuances are happening at a high rate and for pretty much Any reason.

So this episode, we’re going to tackle trial continuance fatigue. And I really wanted you to come talk to us because in helping you with a particular file that you had, you have faced quite a few continuances. So tell me about this fatigue and how you kind of experienced it. 

Bijan Darvish.: So we had in our case, it was a retaliation case.

We had four or five different continuances. There were for various things. It started out with the other side asking for a continuance for trial, the defense, which they always go and do that at least a couple of times. And then COVID happened. Then we got continuances for COVID. Then we got continuances because defense witnesses were going on vacation.

And then we had continuances because of scheduling conflicts. [00:03:00] So at a certain point, after the second continuance, you start to get a little fatigued, almost burnt out on the case. You lose a little motivation of keep having to delay, delay. Your adrenaline goes up. You’re getting ready for trial. And then it’s a big crash that we’re not going and over and over again, it keeps happening.

That’s what I think of when I, when I talk about trial fatigue or continuance fatigue. 

Elizabeth Larrick: Right. And I would say, I mean, specifically with the experience in this case, you guys got almost literally what you went to the courthouse and it was like, no. And you went to the courthouse. No. And so it was like, you guys really had to gear up and get a hundred percent ready just to hear.

Oh. Somebody’s got COVID we’re going to have to get reset or someone’s not available. But you also had a pretty unique circumstance in that you guys opened it up or your judge opened it up to any judge who would try the case and no judge wanted to try that case. [00:04:00] And again, because of a particular party.

So that also created another challenge for you guys just to get somebody to hear the file. 

Bijan Darvish.: Yeah. So that was the most difficult part of the continuances. It was, For three weeks, almost we were on call Monday through Thursday from 830 in the morning until four in the afternoon. And the way that works is if a judge has an opening, any judge in the courthouse or in the county, in any of the three courthouses that are doing the civil trials, If they have room to take on the case, they’ll take the case.

So you can’t plan anything. You can’t plan depositions. You got to stay in the office. You got to have your witnesses available. And it’s a stressful time. Every day you’re waiting to see if they’re going to call you. And we had one time after two weeks, They finally called us and they called us on a Friday and said, we’re going on Monday.

This [00:05:00] is your judge. And Monday early morning, they called us and said, well, the other side used the peremptory challenge on the judge that just took your case. So then we’re back to the drawing board again. That’s a long process. I mean, that’s what really fatigued us. That’s what really gets emotions going up.

And then you’re coming down really hard on it. It’s a difficult time to go through. 

Elizabeth Larrick: Yeah. And did you take a break? I know you had at least two or three really, really close calls. Did you take a break after, after those close calls? 

Bijan Darvish.: On when, when we had our first continuance, it was a long one. It was about six months.

So we did take a break for a little bit and then we started gearing up again a couple of months before. And then when it happened again and again, what we started to do was we came up with a plan. We said, Hey, there’s going to be these continuances. But co counsel and I, Jason Ehrlich, we set up a plan, we calendared it out, and we [00:06:00] said we’re going to meet once a week, and we’re going to talk about the case, whether it be practice, or cross examinations, or direct examinations.

We did a lot, a lot of role play. We continuously did that. So it kept the case, on the front burners for us without completely getting burnt out on it. So for us, for me, that was a great way to do it because it was just enough that we’re staying sharp on the case, on the facts. And every time we did this role play, a new issue would come up that didn’t come up the first time.

So, I mean, we could have still done it over and over again, and always a new issue comes up. And we switched off. One time he would play the witness, and I would be the lawyer, and then vice versa. We’d switch up with the same witness. So that was the key thing that we did, and that was very helpful for us.

Elizabeth Larrick: How many weeks did you guys end up doing this plan before you finally got to go to trial? 

Bijan Darvish.: On the time before a lot, because we did the part where we’re on call for a couple of weeks. [00:07:00] And then after we were on call, I think it was two or three weeks, the judge called us and said, Hey, there’s going to be a hearing on zoom.

So we had this hearing and he said, look, I think there’s a lot of reasons why judges don’t want to take your case. There’s some high profile people, witnesses, and all the judges know them. That could be one of the reasons, but I’ll take your case and we’re going to do it on this day. So that was still about a month away.

So then we started doing it about twice a week, meeting like that about twice a week, but on the other continuances that were longer, we’d spread it out a little more. We’d throw in focus groups, we’d revise our openings, we’d read our openings to each other out loud, then make changes, and then we’d do another focus group on it, or we’d focus in on specific exhibits.

And then do another focus group on it. So we tried to stay fairly active in the case, which was a new thing. I mean, for me, because they’re the first couple of times we had the continuances, we didn’t really do that. [00:08:00] We just put the case off on the back burner, but it really, really, it’s very beneficial to create a schedule, whether it be every two weeks, once a week, you know, however time you have to at least do something on the case.

And if it’s on the calendar, then you’ll always go and do it. 

Elizabeth Larrick: And I think having that accountability person with you right to hey, we’re gonna do something different or role play a different witness or do the opening again. So you guys tried to keep it at least somewhat entertaining and change it up.

Bijan Darvish.: Yeah, we did. We kind of made this promise to ourselves that, hey, we’ve got to do this to keep the momentum going to not lose interest in the case. And it made it fun. I mean, each time there was new arguments, each time we learned something new. So it was very beneficial for both of us. 

Elizabeth Larrick: And just so for people listening, were you guys getting together for like an hour at a time or two hours at a time?

Did you kind of map out, Hey, this week, let’s do this witness next week, let’s do opening. [00:09:00] Or did you just set the time aside and said, Hey, we’re going to get together and then we’ll make a plan for the time when we finally get on the zoom. 

Bijan Darvish.: Yeah, so the day that the, we got the continuance, we said, okay, we got on the phone ’cause we said our calendars were clear for today anyway, so we got on the phone or on a Zoom and we said, these are the days we’re gonna do it.

And then about a week before we’d email and say, Hey, let’s do this topic. Let’s do cross examination on this witness. So let’s do opening statements, or let’s do defense opening or defense closing, things like that. So we talk about it, prepare for it. And then when we had our scheduled meeting, we’d do that.

And sometimes I would bring up something and I’d say, Hey, I really have an issue with this because I was reading about this. Can we change topics and do this? So it made us prepare. It wasn’t just that day because we had to take out time from the week to prepare for the role play, to prepare for the focus group.

So this is extremely beneficial. 

Elizabeth Larrick: Yeah. Awesome. Well, tell me a little bit about, and I, it sounds like [00:10:00] that really helped you guys regain momentum and excitement about working up the file. 

Bijan Darvish.: Yeah. I mean, I don’t know how excited we actually get to work up the file again, but it did. That’s what really kept us going because we had to keep up with the schedule and make the promise to ourselves, to each other that, Hey, we have to do this.

And that’s really what kept the momentum going. Otherwise, I know the first time we had to continue, we said, Hey, let’s work on the case every now and then we didn’t calendar it. And it didn’t work out the same way. Busy schedules, always things come up. So it’s difficult to get a 1 or 2 hour meeting in the last minute.

Elizabeth Larrick: Right. Absolutely. How did you feel like in doing that schedule? Do you feel like how did that really benefit or, you know, could you tell as far as that, how that benefited the trial when you finally got there? 

Bijan Darvish.: The role playing was extremely beneficial for us because we only deposed one [00:11:00] person and the other people, we didn’t take their depositions.

So every time we role played, we think of a new argument or a new excuse that they would make. And there was not a single response that they gave at trial that we weren’t ready for. And it was the best feeling because I’ve been on the other side of it where they say something. And I didn’t know how to respond.

I don’t have the great cross examination skills of like a 40 year Don Keenan or somebody, but knowing that, having that confidence of, okay, we’ve really come up with everything they could possibly, every excuse they can possibly come up with, and we have a roadmap of where to go for every excuse they come up with.

And then it just flowed. I mean, it felt good. 

Elizabeth Larrick: That’s awesome. And what an easy thing to do, right? You don’t really need to have any skills other than, like you said, set aside time to do the role play, but also prepare a [00:12:00] little bit and try to give, if you play the witness, give a new face or give a new look to something.

So that’s awesome that that was like, Made you super confident when you go in and then it falls into place. 

Bijan Darvish.: Yeah, and it’s really helpful switching roles. If I’m going to do the examination, it’s really helpful for me to be the witness because I know the questions. I’ve already written them out and I can come up with different excuses that I haven’t come up with before, or even get other people that don’t know anything about the case and have them be the lawyer or have them be the witness.

I can’t speak enough about doing these role plays. 

Elizabeth Larrick: That’s awesome. Well, tell me a little bit about how did you guys, cause I know doing repeated focus groups can also get really mundane. So how did you guys switch things up for the focus group and keep trying to learn and squeeze more out of them? 

Bijan Darvish.: We, we never did the same type of focus group back to back.

So we did an opening focus group one week, then in three weeks or a [00:13:00] month later, we didn’t do another opening. Um, we tried to change it up and do exhibits or really focus in on Vore Dyer, things like that. And we tried to both do it. I was going to do Vore Dyer in the case, but it’s beneficial for me to sit there and watch someone else do it.

I watch my co counsel who knows all the issues, who knows how we’re going to do it. Structure of or die or what questions we’re going to ask the conversations we’re going to have so it’s so beneficial to just sit back and watch him do it and then I’ll get up there and do it. So we tried to do different types of focus groups, different things, and it was very beneficial.

Elizabeth Larrick: I know that ultimately November is when you. You guys went to trial, but did you ever take some time in October or even before that to take all the information? So you guys had several sort of focus groups and try to synthesize it down to main takeaways or problematic demographics or anything like that.

Bijan Darvish.: Yeah, we did that beforehand. Jason took on that task and he did a really great job with it. He [00:14:00] made a final report that broke down the demographics and broke down different comments to issues by the focus groups so we can use the same verbiage in trial. It broke down everything and we each had it in a binder in a notebook and Every single day we’re flipping to it to say, Hey, what, what are the highlights on what I’m supposed to say?

What’s going on here? What does this mean? So, yeah, it’s definitely, it’s very important to do that final analysis report because a trial, we’re not going to have the time to go and swift through 10 focus groups, whatever it is, even 5 focus groups to see what they said and the results were. If you just have it in a table, you just have it in the final charts.

It’s a great way to do it. And then you could always refer back to the longer reports if needed. 

Elizabeth Larrick: Gotcha. Gotcha. Awesome. Well, what do you think were things that with all this extra time to prepare, did you guys basically try to shorten things up and simplify things? 

Bijan Darvish.: We did. So we tried to, definitely we [00:15:00] shortened up our opening.

Our opening was a little long. We tried to cut out things that we didn’t think were as important, and then we tested it again with the focus groups, and we were getting similar results. So we ended up taking that out. We shortened up the Vore Dyer because We just didn’t know how long the judge was going to give us.

We were lucky enough that he didn’t really limit our time on it, but we just didn’t know at the start how long he was going to give us. His rules didn’t say. So we tried to actually, we tried to shorten up everything, our examinations too, because you know, you’re always thinking that the jurors want to get out of there.

And if we can be the ones that are efficient, that just get to the point, ask the questions and sit down, that hopefully they’ll appreciate that. So we did, we tried to shorten up everything from opening Vordaer and our examinations. 

Elizabeth Larrick: Yeah. And as far as, like, give us a little example is the originally your opening was about how long and what did it end up being at trial?

Bijan Darvish.: Originally, our opening was about almost a little less than 30 [00:16:00] minutes. It was about like 28, 27 minutes. And by the time we got to trial, it was still a little long, but I think it was about 20 minutes. But that included time that we allowed to go and put up the exhibits, put up a board, walk back and forth, and try to break it up for the jury a little bit.

You know, if it was just reading without doing anything else, I think we’d probably shave off. Three, four minutes, something like that, but it takes time to put up the boards, walk back and forth, and we wanted to do that a little bit of trial to break it up for the jurors to take the time to walk up there, actually write something or show them a demonstrative.

So it’s a little longer than we wanted, but we, they just had so many different excuses. And because we didn’t depose them, we didn’t know which ones were their main ones. We knew which ones the focus groups thought were the main ones, and we harped in on [00:17:00] those. So 

Elizabeth Larrick: yeah, and I think that’s a really good point just to make just generally is when we talk about shortening up our opening, we still need to remember the time it takes to go, like you said, To walk across the room and write something on a board or go get a demonstrator and put it up.

But that time is so helpful because you’re giving them a lot of information. 20 minutes is still a lot of information to digest and breaking it up and giving your brain, their brains a little bit of a rest or delivering the content through a visual really does help them learn and retain it. So much better than just delivering basically a 20 minute speech for sure.

So was there anything else that you can think of that really in this time of reworking and dedicating some time to keep working on the case that you’re like, wow, this was something that was different from other trials that you’ve done and it definitely other than the role playing stood out as a benefit.

Bijan Darvish.: The focus groups were a huge benefit for us, and I know I’ve said her already in this, [00:18:00] but the role playing, I just, I can’t say enough about it. One of the witnesses we had was the public defender for the county, who’s got a hundred something trials under her belt, not to mention how many trials she’s supervised and managed and all that stuff.

So for me to cross examine her, I mean, I would, I was intimidated. beforehand. I go, she’s a lawyer and she’s going to be a sneaky lawyer. She’s already got all the answers and everything. So I, I was very nervous about it, but as we got farther along with the role plays, The more we did it, I played her a bunch of times.

I just, I sat down one of the days and I go, she just doesn’t have a way out. There, there’s not a way out. And that role play, that just built my confidence for me. And I knew exactly where to go. So that was, The main takeaway for me is all these continuances, all the fatigue that happens is the [00:19:00] role play was just invaluable.

I mean, especially with a witness that for me, a lot of lawyers might not get intimidated, but for me, she was a 30 year lawyer. A hundred trials is a lot. She’s been in the jury a long time and she knows what she’s doing. She rose to the top from the very bottom. So it was intimidating for me, but I tell you, once we were going, it was just the best feeling when you’re guiding the dog on the leash, you know, they’re going where you tell them to go.

Elizabeth Larrick: Yeah. And did you, I know at some point you guys kind of with extra time and probably this extra preparation, you guys kind of switched up some things between you and Jason and Jason was on our podcast already. He’s episode a couple more earlier than this, I think 61 to catch Jason talking about direct exam.

But did you guys in becoming so much more familiarized with you? I mean, I know you guys have teamed up on [00:20:00] cases before and you guys kind of switched some things at trial and with witnesses. Right. 

Bijan Darvish.: We did. We did. We switched the direct exam or the plaintiff. So Jason took that and I was hesitant on doing that, but you know, he’s got some magic voice that he does calming and soothing.

And I don’t know how he does it. I mean, I tried to do it, but I just couldn’t, at least I felt I couldn’t replicate it, but it was just the perfect tone, the perfect volume, the way he did it. And it was a good choice. I mean, I think it’s important for us to know. Lawyers have egos, right? And it’s important to know.

Wait, we 

Elizabeth Larrick: have egos? No. 

Bijan Darvish.: Exactly. So, I mean, it’s important to know when you’re working with another attorney that, hey, what’s that attorney’s strong points? Are those better than mine? And I thought his direct exam skills were just phenomenal. 

Elizabeth Larrick: [00:21:00] Yeah. And sometimes it’s just, I mean, it’s such a, once you, again, you guys spent so much time together, but you guys spent a lot of time also with your client and knowing that who has the better flow or energy sometimes is just a better choice because getting in trial, it gets so squirrelly.

And if you could at least rely on that, that those folks have an easier, like flow of conversation, sometimes it’s just a better choice. 

Bijan Darvish.: Yeah, and I hope when he came on, he said a lot of nice things about me too. I’m going to go back and look for it 

Elizabeth Larrick: again. Well He didn’t even 

Bijan Darvish.: mention me, did he? No, 

Elizabeth Larrick: he did.

No, he did. No, we didn’t talk. We actually talked a little bit about this trial that you guys had in November. But again, another trial that you guys had together that was a very challenging direct exam. And that was another You kind of right up your alley, right? With the police officer and police force. I know that’s in your background.

So we talked about that trial as well. And that one also was a [00:22:00] case that kind of lingered for a while. 

Bijan Darvish.: It did. That one lingered for a long time as well. Did you 

Elizabeth Larrick: guys have the same plan of trying to get together or was this plan that you made for most recently? Was that kind of a new invention? We 

Bijan Darvish.: did it for the other trial, but.

Not as regularly. We did the standard role play as we scheduled it ahead of time. Not as much, not a schedule from between continuances and stuff, but it was a completely different case of different facts and whatnot. 

Elizabeth Larrick: Definitely. Definitely. Awesome. Well, I know that you guys did eventually try the case and you tried it.

How long did it take to try the case? 

Bijan Darvish.: I think it took, well, this was another issue for us was in Orange County. They don’t do trials every day. The judges only do trials three days a week. And the other days, they hear motions. And our judge, we were, he did trials, I think it was, Monday, or [00:23:00] Tuesday, Thursday, and Friday, if I’m not mistaken.

Tuesday, Thursday, and Friday. So they weren’t even consecutive days. But it ended up going, that way it went well over a month. I think we were at, 11 days of trial, something like that. 

Elizabeth Larrick: Yeah. 

Bijan Darvish.: But which 

Elizabeth Larrick: is also a fatigue in and out to keep going. 

Bijan Darvish.: It is, but you know what, looking back at it, there was a lot of benefits to it because if there was a witness that we needed to hold over or something for whatever reason you could, and then you can get the transcript and prepare better.

You can have a day between. At least between Tuesday and Thursday, we had a day to go over what happened on Tuesday. So it drags on, but there’s also benefits to what you make of it. So if you have those time openings, you use them by all means. 

Elizabeth Larrick: Yeah. I think that obviously people listening are from all over and I’m here in Austin and we generally try things.[00:24:00] 

Every day you start trial Monday or Tuesday, you’ve got to do pre trial and just work all the way through. But there’s a lot of places that don’t do that. They have the same kind of challenge where the judges want to hear motions or hear other dockets. So they don’t get behind it in that kind of stuff.

So that’s a very good suggestion and use, which would be get the transcript. Let’s get the dailies from that court reporter, even if they’re rough to be able to go back. And that’s definitely one of the things that in doing larger trials, not necessarily smaller kind of car wreck trials that I did, but larger trials, we always go back and get the defense opening, get some big witnesses or main people and read back through that pinpoint those defense points and make sure you can knock them out.

And I’m sure that’s what you guys did in your trial. 

Bijan Darvish.: Yeah, no, it was a great benefit to get those dailies because I mean, there was times where we’re like, they said, what, how did I miss that? Or wrote that down differently, but it was beneficial. And then we had them for a closing, but we took snippets of it and cut it and paste it and put it in our PowerPoint.

And so [00:25:00] they said this, I mean, can you believe that? It was very beneficial. 

Elizabeth Larrick: It’s also makes it a little bit like, I’m not going to say magic, but I think jurors love that crap. I mean, it’s almost like CSI stuff, like, Whoa, wait, you’re going to bring that, like roll the tape. I think they really appreciate that one because it’s a long, I mean, especially if it goes over a month, that’s a long time to remember stuff.

And if all you get are the highlights and that’s all you really want anyhow, so. 

Bijan Darvish.: It was a great tool. And I think you’re right. It did break it up for them instead of just sitting there saying, remember, so and so said this and so and so said this. And I’m sure some of them are going, I don’t remember, maybe it’s a lawyer putting a spin on it or whatever, but it’s much different when it’s out there written and writing for them and it’s from a transcript and it has much more of an effect.

Elizabeth Larrick: Yeah, absolutely. Totally. And you guys had a successful outcome, right? 

Bijan Darvish.: We did, we did, we got a unanimous jury. They found that there was the harassment and the [00:26:00] retaliation. And it was a total of a little over 1. 2. 

Elizabeth Larrick: Fantastic result. 

Bijan Darvish.: Yeah. Thank you. 

Elizabeth Larrick: And she, long journey to get there. I mean, I think when it happened to the trial date, eight years or more.

Bijan Darvish.: No, it was four years, almost five years from when it happened. The trial, and I was with her from the very beginning was about a two, three months after it happened, I started talking with her. So it was a long road for her. She did amazing going through all these continuances and. Three 

Elizabeth Larrick: depositions, four depositions.

Hey, that’s a lot of depositions and they were not short ones. You guys, the employment cases, you guys squeeze the juice as much as you can. 

Bijan Darvish.: But you know what? She stayed true to herself. We had an economist come in, not to get off topic, but we had an economist come in, and our economic loss was high. It was over two million dollars just for the economic loss.

And then she kept trying [00:27:00] to find a job at being an investigator again, and she found one. And it cut our Economic losses from 2 million to 200, 000, but more credit to her. I mean, you have to respect a person like that that says, Oh, you know what? I’m not going to delay it just because I got a trial coming up.

I want a good job. 

Elizabeth Larrick: Yeah. I mean, it was her passion, man. She, it was her calling and she was going whatever it took. That was definitely a lot of perseverance because some people definitely would have just given up and said, you know what, just forget it. I’ll find something else. But she kept going, so is there a possibility of a new trial or appeal or is that still up in the air?

Bijan Darvish.: I’m fairly certain they’re going to appeal it, but we had our hearing for a JNOV and a motion for a new trial last week and the judge denied them both. Okay, 

Elizabeth Larrick: that’s exciting. That’s great news. 

Bijan Darvish.: We’re filing our, he actually, one of the reasons they wanted a new trial was they said the damages were too high and the judge said on the record that the jury could [00:28:00] have easily awarded more.

Elizabeth Larrick: Nice. 

Bijan Darvish.: So we thought that was a good statement by the judge. 

Elizabeth Larrick: Yeah. 

Bijan Darvish.: And the appeal when they file it, but we’re getting ready to file our motion for our attorney’s fees. And then I’m sure they’re going to be filing their notice of appeal here in the next couple of weeks. 

Elizabeth Larrick: Well, maybe they won’t. There’s a good chance that you guys made a very good record.

There’s not going to be anything there, but I know that you all’s appeals court is almost as bad as ours, which means it takes months and months and months, and sometimes even years to get a response. So I hope that you guys, that doesn’t happen. You guys can go ahead and keep celebrating as always. A win is a win and definitely for that particular file.

And that client was quite, quite a long battle, I would say to get to the end. 

Bijan Darvish.: It was a long battle and everybody, I mean, you helped out a lot with the witness prep. That was very beneficial, but luckily it worked out good for us. [00:29:00] Well, 

Elizabeth Larrick: I mean, I think, like you said, because you didn’t have a lot, you didn’t have positions to go after having that big uncertainty of how, which way are they going to go?

And how do we Bob and weave with the witnesses? That role play is really. So beneficial. And I’m really glad that you shared that with us and it’s an easy thing to do. So, 

Bijan Darvish.: yeah, one of the easiest things. And I mean, I’ll, I’ll do it even myself. Sometimes I’ll get up from my chair and go sit in the other chair, ask a question and move.

And my wife looks at me like, what is wrong with you? Why is it’s up if you don’t have anybody? 

Elizabeth Larrick: Yeah, he’s lost it. And I think the zoom has made it so much easier. Cause I know you and Jason do not live near each other. Right. You guys, there’s 400 miles between you guys. 

Bijan Darvish.: Yeah. Yeah. We don’t live close, but we do everything through zoom and it helps out.

Elizabeth Larrick: Yeah. I mean, I think that having zoom and the ease of using it is so helpful for any kind of practice, but I think especially when you guys work so well together and then being [00:30:00] able to do that makes it so helpful. Just jump on the zoom, do what you need to do. You guys could record it if you need to record it, transcribe it if you needed to, but you know, otherwise just makes it easy.

Bijan Darvish.: And you know what? You’d be surprised at how many lawyers are willing to help if you say, Hey, I got a cross examination. Can you help me just do this role play? And most of them get excited about it. They’re like, Oh yeah, that’d be cool. I got to practice my cross examination and really come after you.

That’d be great. 

Elizabeth Larrick: Yeah. And that’s what I love is like, it really, and I’m sure you guys probably experienced it. You don’t need to go for very long. I mean, you could do 20, 30 minutes and you’re still going to get a lot of benefits and then you get to stop and say, Whoa, let’s unpack all that just happened.

So 

Bijan Darvish.: yeah, 

Elizabeth Larrick: always helpful. Is there anything else about people out there trying to tackle trial fatigue that you would offer or suggest? 

Bijan Darvish.: The schedule, get the schedule. As soon as, the same day you get the continuance, you have time because you had court probably scheduled that day. Take the time, [00:31:00] calendar it out every week, every other week, whatever it may be, even if it’s just for an hour or half an hour and you can do it.

You can find people to do it with you. I had a friend that his wife worked in HR and I used her. Cause we had an HR person and ran these questions by her, but there’s always people out there to find, but if we, if it’s scheduled, that’s on our calendar, we’re, we’ll, we’re more likely to do it than if we just say, Hey, I’ll call you and we’ll schedule something.

Elizabeth Larrick: And I’m sure you probably, you guys had the folks groups to set out to like, okay, if we go for a couple of weeks, we got to check in and see where we’re at. 

Bijan Darvish.: Absolutely. Yep. Continuously good though. 

Elizabeth Larrick: And those are all virtual, right? 

Bijan Darvish.: We’re doing them all virtual. 

Elizabeth Larrick: Awesome. Well, Bijan, it is so helpful to come and share your experience and let us know about this, uh, Great way to keep engaged with the file and also with your co counsel to keep going.

So thank you so much for joining the podcast. 

Bijan Darvish.: Thanks for having me. Appreciate it. 

Elizabeth Larrick: All right. Well, thank you everybody for tuning in to this episode. [00:32:00] If you like this podcast, please follow it on your favorite platform, leave a review so other lawyers can find it until next time. Thank you.

Continuing this trial series today, we talk about trial management and organization, specifically, about organizing your team, organizing documents, and how to manage that day-to-day changes with your team. As you replicate trial organization over and over, it helps the trial team handle uncertainties and changes as well as focus more on the key things they need to prioritize.

Trials have different levels of management due to a number of variables – the number of witnesses, the duration of each trial, and even the types of trials (wrongful death, medical malpractice, or premises liability). But no matter what, applying the exact same strategy for organizing people and documents is one of the keys to achieving success.

When you start this organization at a smaller level, it’s just going to make it easier to apply it when it gets to a bigger level with more information, more people, and more documents to manage.

In this episode, you will hear:

• Forming the team and identifying each one’s designation
• Using the binder system for organizing people and documents
• The importance of team meetings after the trial
• The deposition designations and motions
• Managing the day-to-day life of a trial

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Supporting Resources:

If you have questions, email Elizabeth directly: elizabeth@larricklawfirm.com.

Episode Credits:

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Episode Transcript:

Elizabeth Larrick: Hello, and welcome back to the podcast. It’s me, Elizabeth, your host, and we are working through a series right now on trial.

If you missed it, we have talked about opening statements and ways to help create that opening statement. We’ve talked with Jason, my [00:01:00] good friend out of California, about direct exam creation and preparing for that. We’re going to have a couple more people come in and talk about before and after preparation, trial continuance fatigue, cross exam.

And today I want to take a little bit of a step back and look at kind of a bigger overall picture of trial management and organization. And a lot of what we’re going to talk about is directly from my personal experience in getting a front row seat of working with the Kenan Law Firm and Don Kenan with three different trials over a span of several months, almost a whole year of the time that I spent working side by side.

And one of my biggest impressions that I gathered from our trial work together was the organization. We replicated over and over and over again in these three trials that really significantly helped us as our trial team handle the uncertainty, handle [00:02:00] the changes, really helped us be able to focus during the chaos and prioritize, which is so key when.

It’s a constant tumble of information and change and the judge and the jury and the defense. And so this particular organization comes directly from that, from my experience with those. And really we’re going to talk about people, talk about organizing documents, and then a day to day thing that we did, which I thought was super helpful.

to keep everybody on track with their jobs during trial and helping everybody kind of keep all in check with what was going forward with trial and staying cohesive with our case theme as well. So one of the things that we did before we ever stepped into the courtroom was We always had a team, right?

There’s always a team of folks, of lawyers. We had a few teams with non lawyers, but really we went through the team and designated [00:03:00] each person to cover either a specific topic, a specific issue. Everybody had witnesses they were going to cover, some people were in charge of the exhibits, but generally each person had several different things on their task list to handle.

And that meant that they were in charge of getting, if it was your witness, let’s say for example, then your job obviously was to put together the direct exam or if you had a defense witness, the cross. And then also if there were ever any issues in court. With that particular witness, then that was your job to step up and talk to the judge about it.

So that way, you knew, okay, that person’s handling that witness, or if it’s a particular issue. And what I mean by issue is occasionally, we had a particular motion that would come up. Continually, in all these trials about a particular trial strategy, you may or may not know what I am talking about, but we constantly got this issue and so we always had [00:04:00] one lawyer that was designated to tackle this, right, so the motion always came up before trial, maybe a pretrial or even before that, and so that lawyer obviously would have to brief the issue, create a response to it, but anytime it came up, That meant that they had to step up and go argue to the judge if the issue came up again and again, which it always does, right?

So they’re very relentless. The opposing counsel is very relentless. They keep going over and over and over. And so any time that meant that lawyer had that particular opportunity to get up and argue for that or argue against the motion. And we had other motions that sometimes had to be argued as well.

But again, one person would be designated to do that. If it was a larger thing than two people would be able to help, but that really helped the rest of the team be able to know, Oh, that’s their job. I’m going to work on my job and really helps everybody use their time much more wisely. We also would try to put people into either a damages category or liability, right?

So then when. Things came [00:05:00] up in trial that were, oh, well, whose job is that? Or where does that go? Well, if it’s damages, then that’s Elizabeth. Oh, well, if it’s liability, that’s gonna go to Andrew. And so that way we also would know, oh, if something new happens, Do I need to stop and pay attention to this or can I keep working on what I’m working on?

And throughout the different trials, it significantly helped because all the trials had different levels of management in the sense of some of our trials had four, five, six witnesses. That’s it. And some of our trials had 20 witnesses. And some of our trials went one week. Some of them went two weeks.

Some of them went three weeks. And then again, so Very different types of trials as well. We had a wrongful death, a medical malpractice, supremacist liability. But no matter what, we applied this exact same strategy of designating and organizing witnesses, organizing issues, organizing who’s going to tackle that motion, who’s going to tackle the jury instructions, whose job is it for the exhibits, depo designations, right?[00:06:00] 

That way it was always filtered through, and if an issue came up, then, oh, we know that Elizabeth’s got that, or we’re all going to turn and look at her when the judge asks that question, or it’s on her. She’s got to get up first thing and go talk to that judge. And I had a lot of experience being able to do that in the last two trials of, okay, that’s my issue.

I’ve got to go talk to the judge about that. And lots of experience as well handling, oh, this is my witness. And all the things that go with that. And in Kentucky, which was our first trial, my job was to handle deposition edits and clips. Now, I’m not really sure how on earth I got volunteered for this. I had no background cutting clips or doing that.

But once I did it once, of course, then that’s what I did for the next three trials as well. But also, having done it before for other trials, but the difference being when the judge would make the ruling. Would [00:07:00] be in trial that happened multiple times where the designations would not be ruled on until during trial.

So that meant you couldn’t make that clip until then. And could you get it to that third party vendor to get it cut and get it back to you in time? Well, sometimes yes, and sometimes no. And my job was to take that cut. Listen to it. Go line by line to make sure the edits were done correctly. Very tedious thing, but it had to be done, and so whose job was it?

It was particularly my job. I was also in charge of doing some of the exhibits as well. That means just managing the documents. If someone’s going to go up with a particular witness, have the exhibits ready to go. We didn’t have a ton in that case. And also I had to do role play, a lot of role play help for the people who were taking our witnesses in that particular trial, which kind of brings me to our binder system.

So we had a way of organizing our people, right? How we organize our [00:08:00] team around issues, witnesses, motions, jury instructions, exhibits, organizing all that. If we had a focus group whose job was to do what or read the opening. So, we tried to organize our people beforehand, and we also tried to organize our documents, and we used a binder system, which is a lot of paper, however, as it turns out, the courts still love paper, even today, I feel like.

And so, each witness would have a binder. We didn’t have a binder for issues or topics, and especially if there was a researched issue that needed case law, that got its own binder as well, and that just really helped keep things separate. Because. Each witness had a binder. Each topic had a binder. If you had case law, that had its own binder, which ended up taking up a lot of space.

However, it made it really helpful because you never know when that particular issue is going to come up and you just reach back there, grab that binder, hand it to whoever needs it, or take it, if you need it, up [00:09:00] to the bench. To be able to make that argument or talk about the issue when it comes up instead of having either a giant binder or Or having things on your laptop, which is not going to be super conducive during trial because it happens so fast that you need to have that stuff ready and available.

One of the other documents that we use continuously. We spent a lot of time putting the document together before we got to trial and we spent a lot of time every single day with this document. And that would be the Order of Proof. And the Order of Proof document is just what it sounds like. It’s just a list of witnesses.

But It had a lot more information because obviously we would designate who was in charge of that witness, the direct, if it was defense side, then who was in charge of cross, and that also told us then about how long we could estimate that person. So, for example, one of the things that I had to do in. The Washington trial and then the Vegas trials, [00:10:00] I had to prepare before and afters and do direct exam for them.

Which means I was in charge of scheduling them. And so that order of proof document becomes really important for those before and afters because sometimes we just had to squeeze them in, right, or that helped us estimate, okay, well here’s what this morning is going to be stuck on, just expert A. Okay, well, obviously it organized our time, also the schedule, but also helped us know, how are we going to flow in with the evidence?

How is this going to go into the jury? And as you’ll hear me talk in a little bit, we updated that thing every single day and had a new one fresh and printed out for everybody. So everybody was on the same page and if we had to make changes or move things around or move people around, where was their flexibility?

Oh, this person’s coming up soon. Are those depositions designated? Are those lines designated? I should say, is that going to be done in time? And so the binder system was super helpful just to make sure we had everything and then also [00:11:00] our order of proof document that we used constantly, but also before we even got to trial to help us know how the information was going to go into the jury.

So that brings me to the organization of their management of information every single night. So during trial lots of information is happening and again, not everybody is paying attention to it because everybody’s got a different task which means you may not be all oriented to what’s happening in the courtroom.

Somebody’s out of the courtroom preparing an expert, somebody’s talking to before and after, somebody’s watching the jury, and somebody’s just, one of my jobs at Vegas was just to Hand exhibits to keep track of all this paperwork. We had so many binders of paperwork. So it was my job to keep up with all the exhibits and to help people who were doing direct exam.

By assisting with the documents, right, so you couldn’t mix them up if they had their own, of course, you got to make sure everything’s marked and all that good jazz, so [00:12:00] that’s why just there was so much. I just like, okay, I will work with the exhibits. I will be that person. That’s totally fine by me. But what we would do is every single night we would get together for a team meeting first number one after trial every night is important to go ahead and fuel up.

So we’d always eat. And then we go back and have a team meeting together. Everybody who was on the team had to come to the meeting unless you were off getting an expert ready or had to meet with a different witness. What we do is just sit down and basically take Everybody, if your job was to watch the jury, right, to give kind of a report of what you saw, what you heard in court, and we kind of would go through and just look at, hey, where are we on these issues?

We know that here was what we talked about opening statement, is all that evidence coming in? Are we missing anything, right? So we’d get feedback from each person who’d been in the room, who was listening, who was watching the jury, who was watching the judge. And that way we would collectively, everybody would be back on the same page.

And then there would have to [00:13:00] be, if things needed to be moved, or if a particular document didn’t come in, or if a chart needed to be made, or if a point was being lost. One of the biggest nights is the night after opening statements. Because then you hear the game plan, you hear the blueprint of which the defense is going to do.

So basically we just take that blueprint then and we follow, right, whatever cross exam they do every single night and look at who’s scoring points on their, basically on their order of proof. And then we have to divide up any tasks that may be left up and then basically we’re split up to do our things to do list.

Which always my thing to do was, was to update, order, or approve every single night for the two main trials that we did, uh, Kentucky as well. And then some of the tasks were just to help people role play. Right. If somebody’s got to do a direct exam of a defense witness, then, hey, one of my tasks, Hey, you’re gonna have to go help that [00:14:00] person role play, right?

Which means I’d have to know or read that deposition before we got there so I could role play. Sometimes it was just to review the motions that had been filed and figure out who’s in charge of doing the argument the next morning. One of the big tasks that I had for Vegas was depo designations again because They hadn’t been made, and they hadn’t been argued, I should say.

So one of my big things was I had to Every single day approach the judge. Hey, we need to have you rule on these designations. We need to argue about these. And she just really did not like having to rule on those things. And that was a very, it was a little bit of a challenge to get her in. So it was like, okay, well, This is a good learning experience.

I’ve got to talk to this person who does not want for some unknown reason to handle this issue or have us argue it. And I had to learn how to politely ask, this witness needs to be played tomorrow. One time she threatened all of us, me and the defense council to be thrown in [00:15:00] contempt over these designations.

And why weren’t they done earlier? And just kind of, you just stand there scratching your head like, okay, well, can we do it now? Again, make the clips like I talked about earlier, but You become so familiar then that other people on the team will come to you and say, hey, I know that this is your witness, or I know that you’re doing those designations.

I need to know, is this issue in there? Are you putting it, like, let me know. Oh, okay. No, it’s not. Or, oh, yes, it is. Or, oh, gosh, that’s a team topic we need to get back together with the team on. But other things we would look at is, do we need to change any kind of our witness prep? Do we need to change our direct?

Are there any visuals we need to create to make this clear to the jury? So that nightly meeting and those tasks became really helpful for us to prioritize And also to get together as a team to know what’s on everybody’s blackboard, like what’s going on in your mind? And are we getting our issues across?

Is everything coming in smoothly? If it’s not, how do we make that [00:16:00] happen? And then dividing up and divide and conquer here. So it was very helpful to do that every single night. And I would strongly encourage you, now you may not, you may be thinking, well, Elizabeth, I don’t have a trial that has 20 witnesses, or it sounds to me like that’s a pretty complicated situation.

And some of them are. I mean, some of them had very complicated rulings that needed to be made. And obviously that’s research and things that were done ahead of time. But even if you’re taking on a simple I’m in a car wreck case with just one plaintiff and one defendant. You’re still going to have before and afters.

You’re still going to have treaters. You may even have an expert. So you’re still going to have a pretty well involved trial that still needs to be organized. I mean, after I did these three trials with this particular organization, that’s what I’ve done every single time. And it has been so helpful for everybody to have clarity and then certainty.

That [00:17:00] at least gives some amount of certainty to know We’ve thought ahead, worst case scenario, if it relates to damages, it’s you, Elizabeth. If it relates to liability, okay, it’s young you. So this organization really can help everybody. And again, having the documents organized, I think significantly helps if you have quite a few things, but also just to have them available and ready.

So you don’t have to worry about that. not opening up or trying to find it in your case management software or in your folder system, whatever it may be, is still a really helpful thing that kind of reduction stress because it’s available and it’s there and it’s with you. If you need to grab it quickly and also in our document system and in our binder system, we’re anticipating, What research we may need and we’re gonna know some of those topics So we probably have heard them or we’ve seen other motions Of course, there’s a lot more that goes into just the [00:18:00] research factor of a trial.

This podcast is really about organizing your team, organizing Documents and then how do you manage that day to day change with your team and Prioritizing and focusing and then just taking that time to get together to look at each other and say, what did you hear? And what did you see? Because if you’re up there giving direct.

Or doing direct of a witness. You can’t see everything and you’re really in the zone. If you’re trying to grill somebody on cross exam you’re not paying attention to anything else because you’ve got to focus so intently on what you’re doing and your questions and also knowing, Hey, we’ve got At any moment there’s going to be objection and then there could, you have to step up to the bench and argue, right?

So your attention is like zoned in. You may be so good that you can take it all in, but I promise you, going to [00:19:00] trial with a team will open your eyes to all of the information that just goes right past you. Because you’re focused on something else. So getting together with that team, even if it’s just you and another lawyer, significantly helps look at what’s been going on, their observations, your observations, and then coming back to, okay, here was our plan.

Like, here’s the way we wanted things to go in. Is that happening? Are they getting it? Okay, the judge said no, that that wouldn’t work. Okay, what’s the alternative? Like, what are other ways to work this information in? And that happened continuously in our Vegas trial. We had a very active judge every day.

There was something different. No, that can’t come in. Yes, that’s okay. Again, no, that’s a changing thing. So it was like, Woo. Okay. We really had to be on our toes and be on our game to be prepared for quick switches, which also let us have plan A, B, or C. Okay. If A doesn’t work, let’s go to B. B doesn’t work, let’s go to C.

But we never gave up [00:20:00] on getting something in that was super valuable to us. So I hope that this information helps. I hope that you know that even in your smaller cases, You can still do this organization and think about it from a higher level. Again, when you start using this information or organization at a smaller level, it’s just going to make it easier to apply when it gets to a bigger level with more information, more people, more documents to manage.

And that’s really what happened in my experience. We had a smaller trial and then a bigger and then a really big one. And it really helped to know, Oh, okay. Okay. I know I got a flow. It’s, there’s not confusion about who’s taking what or what’s going to happen. You knew exactly who to go talk to. And of course, we always designated like who above all is the first person that the judge is going to go to, right?

So who’s lead, if you will, who’s lead counsel. And sometimes it was [00:21:00] who you expect and sometimes it wasn’t. And sometimes this person does an opening, sometimes it wasn’t, right? So it’s just a matter of knowing who that is so that everybody is secure in that. And I think that this also helps when your client is there and they can understand, Oh, well, there’s a lot of people working for me and on all kinds of stuff.

And how do I fit into this team? And I always talk about that. We talk with our clients and get them ready to walk into that courtroom. What has been going on and why somebody may not be as attentive as they normally would. That’s because they’re zoned in on their issue or their witness. And they have got to do that in order to do their best job possible in that moment.

So, all right, I hope that this has helped either put some ideas into your mind or thinking about your next step. Um, and then, uh, you know, I think it’s really important to have that team meeting, that order of proof document. [00:22:00] Things to do, TTDs, our task assignment beforehand, and again, sometimes those tasks change during trial and every single night.

So I look forward to you coming back to our other episodes on trial. But until then, I’m going to encourage you to follow this podcast. It’s a little plus sign up in your Apple podcast app on Spotify, usually just a follow button that significantly helps other people be able to find this podcast. Of course.

And as always, Send them a copy of an episode via text. And of course, if you really appreciate it, write me a review because that helps people find it. All right. Thank you so much.

Opening statements are one of the best opportunities because we (plaintiff lawyers) go first. The question is how can you take advantage of being first? 

In today’s episode, we discuss the ways that lawyers can lose the advantage of being first. Many trial lawyers have this tendency to have long, overly-detailed opening statements that can bore the jurors. Therefore, you don’t want to lose their attention, confuse them, or frustrate them. 

We also talk about how to craft a great opening statement. An audience will forgive your delivery if your content is good. But they can’t forgive you if both your content and delivery suck. So you want to make sure you’re able to plan out your content really well to make sure you don’t miss anything, 

In this episode, you will hear:

• Ways you can lose the advantage of being first
• The importance of writing your opening statement on paper
• The benefits of typing what you’ve handwritten
• Things to add to your content
• The benefits of running a focus group for your opening statement
• Examples of cases that highlight the power of a great opening statement

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

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 topic for a podcast episode? Question for Elizabeth? Email her directly: Elizabeth@larricklawfirm.com 

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

Thank you so much for joining us. We are working through a series about trial through the month of February and we had an interview last episode with my good friend Jason and we [00:01:00] talked about direct exam of a client. You may wonder to yourself, Elizabeth, are you going to go in a specific order for your trial episodes?

I’m not. Just so you know, I’m not, but today we are going to talk about opening statements. Just to give you a preview of some of the other episodes that are coming up. We are going to be talking about a template for preparation of a before and after witness. We’re going to talk about cross exam. We’re going to look at trial continuance fatigue.

And I know a lot of folks have been facing that. We’ve got a lot of the people that I work with have cases that are five, four, sometimes even six years old and just having multiple continuances. It’s very frustrating. So I’ve got a good friend, Bijan Darvish, who’s going to come and talk to us about a trial that he had many continuances and just came right up to the edge.

Of starting trial and so how do you keep that energy going? In here, we have a couple of these things coming [00:02:00] up. We’re also going to have a closing and probably just an overall episode about maybe trial management as well. I’ve talked about that in the past. But there are so many detailed things that we could talk about when it comes to trial management, the day to day things.

So we’ll probably do that as well. I think a lot of folks are gearing up, a lot of folks that I know here in my community are gearing up to go. Judges in this community are gearing up and ready to go. Good example of that is we are sitting here right now, it’s February, we had a little bit of an ice storm here in Austin and yesterday the duty judge said, you know what, we’re still going to have that docket call to get ready for those trials that are going on Monday.

So people are ready, judges are ready. That’s why we’re going to kind of talk about trial. So, let’s get to today’s episode about opening statement. I think opening statement is one of the coolest things that we have and mainly because it’s a plaintiff we [00:03:00] go first procedurally. And so I want to talk about how can we take advantage of being first.

I’m not going to talk specifically about a template. I’m going to assume you have a template that you like. If you don’t, there are lots of great templates out there and I’m happy to do an episode reviewing some of those. But today is really just about how do I sit down and take advantage of being first, meaning being the first person to get up and talk, jurors hear from about the facts and circumstances of the case.

And there are lots of ways we can lose our advantage. And what I mean by is we have a tendency as trial lawyers to have long opening statements. And that means you’ve got lots of details that we are giving to those jurors. We’re trying to cover everything in that opening statement. Which can lead to losing their attention, confusing them, frustrating them.

And one of the main parts about an [00:04:00] opening statement is that we don’t want it to be boring. That’s another way to lose our advantage. And I don’t mean boring in the sense of delivery. I mean, boring in the sense of. We are not providing visuals or not providing a change in the way that they’re learning the information.

I mean, it’s really hard to learn information completely verbally. We lose it. So if we have someone who’s standing in front of us, we are trying to learn not only what they’re saying, but trying to gather from them who are from the white language as well. So we don’t want to bore them, right? We’re going to keep their attention.

Another way to lose your advantage. It’s to miss out on addressing what the defense will say. This is one of the critical points. I feel like sometimes we get kind of wrapped up in what our case is and we forget to put some of that information in there. And then that gives a beautiful place for the defense to stand up and say, let me tell you the rest of the [00:05:00] story.

Oh, that plea of hiding things from you and not telling you everything. You knew that they were pulling one over on you. It’s one of the easiest things we can prevent. So let’s talk a little bit about how to prepare your opening statement. And this is a little bit time intensive, but there’s a good reason, a couple of good reasons why I suggest doing it this way.

So there’s a couple of steps, really three steps that I suggest you can go to four or five. But really our first step is just taking out a piece of paper and hand writing it out. And I know you’re thinking that is crazy and it’s going to take me a really long time, a time I don’t have. I understand, but here’s why handwriting is best when it comes to this.

You’re going to use a different part of your brain. You’re going to trigger into more critical thinking. When you have to handwrite, your brain slows down. So you’re much more selective about what you’re [00:06:00] writing down. And you also, you’re going to retain the information salvage better. A lot of this three step, and like I said, you could make it four or five steps, is as we are going back through this information again and again and again, we’re committing it to memory.

So by the time you get to. The jury, you don’t feel completely glued to your paper or the podium because you pertain the information so well, just repetition through these couple of steps. So that’s always the goal is to be able to feel really comfortable with the information. And then you’re going to have a little more freedom when you get out in front of the jury.

Because you’ve committed it so well to memories. First step is to handwrite it out. And again, literally just take that yellow legal pad and just start writing it out. Once you finish that step, and again, you may be thinking like, I haven’t handwritten anything in a long time. That’s okay. You can do that in a couple of [00:07:00] different steps, but I think that first one sometimes helps, even if you’re just going to scope out.

An outline, handwritten, you’ll put little notes in there and other little things. And I think the handwriting, it really does help start getting the ideas flowing, get your brain going, get things out on a piece of paper, then take it and move to the keyboard. Just naturally as we type on the keyboard, we just put more information in there because it’s a repetition.

Right versus handwriting is different, right? It’s different part of the brain gotta make our hand and make the movements but with typing, right? It’s repetitive We’re naturally we’re gonna start just adding more information and as we are typing that’s not it’s really a good thing But we want to get everything out Get it all out of our brain, right?

And then we’ll be able to go back in and edit. As we’re typing through and reading through this pass through again, more information is going to come. Things may leave, but you’re moving it to an actual document on your laptop. And then finally, you want to print it. [00:08:00] And you want to read through and end it with a red pen, or even a straight red pen, but you want to make sure that you have that.

Editing on the computer is not the same, because again, you’re probably going to be more verbose. I also really love having the printed pages in front of me. Laying them out all in order and just seeing the organization from a 30, 000 foot view, which you can’t really do well on a computer, not even if you have a giant monitor.

So that’s one of the reasons why you really want to keep bringing back. Okay. Cause this whole time we’re doing through this whole process, it’s really looking at organization, prioritizing what needs to go. Where in your opening, what the jury needs to hear, what can be trimmed out? What can be simplified with that printed out version, right?

And handwriting in your edits and cross something about, then you go back, make those edits and print it again. And I really [00:09:00] encourage you to take time between the steps. Even if you take a week or two weeks in between, your brain’s going to keep working on it. And when you come back to it with fresh eyes, you’re going to see more.

Oh gosh, why did I write it that way? So I always encourage three main steps are one, first hand, write it out. Two, move the keyboard, type it out. And number three is to print and edit it, hand write. And again, you can take time between the subs, I encourage that. And the next thing within is you’re editing it, right?

So the hope is that you don’t have to constantly create content. The hope is that you get all the content there. And it’s just a matter of organizing, Trimming it down, get rid of the stuff, and simplify it. And that way, once you get in and you’ve got your content, then you can really start fine tuning with what needs to go first?

What’s my strongest point? What is it the jury’s most going to want to know at this point in my opening statement? And then you get to do fun [00:10:00] stuff. Once you get that down, then you can start looking at it and say, Hey, where can I add a visual aid? Is there a chart I can add here? Is there a checklist?

Thanks. Is there a timeline, are there photos that would be helpful to show instead of me trying to describe something? We want to make sure we’re not going too long. We want to make sure that we’re visualizing it to keep people’s attention, but also knowing like a visual aid will help people learn fast and retain the information.

We don’t want it to be too long because they’re not going to retain it. We don’t want it to be boring, lost their attention, confused. We want to make sure that it’s very straight and it’s visually you can use it can. And then like we talked about, am I including the defenses, right? What the defense is going to say.

I can’t wait to call it like my counterpunches. I’ve heard it, right? They’re not going to create something new on the eve of trial that I haven’t heard. I know what the evidence is. So am I addressing that? Am I making sure there’s not going to be [00:11:00] any, Magical wall that they get to get up and have and say, Well, you didn’t hear this.

And so I’m putting that in there and am I knocking it out? I know sometimes we put this in here, but I always want to make sure I put it in and I knock it out. Let me give you an example. We’re hearing an opening statement for a suicide case. Well, the defense assumes That’s their defense, that it’s suicide.

Our theory, our liability is that it’s not. It was a total accident. And so to rule out, so to say, this is what the defense is going to say, suicide. And then you gotta counterpunch it, right? You gotta knock that stunt down. You gotta say, here’s why. Here’s what mom’s gonna say. Here’s what we know about this person.

Here’s all the information about who this person was. Right. And in a really succinct way, knock that out, right? Knock that out of the park. And then sometimes we’ll put it in there, but then we forget to basically [00:12:00] show, like, how it’s just not going to hold anymore. And it can be really simple. Even if it’s just, Hey, we’ve got an expert and this is what they did.

And so, and so we know it doesn’t apply here. And just know, like, again, this episode is really talking about content. We’re going to spend another episode talking about delivery, because I think An audience will forgive your delivery if your content is good. Okay. But they can’t forgive you if your content sucks and then your delivery stinks.

So today’s about content, but making sure you can come up with a way to really plan out that content really well and make sure you’re not missing anything. So many times when we get up to practice this, and that was going to say next is how I encourage people to test this. Is to run a focus group where it’s an opening statement, a plaintiff opening statement versus a defense opening statement.

One of my favorite focus groups because it plays on our [00:13:00] natural desire to advocate. We have lawyers trying to get us to become neutral and deliver information neutrally and not with a group of individuals or focus groups. It’s very difficult. It’s hard. We’ve been ingrained to be neutral. Advocates, so opening is great, plays on our natural ability.

Also, it helps you test contents. You can also test delivery during this. I encourage you to do both, but again, we’re kind of talking about content here today, but it really forces you to prepare. And what I have found when we put these together, somebody’s preparing for trial is so many times the opening statement.

It’s not very put together and it’s not written out. And so I’m always like, Hey, step one, if you write the thing out, I guarantee you it’s going to be much better because you’re going to have taken the time to write it out and then to [00:14:00] organize it. Right. So let, let me talk about why I think the opening versus opening focus groups are so important.

It’s the only thing you do. So first example, had a somewhat complicated fiduciary duty case and it spanned 20 years. So a very long time to cover. So we could get really buried in the weeds here with lots of detail and it’s finances can get kind of boring and it was also the counter, doing the counter punches, right?

So what happened was this was the only focus groups that were done. Opening versus opening statements, and they spanned over nine months, right? So, and this was, that, that wasn’t a sleep by design, but it kept getting continuance, so I said, okay, let’s run it again, let’s keep fine tuning it. And what happened over those three focus groups, where they were able to keep refining that content, they were able [00:15:00] to refine their visual aid.

And by the time they got to that last one, and tested it, it was like, this is it, we don’t need to tweak it, in our opening statement, this is it. And so we’re able to, again, the other part of that is the defense opening statement, right? And putting in what the defense is going to say and seeing, Hey, is it going to hold water?

And always learning new things. And more importantly, what takes the wind out of your sail? What does the defense say that’s the strongest thing? Like I said, that first example, they learned how to simplify it, how to create a visual aid that took a lot of effort to create, but in doing that simple visual aid, it conveyed a huge timeline that they didn’t have to do detail by detail in that opening statement.

So it definitely took a lot of heavy lifting all the way down. The other example that I have, by the way, first example. They went to trial, got a [00:16:00] verdict, 40 million bucks. And they said, one of the things that was off our shoulders was the opening statement. We hadn’t done. So we really could focus on doing other things because we know that opening statement was rock solid because we tested three times and that’s all they did.

Remember, we just did opening statements. We didn’t do mock trials. We didn’t do these other stuff, just those ones. And. That’s pretty much what a lot of people, I encourage them to do because it’s such a helpful focus script content, and then you can work on delivery, but that content piece is so important.

Another example is one I just did recently, and one of the things I really love doing is writing the defense opening or tweaking it to put in all those little things that we hear that generally jurors hang their head on. And so. That’s what we did. And I had a really fun time doing it because I was able to take [00:17:00] all of their points, a lot of points, depends on a lot of points.

So I took all those points. And then I created a timeline and there wasn’t a timeline on the other side, but that allowed the demonstration to see in listening to the focus group where their minds went with the story. And they weren’t really concerned about what happened before the timeline, the defensive bridge.

And that’s the information that really was needed. So it was helpful just to kind of compare all those things. But I put a lot of time and effort into that defense opening because I really wanted to make sure. We were not only testing brain is, but also what those defenses were with ammo. So get a lot of really good mileage out of those opening versus opening focus groups, and I encourage you to do it enough about that.

Let’s recap. We’re talking about opening statement, talking about content, best ways that you can get what’s in your brain out to those jurors. Step one, write it out. Step two, take what you wrote [00:18:00] out, type it out. Step three, print it and edit. At some point, you’re going to start delivering this thing, right?

Talking it out loud. And I can tell you from having written many opening statements, defense opening statements, when I give it to somebody else to read it or deliver it, they always stumble. Because when I write opening statement, I write a little slang I would be speaking in, but it’s in my voice and in my tone.

So when they get to speaking, they’re like, this doesn’t make any sense. And I’m like, well, I guess it does in my head. Same thing happens when I do plan as opening as well. Once you get the content down and you start to work on your delivery, you’re going to realize like, oh, let me switch these words around.

Let me make this a little easier to say. Let me make it flow across the show. Reading an outline is really helpful for working on content as well. I hope that this episode was helpful. If you liked it, please follow on your favorite podcast application, the plus sign on [00:19:00] Apple or the follow button. on Google or Spotify.

So thank you so much for listening and just know that next week we will be going to trial continuance fatigue. We’ve got before and after witness preparation template coming up, cross exam, closing and trial management. All right. Until next time. Thank you.

Preparing and working with the client is so critical to a good direct exam. Success starts with our clients going in with a mindset that the jury consists of smart people who can smell good versus bad. Therefore, they just have to set their fears aside and trust the process. We also have to ask enough questions to get the information we need while making them feel at ease and comfortable. The challenge is to keep the direct exam conversational and simple. 

In today’s episode, we’re joined by Jason Erlich, an employment attorney who exclusively represents workers who have been treated wrongfully. Jason handles cases related to workplace disputes, such as wrongful termination, wage and hour violations, sexual harassment, and class action lawsuits.

In this episode, you will hear:

• The three things that make a successful direct client exam
• Preparing direct exam questions
• Things to prioritize for the direct exam
• Making last-minute changes to your questions based on the opening statement and witness testimony
• Visual aids he used in the courtroom
• Free-flow questioning vs. sticking to a script

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

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:

If you would like to learn more about Jason and his practice please visit his website: https://erlich.lawyer/attorneys/jason-erlich/

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

Thank you so much for tuning in to this new episode. We are beginning a series this month for trial and our series begins with an interview with a good friend [00:01:00] of mine and employment lawyer out of California, Jason Ehrlich. And I’m excited because he and I just recently worked together on a trial trial.

And so we are going to get together in this episode and talk about direct exam of a client. So I hope you enjoy it. If you have questions for Jason, all of his contact information will be in the show notes. We will begin the interview now. We have a super treat today. A very good friend of mine from California is tuning in for this episode.

Jason is coming in. So Jason, hello. Thank you so much for joining the podcast. 

Jason Ehrlich: Thank you, Elizabeth. It’s a pleasure to be here. 

Elizabeth Larrick: Fantastic. Well, we have a very exciting topic, which sometimes people dread, and that is direct exam of a client. And we can add in like a before and after too, but we’re really trying to talk about direct exam, not of treating doctors or physicians or experts.

We were really talking about regular [00:02:00] folks and trying to craft some questions and how to do that. So let’s just. Nail it down. Do you like it? Do you not like it? Let’s get to the nitty gritty. 

Jason Ehrlich: Thanks, Elizabeth. I actually really, really enjoyed directing. The reason I like it is because it allows me to kind of fall into the background and let my client take the center stage.

My, my father was a reporter for over 40 years. And so growing up as a son of a journalist, he really instilled this idea of the six W’s and who, what, when, how, where, and why that was six. And so the, uh, the idea of, Asking questions in a open ended way is something that I grew up with from an early age.

And so I like to the direct because it keeps, I keep an open mind and I’m just acting and asking questions the way I think a juror would want to know the answers to. So I keep it conversational. I’m curious. And I [00:03:00] try to keep it simple. 

Elizabeth Larrick: Well, you’re very fortunate because most of us have to go back and think about Larry King and like his interview style, but that is a very nice prompter.

So you’re sitting at breakfast and you’re getting the, what are you doing today? Why are you doing that? How are you going to do it? That was, that was like, 

Jason Ehrlich: Yeah, not quite that bad, but I would tag along. And so I would listen to him ask and do interviews. Some people were not exactly open to being asked questions, and other people were.

And then it was, here’s a microphone in your face because I have to record this, and let’s talk. And so he had to both make them at ease and comfortable, but also then ask enough questions to get the information he needed. And so, yeah, he had to keep it And then of course, lower the barriers so that they didn’t feel like the microphone would disappear and instead it was just a conversation.

Elizabeth Larrick: Yeah, that is a wonderful primer. Cause that’s really, I feel like what a lot of us strive to do is have just a conversation and stay curious, even though we know all the answers and we’re trying to pull it out of this [00:04:00] extremely nervous person. Most of the time they’re very nervous or defensive, however you want to label it.

But, well, awesome. Let me then ask you, what would you consider a success? Successful client direct exam? 

Jason Ehrlich: Well, I mean, I think there’s at least three things that I’d want to get out of a good direct exam. So I think, if not the most important, but certainly at the top of the list is honesty and and credibility of my client so that I, that the jury is con, is convinced that my client is believable and that they’re not trying to hide something.

They’re not. Lying about something important in the case and that they are kind of a human being. And so that’s the first one that I’m, I’m striving for. Second, of course, is the damages and talking about what I do, all employment law and discrimination, wrongful [00:05:00] termination, harassment, whistleblower cases.

And so what losing their job. It’s meant to them and why losing their job hurt and expressing that. So getting those damages kind of questions and answers out. And then the third successful part would be addressing any kind of lingering issues that I believe the jury is wants to know that only my client can tell.

Primarily by the time our clients are testifying, they’ve heard, the jury has heard from many other witnesses. And so the client doesn’t need to tell the whole story. And instead, it’s about filling in gaps of information that I think maybe the jury hasn’t heard because the plaintiff client is the only person who can testify about those issues.

And I think the other fourth goal would be neutralizing any lines of attack that I think the defense might come after the [00:06:00] client for. So getting out in front of it, like, I know this issue is going to come up in the cross exam of our clients. So let me get it out front and put it on the table before they get a chance to And by the time the defense comes up to do their cross there, it’s already, the jury’s already heard it.

So it’s just, it’s boring and, you know, rehashing old news. 

Elizabeth Larrick: You try to have any kind of entertainment or ? Well, ’cause I mean, sometimes we gotta keep ’em awake. When I say we, I keep the jury awake. I do wish, 

Jason Ehrlich: yes, I do wish I could bring a band in or some sort of side entertainment . But yeah, I mean, I think.

visual aids, demonstratives, has slightly different terms for it, but something to draw the juror’s attention. So it’s not entirely focused on a ping pong ball of question, answer, question, answer. So yeah, I think I definitely, if I can bring in a chart or [00:07:00] a timeline or some sort of even having bullet points up on a poster board so that the jurors can follow.

My client’s testimony and the follow my question. So we know, Hey, we’re on this topic and let’s talk about that for a while. And now we’re shifting to a different topic. And let’s talk about this for a little while. 

Elizabeth Larrick: Well, some people may think that part of your honesty and making sure people appear genuine is that we need to elicit some kind of emotional response from our clients when they’re up on the stand.

What are your thoughts 

Jason Ehrlich: on that? I think whatever emotional response from our client has to be genuine. I think if it’s not genuine, um, and it’s not authentic jurors, we’ll see that. So I think I, my, my goal is never to try to draw tears or get an emotional reaction from my client. I think [00:08:00] sometimes it just comes naturally.

I mean, they’re, they are reliving a part of their life that was very difficult. the emotional feelings behind that, that point in their life will come out naturally. So yeah, so I don’t think, and I’ve had direct exams where the clients have been stone faced and not emotional at all. And I think it can be just as good.

And it doesn’t mean that they’re any less authentic or that they’re any less truthful or believable. 

Elizabeth Larrick: Gotcha. Well, let’s talk about what you do or how you prepare your direct exam questions. Let’s talk, let’s start there. 

Jason Ehrlich: What I start with is usually, of course, the plaintiff has been deposed in 

Elizabeth Larrick: all cases.

Or in your case, like three times. I’m sorry, say again, 

Jason Ehrlich: two or three times. 

Elizabeth Larrick: Or in your case, like three or four times. That’s 

Jason Ehrlich: right. Yeah. And so there can be a lot of information in the deposition, but I don’t start with the deposition. What I [00:09:00] start though with is What are the issues in the case and that I expect the jury wants to know about.

So if I have had a good sense through preparing my client for their deposition, you’re a fan and so am I of using focus groups to try to gather information about our cases. And so if I have a good sense of what. Those issues are that are kind of burning issues in the case, I will use those, those issues first as a, the jury is going to be focusing on these questions, and they’re going to be wanting to know the answer so let’s get those out.

And let’s get down the story, how we can address those issues. So that’s usually the first step. thing I have. Um, then of course, we have a timeline with my for employment cases. The [00:10:00] events that led to their losing their job can take months or years. I mean, these things could be a lot of information going back a very long time.

And so having a very clear timeline that everyone can follow, it helps them remember, helps our clients remember what happened. And when things happened and in, of course, then the deposition is important because if there’s any chance that there might be some inconsistencies in their testimony or that they’ve said something that was, you know, it’s sort of in stone, it’s written there.

So we have to say, okay, is this, is there more to the story that you didn’t have a chance to talk about in your deposition? So those are the main ones. And of course, in preparing my clients, I think. We really have to address their emotional fears and their worries and how they going to court and being in court and testifying in court is foreign to them and they’re gonna be scared that that’s what [00:11:00] the walk I think the walk from the the gallery to the witness stand may be the longest walk they have to take and then they’re sitting there in this hot seat and having 12 strangers plus a judge and everyone staring at them.

Is something that they’re going to probably hopefully never experiencing it in their life. But if they’re there, we get to talk about it. So those are kind of the main things that I use to prepare for direct. 

Elizabeth Larrick: Do you, as far as one of the things that I always encourage lawyers to do is even though it feels like.

And I use it with clients too, which is like, what are the questions that jury’s going to have to answer? And like you mentioned earlier, what are things that only my client can fill in the gaps on, especially when it comes to the questions. And I think that that’s just a helpful guideline. Cause it’s not that we forget, but there’s so many other things going on.

Like what are the cross exam points and what are the weaknesses overall of this person? And what do we know? Focus groups have told us just not, not shucking and [00:12:00] jiving that we kind of have to fix. So 

Jason Ehrlich: Yeah. 

Elizabeth Larrick: Always helpful to keep that in mind. And I think it’s also just talking about working with a client, helpful to get their mind around like what the jury is doing, because I think so many people, it’s like, they’re making my life decision, this huge decision.

And it’s like, okay, well let’s simplify it. Let me just show you really what these questions are to help feel like, okay, this is not as big and broad and scary. Like it’s just. Yeah. 

Jason Ehrlich: Yeah, it’s a challenge because I think many people who bring a case and that I represent think they have to carry the whole weight of the case on their shoulders.

And even way before we get to trial, even getting to the deposition, they feel like the whole case rests on their shoulders and helping them understand that it doesn’t. And that by the time we get to jury trial, they are just one piece. of a puzzle. If we took a chart of a hundred percent of how the jury is deciding them, they’re just this one little [00:13:00] sliver of the pie, or one little sliver of the pizza that they have to address.

And sometimes it’s an important part. It’s not just, you’re just reduplicating or re testifying of what everyone else heard. But it’s an important part of the case that I suspect or believe the jury wants to know. So we got to get that addressed and preferably early. I mean, if I think it’s a very important part of the case that the jury is going to want to know the answer to, that might be one of my first questions.

You know, just right out the gate or a series of questions right out of the gate because I know it’s likely to be still burning or lingering in the air from for the jury and they want to know the answer to it. 

Elizabeth Larrick: Yeah, and that’s kind of one of the things to like getting your subjects or your topics ready but then how do you prioritize them so you mentioned, like, if there’s something that is.

Maybe lingering from opening statement or other witnesses that that seems to make top priority. Is there anything else that you put at the top of [00:14:00] your list of questions for direct exam? 

Jason Ehrlich: Well, I think I like to lead. And I’ve had some success, I think, with the things that the jury might be holding on to, to blame the plaintiffs.

That the plaintiff should have done something different, or if I was in that situation, I would have done something different. Or if it was me, I would have called HR sooner, or if it was me, I would have told my boss to go stuff it, instead of doing what the plaintiff did. So if I think that is a lingering issue and it hasn’t really been addressed through testimony or evidence, then I think I’d just come out swinging with it with the plaintiff and like, why didn’t you go to HR sooner?

Why didn’t you tell that boss to go put it where the sun don’t shine or whatever it is? That I think some jurors may be thinking the plaintiff should have done. So I think that’s sort of my priority, [00:15:00] but if that’s not there, then I think I’d like to go into the humanization, the honesty, credibility part of my client so that I often feel like the plaintiff is just a name if they’re in the courtroom.

They’ve been sitting there silently for days, if not weeks, and the jury is staring at them, maybe putting images or putting thoughts about who this person is. Everyone else is talking about the plaintiff. Everyone’s talking about the plaintiff’s name is. Mentioned every single time the judge calls the case to order.

And so it’s like, who is this person? And so when we’re finally getting them up to the stand, let’s bring it back. You’re just like everyone else. You have a family, you are married, you have kids, whatever the things that would bring them back down to like, this is my neighbor, this is somebody I can relate to.

This is somebody I know is right up there close to the top of the list. 

Elizabeth Larrick: Yeah. And I want to take you back to something you said, because I think [00:16:00] employment cases are Obviously, I think they’re really difficult, but one of the reasons why is what you pointed out because every person on that jury is putting themselves in that point of view of your client.

They’re not in the point of view of the boss of the company. They are automatically going to be. Much more defensive to pick it on your client. And I always think the jury is going to look harder on the plaintiff because that would be their position. Right. And now occasionally, you know, like in car wreck cases, it’s like, Oh, well, yeah, I could have done exactly what the defendant car driver did and just accidentally roll into somebody.

And then that makes the point of view, like really, really difficult, but they’re really critical because they so easily see themselves in your client’s shoes. And. I think so many people, and because we all have to work, like have had a situation where we did have something that bad happened to us at work and [00:17:00] we just went on with it, you know?

And so it’s that whole, well, I didn’t get anything. I didn’t get to file a lawsuit. Like nobody gave me any extra money for having to do all the extra work or taking the terrible comments or that kind of stuff. I mean, you mentioned like putting that like breath. Top. Is there anything else that you and humanizing them, like bringing them back down?

Is there anything else that comes to mind to kind of, I guess, bring everybody around? I mean, like loosen up that hole that they may have to that point of view. 

Jason Ehrlich: Well, I mean, I think what happens or can happen for some people is because they may be judging my client, that If I can get the testimony out that That makes sense that now I see why the plaintiff waited because they’re scared of retaliation.

So they didn’t go to [00:18:00] HR the first time something bad happened, which in many of my employment cases, that’s a defense. We’ve got this great HR department and why didn’t you come Running to HR as soon as we’ve got this 800 number and we’ve got the anonymous complaint and the website and you just waited and we had no idea that this was going on.

And I think by the jurors who do work, they are all employees and they know the reality of the workplace that if you run to HR, you kind of put a target right on your back. And if you’re doing something. It’s going to be at the last straw before you go to HR. So once we get that idea out there through either plaintiff testimony or perhaps sooner, then it becomes less like, Oh, I’m blaming the plaintiff, whereas, Oh yeah, if I was in that person’s shoes, I would have done the exact same thing.

So. Sometimes it can happen before we get the plaintiff to testify and before my clients are testifying, but yeah, the [00:19:00] idea of course, just kind of shifting it from that makes sense. Yes. If they were thinking initially I would have done something differently, but once they hear the story, it’s like, okay, yeah, that’s probably what I would have done too.

I would have waited. I would have waited two, three, four months or however long I would have waited. I wouldn’t have run to HR the very first time. Simply that. 

Elizabeth Larrick: Yeah. And that makes me think of an example. So all trials are challenging. I would say this one had an extra layer of stress because You guys, when I say you guys, you and your cohort co counsel, who I will have on podcast soon, no pressure, Bijan going to come on.

It had just been continued and continued and continued and continued like so many times. So when you guys finally came down to rumble in the jungle, it was just like, Oh my gosh, like, thank goodness. Like a little bit of relief, but just like so much pressure. But you had a client who there was a worry.

Because the humanizing was going to be difficult. [00:20:00] There was a waiting period for her, plus there was a correction. So walk us through like thinking through that, the question, correct the question and prioritizing that and how you prioritize her questions. 

Jason Ehrlich: Yeah, I think, yeah, it was challenging. I mean, she was very shy initially.

And so she had a guardedness about her, which interestingly came out through other testimonies. So that I think through testimony of her friends and her coworkers, That she was shy and that she was a little guarded. She wasn’t shy. That’s kind of not quite the right word. She was guarded. And so she waited to see before she spoke, she took in things.

So it was a bit challenging to get her to talk openly and honestly, but it also then sort of reflected how she reacted to the bad situation because she was not. Oh, I’m going to go straight to HR as soon as the bad thing happened for her. [00:21:00] It’s like she was put my head down and I’m going to do a good job and everyone will see that I’m doing a good job.

I’m not the complainer. I’m not the person that just goes and reports to HR immediately. I do a good job and I work hard. People, managers, supervisors, bosses will see that. And so. It’s helped understand why and how she reacted to the bad stuff that happened. So when I was, you 

Elizabeth Larrick: guys put that, like you put that the hardworking, you put that first and foremost doubles to the jury, right?

I mean, you prioritize that like hardworking, great reviews. That’s 

Jason Ehrlich: right. And that’s right. Now we did, we sort of led with that. I think because we knew there was some attacks that they were likely to, the defense was likely to make or some lingering questions from the jury, but. Yes, we led with that because it was so important what we had learned through focus groups and through other means that it was important that she, they knew that she had this great performance [00:22:00] history.

I mean, she had 10 or 11 years of outstanding performance reviews, and it was in contrast to the bad supervisor who criticized her for things that Were not reflected in her 10 or 11 great performance reviews. So that kind of compare and contrast really drove it home to the juror. Like this bad supervisor was way off the mark.

I mean, you’ve got eight or 10 or 12 other supervisors saying she does a fantastic job. And this guy, he did this horrible harassing thing. It like, it just made it clear that this was not. A bad employee. This was a hardworking employee. So yeah, we led the testimony with her, with that, just to get it right out there for them to see and highlight, like, again, the things that the company and the employer was criticizing her for all the other reviews praised her for it.

She’s good with interviews and she’s good with working with our clients. And then that was so clear again, just like that drumbeat again. And [00:23:00] again, every review, I would just brought it up. Highlighted it and asked her about it. And so it was just that kind of steady drumbeat throughout the first part of her testimony.

Elizabeth Larrick: And I think that also contrasted, and this is kind of another part of, we haven’t really talked about, which is like making those last minute changes to your order or in your questions based on opening statement and witness testimony. And one of the things that was predicted, maybe this is going to be what the defense goes with, but then it was very clear, this idea that she was like, Just going to drop it all and go do a completely different job.

So how did you guys handle that defense point? 

Jason Ehrlich: Yeah, so it is, it’s hard. Yes. When I was crafting the direct bullet points and my subject matters and topics that I want to talk about. And then, yeah, it’s like, okay, cut it, cut it, cut it. And it’s hard. It’s like, well, I want to talk about this. The jury doesn’t need to hear it.

Again, and then we did know that there was going to be an attack that [00:24:00] our client quit her job, and the law recognizes that if a company makes it so bad that you are forced to quit, that is essentially a termination by the company. And we suspected that the defense would really harp on that and that they would try to say things weren’t that bad and she really was interested in, you know, going around the world or choosing a completely different career.

Transcribed And so by the time we got there, I mean, we had to get some questions answered about her, why she left and also that she didn’t leave because it was a career change or she really wanted to go in a different direction now. This is anecdotally afterwards. I spoke with one of the jurors after the trial and he said, my God, I don’t want to hear any more about this other job that your client took you was, it was like you guys and everyone in that courtroom was like, so what, which we suspected was true, [00:25:00] but there was enough.

feedback from before that we weren’t sure. Like we didn’t know, but I think yes, it did feel like whipping a horse too many times. So yeah, but that’s one anecdotal juror comment afterwards, but he clearly was tired about hearing about this other job that she took. 

Elizabeth Larrick: And you guys had a successful outcome. 

Jason Ehrlich: We did.

Yes. 

Elizabeth Larrick: And can we add been appeal or? 

Jason Ehrlich: Yeah, it’s public record. So I can, of course, yeah, it’s not yet appealed. It is pending with motions, the motions for a new trial and judgment not withstanding the verdict. They filed that and we filed our opposition. So we’ll be having a hearing probably by the time this, you errors.

We’ll have an order, knock on wood, suspect that the judge will not reverse his the verdict. And then, yeah, I, many times they are appealed. So I would expect the same in this case. 

Elizabeth Larrick: Yeah. Yeah. Congrats on success because that, I know that one was a long one. And, you know, for other [00:26:00] folks who are listening and maybe don’t know the trial practice in California, you guys had to try the case over a series of weeks, half days, not full weeks.

I would feel so like, oh my gosh, are they remembering what we said? You know, yes. We could go, oh, are they remembering having those. Continued fears and like, okay, let’s just cover that base. Like just to be careful. I always say, Hey, if it takes one question, two questions, five minutes, just do it and clear conscience and you can move on.

Jason Ehrlich: Yeah, it’s true. Yes, it was challenging. We were three days a week, which horrible Monday, Thursday, Friday schedule. And so, yeah, we ended up with a case that we probably all in including jury selection was nine. Court days, which from soup to nuts, we could have done in less than two weeks, but it dragged out for nearly a month because three days a week.

Anything. And that was actually through deliberations too. So if it had been an every day, we would not have taken nearly as long. 

Elizabeth Larrick: Right. Yeah. 

Jason Ehrlich: But I think the jurors, I think they were proud. I think they felt [00:27:00] empowered. They felt that it was a unanimous verdict, which was always a nice feeling that everyone agreed.

So yeah, I think we weren’t sure, but they work together and they liked each other. And. And again, from feedback, they weren’t throwing papers or pens at each other. And so it was. Yeah, it was a good group of people. 

Elizabeth Larrick: Yeah, that’s a good feeling. Well, I want to ask you about one more thing before we wrap up our time, and that is visual aids, demonstratives.

So you mentioned a timeline or maybe a topic list, and you just mentioned that one example of going through the reviews and highlighting, obviously using some technology to highlight, ask questions, making that an easy, fun way to go through something quickly. Do you have any other examples of other visual aids or demonstratives that you’ve used in other trials?

Jason Ehrlich: We’ve definitely used, as I said before, timelines. I have [00:28:00] become a fan of low tech, writing the poster board or the flip chart, different things, and writing it as it goes along. And sometimes we, for example, if I’m talking about emotional distress with my client, and I know there’s a few hot button issues.

That I, I both want to emphasize that the emotional distress of losing the job was so devastating or so hurtful to the, to my client. I want to bring that up, but then I know likely that the defense is going to argue, no, no, no. There was an alternate stressor. You had a divorce. You had a child custody issue.

You had some other stress in your life and that’s going on at the same time. And that’s what you’re emotionally distressed about. So then I will, old fashioned, I’ll just, we’ll write it up. I’ll just write it up on a poster board. So sometimes I’ve done before and after, before the termination, [00:29:00] how did, was this level of stress for you after, what is it?

Or quantifying zero to 10. You had cancer, you had a divorce, you had, where does that rank? Okay. Cancer was a five. Why is it a five? Oh, it’s because I dealt with it. I recovered or I had the treatment and it’s over and it’s in the past and I know it’s in remission. Okay, got it. The divorce. Well, that’s a three.

Well, come on. Let’s be honest. It was a little higher before, wasn’t it? Oh, yeah, yeah. What was it? It was eight or nine. Get that kind of authenticity, that honesty from them about the issue so that they’re not minimizing it, really telling us how it was. But now, the divorce doesn’t matter to me. That was three years ago, two years ago, whatever it might be.

Oh, let’s talk now about losing your job. Where does that stand? Okay. How was it the day or the weeks after losing your job? It was a nine or a 10. Okay. Where is it today? It’s an eight. Help explain to the jury, tell the jury why [00:30:00] this is still there. And so using, it’s a very simple chart, but at least I can use it back in closing if needed.

Remember when the plaintiff testified her emotional distress to this day is still an eight. And that’s why the damages that I’m going to request are appropriate or valid. 

Elizabeth Larrick: Yeah, 

Jason Ehrlich: definitely. So yeah, so very low tech visual aids. I think it breaks up the testimony, it gives the jury to focus something to focus on, and it feels teaching.

You’re educating, you’re helping them understand the information that’s coming out. 

Elizabeth Larrick: Do you get worried that the defense is going to write on your exhibit?

Jason Ehrlich: No. Have 

Elizabeth Larrick: you ever had that happen? I just said, Oh, you haven’t. Oh, I know I have. I totally have. 

Jason Ehrlich: How’d it go? 

Elizabeth Larrick: Well, there’s not much you can do. There’s not much you can do. It’s one of those moments in trial where you realize like, they’re looking at you, like [00:31:00] waiting for you to react like objection or whatever.

And so it’s like, I feel like one of those moments where you’re just like, cool as a cucumber, cool as a cucumber, like, Oh, Oh, that. Okay. Well, he didn’t enhance it, but I just. You just kind of got to go with the flow and 

Jason Ehrlich: yeah, no, I guess I haven’t had that experience. I feel like the only thing the defense wants is it’s down as fast as they can get it down.

That seems to be the go to move. Get that out of the jury space. Don’t keep reminding them what was just testified to. 

Elizabeth Larrick: I’ve even had them get like a sticky pad out and write what they want on the sticky pad and then ask the question, like, start putting it on the exhibit. Again, there’s, there’s very little you can do.

And it’s almost like that. And like making that decision to get back up and ask more questions. Like, do you do it? Do you go back and do you like tear it off? Or do you just like, you know what? Like it’s. If I do that, like, I’m going to draw so much more attention to that point they made and really it’s small.

So, 

Jason Ehrlich: and I, I keep going back [00:32:00] to, and the, one of the powers of, is it important to the jury? Because sometimes there’s so many things flying around the courtroom and it’s so challenging because you want to talk about it all and you want to address every single thing. And it takes all the power that I have to say, let it go.

It’s not important. It hasn’t been important to them and it won’t be important to them now. And so, yeah, it’s a tough call. And yeah, there’s a, the lawyer instincts as you have to address every single thing that is said. So yeah, I mean, I guess, yeah, I think, and that’s even on the redirect is about, does it help or is it, did the defense get any score, any points?

And if they didn’t. Let it go. Even if they’re talking about something again and again and again, if they’re not scoring points, you don’t need to go try to go up there and do anything 

Elizabeth Larrick: in response. Yeah, and I think that’s the other part that’s difficult about direct exam is [00:33:00] knowing that line and And I, again, I just feel like you and John and other people that I know that do focus groups, that will give you a little bit of confidence to know, like, I’m going to let that lie.

Like I’ve done focus groups. I, the attitudes are that this is not a big point. Like I’m not going to keep wasting. I’m not going to waste time on that. So 

Jason Ehrlich: yeah. Yeah. 

Elizabeth Larrick: Awesome. Well, okay. One last question. Cause I know that some people, yeah. Do this or don’t do this. And I’d like to get your take on it. Some people like to work with their clients ahead of time with the exact questions they’re going to ask.

Some people don’t do that. They’d rather have more of a free flow, just kind of tell the client what topics they’re going to talk about. Which way do you lean? 

Jason Ehrlich: Yeah, I lean towards the free flow, hitting the topics partly because. I think it, there’s so much information and there might be a natural inclination to, okay, if this is the question, this is how I’m supposed to answer.

And then it feels [00:34:00] scripted. It feels like you’ve practiced it and just a play or a, it’s not real, it’s not authentic. So I tend to take with the high level, which is the topics, this is what we’re gonna talk about also because I made. mess up myself. I may forget the question or the order of the question or the way that the person, my client answers, I have to pivot and talk about what came out of their mouth.

I can’t just rigidly stick to a script and this, this, this. So I have to be ready to pivot and then and then bring it back to perhaps the main thread of our topic that we’re covering. But there are a few times that I do ask them specific questions and because it’s important, I’m going to ask this question and you’re going to have to answer it because it’s an important point that we’re trying to to get home in the case.

Elizabeth Larrick: Yeah. And I think sometimes agree with the free flow. And I guess one of the places where when you talk about specific questions is I always try to at least practice with them with hearing how I have [00:35:00] to ask a question. Now you probably don’t have to do that because you naturally are the who, what, when, where, but sometimes I have to be like, okay, when we talk in conversation, We just take things for granted and this, that, and with the judge there and the defense lawyer, they may jump up and down and like, not like my question.

So I, you’re going to sound funny. Just hang with me. What were you doing? What is this? And it’s just kind of like, that’s not what did you observe? That’s right. Yeah. What was your experience? And that’s one of the things I, especially before and after witnesses and fact witnesses, I’m like, this is going to sound like super, like I’m a robot.

What did you experience? So what did you take away, you know, like, it’s like, Oh, that’s not how we would normally talk to each other. But you, because I got a little somebody behind me, who’s ready to jump up and down and just know that if they do jump it up and down, it’s totally okay. We’ll reset. I’ll come back at it a different way.

And there are definitely times where I will write out. [00:36:00] my plan A, plan B, plan C, knowing like they’re, they’re going to jump up and down, whatever it may be. So 

Jason Ehrlich: absolutely. Yeah. I think, yeah. Keeping yourself flexible, expecting and anticipating that that’s important and critical. Yes. The defense will likely try to gum up the works.

And so, yeah, I think that’s right. A, B and C plans are important. And sometimes it’s also in our minds, or at least in my mind, I need to hear the words come out of my client’s mouth, but I can forget because that it’s about the emotion that’s coming out of the client’s mouth. And it’s about their feeling and their presence and the words.

I mean, I’m not an expert on nonverbal persuasion, but how we talk and how we communicate is important. is as important as the words that are coming out of the client’s mouth. So I will read the transcript later and say, my God, the client didn’t say anything that I wanted them to say, [00:37:00] but the emotion was there and the feeling was there.

And that was what was needed. 

Elizabeth Larrick: Yeah. I think sometimes we Because we know body language and tone are so important. Sometimes we worry about the fidgeting or the, and I just say like, we really have to focus our energy. That may be just something we got to let go. We’ve got to focus energy on really helping them feel organized in what they’re going to say and also be ready to be vulnerable.

So awesome. Well, any other high points or any other tips or suggestions that you have for the audience? 

Jason Ehrlich: Yeah, I mean, I think there’s no doubt that you have to prepare. Anybody who thinks they can just go in with their client the day of is of the trial or five minutes before they’re about to get on the stand and all right, this is what I’m going to ask you or anything like that.

No, it’s never going to work. And so, yeah, preparing, preparing, preparing. I can’t stress enough that that is so critical for me. in getting ready for my [00:38:00] own sense of nerves or my own sense of, but also that the client then, because if I’m nervous or I’m worried, it’s going to reflect to how the client feels.

And so preparing and getting ready and working with the client is so critical to a good direct exam. 

Elizabeth Larrick: Yeah, absolutely. Mindset is so important. I always tell all the folks that I work with, all of my clients, like, listen, you got to go with the mindset that jury is there to help you. And just know that those folks in that box, they want to do their job and they want to do it right.

Right now. It’s like the ultimate fear, like they’re, that they’re going to make the wrong, but just know, like, they really want to do their job and they want. Do it right. And having that mindset going in, I feel like some say, okay, they’re not the enemy. They’re 

Jason Ehrlich: absolutely right. Yeah. Yeah. And they take it seriously and they really do.

And they want to get it right. And they will. Yeah. And if you accept that they are smart people and you [00:39:00] can’t pull the wool over their eyes and that they don’t like BS and, and that you can trust them. And yeah, it is a challenge. When all the evidence is coming in, let’s say these are smart people. They know how to, they can, they’re average people.

They can smell the good and the bad. I have to just lay my head down at night and trust that they’re, they know how to, and they’ll get to the right place. 

Elizabeth Larrick: Yeah, that true for, yes, mindset true for us as well as the one standing up under fire sometimes. So, well, thank you so much for jumping on this podcast.

I know folks appreciate it. I will put your contact information, your website, all the show notes. So if y’all have questions for Jason or you think, and gosh, I just love employment law and I want to learn more about it. Reach out to Jason. Cause I don’t know. Well, 

Jason Ehrlich: thank you, Elizabeth. It was a real pleasure.

I really enjoyed this. 

Elizabeth Larrick: Oh, good, good. Thank you so much. so much. 

[00:40:00] You

As trial lawyers, it’s important to remind ourselves about our goals for preparation for any case event. Even when that person has been deposed before or they’ve been to a hearing before, it’s still best that we provide them with a roadmap. 

First, make sure to teach them about what the whole event is and how it fits into the case. Then talk about what they can expect and correct any bad expectations if they have any. Ultimately, you want to gear them up for their role.

Either way, it’s a give-and-take conversation. Otherwise, people will hold on to misinformation or misconception that causes confusion, and sometimes anger when it doesn’t go the way they think it’s supposed to. The last thing you want to do with any client is to shut them down. 

In this episode, I’m going to discuss the things that we could be doing, whether consciously or subconsciously, that can shut people down – and some ways we could do better as trial lawyers.

In this episode, you will hear:

• How to avoid interrupting people
• Why client comparison shuts down a client
• Things to consider when using yourself as an example

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Supporting Resources:

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep. Today we are going to be talking about what.

turns a client off in a preparation session, or even just a conversation with their lawyer. And really these work for most people. But before [00:01:00] we jump into the episode, I want to give a little bit of a preview for February episodes coming up. We are going to have three to four episodes directly on trial.

So we are going to look at Direct exam and how to craft one of those. We’re going to look at trial management. We’re going to talk about a template for preparing fact witnesses or before and after witnesses. And I’m also hoping that we can get our guest to come and talk to us about cross exam. So that may bleed over into March, maybe not, but either way, just want to get a little preview.

We are going to be focusing on trial. I have many people in my circle, many folks that I work with that are going to trial very soon, March, May, April, June. and need to get back into that practice, look at some stuff, get some new ideas, get the creativity flowing. But today [00:02:00] we are talking about things that we can do consciously and subconsciously that can shut people down.

And three main things that we’re going to talk about. It’s going to be a pretty brief episode before we jump into those three things. Let’s remind ourselves about our goals for preparation for any case event. These are kind of my three points that I always try to talk with or have a conversation with a client before we have any kind of case event.

Thinking deposition, talking about hearing a trial, going to mediation, any event where they’re going to be there and it’s foreign to them. Um, and. I still go through the prep, even when I have somebody who has been deposed before, or maybe they’ve been to a hearing before. I just want to make sure that we provide them a little bit of a roadmap.

And so the goals that I always have when I sit down to have a conversation is I want to make sure that I am going to teach them [00:03:00] about what the whole event is, how it fits into the case. I want to talk to them about what they can expect. I want to correct any Bad expectations they may have and I say bad, but it just could be incorrect information that they may have and then ultimately I want to gear them up, prepare them, gear them up for what their role is, whatever they may be serving and maybe they’re just going to sit in court and listen.

It may be that they’re going to trial and they’re going to have to get up on the witness stand and give testimony. Maybe at mediation, where there may be good questions. So either way, those are the three pieces that I always look at. That’s not the order. The order would be, of course, let’s handle our expectations and our mindset first.

Then let’s move into teaching. And then ultimately, let’s gear them up. And in that conversation, depending on the event, sometimes these are hours and hours, depending on what we’re doing, generally, the bigger the client role, the more we’re going to spend with them. The [00:04:00] smaller. the role, the less I’m going to spend with them.

But either way, it’s a give and take, it’s a conversation. And always we need to get that give and that take, that back and that forth. And we don’t want to shut things down because then people will hold on to misinformation or a misconception and then that causes, you know, Confusion, sometimes anger, when it doesn’t go the way they think it’s supposed to.

These are easy ways that we sometimes fall into interrupting people. Oh, sorry, the first one is interrupting people. And we do it in a lot of different ways. So again, this is a good reminder for me to talk about this because in my work life, I am very, very focused. I’m listening, but occasionally in my personal life, when I’m outside my work mind, I do this and I interrupt.

I have an assumption that I know what someone’s going to say. So I kind of jump in there and generally doesn’t turn out well for me. So when you’re having personal conversations or in your personal life, you know, these people, right? They’re [00:05:00] probably going to tell you like, don’t interrupt me. But with clients, they might not say that and instead they just shut down.

Whatever they were thinking, they just shut it down and it must not be important. I’m not going to talk about it. So with interrupting, obviously we can do it consciously. Hey, literally just interrupt somebody while they’re mid sentence. And this all comes from a place of wanting to help, right? They have a wrong thought or a misconception, right?

We want to reach out and we want to fix it right away. The better idea is to just listen. Hear it all the way through, understand where it may be coming from if you need to do a follow up question, but taking that all in and then you can always talk right after that. Most of the time when people are in a thought and they’re still going and we interrupt it, they can’t even get it back.

That’s the other hard part about interrupting. This is something that we can use or we do use in depositions. [00:06:00] Think about it. You’re sitting in a deposition and you’re listening, right? You’re not taking the deposition. You, maybe you’re listening to somebody else or it’s your client. If you listen to the pattern, if someone is giving a very thoughtful answer and there’s a pause, right?

And it breaks up that train of thought and trying to get it back, sometimes it’s difficult. It’s definitely used on the offensive, right, to purposely interrupt somebody and kick that thought out of their brain or shut them down. But we shouldn’t be doing that when we’re sitting down to prepare somebody because we want to make sure we know what’s in there.

And But we can also do this subtly and unconsciously with our body language or even with sounds. And specifically my example is, think about having listened to a podcast, an interview, and as the host asks the question, [00:07:00] then they sit to listen. Some hosts just listen. But because it’s audio, I know I’ve listened to episodes where the host is uh huh, uh huh, um, uh huh, uh huh.

And it’s very, you can hear it because again, it’s podcast is mostly audio. You can’t see the person nodding their head. And it can. Get to a point where if you are at the right tone that diverts our attention and stops us talking and Specifically, I know that because that’s what I experience when people are having conversation with me I’ve had a business coach who that’s the way She was active listening.

She’d go uh huh and I stopped because I think she’s gonna say something so Most people do the same thing, especially in that client lawyer relationship. And again, it stops the train of thought. Now they’re going back to giving all their attention to you versus what they’re saying. And occasionally we can do this with body language as [00:08:00] well.

When people are very nervous, or they’re going to talk about something very sensitive, or they don’t really want to be vulnerable, they’ll use any excuse. To stop talking and that includes your body language. Maybe you shift in the chair, you pick up your pen, or you uhhuh or you hold up your hand or something.

That could be super subtle. You’re not trying to get their attention, but it does, generally interrupting is just gonna just kinda interrupt that flow of thought and. Stop the conversation, right? We want this back and forth. You want the flow. So keep that in mind when thinking about work stuff, but also business stuff in a work life situation, especially with our clients, they’re not going to likely say, stop interrupting me.

So Another way that we can shut folks down, and again, most of these things we’re doing because we want to help, right? We’re not doing these things because we want to make people stop talking. I think we know how to make people stop talking. We interrupt them. [00:09:00] But we do this kind of subconsciously, and that would be if someone is struggling with answering a question.

Maybe it’s about you’re asking for examples or getting someone to think back in time a year, two years, what was going on. And we And you use comparisons with other clients. And oh, well I had a client who, they also went through this same experience and this is what happened to them. Is that what’s happening to you?

Again, we’re just trying to help people get the flow of thoughts going. And most of the time though, clients just put that in a box now. Oh that is, that’s the right answer. That’s what you’re looking for. But I don’t have that. So it just must not be there. It shuts them down because you’re basically pigeonholing what it is.

You’ve asked the question and it’s very specific versus being very broad just to see what the experience is or if it’s the same. We have all kinds of examples in our heads [00:10:00] of our past clients, but that doesn’t mean we need to start asking and comparing because that’s what the client does in their head.

They start comparing, well that wasn’t my experience, but should have been my experience. Or is that better than what my experience was? Like is there something that I didn’t do then? So it’s all this comparison, which is just not good for our brains and our personalities. We kind of go up on a tangent and again, we can also shut down if we just don’t think that’s the right answer.

And so many times when we’re dealing with clients, that’s what they think we want, the quote unquote right answer, not necessarily what the true experience was. And that’s not even for people who are trying to swindle or lie or half truths. People really just want to please and they know that we are the keeper of the keys, the knowledge.

We know in our experience, they know what is the quote unquote right answer. That last thing that we can do to shut down or to turn clients off would be to talk about ourselves with [00:11:00] examples. Right now, I’m not talking about you come in, you have the icebreaker, you’re having good bonding here, you’re asking about life and how it’s going, you’re sharing, that’s different.

What I’m talking about is when you are using yourself or your experience as an example to the client and it just, again, puts things back into a box. But also most of our clients don’t have the same experience as us. And when we get into giving examples with factual details. And boy, how do we love our details, right?

Love our details. When really what we’re trying to convey is empathy or an emotional feeling. And so if you want to share, which I generally don’t share at all, if we’re getting into the prep session and we’re working through the prep session, I don’t use myself as example. But if you’re going to share at all, just aim for the feeling, right?

Don’t leave out the details. [00:12:00] Right. Don’t need to get into any kind of nitty gritty details, factual details, because that’s where you’re really trying to connect with them is on an emotional level and being empathetic with them for them. And again, that’s what drives so many of us to do what we do. And I think that it’s amazing and wonderful, but sometimes we can get lost in the details.

And then it becomes so much more about what has happening to us or happened to us, right? Those details, the story. And then we’re moving off what we need the client to do. And also sometimes our experiences are so far different that then it’s hard then for the client to share or to open up. And again, they also, from an emotional standpoint, if they don’t want to talk about it, they’re going to get you to keep talking about yourself.

Because that’s what we do. We don’t want to talk about something, let’s talk about you. Shove it off on, on, on something else or someone else so they don’t talk about themselves. [00:13:00] Okay. So very short episode here, but just three kind of small things that little things that we can have a smaller awareness about by not turning our clients off.

Sometimes it’s just the smallest little things that we do, but these are pretty big examples. So I didn’t want to nitpick on the small things. Let’s look at our big things. Interrupting, That’s a huge one. Client comparison makes it very difficult for people. And then talking and using yourself as example.

And again, getting into that story that the factual details versus staying at that emotional level. So, I hope this was helpful. I hope that as you go into your next prep session, whether it’s a smaller case event or a deposition, that you kind of keep those things in mind. And how do we avoid doing those things?

Let’s ask broad, open ended questions. Let people finish their thought before you jump in. And if you would like to be empathetic, keep it at that emotional feeling level and try to avoid story. So I hope this was helpful and until [00:14:00] next time. Thank you.

We spend a lot of time working up our cases. We spend a lot of hours on discovery and go into deposition testimony to form that strategy, that we can test with focus groups. But if we get unreliable feedback, then it’s just a waste of our energy, time, and resources. 

In this episode, we’re going to talk about the four factors that can cause unreliable feedback from focus groups, and what you should do to avoid them. The ultimate goal is to always have quality feedback so we can rely on it, use it, put it into our cases, format it, and make our cases better.

In this episode, you will hear:

• Why you need to avoid repeat participants 
• Revealing your back office
• Planting things that hold the presentation down
• Delivering information in a way that allows them to process it
• Using visual aids in your presentation to keep the people engaged
• Being careful with slanted questions

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

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:

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Welcome, welcome to the trial lawyer podcast. I’m excited to have you here. I am your host, Elizabeth, and this is a podcast dedicated to folks who are preparing cases, trial lawyers, personal injury, employment, folks running focus groups for that crowd.

Bye. Bye. You Today we’re going to talk [00:01:00] about focus groups and talk about four very sneaky things, four factors that can cause your focus groups to flop. What a flop means to me is when you don’t get reliable feedback. We spend a lot of time working up our cases. We do a lot of discovery, a lot of hours and effort go into deposition testimony to form That strategy and then you can test it with focus groups, but if you walk into a few of these traps, many of these are easy to fall into.

This is not something that it may sound obvious. And some of these kind of have a sneaky hook to them as well. So we’ll talk about each of those. But if we have unreliable feedback, we’ve really wasted our energy, our time, which is most precious, and also resources, and we don’t really want to do that. So these are four things I just wanted to put out there.

You probably have heard these before. Or if you have, just. [00:02:00] Take this as a gentle reminder that to you and your team, folks who are helping you put in together focus groups to try to avoid these things. Our goal is to always have quality feedback so that we can rely on it, use it, put it into our cases, format it, and make our cases better, make us better.

A lot of what we do with focus groups is going to be building our confidence as well. We’ll talk a little bit about that this year and a few other things that I just want to help prepare y’all better. So let’s jump into this episode. All right. So the way I’ve divided these up is there’s four of them.

The top two are really going to be things like, Like thinking set up wise and the bottom two that we’re going to talk about are more about moderating and presenting our first one. And I totally fall into this is repeat participants. We have got to avoid having repeat participants. And also in this bucket comes in our focus group for lifers who basically all they do is.[00:03:00] 

Focus groups and that that particular aspect is kind of hard to screen for, but it is pretty easy to screen for repeats and to keep them out. I know that this is a difficult task and a high bar to set because. As most of you probably run into if you’re running focus groups, or if you’re thinking about running about focus groups, just what I’m hearing along with grapevine is it’s harder to get people, people are going back to work or people find new ways to work.

And so fitting in a focus group, wanting to join that it’s not as appealing as it was, especially virtually. And definitely in person. I’ve run a few of those in persons this year and found that we are not going to have our 2019 participant pay. We really are going to have to up the ante again to get quality folks, folks that would show up to jury service and not repeats.

So again, [00:04:00] why would repeats be bad? Well, one, they know a little bit about you. And if they’ve been through one of your focus groups before, they probably know what to expect in the sense of you’re going to be talking all about employment cases or all about business cases or all about personal injury cases.

So their mindset’s kind of already there. They’re not going to be really surprised. I’ve had, again, I’ve fallen for this where it’s just like, Hey, it’s last minute. I’ve got to fill a seat. And I’ve had repeat participants either do a 180. Like they come in one folks group and they have this set of beliefs and this attitude about everything.

And then they come back and they flip and it’s completely opposite. And that’s when obviously you get the eye opening, I won’t, I can’t rely on that person because I feel like they’re flip flopping just to either, because maybe they didn’t like something or something else triggered them. And so it just really causes problems when you got repeats, try to avoid [00:05:00] as best as you can.

And how do we do that? That’d be just screening. You got to just kick those people down the road. Say, thanks so much. We can’t have any repeats. Here’s some other places to do focus groups and then keep screening. One of the things that I’ve done is just add an extra day for recruiting just to give one more day for those advertisements, those emails to get people to come back.

Now, I do believe that you can ask people back after a year, two years, three years, four years, basically a lot of the in person focus group people four years have gone by. I think that’s probably a safe bet, but you’re still going to run into the same problems of, again, these people have seen, they’ve heard, they’ve probably already got their mindset already made it before they come in because they’ve had an experience with you.

They’re just going to either repeat that or like, cause it may be flip flop it altogether. I did have, just as far as an example, I had a fairly reliable retired gentleman who would fill in and [00:06:00] again. Would try not to have them, obviously they can’t come back to the same case, can’t come back to listen to the same set of problems, the same lawyers.

And so I brought him back into a different focus group. His last minute he was available and they’re probably six months in between and it was not good. He was not reliable. He had, like I said, completely switched his attitude on several things and was very combative with everybody else, which I don’t know if I could have predicted that before.

He’s not really an issue that way, but. Either way, if the lawyers ask, or if you’re thinking to yourself, like, wow, I could avoid this, you know, something I repeat in here. So avoid repeat participants and try to avoid those focus group jobbers as I call them, because they’re going to come in there and they’re going to rule the roost.

When you have people who do focus groups often and frequently, they don’t follow the rules, meaning they’re not going to listen to you. They’re going to ask questions. They’re going to interrupt. [00:07:00] A lot of times I find when people have done focus groups a lot, they basically will reveal the magic to everybody else.

Like, Oh, I know what you’re doing now. Oh, I see. You want us to do blah, blah. And they’ll make a lot of assumptions out loud. Well, now we’re tainting everybody else. If we were trying to withhold or keep that feedback in a box until we were ready to let it out there. So they just cause disruption problems I’ve found, and it just doesn’t help.

And repeat people do the same thing too. So. Because they’ll say, Oh, this is what we did last time. Or, Oh, you want mess to do blah, blah. Oh, well, you’re saying that so that they can reveal the magic and the mystery. And sometimes you don’t want those mysteries ever revealed because then it reveals your bias.

So let’s move on to tip number two, which would be revealing your bias. And this again can be one of those It happens subconsciously sometimes. We just, we are really trying hard not to reveal where our position is and [00:08:00] it just naturally comes out. In this next presentation you’re going to see my case.

You just let the cat out of the bag. But I’ve also had people who just come right out of into a presentation say, well, I just want, you know, this is my case. This is my, so you’re automatically revealing your bias. When you do that as people who are listening to you, you basically kind of have a choice.

You’re going to try to please this person and go along with everything that they say, whether you agree or not, or you may be very opposing to it. But either way, you know, that you were like, It’s now slanted at a tilt with your bias revealed, they may not be as honest with you. They don’t want to hurt your feelings.

And so that’s why we always try to frame everything with this is not, we are not involved. We are here to present, to ask questions and to gather your feedback. We don’t have a dog in the fight. Because we don’t want them because again, they’ll either withhold information or they’ll try to be nice [00:09:00] about it.

Or you want to get that quality feedback. That’s what all these factors are about getting that quality feedback. And that’s one where you’re standing right in front of them. You’re asking for their feedback and they’re, it’s like jury selection, right? They know you’re involved somehow and they could obviously hold back.

And that’s not what we want to focus group. We really want their feedback. It’s really hard. Sometimes, like I said, it subconsciously flips out. So, how can we correct this? And that would be just looking really closely at our presentation and how we word it. And then try to avoid putting ourselves in that position where we’re thinking, Well, my client, oh, shoot, I just said it.

Or, she’s told me, like, oh, now we’ve. So that’s why we work really hard with our presentations and write them out going off the cuff. Inevitably, we’ll have this information just flop out of your mouth because subconsciously it is, it’s hard to, it’s hard to keep that back. So we work really hard to make sure we stay neutral in our [00:10:00] presentations, how we say things, how we write things, our questions, and we’ll talk about that in a second.

Oh, just really wanting that quality feedback. And again, if they. Know that you’re slanted. You’re going to get slanted on. You’re going to get slanted information on the way back out. So those are two kind of set up factors that can really cause the apple cart to topple over and not get good feedback.

The next two are really about the moderating or presenting. And that first one is having a presentation that doesn’t include any visual aid, even if you’re just sharing screen, or you’ve got a PowerPoint that’s got like a word or two words or whatever. Okay. One picture or just the Google street view of what the intersection look like people’s attention spans are just so tiny, you know, used to say is goldfish right?

Well, we’re worse than goldfish now with all of our technology and how we take in information. [00:11:00] So. If the brain is bored, not stimulated, like we’re going somewhere else and our brains and we’re looking at our phones or doing looking around that other stuff, if you’re virtual and even in person, this totally happens.

You can see people completely check out. I mean, it’s not difficult to see. And I do this all the time. Someone’s given a presentation and it just goes like purely, here’s just information, A, B, C, and that’s all I’m getting from them. I just kind of glaze over, I can check out. This happens all the time with any kind of presentation, but especially with those focus group people, we need to make sure that we are keeping them engaged and also delivering the information in a way that allows them to process it.

If you’re sitting and you don’t know what you’re about to hear, other than you’re going to listen to some stuff and, and sort of give some feedback and you’re having then to take in verbal information and organize it and it’s, [00:12:00] maybe it’s a chronology, it’s a story, it’s all these things, they’re just going to kind of get a little lost and throw their hands up.

And that’s what you, that’s, That’s the experience you’ll have is you’ll either have, I just need more information. Well, I need to have this thing. And it’s, you’ve already given them so much information. They really need more or they get a lot of confusion going on. Like they need you to repeat a lot of things or go back to that.

Or did you hear that? So a lot of recombing back through the presentation because they couldn’t keep up with all of the information just given to them verbally. Okay. And one of the things we’re going to talk about a lot in the podcast coming up, and one of the reasons I’ll probably put some of our podcast episodes on YouTube, is to be able to show you the visual aid that we are talking about creating or using.

So you can take it and use it as well and get the information out there quicker. They’re going to learn it faster and they’re going to be able to see it. Simulate it quicker so then you can turn around and get that feedback [00:13:00] quickly. And that’s always super helpful. So we want to always have some kind of visual aid in our presentation and in our PowerPoint.

Even if you’re virtual or in person, same thing. We believe, uh, we believe we’re very engaging in person. That’s true to an extent, but you know, with focus groups, we’re giving them a ton of information and hoping that we get feedback and if it’s just all verbal, a lot of it’s just going to go by the wayside.

So we want to avoid that again. Getting that quality, reliable feedback. And my last one for this episode will be slanted questions. And again, this is such a sneaky thing that happens to us. We really, I think it’s a subconscious. We’re not trying to be sneaky. We’re not trying to slant things, but it’s just a.

It’s a language communication thing. And it’s also knowing that the people on the other side are completely suspicious of us. So every word, if it doesn’t pass the, you know, the gut check, they’re like trying to figure out, well, where’s [00:14:00] this going? Or who is this person? What is this about? And what I mean by slanting questions is a lot of times we want to ask questions.

Well, if I just told you X, would it change your mind? Well, they’re gonna assume one that you have X. Then we’ve got all kinds of suspicion problems. The easier way to answer the question is just make it much more broad, and then you can list off different factors. But we always want to make sure the best way to cure slanted questions is to go with open ended questions.

Steering them in a way or offering multiple available options. And I don’t mean by saying, well if you had X, Y, Z, would that change your mind? See, we’re assuming it would change their mind. So a lot of our questions kind of have assumptions. What questions do you have? I just assumed you had questions, right?

They may not have any at all. So one quick trick that I learned during my time with the Keenan law firm was. Always adding, if any, do you have any concerns? If any, [00:15:00] uh, do you have any questions? If any, we’re just opening it right back up instead of making that assumption that they do have a concern or assumption that they do have a question.

Just opening it back up to, if any, right back to that big open ended question. With those slanted questions, we’re revealing that bias and we’re also again creating a little more suspicion. Oh, wait, you do have more information, like, hold on. And then they kind of feel like, oh, you don’t feel bamboozled. I went ahead and made, I staked my claim.

I put my flag out there. I made a position. Like, my position would completely change. Oh, man, you have that information, don’t you? Like, oh, and then they feel like you’re withholding. And then you can’t get them to stake into a position. Well, if you said this, then I feel this way, but if there’s this, then I feel that way.

And then now it’s like there are feedbacks all over the board. And if it feels unreliable and it is unreliable because they’ve given you so many different factors, [00:16:00] it’s because they just kind of lost trust in the process that this was, you know, firm, like these are the facts, then I will make a decision and I will give you feedback versus now it’s loosey goosey and I need more information.

And whenever you start to do a lot of focus groups, and if you’ve done a lot, then you understand. And if you’ve done a lot of jury trials, you also understand when you get that, Well, I just, if I had more information, well, I would just have so many questions and it’s like, Ooh, like that person probably will never be satisfied like they just, there’s always going to be more information that they want.

So therefore, they’re always going to be indecisive. And at some point, you got to make a decision of your own jury. And at some point folks group, we’re going to ask you to make a decision, plant your flag. All right. We ran through four quick questions. Factors sneaky, sometimes factors that can come in subconsciously and cause unreliable, or when a focus group or a flop as also you can call it [00:17:00] one would be again, having repeat participants can really cause a problem.

Having revealed your bias coming right out of the gate, saying who you are and who you represent, or subconsciously planting things like my case or my client in there, but just got to call that presentation down. Which leads me to my third one, which would be got to have some kind of visual aid. We got to keep people’s attention with these presentations, help them organize the facts or put it in a visual way again, just to provide the ability to look at something quickly and then be able to make a decision on it without making them juggle all the information.

And then finally slanted questions. And again, these are sneaky things. These are not things we are intending to slant, but when we do, it can really cause a little bit of disruption, people making decisions and giving us feedback. So I hope that this episode was helpful. And again, these are all mistakes that I have made, which then made me cringe.

And then did I [00:18:00] just waste all this time and effort to get this focus group together? So I want you to avoid the pain that I have. So if you have any questions or I’ve said something that may be. Causes you, huh, or a concern, please let me know. My email will be in the show notes and until next time, thank you.

It’s a new year and it’s time to look at new opportunities and new ideas for you to plug in and use. Today, let’s start with the best time to run focus groups. Sure, you can run a focus group at any time. But if you want to get the most out of it, there are actually six spots to run a focus group in your case. 

These are great places to help you prepare the case better. You may not get through to the trial and just get through mediation. But these are all opportunities for you to grow the case better and to help you look at things with a new set of eyes. You can always do more –  or less, but at least do one or two to have that outside perspective that will help keep you moving along. 

In this episode, you will hear:

• Running a focus group during case planning (before the lawsuit)
• What to focus on after key deposition testimony
• Why do short focus groups 30 days before mediation
• The purpose of a focus group 90 days before the end of discovery
• Things to consider 60 days before trial
• What to do 30 days before trial

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

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:

If you have questions or suggestions, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of trial lawyer prep. Thank you so much for joining us in 2023.

You may be listening to this a little bit later and that is certainly okay. But to those who are right on track, welcome. I wanted to start out today with a [00:01:00] reader shout out. This was review for the podcast, amazing podcast. Elizabeth does a fantastic job, and every bit of content helps make you a better trial lawyer.

Also, her voice and demeanor are wonderful to listen to. Well, thank you so much. That was Monty Tines out of Mississippi. So thank you so much, Monty, for that review. I always appreciate a review that helps other people find this podcast. So please rate review on your favorite podcast app. All right. So let’s start this episode and I really want to focus this particular year.

So 2023, let’s see. Think about the next few weeks, months of how this podcast can better help you. And we’re focused on preparation for trial lawyers. And I really want to look at how can we look at things differently or maybe look at new opportunities, new ideas for you to plug in and use. There are [00:02:00] so many wonderful things that folks are doing.

And sometimes just spreading the word on, Hey, I did this. It worked better. I did that. It did not work well. And as you listened in my year end review for 2022, I like to look at technology. So we’re going to talk a little bit about technology along the way this year to find things that can help you do your job better.

Maybe market better, maybe have easier flow and systems within your office to get things done. And so today we’re going to talk about focus groups and tackle one of the questions that I get a lot, but I think is also really important, which is when is the right time to run a focus group? And we’re talking about focus groups.

We’re not talking about mock juries. So let me just set that out right away. And Each one of these little focus groups that we’re gonna talk about, I’m gonna try and confine it for you and put some parameters on it so you can know like, [00:03:00] okay, so you could technically run one anytime. But that doesn’t help anyone.

So it’s helpful to have kind of a focus and a framework. And so we’re going to look at six spots when you can run a focus group in the case. But the first hurdle, you’d always want to make sure that you’re tackling, is this the right case? And got to be thinking about the value. Is this the case you want to spend the time on, right?

Is this the case you want to have this expense on? Is there going to be a tradeoff when you’re expending your time, your expenses, your resources, and getting that value back out? So this podcast, I’m assuming you’ve done that kind of calculating like, okay, this is the case. This is a large case. And again, sometimes this is a case where it’s like, is this going to be as difficult as we think?

Or is it going to be easier? Are people going to get it? And that’s why with our six different places you can run focus group, we’re starting off right [00:04:00] off the bat with before you even file a lawsuit. And I talked a lot about using this in case planning in an episode a couple weeks prior, and episode has much more detailed about that.

What it is to run a focus group before a lawsuit, but basically the rundown would be that you are looking at maybe 30 minutes, maybe an hour max. You’re just tossing out some facts and getting some feedback and it’s helping you plan what people want to know more about. What’s important to them. Test some things that you think are important.

Does a jury give it back to you? But a short and sweet one, just to kind of give you again, some framework for the case and then also help you down the road. The next spot that I would suggest to run a focus group is after key deposition testimony. And by key depositions, I’m talking about the defendant, the corporate rep, maybe there’s a supervisor, key eyewitness statements at the plaintiff, Having those as well and then [00:05:00] basically putting that together Where again, we’re looking at maybe an hour, but you’re looking at maybe getting five to seven minutes of each video Deposition testimony and just getting people’s blink reaction.

Are these people credible? Does this story make sense who might be the weak link right in these stories, but that’s really gonna help You know where to hone in Are things fitting into your theory the way that you hope they are, but it’s a really easy focus group to do. It is a little bit labor intensive because you have to find those pieces of testimony.

You’ve got to create those clips. If you’ve got great video editor, use them, right? Save your resources and have them do it for you. If you have somebody in house that does it, There are lots of programs that will do it. There is a learning curve to them. So I’m not sure whether it’s worth your time to learn it, unless it’s something you’re going to be doing often and frequent.

I do it often and frequent. I have been doing that with focus groups. I learned [00:06:00] it through, through fire, on one of the very first trials that I worked with Mr. Keenan, the Keenan Law Firm, but Movavi is what I use. But again, I’m not going to encourage you to go learn any kind of video editing. If that’s just not your thing, don’t worry about it.

Hire it out. Have somebody else do it. That’s also what you’re going to hear a lot is, Hey, if you can delegate this task to someone else, let’s do it. Let’s save you that time, right? You’re still going to get the same value, but you’re going to save your time. All right. Third place to run a focus group would be in the.

30 days before mediation. And I also have 21 days on here. So kind of a window because sometimes what happens is mediations. Oh, we’re going to do one. Oh, there it is. The court set one. It’s 20 days away. What do we do? Well, I encourage you because right before mediation, the hope is that you’ve got everything together.

There aren’t any major missing pieces. You know what people are going to say, you know the defenses, you know the theories. [00:07:00] And you can put that all together into a mediation presentation and then test that presentation. Again, these are short focus groups we’re talking about. You’re probably going to need to take an hour on this.

Because again, these are your larger cases. You’ve got a lot of facts, a lot of evidence, right? You’ve got to condense that down into that fancy mediation presentation and show that to the focus group. I think it also helps you to kind of put everything together. One of the reasons I love doing focus groups when we get closer towards mediation, closer to trial, closer to end of discovery is it really is focusing us to skinny down, to start formulating that opening statement, start looking at things because discovery starts.

It’s like you’ve got the whole world, you’ve got all this discovery, you’ve got, you don’t really know which way it’s going to go. But that, doing it, mediation really makes you focus in, formulate everything. That’s why I love doing those focus groups, because then it pushes you to do it even earlier. And then you’ll have time to regroup, re [00:08:00] edit, go back forward again.

Also having the confidence from that focus group feedback. All right. Our fourth spot that I suggest to run a focus group would be 90 days before the end of discovery. Okay. Now, you could do 60 days as well, but the purpose of this focus group is to make sure you have everything you need. So this may be a little bit bigger focus group.

This may be a two hour or even a three hour focus group. Because you’re really trying to make sure you’ve got all the puzzle pieces in place, right? All the evidence is fitting together. You’re not making any leaps, right? You’re not saying things you can’t prove. And if there is a hole, if there is something that’s missing or a big red flag for the focus group, you can go get it.

You can go get that deposition. You can go find that missing eyewitness. Get that police officer’s deposition nailed down if that’s what’s missing. And again, it just helps like, okay, we’ve got everything or we don’t. [00:09:00] And you have time to go get it. So many, many heartbreaks happen when you were in the focus group and discovery’s done and they’re saying, hey, well, I need to hear from what the police officer has to say.

Well, oh no, I need to hear. There was an eyewitness that was on the police report. Why don’t we have that? I need to see that. Oh, you’re hiding something because it’s not there. Right? Then all these assumptions happen. So save yourself that heartbreak. Do the focus group before the end of the discovery period.

Our fifth place would be again, as we’re, if you’ve not notice, we’re kind of progressing through the litigation phases. So this would be 60 days before trial. Again, we’re forcing you to get your opening together. We’re doing an opening versus opening here. Maybe we’re doing opening plus some evidence, but we’re really focusing in on trial opening statement and making the lawyer put things together.

Get it down on paper. Get it ready to present. Get that PowerPoint ready. We’re getting ready for trial at this point. We really want to make sure that we are [00:10:00] keying in on what the jury wants to hear and wants to see. And our last place would be 30 days out from trial. I personally love doing focus groups like the weekend before.

But, that’s very stressful. Don’t stress yourself out, just keep it, even if it’s 30 days out, you’re still going to get a lot of good information. You still may not have all of the motions in limine heard and the evidence, what’s coming in, what’s coming out. You can probably make pretty good guesses though, if you’re 30 days out from trial, what the judge is going to do.

Hopefully, you already have all those rulings and you can have a focus group that really is focused in on the evidence that is coming in, but if not, you’re going to have a good shot at it. So all of these are great opportunities, great places to help you prepare the case better. You may not get through to the trial, you may just get through mediation, but they’re all opportunities to take action.

in that place to help you grow the case better, to help you look at things [00:11:00] with a new set of eyes. Anytime you can get that outside perspective, move past, right? Get out of the weeds. Get that 30, 000 foot view. You’re going to be able to prepare that case so much better. And that’s really a lot about what focus groups are and that’s why beginning of the episode I said these are about focus groups, not mock trials, not mock juries.

This is helping you get perspective. Getting that perspective over and over and over again to make sure okay, am I hitting what they want to hear? Do I have everything in order? Can they see this presentation? Where am I making leaps in my evidence? And, hey! If nothing else, if it just builds your confidence, then that’s great too, right?

You may have everything done, Elizabeth, I know how to do this. I’m going to run these focus groups. They’re all going to agree with me. Hey, that’s great too. Confidence is good. We need that because there’s a lot of uncertainty in what we do. And having confidence helps. So I hope that this podcast [00:12:00] episode was helpful for you.

All these different opportunities to run a focus group, six different places before the lawsuit, after key depositions, 30 days before mediation. 90 days before the end of discovery, 60 days before trial and 30 days before trial. You could always do more. You could do less, but I always encourage you to at least do one or two.

That way you can, again, keep with that outside perspective to help you keep moving along. And they’re fun. It’s inspirational, right? Places to be creative. So I hope this episode was helpful. I look forward to more episodes with different opportunities and ideas for you to prepare your case better. All right.

Until next time. Thank [00:13:00] you.

In today’s episode, I’m sharing 22 lessons from 2022 – things that I have picked up on this year, things I have studied, and things where I just had some aha moments. These are valuable lessons that have helped me and my practice big time – from keeping up to date with technology and using visuals in focus groups and even during prep – all the way to letting go of toxic clients, investing in a coach to help you level up, and investing for retirement. 

It’s so easy to get lost and forget all the things we’ve learned from previous years. Therefore, it’s important to take the time to reflect on these and potentially use them as our basis for creating next year’s strategies and game plans as we move on to the future.

In this episode, you will hear:

• Double-checking your technology for uploading documents
• How virtual assistants can help you
• How to solve spam coming in from focus groups
• The power of using visual aids and videos
• Mindset is key for lawyers – and clients
• Using visuals for preparation 
• Letting go of toxic clients
• Investing in a coach to help get you to the next level
• Looking for ways to save for retirement
• Why you need to have a visual aid for timelines
• Making a conscious effort to take a vacation

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

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:

Influence is Your Superpower by Zoe Chance https://amzn.to/3IIlfTV

Retire before Mom & Dad by Rob Berger https://amzn.to/3GByVxn

www.slack.com

https://otter.ai

 

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick. We are going to do 22 lessons from 2022 today as we round out this year. You may not be catching this episode at the end of 2022 and that’s okay. Most of these [00:01:00] are important no matter what year it is. But these are just things that I have picked up on this year, things I have studied or things that just I had an aha moment and I thought, you know what, that should go on the list.

Some of these are big. Some of these are little. I tried to originally put these in categories and that kind of went by the wayside. So these are a mishmash of all kinds of things. And the first one. I will say I have a few that are technology related and I always try to figure out a way to do things easier with my work and with people that I work with and two of these things right off the bat is Double checking your technology and the ability and one of them is uploading documents so we always have to exchange a lot of documents as lawyers a lot of times with clients and That has become so much easier and more accessible on more platforms you At the end of 2021, I was trying to figure out how to solve this problem.

I was trying to get a lot of documents from people to prepare for [00:02:00] clients, a lot of documents for focus groups and sharing folders with Dropbox or with Box. It just wasn’t very conducive. And luckily, thank goodness, So many platforms have now provided this service. So my service is through Dropbox because they finally changed it to allow with an upload link.

But of course, I think a lot of people have been using Sharefile for some time. But as a solo, that doesn’t always make economic sense. To have that with just one service doing one thing versus having something like Dropbox, which has a lot of different available things you can do. Which also leads me to my second thing for 2022, which is download links.

And again, this is a service that’s been offered on other platforms, but if you are a solo or a small law firm, having a bunch of single subscriptions for services that do one thing really can start to add up. And I always try to find a way to, hey, is there somewhere we can combine all [00:03:00] this? And again, Dropbox has done that, which has made sharing focus group videos so much easier where I just am able to create a link and send it to folks and they can download that video for up to 30 days.

You can give them another link and it’s so much easier. So those are right off the bat, two technology things. If you are somebody who has to get a lot of data. Documents from clients, or you need them to download things from you. Look at your platform. See what you’re using. What kind of cloud storage do you have?

Some of those services, again, are adding new stuff. Dropbox is one of those. But a lot of platforms are doing it. So just check what you got. Make it easier for yourself and for your staff. Another thing that I found here recently was an app called Readwise. I know that as lawyers, we like to read. And I love to read.

But a friend of mine Ernie Svensson told me about this Readwise app. And basically what it does is you can do it on your phone. Mine sends me notifications on my phone [00:04:00] and in my email. And basically it connects with your Kindle. I think it connects with a couple other places where you can read books, and wherever you highlight, it will pull those highlights and send it to you kind of in a, a reel where there’ll be six highlights in one day, and so it is so helpful to basically refresh your memory on things you may have learned from them.

Books you’ve read. So My Read Wise will tell me stuff from books I read this year. Psychology of Selling, writing emails that don’t suck. Those are some of the books that I read this year. Plus books I have also in previous times as well. But it’s just a really nice refresher. And a couple levels of subscription, but they also have a level where you can take that highlight and put it on your social media, which is not something that I do right now.

But if you are a big reader. And you also want to just keep learning that like sinking in again, I like to read books twice. This [00:05:00] kind of helps give you those like nuggets along the way each day. So Readwise, all one word is really good app I would suggest if you want to keep learning from books that you’ve read.

Another big technology thing for me this year was moving to a virtual assistant. I used some folks to help find a virtual assistant who could do some things for me. And again, they’re a little more tech savvy, not necessarily focused on just doing documentation, and it’s been great. If you don’t have a virtual assistant or have some kind of virtual workforce, I really suggest that you look into it.

A lot of these folks are ready. They know how to work virtually. You’re not having to teach them how to work virtually, but it’s much more about Then taking on tasks and move them off your plate. It’s been great for me. I highly suggest it. There are lots of companies that are geared towards virtual assistants for lawyers.

They are out there. But if you just need help with other smaller things or social media, which again, I’m not even going to go into that. [00:06:00] That’s another lesson from 2022. We’ll talk about in a second. There’s all kinds of folks out there that all kinds of training that can help. I just encourage you, if you can, offload something.

What I love about my virtual assistant is that she helps me a lot with focus groups and she has actually helped get me to write all of my systems down. And that’s one of those really important things that’s probably not a lesson, but it’s something that’s ongoing for me is just writing everything down that is a system that goes into what happens here at Larrick Law Firm.

So very helpful. Moving into focus group lessons. So one of the things that I have seen in comparing notes with lots of other lawyers is so much more spam coming in from focus groups. And that would be people who are applying from other countries to get into your focus group. And a lot of people, how do we solve this problem?

What do we do? Well, can we create a different form or can we require a certain documentation? I would just say [00:07:00] the one really small time hack that I have noticed that seems to be Pretty well working for me, which is super simple. It’s just, we have a Google form and that basically creates kind of an Excel sheet, Google sheet, and has all the information all line by line, very similar.

What you’re able to do is just look at the name, look at the email address and look at the profession and your brain’s going to say, Oh, that doesn’t, that does not compute, right? So you may have John Smith. JohnSmith01 at gmail, who is a lawyer. Okay. Well, hmm. And again, I always ask for city and state, right?

So you can Google that and figure out like, of course, that’s not a real lawyer’s name. So again, there’s your red flag. So that small comparison, right? Name, email address, profession. And then, you know, Run it through your brain. Does that make sense? And a lot of times what you’re gonna see is these are made up names with made up email addresses that they just pick whatever profession.

And sometimes they’re really good. And again, you can go [00:08:00] Google it, look on LinkedIn. Anyone that claims to be a teacher, professor, engineer, doctor, lawyer, right? All those things have registrations. You’re gonna be able to find those online. So that’s just a really small time hack. I know people can get really in the weeds with this.

You can check their iMessage. IP address, if it comes from a foreign country, you can do phone calls, which is another easy way to find out if they are, if it’s a real number or just a Google number. But again, just avoid the phone calls. Just do the small hack to see if you can at least try to avoid those people.

If you need to go to that second level, make phone calls. Other big lesson from focus groups. Number six, if you will, no complainers. If we get any emails about complaining about the rate of pay or what we’re going to serve or what we’re on for food, I just, nope, we, we take them off the list. We put them on a different focus group.

I used to put up with this where people would complain, well, you know, and try to have, make sense with it and email back and forth or offer alternatives. [00:09:00] And it just. It’s not worth it. You know what I mean? Just let it go. So if you’re having that kind of resistance with your focus group, people or participants, just say, no, just let them go.

They’re not going to give good feedback. Okay. Just let them go. So one of my big lessons for focus groups. And again, my lesson number seven, which helps no matter what we’re doing, but focus groups is where this one really came from. And that is if we’re creating a visual aid, be it focus group, be it mediation, be it for the judge for hearing one photo per slide, one fact per slide, one idea per slide.

Everybody wants to jam as much as possible on one particular slide and everything then gets lost. Of course, I think we have all heard the lesson about not putting too many words on the PowerPoint slides, but this is a solid rule of thumb. Generally, when I’m helping people prepare for anything, be it you’re going to trial, [00:10:00] you’ve got a trial demonstrative, you’ve got a focus group.

That’s the main thing I always do is just remove everything, put one idea, Or one photo, one thought, on one slide. That way, one, you got to make sure it’s big enough so people can read it. If it’s a picture, you want to make sure that’s for sure as big as you can get it. Because if they can’t see it or if there’s too much, they just give up.

Your brain just gives up. Ah, it’s too much. I can’t get it. And that’s so important. We’ve got visual aids are here to help us learn faster, assimilate the information, and that way you can move on quickly. Can’t do that if there’s all that information on there. I also want to tell you, they’re not going to get it all.

So, then you become frustrated. You need to say this again. I’m like, well, you got a lot of information in there. You’re asking them to process a lot of information. And so, it was going to keep our visual aids large and in charge. Okay, so make sure everybody can see it. My number eight lesson for 2022 is for witness [00:11:00] preparation, particularly for trial.

And again, I think this also helps for deposition because I’ve done it both ways, which is basically using your jury instructions, your jury questions. Like, get out that, see the pattern jury charge and get that question out and say, hey, this is the question that you are answering, right? So we need to look at this and focus on these particular things that we need and try to avoid things that don’t.

And I actually did a podcast on this because it’s, hey, this is an easy time hack. We come and sit down for trial preparation. We Sometimes learn so much more information that we didn’t know and the client didn’t know to tell us so they want to bring in All this extra stuff and hey, that’s a good way to just cut and slice and dice And this is the question that we have to answer.

So only this information is what we’re going to talk about So super helpful. If you’ve got to rein people in, keep people on task, it’s a good way to do it and it’s easy, right? [00:12:00] If you’re not coming up with it, it’s just that, hey, these are the rules. These are the questions that juries are going to be asked.

So it makes it helpful to do as well. So two things for marketing for 2022. And the first one would be. My lesson would be, I deleted my Facebook business account and my Twitter business account. It was causing a lot of disharmony, right? I spent a lot of time trying to find people to do some social media creation and at the end of the day I just realized, wow, is this really going to be helping me?

Do I really need to be prioritizing this? No, I should prioritize the podcast or possibly working on more stuff for the website. One of the things that my coach, business coach told me is where is your audience? It’s always want to be asking where’s your audience? Are they tuning in to Facebook? Are they tuning into Twitter?

No, of course not. Is it wasting your time? Yes, of course. Get rid of it, right? If it’s not helping you, if it’s getting in the way. [00:13:00] Let it go. And that’s what I did with my Facebook business page and my Twitter business page. I did keep LinkedIn and that’s my lesson number 10, which would be my live videos.

So I did a live video series once a month and 2022 was focused on focus groups. Talked about all kinds of stuff, how to do them, virtual, using the chat, when to pick to do a focus group, all kinds of good stuff. And they were great. I enjoyed doing them. Did they get a lot of traction? Not sure. But I am going to keep doing them, but they’re all going to be on LinkedIn.

And I think it’s going to be kind of a variety of things. I also will probably plan to do some of the podcasts live on YouTube. So again, just to generate some more videos, but also maybe a little bit more engagement of what’s going on. So helpful, not helpful, not really sure that’s still in the testing phase, but I am going to try it out.

That is one of the things if you are. head of the marketing in your law firm [00:14:00] or that’s your department for your solo video, video, video. That’s what they’ve been telling us for a couple of years now. People want videos. I get it. I understand. So I’m still out there still testing it out. If you’ve got questions or you’ve got a good way to do it, please let me know.

I’ve gone the professional route. I’ve hired people to do professional videos for me, but then I realized. I can just set up my own iPhone and do the same thing. So that’s one of my lessons for 2022. One of my favorite books. I’ve got a couple books on this list, and one of the ones that I’ve read just recently is called Influence Your Superpower by Zoe Chance.

I love this book. It was really about, right, if you understand the concept of reptile brain, which I don’t Many many moons ago. That’s really how I got kind of supercharged on witness preparation was following reptile plaintiff’s revolution And Don Keenan going and doing a fellowship there, but if you [00:15:00] understand that concept, even just a little, you’re really going to want to pick this book up because it takes that concept to a much deeper level, but she explains it so well with examples and research, she talks about it with your gator brain versus your judge, and really how often We are operating with our gator brain and very rarely with our judge.

And so how thinking about in terms of what we do, how can we understand that when jurors are going to make decisions? And. Also, there, there’s lots of other really great things about framing. It’s just a really great reminder for influence and how our brains work. One of the big, other big concepts that I took from that book is how to make things easier for people to work with you.

In the book, she gives the example of how just having a text reminder Like increase people [00:16:00] showing up for court, but like 30 percent and that works, you know, most of the things to just one reminder. I get text reminder can increase and because it’s easy. And how do we make, how do we make things easier for people to work with us?

And that’s something that I’m trying to look at. Always, but now really, oh, okay, let’s make it, let’s make it easy. So it’s a great book. I’ll put a link in the show notes for you. One of the other really big takeaways for me for 2022 was mindset is key for lawyers and clients. Now, what is mindset? Mindset is what your mind believes before you begin a task, right?

So let’s say you got a mindset that you. Hate olives and you gotta go to Greece. Well, you’re already gonna put in your mind. You’re not gonna have good times. Awful olives everywhere. That’s a very large example, but when it comes to what we do, we have as lawyers mindsets that develop over time based on our [00:17:00] experience and where we work and who we have learned from and so many times I think a large majority, we have this mindset that a deposition is just, it’s a sit and suffer.

Right? Clients just got to sit and get through it. Or it’s that time to sell yourself. Sell that insurance company that you’re worthy of, of getting some money. Because it feels, it’s a necessary step. We don’t spend a lot of time on it because it’s not really something we can control because we don’t ask questions.

And with clients, right, their mindset is just generally put their head in the sand. I don’t want to do this. Don’t make me do this. Or it’s just going to be horrible. So they go in thinking it’s horrible and it turns out that it becomes horrible. And one of the things I always try to reiterate is depositions are really, they’re so key.

Cases don’t go to trial. Two percent of cases are tried. Most settle, right? So transcripts are where it’s at. Transcripts are that evidence. And I recently had a [00:18:00] confrontation with a lawyer and he voiced his opinion that this approach to preparing clients is antiquated. Right? Lawyers can’t spend this much time with a person, right?

We don’t have time for this. Nobody does this anymore. And so where, what does that come from? Well, I think that comes from a mindset that clients, there is no value exchange in this, right? You spending time with the client for deposition prep does not translate into value into the case. Because their time is more valuable somewhere else.

And I think that’s a pretty short sighted mindset. I know we have cases, have large caseloads, I know that we are overworked as a profession and so sometimes it’s a matter of, hey, just looking at where are we spending our time. But let’s just take it back because if we think that depo prep must translate into case value, right?

That’s just one level, right? Just think of it as one level. But if we think about it more [00:19:00] about spending time with the client, right? So if we spend time with the client for deposition prep. Right? We’re spending one on one time with them, right? So that builds a better relationship. You’re going to get to know them better, right?

They’re probably going to do better in deposition. Just naturally, most deposition mistakes are preventable. Really. I mean, they are. So then the deposition itself is going to have more values. That’s value to the case, but the client walks away with experience of being valued to you. Right. So that relationship building also is going to take you to getting a positive review, which you should always ask for, referrals, right?

That client’s going to send your way. So there’s so much more to value to just this individual case. There’s value to your overall business. This is a long game. It’s a long game thought. If we think of it always as short sighted, just this case, just this thing, we’re not going to [00:20:00] be very successful business people.

We need to be thinking in long game, getting referrals, talk about marketing again, people got to have good, got to have good reviews, got to ask people for reviews. That’s what people want to see. It’s true. Think about when last time you looked for a restaurant. Look at the Google reviews or try to find anything, right?

Look at those Google reviews. So keep in mind, right, all these things. You want the long game here. Also, you will feel better, right? We sometimes doing our jobs just sucks and it’s difficult and it’s hard. Why not do something that is going to Make you feel better, right? This is sometimes what we came into this whole profession for, is helping people.

And this is just one of those really small places you can do that. And, you know, what I have encouraged people is, if you are not sure, and you just said, you know what Elizabeth, I still don’t believe you. I challenge you. To take an hour, [00:21:00] split it into 30 minutes, do two 30 minute meetings with your client and just see, just test it out.

All right, is this going to make it better? Right now, you have to go in with your scientific mind and you have to be awake during the deposition to see. Did they get tripped up? Did they get those, make those mistakes that are easily preventable from knowing the rules of a deposition? Mindset. We have to understand what is our client’s mindset?

What’s my mindset? Mindset. Before I approach to, to start something, is it, am I dooming it before we begin? So that’s one thing that I’m going to keep in mind for 2023 and looking out for that, which is important and talking to people about that to make sure, hey, how are you looking at this, right? Is this a sit and suffer?

Are you going to do good? Always checking in to make sure we get that straight because if we don’t straighten our mindsets before we begin, it doesn’t really matter what other work we’re going to do because our mindset, Our [00:22:00] subconscious mind is going to take over. It will, right? It’s like gator versus judge here, right?

Our gator’s going to sit and take over when it comes to instinct time. So, all right. Lesson number 13, which is to stop resisting technology. I generally do not like to add more technology to my plate. I’m busy. I have to learn it. And I know it’ll take time to learn it, read the instructions, whatever it may be, but I did have three wonderful pieces of technology that I was super resistant to try.

And I just said, okay, I’m going to try it. If I don’t like it, I can like ditch it. And that’d be Slack. My virtual assistant and I use Slack to communicate. My business coach and I use Slack to communicate. It’s so helpful to not clutter your email up. It’s just makes it way easier versus all the clutter that we get and all the spam and the, and the noise that’s in the email inbox.

So if you haven’t tried it, I really suggest that you do it. If there’s somebody that you need to communicate with, but keeping that email [00:23:00] down, In your inbox, Loom, which is a great way to make short videos. Again, this kind of goes back to my virtual assistant. I made a lot of videos for her, how to videos on how to do processes for focus groups and for witness prep.

Super easy, you can get a free account. And then Otter. Which is a transcription AI technology. You can add it to your Zoom and it’ll transcribe during the Zoom or it’ll create one afterwards. It’s so much, it’s so much easier sometimes to go back through and read the transcript to understand more about exactly what was said.

It also helps, if you want to take it to the next level, to have the video playing and reading the transcript at the same time. Anyhow, great pieces of technology to help you do your job easier, or with Loom, it’s making videos, just doing it once instead of having to continually repeat it or have it written down, which is also a big part of getting your systems into place.[00:24:00] 

Having a video recorded is so much easier. And then you can have that transcribed, so you don’t have to type it all out. Number 14, lesson from 2022, which would see, had a In focus groups, I’ve had a big kind of swing in the rates of paying participants. And I’ve tried to equate that to, well, it’s the economy and it’s the inflation, but I really also think it’s tied to the pandemic and people, you know, the great, everybody retiring, not retiring, but everybody leaving their jobs to go somewhere else.

and demanding more. I mean, I get a lot of complaints on my Facebook page about, oh my gosh, I can’t believe you only pay 25 an hour. Everybody else pays 150. I’m like, well, no, not everybody else does that. But also, bye, you don’t have to apply for it. But I have seen and a lot of other lawyers, again, comparing like what we were able to pay people to show up versus what we’re having to do now.

I mean, in person has to go up even more because people know, well, if you do [00:25:00] virtual, well, I want to do virtual. I don’t want to get dressed and get in the car and drive somewhere, fight traffic, find parking. Yeah, okay, great, you’re gonna give me a sandwich, that’s not enough anymore, so. I think this is a trend that’s not going away, it’s not going to go down, and I’m just preparing people out there, if you’re running your own focus groups, or if you are going to do focus groups with somebody else, then just know that there’s a lot of shift with participants and getting people to come and show up, and again, I think it’s just a conglomerate of what’s going on with the economy, conglomerate of what’s happened post pandemic, and people just looking at how they value their time differently, so just keep that in mind when you’re doing focus groups.

so much. One of the fun things about focus groups, which would be my number 15, is so many of our things that we worked hard to do with virtual focus groups, right? Electronic signature for confidentiality, electronic Google Forms, contactless payment with PayPal. Some of those things are going to translate over to in [00:26:00] person, which again, Oh, gonna make it so much easier.

And again, one of those main things would be contactless payment. I always wanted to, always did pay people cash when we were in person. I could have paid in PayPal at that time, but I just didn’t even think about it. So we’re definitely gonna keep up with the PayPal. It still gives you a receipt, but people get that cash instantly.

So I would encourage you if you were doing in person, you never did virtual, Figure out some way to get a contactless payment system going. Venmo, which is It’s owned by PayPal, PayPal, Cash, Zelle. There’s all kinds. Most of the time your bank account comes with one of those apps already. Zelle has lined up with Chase and I think a few other ones.

So just look and see if you’ve got it and make it easy on you. Make it easy on your staff. And it’s again, a good way to recruit people with getting instant cash. So keep that up. All right. Number 16 for 2022. [00:27:00] Switching back to witness preparation, either deposition or trial, and that would be visuals. We got to work on using visuals for preparation.

It’s gonna significantly speed up your time preparing folks, and they’re gonna get it so much faster. Understand what you’re saying faster by using a visual aid. It could be as simple as writing words on a page, right? Drawing a diagram, writing out a timeline, which timelines are on here. Here pretty soon is one of my big lessons.

But for 2023, visuals are. on my list. I’m really want to figure out how to translate creating visuals, using visuals in, in all that we do to prepare for focus group for trial, because it just is, it’s such a great way to get information through. quickly. And I love the idea of us practicing with [00:28:00] our clients, right?

It doesn’t have to be perfect with them. They’re trying, you’re trying, but it really does help speed up that process of learning when it comes to preparing for testimony. 17, lesson from 2022, which would be toxic clients have got to go. I had several. Toxic clients come through the door in 2022, and I’m obviously hardheaded as they are, but psychology and brain science tells us that folks become more entrenched in their own beliefs when faced with resistance.

So try as you may, They ain’t changing their minds and they’re gonna be right. So you just got to let them go and have a system for spotting this kind of resistance early on so that it’s not as painful to disengage. And I know we as, again, as a lawyer having clients, I know the exact, oh, we got to get it in, got to do it.[00:29:00] 

Just let it go because that resistance is going to creep into every single part of the case. There’s no part that’s going to be easy. And so many of our clients have to follow our advice. That’s why they come to us. And the longer it goes, the more resistance builds, the worse off you are. So, you got a toxic client, you just got to let them go.

All right, number 18 lesson from 2022, which is coaching. Having a person watch, critique, analyze you while you’re doing what you do is so helpful. We have so many blind spots, and I’ll speak for myself. I have so many blind spots, so many things that I wasn’t even aware of that I was doing that were hindering.

My ability to do my job and having a coach is just so helpful. And I talked a little bit about this before about with witness prep, some people call it witness coaching. And I was always resistant to that. But [00:30:00] that’s what it is. I mean, really, we have all the information. We are trained, right? Lawyers. We know what’s going to happen.

They aren’t. And so we need to coach them because they’re gonna have to go out there on their own, right? And do their own thing. And we can help them get there. By watching and then offering again, helpful ways to do it better. If you want to do anything at the next level, got to get a coach, right? And it can’t be a friend.

It can’t be a family member. It’s got to be somebody who was trained in doing this, right? Think about sports. Anybody who’s a professional athlete has some kind of professional coach that helps them. Some things is like running, right? They give a running coach that helps them or a quarterback coach, or Steve Jobs, right, had his own coach.

Getting to that next level is going to require an extra set of eyes outside yourself to see all those blind spots. I highly encourage you to do that. There could be something specific that you need help with, or maybe you just want to learn [00:31:00] to play piano. Either way, you’re going to get way further down the road if you’ve got a coach.

Number 19. One of my personal goals for 2022 was to learn. And pay much more attention to finance and the economy, and specifically savings and retirement. Small law firms, solo law firms, sometimes we can forget to do this. It is a tax write off, yay! But sometimes setting up that system can be complicated.

I’ve read several books, but one of my favorite books that I read this year was called Retire Before Mom and Dad. I found Rob just wandering around the internet and found him on YouTube, and the way he talked about it was helpful and simple. He’s a former lawyer, so maybe that’s why I was like, Oh, he knows what he’s talking about.

I’m not sure if that made a difference for him, but he found Rob. finance, his personal hot topic. And he was a lawyer for a really long time and then started Doughroller Podcast, and [00:32:00] now he writes financial articles for Forbes, but he’s got this YouTube channel and this book. And it’s been so helpful to listen to him and his commentary as we’ve gone through the inflation changes and the economy changes and really understanding Retirement and he does this great newsletter that links to all these other folks that have good thoughts and takeaways.

But if you are curious, if you haven’t started retiring or you want to make a change or switch up something, I would strongly encourage looking him up to see if you like him. I check out a couple YouTube videos. He does a live YouTube every Wednesday where he answers questions from the audience, but lots of things that are out there right now.

But don’t be overwhelmed. That’s what I would say is I was overwhelmed, but once I started to really see things repeat themselves, you think, Oh, I just read one book. I don’t need to read more. Well, I’ve read [00:33:00] several at this point and seeing a lot of repeat information is comforting and knowing, okay, there’s not this vast amount of information.

I just don’t know. There’s really not when it comes to retirement. And ways to save for retirement, but you know, there’s some questions that you should look at and think about and ways, creative ways to save for retirement and as Solo, a small law firm, I think there’s, that’s something we should be looking at, at all times.

But really, like I said, I’ll put a link in the show notes to his book, but if you’re just curious, I would just check out a YouTube video and see if you like what he says. So back to work related stuff, timelines, uh, think medical treatment timelines, case event timelines, job history timelines. I spent a lot of time in 2022 creating timelines for clients, whether it be focus group, whether it be trial, whether it be witness prep.

And this just an easy [00:34:00] way to organize things in their brains. We want things, chronology, we want a chronology, and if you put things out of order, we don’t go back and rearrange it the best way, and my best example is we did a focus group recently where somebody read a narrative to the focus group, and it was about a situation that occurred at a bar, and he told the story unfolding chronology, like chronologically, and then after he finished that, he went and added a detail about something that happened earlier in the evening.

Now, They, it was, they were red, right, so it was just an auditory, right, so they had to take information, they had one picture of the bar. And they didn’t put it back in order. They assumed something negative because it was placed in the narrative a little bit. It was out of order, but they didn’t go back in and say, well, that fact actually goes and fits up here in the chain of events.

They don’t do that. And so that’s why, like, having that visual aid of a timeline is [00:35:00] so helpful. And again, super, you get a whole lot faster, but I always think people lose track of time. Things come at us so much more quickly than they used to. Email, text message, news, things change so fast. And our brains can really only take in so much, so some of it’s got to go somewhere.

Especially when we’re getting ready for, you’re trying to get a jury. i. e. a viable downloading of copyrighted content software. So it’s important to remember this. You’re not doing it for the copyright. Right. You’re doing it for the beneficiary of that right. You’re doing it for the beneficiary of removing copyright.

It’s your own permission. Because that’s the final item you need to use to protect your internal system. That’s stems from what I feel like is the purpose of that excuse. story. All right, 21. 2022 was a big [00:36:00] lesson of record it, document it, write it down. And I’m really good about taking notes. I’ve got about a thousand little pieces of paper I’m staring at on my desk right now.

And I had to start training myself to put it down. into the system. So a couple of ways that I did that was zoom. If you’ve done any kind of zoom with me, I generally we’re going to record it, right? Cause we’re going to talk about stuff and I’m going to take notes, but I’m not going to remember everything that’s said.

So I want to make sure record so I can go back and watch it again. And I encourage everybody, you got a focus group video, you video your witness prep, right? Watch it again, but just speed it up. Watch it on two times, right? Get it done quickly. You’re still going to get all the information out of there.

But if you got Zoom, hit the record button, right? Even free Zoom will give you 40 minutes free, right? All ideas, write them down. Call notes, write it down. I got the Adobe app on my phone that will allow you to basically scan anything using the camera and it’ll make a PDF and email it to you. [00:37:00] Then that goes straight into the file.

Or, a couple other apps is Obsidian, which is a pretty extensive note taking app that you can go on any laptop, and Kraft. I use Kraft on my cell phone to take notes. A lot of times, I may be somewhere, either traveling or sitting, waiting for an appointment or sitting somewhere and, oh, I get an idea or something comes to my head.

I gotta write it down, otherwise I’m gonna lose it. And, lawyers, I feel like we’re pretty notorious about carrying so much information in our heads. We get it out and then we remember it, or it’s there for later. So record it, document it. That’s a huge lesson from 2022. I’m going to get better at doing Obsidian, which allows tagging and all this like crazy organization of things and recall.

As I go further into it, I will definitely keep you all updated. Last lesson from 2022. And this is probably a lesson that is helpful to remember every single year. And that is. Take more vacation. Take time [00:38:00] off. Life is short. People around you want to spend time with you. I think that we’re all reminded of somebody that we’re not as close to, or somebody that we lost from this world.

And sending that thank you note, send that text message, it really makes a difference. And there are people in our lives that we should probably hug on and appreciate more. And it’s just a good reminder that If we need to take a little vacation, we should just do it because at the end of the day, you don’t want to look back and think, gosh, I worked all the way through that and I really, I wish I had done it differently and we can do that now.

You can do that today and I encourage you to do that. I made a conscious effort to do that [00:39:00] this year and I am so glad that I did. I’m not going to regret. Sending those notes. I’m not going to regret taking that time because it’s so much more sweet and precious when it’s limited, but all of our time is limited.

And we, I feel like sometimes we forget that. So 2023, it’s going to be about doing the same thing and telling people how much you appreciate them, saying thank you. And maybe even just smiling, asking people how they’re doing, to make them feel better. It’s going to make you feel better because it’s just moment to moment and we can get lost and forget all the things we learned from 2022 or 2021.

But sometimes when it comes down to just doing that one thing, giving someone that one hug, that really, that’s how you make people feel. And that’s, I think, what we always need to be reminded of. It’s [00:40:00] how we make people feel. So with that, thank you so much for listening. This was a really long podcast.

Lots of lessons in here. I just want to know, just real fast, we’re almost done, what you can look forward to for 2023, we are going to do more interviews, going to have at least one interview a month with somebody, we’re going to really try to hone in on persuasion and influence. We’re also going to do, Try to do some more book reviews.

Again, books that can help us in our profession and do better and prepare better. So all that being said, thank you so much for listening. I really appreciate hanging in there. It has been a wild ride for a year and I appreciate your patience because I know not all these podcasts have probably been humdingers, but sometimes that’s what happens.

As I have also learned in the podcast world. So thank you again. If you enjoyed this podcast, please rate or view it on your favorite platform. Share it with somebody who may want to try to prepare better. All right. Thank you so [00:41:00] much.

As a trial lawyer, what is your mindset around deposition preparation? Today, we focus our discussion around that. Lawyers have different mindsets going into deposition preparation. You want to get the most value from every single case but it’s also important to do things using a humanistic approach.

At the end of the day, our mindset should be focused on helping our client as they go through seemingly difficult chapters in their lives. They’re probably going through something horrible, whether that’s related to employment, injury, or a business situation – that’s impacting their life. And as their lawyer, you’re there to help them deal with whatever legal situation they’re in. 

In this episode, you will hear:

• The different mindsets lawyers have when approaching deposition
• Selling your case is a disappointing mindset
• The importance of shifting your mindset and using a humanistic approach
• How your 30-minute conversations reflect the value you want to have

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Supporting Resources:

If you have questions or a particularly challenging client preparation, email Elizabeth: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome. It’s Elizabeth, your host for trial lawyer prep. Thank you so much for joining us in this new episode.

It’s going to be pretty short and sweet, and the focus will be mindset, our mindset, right? What is your lawyer mindset around [00:01:00] deposition preparation? And this came up for me here recently, several different locations. There was a listserv conversation that I read about woodshedding the client. There was a presentation that I saw about woodshedding the client.

And then I had a conversation with another lawyer discussing how he prepares clients and what he tells them to do. That’s really kind of what set me on this idea for this. episode because I realize my mindset is different than other folks and I’ve worked significantly hard on understanding what it is it should be and how to help people, right?

If my mind is focused on helping the person and my mindset is that, yes, this is a case and this is something I’m going to make money on, but it’s also an opportunity to help this person in [00:02:00] their life. They’re probably going through something horrible, whatever may be, an employment situation, an injury situation, a business situation.

It’s changing their life and they’re definitely at a place where they don’t want to be in your office having to hire somebody to help them with a legal situation. That’s not always been my mindset. That’s obviously something I had to learn along the way, but once I was attuned to what my mind was thinking about, that also then attuned my actions at what I picked up on, what I heard and what I looked for when I spoke with clients.

In listening to lawyers here recently, I understand why we get in that mindset of this is a case. We’ve got to talk to the adjusters. This is the time where clients need to just basically sell their case. Those are actually words somebody said, well, this is us. What I tell clients is this is the opportunity to sell their case to the adjuster.

They need to sound the best, look the best, do everything they [00:03:00] can to basically sell it to get the most money available. That’s a pretty disappointing mindset. I mean, I walked in to hire somebody and they basically told me it was my job to sell my case, meaning this factual thing that happened to me that changed my life.

I would kind of have a pause and then I’d have a thousand questions. How do I sell myself? A lot of people hate sales. So I, that just seems to spin off into a whole nother level, but I also think people would take that definitely the wrong way. And the other conversation that I heard from this listserv was about woodshedding the client for specific questions that they may get that defense may try to trick them with.

And at the end of the day, there was lots of advice. A lot of it came from the same mindset of your client needs to say exactly what you tell them. And they need to be. selling [00:04:00] the case. That’s their job and deposition is to sell the case. And I quite frankly think that’s your job, right? We’re the advocates here, zealously representing our clients.

Our client’s job is to come in and tell the truth, tell their story, tell their impact, to stand up, to cross exam, to not fall for tricks. That’s a huge shift that we can make if we choose. But, What is up against changing our mindset? Well, it’s the fact that this is our job and as a personal injury, that’s difficult to get out of that mindset because it’s eat which kill.

Well, that’s a lot of lawyers too, but you want to get the most value of every single case. And so you want your clients to do some of that lifting for you. But instead of taking a very, humanistic approach and thinking about it in different terms, like what the jury would be thinking about. If you tried to sell your case to a [00:05:00] jury, they would not be having it one bit.

They would smell you out like the rat that you would be and dump it. So I don’t know why that would work for insurance adjuster because they have the same feelers, spidey sense for that information as well. So this is episodes really more about a question, you know, what is your mindset? When you’re going to get a client ready.

for deposition, what is on your mind and how does that then craft what you say to the client or not say how much time you spend with them or not. But either way, if you’re thinking about it, or if not, I always wonder 30 minutes is generally 30 minutes to an hour is generally about the time that most lawyers spend preparing their clients.

And how does that 30 minute, one hour, how does your conversation reflect the value that you have, or that you want to gain from this file? Don’t [00:06:00] think you’re gaining it from the clients from the file. How does that help? What can we do to change how we think about this? Because if we change how we think about it, we will look at it differently.

We’ll work it up differently and it will be reflected. In the value of the case, a hundred percent. Every time I hear from lawyers that take less cases, that they turn their mindset, it’s not about turning and burning files. It’s about helping people. It’s about talking to juries, getting people to work through this phase of their life.

It changes. And I guarantee you that you get more value out of the files. I’ve not talked to one lawyer said, you know what? It didn’t work. I’m going back the other way. Now, something else may pull somebody back the other way, and it may be, again, a different kind of mindset, but that’s my thought we’ll leave you with for this episode.

What’s your mindset around deposition prep? And also for next episode, we are going to do [00:07:00] a top 22 things out of 2022 that I’ve learned along the way in podcasting and also just in all the endeavors that I have gone through this year. So some of them will be very practical things, some of them will be probably pretty personal things.

But hope that you tune in for next episode. Either way, this episode drops right before two major holidays. Hope that you enjoy that. Take some time off to rest. And recharge. And until next time, thank you.