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
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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.
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.
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.
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.
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.
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
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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
Subscribe and Review
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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.
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.
As we’re approaching 2023, this is the perfect time for planning, especially if you have cases that are going to be filed in 2023. And one useful case planning tool is a pre-litigation focus group.
Maybe you’ve had this case for a couple of months now and you’ve done a little bit of investigating. So you have a little understanding of the facts around what happened, but you haven’t actually filed the case yet. This can also be the time for you to use a pre-litigation focus group for more in-depth planning.
The perfect time to use a focus group is when you have the information that allows you to make some predictions, and there aren’t any huge missing facts going on so you can pretty well predict the damages.
In this episode, I’m going to discuss planning for focus groups before you file a case, the importance of a pre-litigation focus group, what it looks like, what things you need to be looking for, and the benefits of using it.
In this episode, you will hear:
What happens during the pre-litigation focus group
Questions to ask and where to gather more information
Factoring in your expenses in terms of time and money
Ways to pick a case for a pre-litigation focus group
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.
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.
Elizabeth Larrick: Hello and welcome back. I’m your host, Elizabeth Larrick. Thank you so much for joining me for this episode.
We are rounding out 2022 and I thought this might be a good time to talk a little bit about planning. I’m going to be doing a [00:01:00] live LinkedIn this week on planning for 2023, but focus group planning. And I thought we could go a little bit more in depth here on this episode about specifically using focus groups before you file a case.
So in this scenario, you would have probably had this case for a couple of months, probably, probably done a little bit of investigating, understand the facts a little bit about what happened, but you haven’t yet filed it. And I love using a focus group at this point in time where you have information.
You can make some predictions. There aren’t any big missing facts going on. You can pretty well predict a little bit what the damages will be. But you can use a pre lit focus group for a little bit more in depth planning. And that’s what I kind of want to talk about today is why we would be [00:02:00] running these things, what we’d be looking for, and really when we talk about planning, how can we get our bang for our buck here?
And overall, when I talk about what kind of focus group this would be, We’re talking about a very short, more than likely, it’s going to at least take 50 minutes. You may be able to get it done shorter than that, but I always encourage people to set aside at least 50 minutes when you’re going to go in and talk to a focus group about a particular case, because you’re going to have a narrative.
You may need to set the scene with some photos. Now that’s different than if we’re just going to go in and talk about a concept, we’re going We’re going to ask some really straightforward questions. We’re going to practice some jury selection that’s different, but when you have a narrative and you need to set up some information and probably give visual, I always say, try to leave yourself like 50 minutes.
And so that’s what I would encourage you to do here is have very neutral narrative of the facts, some [00:03:00] pictures, right? And sometimes pictures can eliminate possibilities in people’s minds. And helpfully explain things in a very quick fashion so that you can move forward with asking questions. And this style of questioning would be very open and what do you see, how this happened, what would be your concerns, what sticks out, or what could be missing very big, broad questions.
You’re given information. You just want to get whatever their first reaction is to the information or what’s going on in the set of facts. And that kind of leads me to why we’re doing this. So again, we’re asking questions to really figure out what stands out to them, what would be concerns for them, and those can be good things.
All those can be bad things. So we definitely want to make sure that we’re trying to find any negative facts, any negative assumptions that people may be making negative attitudes that could be out there about it. And again, also positive things. Hey, what are the positive facts? [00:04:00] What are things that just stand out in people’s minds?
Where are they needing more information is always a big question I like to ask. And this kind of leads you to, with all this information, we’ve got a good column and a bad column. Where does this lead us and to where we need to gather more information? And that can mean, what is that expense going to be for me as the lawyer?
And by expense, I mean, how much time? Is that going to take, is it going to be a big time endeavor or not? How much money is that going to cost in the sense of case expenses? Am I to hire a third party, whether it may be an investigator or a company to do a forensic exam or a download a vehicle. And will I need to have any kind of expert then to get this information in?
And of course, we’re talking about witness statements or cell phone records, right? There are companies that will do all that, of course, for you and then experts out there as well. And so we get this information. So is it reliable? [00:05:00] If you’re just running one focus group, one pre lit focus group, is it really reliable?
Well, you could certainly do more than one. You’re not limited, but again, I always try to think about, let’s be conscious of our case expenses when it comes to these. I think you can, as long as you’ve conducted it in a very neutral way or had somebody else conduct it for you, I think you can pretty well rely on the information.
Sometimes we go in with what we think the jury is going to tell us, but the feedback that I continually get from folks that I work with is they always learn something new from the focus group at some kind of level, something new. So I think you’re always going to have new ideas or new thoughts, new attitudes that you’re going to see when you run focus groups.
And when we do our pre lit focus group, that allows us then to kind of plan going forward, thinking about discovery to get what other information may be out there. And again, you could be trying [00:06:00] to see, is there any more bad information out there? Is there any more good information out there? At this point, it may help you with your themes.
I feel like most people say most trial lawyers go into cases with several different themes. And again, they’ll go with the strongest theme where the evidence is. Sometimes you may just go in with one or two. And then again, where does that evidence fall to reinforce those themes? And of course, in planning terms of case expenses, which we’ve talked a little bit about, will you have to go find that information at what.
What money expense, and would you need an expert to be able to come in if you do? Do they provide education? What are they bringing in? All those things kind of help you with the case expenses. And sometimes we know what kind of insurance policy we’re dealing with on the other side or what kind of ability to recover from the other side.
And if you don’t, of course, that’s. Generally, number one thing we always get first, and that’s in the federal rules, initial disclosures, and in [00:07:00] most states as well, that’s kind of first blush, they’re supposed to get that right out the gate so then we can plan around that. When would you pick a case for this?
Well, you could have a case with an unusual fact pattern, maybe something that you haven’t experienced before. Maybe you’ve got a fact pattern with unusual damages, not really sure how strong a liability is. I mean, you’ve got really strong liability and not so sure about the damages. Lots of ways to pick a case to do this with.
Again, I think you’re going to learn at first blush what’s on people’s minds, and that may go one way or the other for you, but at least you’ve got that always in your mind as you’re working forward. I’ve got two particular examples to talk about with you, and the first one turned out to be negative. And in the sense that they, the lawyers I was working with, wanted to run a focus group before they filed this case because they just weren’t even sure they could get liability, or responsibility, on [00:08:00] the parties that had the Available resources for recovery.
Several different entities and defendants were involved. It’s a fairly simple fact pattern where an individual is working at a construction site, the The building itself, nearly done, just cosmetic finish out kind of stuff. And the person was working and suffered a catastrophic injury, paraplegic. And of course it’s under construction.
So there’s again, lots of construction folks involved, the building owner, the tenant, and unfortunately the responsible party who they needed to be tagged with. Liability did not come true in our focus group, and so it wasn’t necessarily they placed everything on the injured person, but more they placed it on a few other people in the line before it got to the party with the recoverable resources.
So as a lawyer, they got that information. [00:09:00] And they decided this would not be a case that they’d be able to file a lawsuit for because it was so tenuous, the law was going to be tenuous, the facts, again, according to the focus group was going to be pretty tenuous, but the case expense was going to be astronomical.
So high risk situation there. So that is where, again, focus groups significantly help people make that kind of decision. How risky is this particular case on all fronts? And another example that I have, medical malpractice case, and when we run a pre lit, Focus group for any kind of case, but really, sometimes we have more things that are medical related or scientific kind of related.
We always want to go in asking how much they really understand about what’s going on and understood. Where are the. So in this particular example, there were quite a few [00:10:00] gaps in understanding. People generally grasped all the narrative facts. But when you ask the big question, okay, so what caused the brain bleed?
What caused the heart attack? They don’t know. So that’s kind of where it’s like, all right, let’s figure out what they do know, ask some questions and really look at, okay, how can we best educate this? Do we need an expert? Probably not. Could we get this done with some demonstratives? Probably so. Some education pieces here and there, but really, as always, causation is a big issue for medical practice cases.
So helping get people down that road better with some kind of demonstration, demonstrative or education is always helpful. And those folks were a hundred percent moving forward because as far as liability and that kind of stuff. It was easy. It was a hundred percent good to go on that, but again, that causation part was a little bit missing.
So both those examples just gave the lawyers more information to assess [00:11:00] the good, the bad, assess the risk, assess, Hey, case expense wise, this is going to be a lot, not a lot. How much investment do we need to make in time and in money? And so that’s why I encourage you if you are, you know, it’s the beginning of 2023.
You probably got a few cases in there that you’re thinking, okay, well, these are going to be filed in 2023. Do you have any on that list? That you might need to check in, just double check and make sure, or that you want to learn a little bit more about before you start that discovery phase and have some themes in mind before you go into those depositions when you’re gathering up that evidence and looking for those documents, right, that will fit themes that the focus group gives back to you.
Well, I hope that this was helpful, lots of information there, but if you are thinking about doing a pre lit focus group, you have questions, please don’t hesitate to email me. I have lots of forms for virtual focus groups and also that can [00:12:00] help with in person focus groups as well. So just shoot me an email.
Now you can also find a lot of those forms on my website, LyricLawFirm. com until then, thank you so much.
As a trial lawyer, you probably know what goes into client preparation like the back of your hand but there could still be things missing in your process that you wish to improve on.
In this episode, I’m going to discuss four simple advice tips for successful client prep. These are simple yet sometimes overlooked, tried and true tips for nearly every single client and every single case.
These are small things you don’t want to miss during client preparation so you can learn more about the client, have an easier time preparing the case, and have more success at your client depositions.
In this episode, you will hear:
Why you should prepare the client alone
The pitfalls of preparing people together
Giving the client homework before the first client preparation session
The importance of creating timelines together and making them interactive
Breaking down the client preparation into two sessions
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.
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.
Elizabeth Larrick: Hi there, Elizabeth, your host. I have a very short, sweet podcast episode for you today.
We are going to talk about four simple advice tips for successful client prep. And these are simple, but [00:01:00] they’re sometimes overlooked. And where these things came from is I teach. Uh, witness prep for many years with the Kenan Trial Institute. And these are common questions that I get asked, but also when I’m not teaching this, I work one on one with clients.
And so I’ve done that for many years and it’s a multi step process and found that these are tried and true tips for nearly every single client, every single case. So these are things when I say success. They’re really small things that are going to help you learn more about the client, have an easier time preparing them, have more success at your depositions with your clients.
And by success, I mean, they’re not going to get tripped up by things that the opposing counsel may ask. They’re going to be much more thoughtful and they’re going to have a lot better memory and recall based on some of these [00:02:00] things that we are going to talk about. So let me jump in very quickly. And again, like I said, Simple tips, quick episode, first tip, and there’s four of them total.
So first tip is prepare the client solo. Do not prepare clients together. And I’m talking about maybe we’ve got parents or we’ve got spouses or we’ve got maybe Two folks are in the same wreck or both in the same incident, don’t prepare them together. They’ve had an individual experience. And so their perception is going to be different.
And what happens is when you group people together, one person tends to speak more than the other. And they also can speak for the other person, right? So parents will speak for children. The spouse that’s not injured will talk more than the injured spouse. That’s a total normal human dynamic that can happen in those kinds of relationships.
What we really want to do is make sure we are [00:03:00] gathering what this particular client experienced and giving them that one on one information for preparation. And in my experience, people will share much more when they’re solo. Versus when they’re with their parent, their spouse, their friend, and a couple of reasons why one is you’re focusing your attention on them.
So they may feel more compelled to give more, but also they’re seeing that you’re giving like individual attention. And so they want to make sure that they also give you more of their attention. Some of the pitfalls of actually preparing people together is they’ll just feel like share the same story versus actually giving maybe their own individual perception, which none, it’s a lie, but it’s not necessarily individual.
Sometimes we have people who have different concerns. One concern may be that they [00:04:00] don’t want to share about the impact of their injuries or how important their job was to them. And. They won’t share that if the other person’s in the room, maybe they’re scared to share in front of that person. And sometimes people just don’t want to share what they’re concerned about or questions they may have because they don’t want to be embarrassed.
They don’t want to waste time. There’s all kinds of things that go through people’s minds. So this is why I say remove the barrier, just prepare to share. I’m going to get there pretty soon because I know some people think, I don’t have the time to prepare people individually. Sometimes just spending 15, 30 minutes solo with somebody will do wonders and make you say, Oh, I need to spend more time one on one with this person.
It can also sometimes correct behavior as well. Tip number two, which would be give homework, always give homework before that first client preparation session. And it can be even as [00:05:00] simple as before you come to our meeting, I want you to bring three questions with you. That’s it. Three questions. Look how simple that is.
And one, you want to get them thinking, right? You want them to be thinking about the preparation, then be thinking about the deposition. It takes a little bit of work off of you, right? Because the Nick Cummins is the first thing you talk about. But also you are setting up a frame for what they’re expected to do.
They’re expected to participate. This is not just a sit and listen to my lawyer. Tell me what to do. I’m gonna be Participating in this and it’s a quick, easy way to get them to start working on getting things together, thinking about it, getting their brain working towards it. Just give that really simple homework.
You can ask people to bring in their concerns. Ask them, that’s what I say, make it as simple as just, at our first meeting I want you to bring three questions for me. Three questions that you’re going to have for me about this deposition. Super simple. Third tip would be use a [00:06:00] timeline or create a timeline together.
Timelines are great tools to refresh the memory. Depositions generally take Or occur years and months after the events that are in the lawsuit. So we really need to be refreshing memory And it is a fantastic visual aid to do that’s why I say do it together Even if it’s as simple as taking out a dry erase marker and putting a line On your board and then just taking things off together.
Okay. Here’s the date of the crash. Okay. Here’s the date of that surgery. Here’s the date. You lost that job. Okay. Here’s the date and it’s just, you’re putting things together for them in a big picture way. And as I’ve talked a little bit about visuals before, and we’re going to spend more time in other episodes talking about visuals, because I think we really have a great opportunity to speed up the learning and also retaining.
What they’re learning in their memory refresh. And that’s really what we want to do is. [00:07:00] Let’s go through an exercise instead of, hey, let’s just look at all this stuff. It’s all these documents, right, in a timeline that’s, you got asking people to keep multiple things together in their brain at one time.
And I’m saying, Hey, use a timeline to make this work quicker. And also it’s interactive if you do it together. If you use a timeline with the client, again, if it’s already made, that’s totally fine. But just remember from a standpoint of simplicity, keep it all on one page, like an eight by 10, or keep it all on two or three slides of a PowerPoint.
Because again, we really want to get that overall big picture and we overall make sure we’re refreshing that memory. If we get things too large and disjointed, you’ve got a medical timeline that’s 50 pages long, that’s too long, right? That’s just way too complicated, right? We’re missing the big picture here.
We really want to keep it simple. And again, refreshing that memory in a way that it’s going to help them retain it for that deposition. Last simple advice tip, which would [00:08:00] be do two sessions. Two preparation sessions, even if we’re talking about two 30 minute phone calls, stay with me here. I know a lot of people are thinking, well, what if I spend more time?
That’s totally fine. Sometimes we put all of our time together in one session, like the day before, maybe the two days before the deposition. And what I’m encouraging you to do is whatever time you have allocated, split it into two sessions. Or maybe you do, you know. Um, 20 minutes on the front end, 20, 80 or however you want to split it up, but you always want to have a little bit of time in between the session.
That’s why I say due to, because that allows them to really absorb and start searching their brains for more information, more stories, more questions, right? They’re really able to now, Oh, they understand so much more about what it is they’re about to do. Whoa. What it is that their job is. Yikes. And they may be excited [00:09:00] about it.
It doesn’t really matter, but that time allows your brain to keep working on thinking about all of it. And it’s done on a subconscious level, but. That also allows them to really learn the information and that’s what I mean by absorbing it. So when they come back for that second session with you, they may have more questions.
Where, how does this fit in? Right? They’ve been thinking about it. Right. That’s what you want. You want some absorption. You want some questions or even better than they come and say, hey, we talked about this and this came to my mind. I totally forgot this story about how I tried to go volunteer and I couldn’t do it.
Great. So. You want to get those extra things and be able to be hands on when they come in the door. You don’t want that to be happening at the deposition because that’s It could be something that needs to be fine tuned, it could be something that needs to be organized, maybe something that doesn’t apply at all, or it could be a question that really needs to be answered instead [00:10:00] of being left lingering in the deposition.
So that’s why I encourage you to break up into two sessions to allow that time in there to absorb and search their brains more. It also allows them time to solidify their understanding. of what’s happening and that will give you a better opportunity to ask better questions, deeper questions, more challenging questions, get them to another level of being uncomfortable with what they’re going to be asked.
We don’t want to scare the pants off of them at the first meeting, right? We want to get them set, want to get them what to expect. And then maybe in our second session, then we’re getting them to that It’s going to get uncomfortable. Here’s how it’s going to get uncomfortable, right? Because we don’t want to scare them right off the bat and then just scare them.
They just, they don’t ever want to come back. Then they think there’s nothing I can do, right? I’m powerless over the situation. So we just want to divide and conquer here. That’s why I say two sessions. All right, now let’s go back [00:11:00] through very quickly. These are simple things. They’re simple not to do as well, but that’s why, again, I want to make sure number one, prepare the client solo.
Don’t pair people up together in preparation meetings. Number two, give homework. Even if it’s just a super simple, Hey, when you come into our first meeting for zoom, when you come into our first in person meeting, bring three questions that you have for me about deposition. Number three, use a timeline or create a timeline together, right?
Really awesome tool to refresh, to get that 30, 000 foot view. It could be as simple as drawing a line on a page. And lastly, do two sessions. Split your time up, split that preparation time that you have allocated to allow the client more absorption time and things to solidify so that you can work even better with them when they come back because they’re going to stand on much solid ground versus still feeling uncertain about what’s going to happen.
Okay. I hope that [00:12:00] this was helpful for you. It’s a short one here. And that’s what I always try to do short and sweet. If you have questions for me, or if you have a topic that you’d like covered on the podcast, or if you want to come on the podcast, I’d love having guests, please shoot me an email. It will be in the show notes.
Bonding versus preparing a client for deposition are two things that we are told we need to do as trial lawyers to set ourselves up for success. Indeed, both are vital and important parts of client interaction, but where do we draw the line between the two?
Sometimes, when you’ve already built a solid relationship with a client, this can be difficult to separate. But bonding and preparing a client for deposition are two different things. They serve different purposes. Bonding is taking a separate interest in our clients, outside of the legal matter. It’s as simple as asking clients about their families or sharing a common interest. You could also be sharing with this person about yourself or other family details. It’s an important part of any relationship because it helps establish rapport with people. Conversely, preparing a client for deposition is a highly focused training and coaching task that involves things like teaching the client what to expect.
In this episode, we’re going to talk more about how they’re different and what you can do to resist the urge to bond with a client so you can bring it all back to the main task of preparing them for deposition.
In this episode, you will hear:
How small talk sets you up for success
Your specific tasks as you’re preparing your client for deposition
Things you have to do during preparation, which you never do when bonding
Resisting the urge to move into the relationship-building mode
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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.
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. I hope you had a wonderful holiday weekend. I hope this will be hitting you after Thanksgiving or whenever you choose to tune in. But this is a podcast dedicated [00:01:00] to trial lawyers getting ready for trial, getting ready for depositions, but basically preparing their cases for success through thoughtful preparation.
And today we are going to talk about bonding versus preparing a client for deposition. And these are two things that we are told we need to do, and we being trial lawyers, we need to do to have success. They’re both vital. They’re important parts of client interaction. And I see this happen many, many times when I sit down to prepare clients.
And so I thought this is probably something other people can get trapped up on. So I want to talk about what are these two tasks, right? Like how they’re different. How bonding and preparing client for deposition are different and they serve different purposes and how we can get this urge to do this bonding with the client during deposition prep.
That’s real and how we can avoid doing that [00:02:00] and keeping these jobs very separate because brain science tells us we can only do a one thing at a time and we don’t want to bond. bond with our client at DepoPrep. Right. We don’t want to move into that and we don’t want to endanger our preparation time and risk the client’s deposition.
And so let’s talk a little bit about bonding because it does happen that we bond with our clients. It’s something that we need to do, but really it’s taking it at face value, what is bonding? Well, it’s taking a separate interest in our clients outside of the legal matter. And it’s as simple as asking folks about their family and when you see them every time, sharing a common interest, sharing with this person about yourself or other family details.
And it’s really, it’s an important part of the relationship for any relationship. It’s very important. And it really does help establish rapport. with people and tells us that small talk really does help people succeed, especially [00:03:00] they’ve studied this basically in adversarial negotiations that even just a little bit of small talk beforehand can help negotiations succeed, getting people to feel comfortable, feel at ease.
And so it’s something that you must do. That’s something that’s talked about in the book influenced by Robert Cialdini. Something that we really need to be doing. And again, I know that we’re not negotiating with our clients. We’re just trying to basically bond with them. Most of the time our clients spend a large period of time, longer than sometimes they want, a year, two years, four years, five years with us trying to handle a problem.
And so really the purpose of bonding is about relationship building. And when we hear about this is when lawyers urging other people to go share a meal with the client, go to their home and have a visit, keep up with client’s birthdays, anniversaries, their kid birthdays, pets, sports, hobbies, but it’s something again, it’s outside the legal matter.
So really relationship building, when we talk about this, if it’s something that. Maybe you struggle with, or you have questions [00:04:00] about how to do this in a good way, I really would suggest reading Dale Carnegie, How to Win Friends and Influence People. Total classic. If you haven’t read it in a while, like, put it on your list to do because it’s, I find it to be a super helpful refresher when it comes to really simple things that we can do that people light up with.
One of the simple things he suggests is using people’s first name and remembering. It really does help. Okay, so here’s this task of bonding, but let me switch and really talk about preparing for deposition because that task is really a high focused training and coaching task, right? I mean, when I think about preparing for deposition, we really are trying to accomplish three really big tasks.
And the first one being teaching the client what to expect, but we have to do that teaching in a format That makes sense and with language that they understand. And so many times I hear lawyers [00:05:00] explaining depositions and using words, objection, elating questions, testimony, rules of evidence, discovery, all these words that total legal jargon, not anything that clients use regularly.
And when we do that, like, they’re not retaining it because it’s like, let me give you an example. When we go to talk to an expert, let’s just happen that this expert’s a rocket scientist, right? That rocket scientist is going to probably use terms and phrases that are 100 percent foreign and that can’t be understood in context clues.
So you’re having to like, whoa, whoa, I got to step back here. You’re using all these words that, Like, I don’t understand. Now, lawyers will do that, right? Lawyers, hey, you need to under, help me understand what that word is. Clients won’t do that, right? They won’t ask that question out of embarrassment, like, wait a minute, like, what is a leading question?
What do you mean, what’s the word objection? So we really have to stop and teach them in a format with language that they understand, because that’s hurdle number one, right? Getting them to [00:06:00] understand and what they can expect. The next hurdle would be organizing all that information that they have to share.
Because they have a lot, and a lot of it could be past, it could be stuff that’s involved with the lawsuit. Thinking about injury cases, we’ve got to organize all the information about injuries, medical treatment, future medical needs, limitations, the pain, impact to family and self. That’s a lot of stuff to organize.
We’ve got if you’ve got an employment case, right? We’ve got job events, job history, probably lots of documents to organize. And in this phase, we’re really helping refresh them on it. But also we need to help them organize it around. The areas that they’re going to get hit on, but also just with questions are going to be asked.
It’s not a normal conversation in their minds, right? They’re thinking it’s going to be questions that don’t have unusual terms or are phrased in a way they’re going to understand. So that’s kind of where the organizing [00:07:00] helps. So once you do that, we taught them what to expect. Number two, we’re organizing the information that they’ve got in their brains.
And finally, number three is testing, right? Role playing with the client, giving them that experience, and really testing what you worked on. So the purpose of preparing for deposition is a hundred percent case related, right? It’s not relationship building like bonding. Now, it will benefit your relationship, but in that preparation, you’re going to have to cover uncomfortable issues or bad habits.
And you want to do that before the defense does, but that’s not something you would ever do in bonding. So two really separate tasks. And I definitely would encourage people to do the bonding early. Often, you could do bonding on breaks when people first come in with icebreakers, but once you turn the task to deposition prep, then we really need to be honed in and focused on [00:08:00] doing that task and not moving back and forth between bonding and preparing.
Because again, we can really only do one thing at a time. And this is so easy to occur because we’re sitting down, we’re talking about events, we’re talking about what’s happened since the original events from the lawsuit, what impacts, repercussions, and inevitably conversations turn to difficult things, life changing events, severe injuries, loss of a job, loss of a business.
These are personal things and When you hear them, you want to be empathetic. You want to be sympathetic. But this is where we can creep in back into that bonding and move away from pair pairing for deposition. So let me give you an example. Sitting down to prepare, a young man, he’s 22 years old. His father’s died in an explosion.
And Sitting in to prepare [00:09:00] him for his deposition and we’ve got a couple people in the room and basically having the client kind of walk through growing up. Things he liked to do, how was his dad involved, and the client conversation turns to growing up and he had a very serious passion for breakdancing and went to competitions, and the, an associate in the room pipes in.
Oh yeah, me too. Oh my gosh. Do you know this person? Oh, I used to dance at this studio. Oh yeah, did you do? And the conversation takes a 20 minute detour. Now again, there’s nothing wrong with the conversation. They’re talking about common interests, things that they have in common, but now we’re having a conversation where it’s, Relationship building, and we’ve moved away from our task of we need to learn more about him.
We need to get more information on the table about this. Get him to go to a deeper emotional level to tell us kind of how dad’s [00:10:00] involved or maybe dad wasn’t involved, right? I mean that could be a painful thing. So, it’s so easy to slip into that, right? That, oh, like, it’s a perfect opportunity to talk about things that we have in common.
So, what can you do? Because you may be thinking, well, geez, Elizabeth, I don’t want to be a jerk. I feel for this person. They hired me. I want to be their champion, and I can’t be this heartless person who just sits there while they’re dumping their hearts out. And I know that, totally understand that, and it’s natural.
We’re humans. There’s gonna be a pull towards and somebody’s having an emotional moment, right? You want to get them a tissue, you want to comfort them, but Here’s what I’m telling. You got to resist that urge to move into that relationship building mode and that can look like talking about yourself, talking about another client with the same problem, right?
Trying to comfort them, right? Or even trying to sometimes solve the problem or the issue. Hey, [00:11:00] here’s how we can fix that for you. Oh, here, let’s do this thing instead. It’s like, wait a second, wait, wait, wait, wait, we can’t move into that mode because we want to keep them where they are. But we want to learn more and fit it into where we’re going with our preparation.
So what can you do? We’ll always want to be listened attentively, which means eyes up. We’re not writing anything down. If you want to comfort, just nod your head along that they’re going to get that affirmative agreement from you by nodding and ask questions to show that you’re engaged. Tell me more about that.
What was that like? You want to avoid some of those clinical lawyer questions though. When did that start? Well, when did it end? Did you tell your doctor? Did you make notes? That’s our lawyer minds working, like how can I get this into evidence? Where’s the discovery parts of things? And you will be so glad because you’ll learn so much more, but also Again, you’re giving that person the importance they need in that moment, but you’re staying focused [00:12:00] on the task.
And so really, again, this is the hardest part is for us, right? Clients are there to do whatever we ask them to do, but this is where it’s like, hey, if you feel like you’re slipping into that place, just go back and check, like, okay. How do I get us back on task? And sometimes it happens, but remember, that’s your job as lawyers to get back on task.
Now, bonding, right, that’s something, again, you can do on lunch breaks, you can do on breaks in the hallway when they come in. But once you turn to that depo prep, that highly focused three parts that we’re working towards, you got to resist, right? That bonding urge, that relationship building kind of moments, right?
Where you’re sharing something of your, of yourself, right? Or you’re trying to comfort them. And that’s really where it comes from. And we really just kind of want to resist that. Um, and keep everything focused on the client to learn more, to be able to prepare them better. And along the way, you’ll be able to, once you get through whatever the emotional moment you’re having and learning more, it’s okay to [00:13:00] come back and ask those clinical questions that you’ve got.
But just know like there will be a time and a place to ask those questions, right? We’ve got the organizational part of things, right? We’ve got the role play part of things. There’s a couple of different phases there where you can work in some of those questions that you need to answer. So I hope that this.
episode was helpful, right? So you can kind of catch yourself if you end up falling into that trap sometimes, because once we get off into that relationship building task, sometimes it’s hard to get back. And sometimes we spend a lot of time in that area. And when we really need to be bringing it back to the main task of preparing for deposition.
If you did find it helpful, please rate and review on your favorite podcast platform. Share with somebody who may find it helpful. If you have questions or have a topic that you’d like to discuss on the podcast, or maybe you want to come on the podcast, just shoot me an email. My email will be in the show notes.
We’ll also put links in the show notes to the two books that we talked about, Influenced by Robert Cialdini and the Dale Carnegie [00:14:00] book, How to Win Friends and Influence People. Alright, thanks so much.
Every witness gets asked about what documents they used to prepare. As lawyers, we have to be on the front end of things before meeting the client. This week, we are going to continue our two-part series on how to decide what documents to use in deposition prep.
Whether it’s personal injury, an employment issue, or a business dispute, cases involve dealing with a ton of documents. Depending on the type of case, think about tens and thousands of medical records, employment files, or email communications.
As a lawyer, all this can get super overwhelming. Therefore, having a good organization of these documents is definitely a must. The sooner you can start organizing cases, the better. You’re able to better prepare yourself for events such as hearings, depositions, and mediation.
In this episode, you will hear:
Two sets of documents you need to prepare
Creating a list of “must” documents
The importance of preparing visuals
Documents in the case that are already discoverable
Asking how a document can help or hurt
Looking at the 30,000-foot view of helping them
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.
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.
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 into this podcast. Dedicated trial lawyers trying to prepare better witnesses for better results in the courtroom. We are going [00:01:00] to continue our two part series on documents to use in deposition prep. We took a small break last episode to celebrate 52 episodes, but here we are now at 53.
So let’s keep going with our two part series. If you’ll remember, we talked about in episode 50, using documents in preparation. What to know, we really looked at the rules, right? So a lot of times we forget about the rules that may apply when it comes to documents that are used in preparation. We looked at the Texas rules, right?
So attorney client privilege and also work product privilege. I encourage you to check your jurisdiction for that because there are lots of ways that’s interpreted, but if you’re in Texas, just know it is really broad. That’s great. And what we want to talk about in this episode, though, is [00:02:00] how to decide what documents to use.
Every witness gets asked the question, what documents did you use to prepare? And so of course that takes us as lawyers. To the front end of things of how we decide those documents, like what we do to prepare before we have that client walk in the room or turn on that zoom and start preparing. And in looking at deciding documents, we’ve got one vein of discoverable things that are already in discovery, discoverable.
And two, also thinking about this in the sense of what is our clients or witnesses point of view? Will these documents help them? Because our cases contain a lot of documents. If you think about personal injury cases, especially med mal cases, we’ve got thousands and thousands and thousands of medical records, right?
Look at all these injuries. Look at these surgeries. If we’ve got an employment case, we’re talking about thousands of pages of employment files, email communication. And plus there’s a lot of. [00:03:00] documentation that clients never even seen when it comes to their employment files. There’s a lot there. And then for business disputes, right?
You’ve got this same issue going on. There’s probably multiple players with multiple types of communications and documents, and it just can get overwhelming. As a lawyer, it can get overwhelming, right? Having a good organization of these documents. The sooner you can start organizing cases, the better, because you will find your ability to prepare yourself for events in the case, hearings, depositions, mediation will go a long way.
exponentially more efficient, but much more time efficient as well. So I do encourage you if you don’t have an organizational tool for the documents themselves, I strongly urge you to do that. Maybe we’ll find somebody who can come onto the podcast and talk to us about that, [00:04:00] but really coming back to what’s a good rule of thumb, just generally for looking at these documents, how to side one, you got to review them, which is why an organizational tool helps.
And also we need to be looking at this through the lens of, okay, if they look at this, if our witnesses, our clients look at this, they’re going to have to answer questions about it. All right. So where does that lead? That means, well, we could pick and choose. Right? But by picking and choosing, are we going to be sending a secret message to the other side about our view of things?
If we pick too many, are we going to overwhelm our witnesses, our clients, and basically just provide them an even harder task at deposition when they get asked this question? Or do we just give them too little, give them nothing? I know some lawyers just give them nothing. And are we leaving them vulnerable then to be in a panic and create answers?
And I know that can sometimes be a really good trick to use. You got maybe a one [00:05:00] page medical record that says, Hey, on this day, two years ago, your pain was at a level one, but then three months later, now all of a sudden you need to have surgery. So what’s true, what’s not true. And as a human, and when your face with this black and white.
Document and it’s a doctor, right? It’s a medical record, right? You put in a corner and they love to force people to say, well, who’s telling the truth and who’s lying and what changed. Try them all in this dynamics. And it’s like, Oh, it can be a little bit of a panic and we don’t want to put people in that position.
And same thing can be true with a, with an email. Hey, on this day, you said X is you said that you would, uh, Never go to litigation and we could always work this out, but then here this other, so, you know, what changed, what’s going on? And again, I’m asking broad questions, but we know when it comes to things like that, this are going to be tough cross exam style questions that are obviously leading people to a particular answer.
So let’s talk about how to categorize maybe our documents [00:06:00] so we can Make this a little bit simpler for us. And I kind of like to group things into two different sets of documents. One will be documents in the case, right? Things that are already in discovery. Everybody’s got access to. And the other set being instead are created for the case, right?
So you would talk about notes. Emails, timelines, visuals, statements, emails of communication. So this could come into, again, these are all things that may be covered by word product. And does that then lead them possibly to be discoverable? If they don’t know, clients don’t know the rules or when it’s still under the rules.
Knowing one, if things are already in the case and discoverable, that’s really not a problem. A concern there that we’re going to be revealing some kind of case theory or something that’s you, maybe you’re not ready for your timing, right? The release of information that’s already in there. That’s probably not going to be your concern, but with this other set, that could be your concern, right?
These notes, [00:07:00] timelines, emails, visuals, communications that may have happened and. Or things that are on their way to be produced, right? Expert reports can sometimes fall in that place. So, what I try to do is, I’m going to go ahead and just look at this from a frame of what is, what is my must list, right?
Let me make a list of must documents, like weird things that we absolutely have to have the client, the witness look at, we have to use it in role play and make sure that they have it and know how to navigate questions around it. And that could be a hot button issue, right? That could be that one medical record page that, you know, says, whoopsie, I bent over and pick up a bag of dog food and heard a tweak to my back.
Or that could be the email that says, Hey, I never want to do this and then turn around and they did it or whatever, maybe, but that may be kind of one of those hot, Issues in the case. So you definitely want to put [00:08:00] that on the must list. And other things that go on my must list are things that are just going to help for memory purposes.
And I particularly prefer visuals, photographs in particular, right? So if we’re preparing, I’m preparing somebody who has been in a car crash, showing them the police report, I think mildly helpful compared to showing the photographs of the vehicles, showing them, right, taking them back into that place, but also that visual is going to stick with them more than the police report.
So, that’s really going to be a little more helpful for helping them remember details about that, what happened and, All that kind of stuff. It also helps, too, if you have a particular opposing counsel who, what part of your car hit what part of their car, like those kinds of things. And again, we’re really looking at memory purposes.
How can we help refresh their memory in a very efficient [00:09:00] way, but also a way that’s going to be really fruitful and helps them remember more. I also have a list that I just call the no list, and that would be absolutely not going to show this witness these documents because if I show it to him, it creates a problem, meaning I’m going to reveal some case theory or case information, or I’m going to put the witness in a bad position as to having too much knowledge or too much information.
Therefore, kind of creating them up on this pedestal. I’m putting them in a position in the case that we really don’t want them to be in, meaning having more knowledge and opinions or putting positions in the case. That don’t necessarily match up to what other people are saying or maybe sometimes you just go too far and that can happen and the example that I have of that is really giving too many medical records to a person.
They may be somebody who really gets engrossed in them and then takes the positions too far beyond what your medical [00:10:00] experts may have. And that can even come with, like, a life care plan. I’ve definitely seen it to where clients will take that life care plan and then say, Well, no, I need to have this and I need to do this.
And then they’re not really matching up right with what the expert is. And then they go and kind of say all those things in their deposition, which then can make things worse. Put things in a really weird matchup when it comes later down the road and you’re forced to make decisions as a trial lawyer about what to do about that.
So we definitely don’t want to create problems. And so there’s sometimes there’s a no list that we are documents we’re absolutely not going to show. And then there’s kind of this gray area or maybe like, maybe we need to spend some time on these, uh, on, on documents. This could be, maybe there’s all kinds of things that could fit in this category.
I kind of keep this out there when I’m going through a file. I will look at things and pull them at as I go through and review [00:11:00] things as there is a must, like we must look at this, right? Photographs that kind of generally falls into the must if there’s again. Particular communications or emails that the client, the witness is involved with, that we know they’re getting questions, that goes in the must, that there may be a, again, a second category of maybe, right?
So somewhat dangerous document to them in a position of the case, but not really that dangerous. Necessary. Maybe just for memory purposes, maybe it’ll help, maybe it won’t. So that may be there. And then of course, our no list where I’m gonna review and have the information, but I am not going to let them have the document at all, or maybe even have knowledge about what the knowledge that I have, right?
Because again, we don’t wanna create these difficult positions for our case or our client. And so really at the end of the day, I just look at what do they need to know, right? With that witness point of view, and how does this help and how could it hurt? [00:12:00] And that’s kind of a, those are super general, but a lot of times people will come and ask me questions well, and have, have strong opinions about, well, they must look at this medical summary or this medical records.
They must know their doctor’s names. They must know, um, What did they have surgery? Hey, hands down, not going to argue with that. It’s great when people have strong memories, but sometimes there may be a bigger hurdle in the case that they need to tackle and, or there’s lots of ways to solve that problem.
Looking at a ton of medical records doesn’t necessarily help people remember it later on. That’s why one of the things that I like to do, my preference is really to look at, Hey, how can we work together through this information and make it easy and make it visual? Like one of the things I always like to do with folks, cause I work a lot with, Almost a lot of personal injury folks is we just create a timeline together and it’s super simple.
If I’ve got a driver’s board, I just draw a line on there and we [00:13:00] just start ticking things off. And I think that we’re helping jog memory. We’re also creating this. Visual about the period of time, the things that have happened to them. And sometimes we think, Oh gosh, well, we need to create a different one.
Let’s do one for like your jobs. Like, cause that seems like another part that we can add to this. Any, it’s just a quick visual that we’re going through. Now, what happens a lot of times is we’re testing the waters to see, okay, how much do they really remember? And I always ask them once we walk through this exercise, how comfortable do you feel answering questions?
Everybody’s worried about their memory. Right. That’s one of the biggest concerns I always get when sitting down with clients and witnesses. They’re going to remember everything. It’s always a concern, right? We can’t remember everything. It’s just the nature of who we are. We just kind of happen. So accepting that, how can we help this person?
But I always like to kind of test things out. We create a visual and I always like to ask [00:14:00] them if they would like something to take in with them. Now, some people say, I have a horrible memory, but I don’t want to take anything with me because I feel like if I try to look down or try to refresh, remember something, I’ll just get completely lost.
Great. Appreciate that. Or somebody says, no, I would like to have that. I’ll take it in with me and then I’ll have it just in case, right? So I got like a security blanket. All these are just questions you ask them after we’ve kind of tested things out. But what I don’t want to do is. I’m going to give them something and ask them to look at it or review it.
And it just, they don’t know where they don’t know what we’re talking about. They don’t know what questions they’re going to give around it. They can look at it, review it, but without putting it into a particular place or context for them, it really may not help jog memory or do anything beneficial for them.
So that’s to try and test it out first and also [00:15:00] create a visual together with them. And again, that may open up to me or the lawyer that I’m working with saying like, Ooh, we, we need to get some medical records in here. And sometimes we have to do that. It becomes what goes from the maybe to the must list because people may be forgetting a very particular symptom that they had for a while, but now it’s gone away.
Right? So they kind of. You know, move on, don’t have that sentiment anymore, but maybe it was just, it’s really important part of that damages story and try as we must, their memory is not going to come back. So we’re going to help them do that. And once we use the documents together, we always want to use them again, right?
We want to use them in role play again, to give them that example of how that’s going to be used with them. If they’re going to have a timeline, how. Are they going to be questioned about that if they walk in there? And the timelines they walk in with are very, very tame versions. We’ve got a date, maybe a doctor name, and a purpose for the visit, right?
Depending on kind of what, what’s happening [00:16:00] with this person’s body. Or maybe it’s what happened before, right? The series of appointments before they end up having the injury that they’re there in the case of outpatient. Sometimes, I will tell you, there are just too many documents. There’s just too many.
It’s just not going to happen. And we really have to aim at that 30, 000 foot view of helping them. And just to organize answers around the big pictures. The big things in the case had this happen where I was preparing a mom and a dad and a daughter. Actually, it was a cancer misdiagnosis for the daughter.
She was 14 at the time, but time came deposition. She was 16 and this was a extremely fast moving cancer. She was Not predicted to make it to her 18th birthday. So some very emotional people, very guilt ridden folks, but mom was a total go getter and if I had asked her to, she’d read all 10, 000 pages of this person’s medical, of her daughter’s medical records, but she didn’t need [00:17:00] to do that because she had lived it and she was basically a walking encyclopedia about this particular cancer and her daughter’s experience.
So we didn’t need her to do that. But we needed her to be firm on the principles that we knew, which was the doctor missed it. It wasn’t a matter of mom not taking her back to the doctor. But we did train her with how, what happens when you’re confronted with a medical record, right? You take it, you review it, and wait for question, review it again.
That’s the tool, right? You take the thing and review it yourself. She did such a fantastic job giving the defense lawyer so much hell over these medical records because that’s exactly what they did. They wanted to wear her down and the reverse happens, right? And we didn’t train her to do that, right?
That was not what we had intended at all, but we knew going in, She was going to want to talk about the [00:18:00] symptoms and the impact and their lives and all these doctor’s appointments. We knew that was going to happen. We just, and we trained her what to do. She got documents, but man, she took those documents and she’d read through it.
And then she’d just start talking. She’d just start talking to the defense lawyer. Cause she had a, she knew where he was going. Now that’s not anything we don’t encourage people to do that. We always say, wait for the question, but she gave him such a hard time. He gave up. And she did a phenomenal job fighting for her daughter, but it just showed to me that we didn’t need to spend that time.
We really needed to help her with the bigger view, big, big things in the case. And she would take care of those little things because she wasn’t scared to talk about those things. And she wasn’t in a place where she was trying to, Put positions out there or go too far. I mean, she definitely was just a walk in the encyclopedia on the facts of the treatment and the care and her symptoms and the things that she’d experienced.[00:19:00]
So she became a fantastic witness for that purpose. Now on dad’s side, he didn’t have that information. He did not have that encyclopedia step by step of stuff, but what he had was very different, right? So he had a very different set of story. We didn’t bother him with all the records or the medicine either.
We just stuck to the big view and helped with the big target things. So all that to be said, how do we choose our documents with our clients in depositions? And again, I always go back to, it’s, Do they, what do they need to know? What’s on our must list? We must look at these documents. And how does it help?
What are we trying to help them with? And of course, using a visual aid when we’re preparing them, I think is very helpful and a quick way to look at our memory and see how we’re doing and possibly taking in a timeline to help them. So, I hope that this episode [00:20:00] and this series was helpful. I know that we can go a lot deeper into particular types of cases.
I really stuck with talking about personal injury cases, but of course, business cases again can end up having binders and binders and binders of things to talk about. And at some point you have to, again, go with the big view. You have to take the 30, 000 foot view because otherwise you’re just overwhelming them, right?
Bye. You To the point that they’re just going to give up. And we want to make sure we always optimize the testimony as best as we can. So if you have questions or you have comments, I would love to hear it. Please feel free to send me an email, but for now, please rate review this podcast on your favorite platform and share with somebody who may need some help.
In this episode, let’s take a backtrack to reflect on how I got to this whole spot of podcasting. I’m also sharing lessons we can all take away and use in witness preparation and coaching.
Witness coaching may sound negative because you might think you’re just coaching them on what to say. But try to look at this in a different way and turn this from a different angle. Witness coaching is really about seeing things that the other person can’t see that they’re doing.
Additionally, an overconfident witness can end up getting tripped up really quickly on a cross-exam. And so, we want to be able to prepare people and coach witnesses to do the best they possibly can.
In this episode, you will hear:
My journey as a trial lawyer in depositions
My memory of having to testify in a restraining order hearing at 17
The importance of witness coaching
Subscribe and Review
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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.
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.
Elizabeth Larrick: Hello, and welcome to a new episode of trial lawyer prep with me, your host, Elizabeth Larrick.
It’s a podcast dedicated to trial lawyers working to have better results in the courtroom with better clients on the stand and in deposition. [00:01:00] We are going to break from our regular programming to have this episode because It’s episode 52. That means a whole year of podcasting, and that’s kind of a big deal.
And I really wanna say thank you for listening and tuning In this episode, we are gonna take a little bit of a backtrack to reflect on how I got to this whole spot of podcasting and talking to y’all. Now I know you’re thinking like, oh no, snooze fest. Let me just skip this one. Wait, wait. I promise it will be brief.
It will include some comedy and some tragedy, and then ultimately four lessons that we can take away and use in witness preparation, witness coaching, and what we do today. So I do want to have a little side note though on witness coaching. Now, that normally makes me cringe, like, Oh, because it sounds something negative.
[00:02:00] Like, Oh boy, you’re just coaching them what to say. And you can actually prep them on what to say to that goes either way. But I have a coach myself and we got talking about, gosh, let’s look at this in a different way. Let’s turn this in a different angle. And coaching is really about seeing things that the person who is doing can’t see.
Let’s talk about like a batting coach, right? So the batter’s in the box and they’re swinging. They can’t actually see themselves doing the swing. So that’s why they get a coach to help them. Right. And we want to be able to prepare people, coach witnesses to do the best they possibly can, but they can’t see it if they’re doing it.
So. That’s why coaching folks on all the different parts, all the different ways, right? So coaching goes lots of different ways, but I really like thinking that it’s coaching because everybody needs to coach. Even Steve Jobs had a coach, right? There’s a book out there, the trillion dollar coach, right?
There’s somebody who he helped out, you know, because we can’t [00:03:00] see and do at the same time. So side note about that. Thanks for going on that journey with me back to our main programming. I started my journey as a trial lawyer, personal injury, and I had a little bit of experience in depositions, but not very well.
And I had tried and most of the preparation had really kind of been stinky. And so at the time, my boss sent me to a seminar for depositions, hopefully to learn and gear up. And this was by a really particular prolific seminar circuit that had all kinds of opening statement, jury selection. And I did.
several, almost all the seminars they offered. But the depth session one was the one that I first one I took and it really opened my eyes. But the experience I had was, while I was there was really what shook me out of where I was. It’s the second day and they’re looking for volunteers to come up on the stage to role play as a witness.
And I was chosen. And as I walk up to the stage, I’m thinking, I got this. I just hope to be one of my [00:04:00] channel a witness and you know, there’s no way that lawyer sitting across me is going to get me to cave. And sure enough, I totally failed. And in that failure and in that experience seeing, wow, there are so many things that I don’t know.
really deep things going on that I need to know if I’m going to start preparing people the right way and with success and depositions. So I started studying, taking it as much as I could, went to classes, bought a CDs and actually there, I bought these DVDs, I should say not CDs, but what I began to gather, obviously I was really honed in on particular method by Don Keenan.
He’s the one who pulled me up on stage. Basically got me to embarrass myself on stage, but got me to that point of just knowing like, wow, there’s so much I need more to know. And in following and going to seminars and absorbing everything and then teaching it and then getting up on stage and speaking about it, really trying to immerse myself [00:05:00] in the principles of what was going on and seeing results and feeling like, wow, this is really x ray vision, like helping these people and seeing around the corners is awesome.
And I took an even deeper dive by fast tracking my experience and taking a year off and going to work for Mr. Keenan and really just getting as much experience as I could, three trials, 10 to 15 case workshops, where it’s immediate feedback, tons of information and immediate feedback application. And it was amazing.
And. It was going through that experience and coming back and starting to apply all these things that it really started to become a big part of my practice and having other people ask me to help that as well. And that’s really kind of how I got to this place of Hey, this is what I love to do. This is really a passion of mine [00:06:00] and passing along those principles that I’ve learned is a lot of what this podcast is about.
Let me pass on what I know so that you can have the same success as well. And along the way, as I’m basically standing up and saying, you know, this is me, somebody approached me and said, you know, there are lots of skill sets out there for trial lawyers, cross exam, jury selection, depositions. What is it that’s drawing you to like this particular focus of clients or witnesses generally preparing them for deposition and trial?
And I spent some time reflecting on that. Question, because, you know, in the moment, I just said, Oh, I, I like helping people. And of course I do. And we all do. That’s why a big part of what we do. Why’d you go to law school? Well, I want to help people. Of course. And one of the biggest things that I took away from my time working at Kean Law Firm was you got to take time for reflection.
[00:07:00] We have so many things to do as trial lawyers. It’s like a checklist. Okay, here’s opening statement, jury selection. Deposition designations. It’s like a checklist, right? And sometimes we just got to work through down and check through it and get it off and move on to the next thing. But what I learned and what we spent a lot of time on was developing reflection and analysis.
At a deeper level to know, okay, I checked that box. Is that the best I could do? Can I think about that a little bit more and have a deeper reflection and maybe get a little bit better? Oh, you’re going to get so much better because you’ve taken that reflection time. So anyhow, spent some time reflecting on that question.
And ultimately kind of what came to me was this memory. I’m going to be talking about the history of me getting up on the stand and me having to testify. And clearly something I had pushed away because it wasn’t anything that I thought, Oh, I had this experience. I must become a lawyer. I already had in my [00:08:00] mind.
That’s what I wanted to do. But taking the stand at 17 years old and had to testify. I chose to testify. I should say I chose to testify in a restraining order hearing. Um, and so I’m going to be talking about, um, how I experienced that hearing against my mom’s husband at the time and reflecting on that experience.
I lived in a small town, walk into the courtroom. There’s not very many people there, right? So anybody there is definitely there for this hearing and seeing the judge and knowing who he is and seeing the, all the familiar faces in the room and, you know, literally feeling like I’m climbing up. A ladder to sit on the witness stand and like sit above everybody, which, you know, I wasn’t, but that’s the way your mind kind of creates this.
And then being on the stand and feeling like an intense amount of frustration and not getting out what I wanted to say. And then [00:09:00] ultimately walking away from the stand and literally walking out. And knowing like we didn’t get it, it was failed, like there, there was not a restraining order and at 17 at the time, I’m not thinking about, well, there’s elements and there’s all the, I don’t know any of that stuff.
It seemed like this seems super simple to me, you know, we’d gone in and met with the assistant district attorney and told him the story and it seemed like, okay, yeah, okay, let’s do this. And okay, great. You know, this seems super straightforward and that. experience. And I should say, probably in my mind at the time, and in my memory, a failure and how so many frustrating things came out of that.
But wow, what a terrible feeling someone could be left with, you know, 17 at the time, carried that with me. And wow, if our clients are feeling the same way, like that’s something that’s [00:10:00] really, really deep and it’s going to stay with them. And. Wow, we can prevent this. So this is kind of my turn on, let’s talk about the lessons that we can take from this experience that we talk about in this podcast.
And as we go through this, you’re like, Oh yeah, of course. And here is the other issue is a lot of times because we are intimately known and know this experience, we sometimes skip over these things. But the first thing that came from this experience was I didn’t know what to expect. All we were told is where to show up.
And then I was going to be asked some questions and in my mind, it all seemed again, so simple, but it turned out so wrong. It made such a huge change or impact on our lives by not having that order. But I didn’t know what to expect and not knowing what to expect can lead to all kinds of problems. And we obviously talk a lot about that when [00:11:00] we sit down to prepare people.
And that’s the first thing we do. Right. We want to talk about their expectations and have that open conversation and really ask them to tell you what it is. Right. Because if we just sit down and tell them, Hey, here’s, here’s this and this and this and this, that’s great. But because again, we are so, we know this process so well, we could skip over something that’s so huge to that person across the table.
We just don’t even know. Right. So asking about what those expectations are. The other thing from this experience was, I really wanted some really specific questions and I didn’t get them. But I felt like I needed these questions to be asked of me. And, you know, he and I never, the district attorney never had that exchange.
And what a simple thing that we can ask folks, right? You know, what is there something you’d, you’d like to say? Is there something that’s really important that we’re not catching on that you would like to talk about? Or you want to make sure [00:12:00] the jury knows? That’s easy to take care of. That’s a super simple question.
The other experience being how frustrating it can be as a witness working with a lawyer and having this assumption, having this trust and assumption that they’re going to get you through this. They’re going to ask you the questions. It’s all going to come out and it’s going to work out because you got to trust them.
And I know more than you, but having that complete trust. Lack of communication in the most important time was huge for me. Right. And how can we avoid that frustration with people on the stand? And one of the ways that I do that is I tell people, listen, I’m probably going to ask you a confusing question.
And we’re going to be in front of the jury. And what I want you to do is you just want you to look at me and just say, can you say that a different way where I’m not following you? It’s okay to tell me I asked you a bad question because what’s so important is what you have in your mind, your thoughts, your experience.
That’s [00:13:00] what we need to get out. My question is not the important thing, your responses. So you’re not going to hurt my feelings. It can get a little confusing up there. So let’s keep this communication clear. And let me tell you that you have permission. To tell me that the question doesn’t make sense to you.
And I’ve had witnesses do it a hundred percent and you know what, that’s my job, just to give them a question. They understand. So just pause, go back and try it again. Right? We’ve got a lot of questions in our arsenal. And of course, this last experience, which would be. The witness type in that experience, I had a lot of confidence.
I had overconfidence, right? I didn’t ask this person any questions when we were meeting with them. I didn’t ask him any questions, but I got there, right? Very overconfident. And it got me in a huge pickle because I should have been asking questions, but I wasn’t right. And we face witness types like this all the time.
And an overconfident [00:14:00] witness, Can end up getting tripped up really quickly on cross exam. And then their reaction to that is the problem right? Maybe it’s defensiveness. Maybe they just flow off the handle. Maybe they go quiet. Right? And don’t answer anything. So, knowing what type of witness that we’re working with is very helpful.
And then there’s the other one who’s just completely No confidence, right? Very timid, right? We’ve got to work on building that person some confidence and some courage, right, to speak. So, and we’ll talk a little bit about in future episodes about witness types and how to look at them, analyze it, and figure out the best way to help them prepare.
And sometimes people are, well, overconfident, you just need to take them down a peg or two. Well, that’s maybe going to help, maybe not because sometimes it could do more damage than good if all you’re trying to do is basically prove them wrong. That’s kind of one of those things is it’s. You know, a lot of people have really deep seated [00:15:00] beliefs.
And if you think that you’re going to be able to upheave those and overturn those, you’re probably not going to, they’re just going to get more entrenched. So how can we work with human behavior to help them get to where they need to be and do it in a way with as least amount of resistance, but also allowing them to come to that conclusion themselves.
When we do that ourselves, we end up understanding a whole lot more and actually remembering it. So. Okay. All that to be said, right, four really important experiences from my time on the witness stand. I hope not to have to go back there ever again, but we’ve got all this help out there. So I hope that you enjoyed this episode and found it helpful.
You know, these are things and principles that we’re going to keep talking about in future episodes. But. I will tell you our next episode, we will jump back and finish our sequence, which would be documents and deposition, the future episode [00:16:00] being how do you decide what documents to use in deposition prep.
For now, thank you so much for joining me and please rate, review on your favorite podcast app and share with somebody who may find this helpful. Thank you.
In today’s episode, we are going to focus on documents in deposition preparation, focusing on clients, not experts. This is an important but highly ignored topic, mainly because as lawyers, we have easy privileges and we don’t get any pushback. However, there may be situations where it’s a really close call.
No matter where you are in terms of knowledge on this topic or even experience, this is a good refresher because we’re looking at situations and cases that are involving volumes of documents. Think about a business dispute, a personal injury case, or lots of medical records. Think about an employment case where there’s a huge volume of employment files to go through.
Traditionally, when we’re getting ready for deposition prep, we’re going to use documents to help refresh the client’s memory. Generally speaking, several months or even years can lapse in these lawsuits before the deposition comes around. We want to specifically show pages to the client because we know that they’re going to be scrutinized over what’s in the documents. And so, we want to review them because document questions can be tricky.
In this episode, you will hear:
The importance of reviewing documents for deposition preparation
The role of the lawyer-client privilege
The communication piece of the lawyer-client privilege
The work product piece of the lawyer-client privilege
Determining whether it’s worth the fight
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:
For Texas lawyers:
Lawyer-Client Privilege Texas Rule of Evidence 503
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.
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 this podcast. It’s dedicated to you trial lawyer, who’s looking to better prepare your case and have better trials. Today’s episode, we are going to focus on [00:01:00] documents in deposition preparation. what to know. And next episode, we will look at how to decide what documents to use and deposition prep.
Let me be clear. We are really going to focus in on clients. So we are not talking about experts, different set of rules altogether. So again, we’re really only talking about our clients An important but highly ignored topic, mainly because I think as lawyers, we have two really easy privileges. We can just throw out there and most of the time we don’t get any pushback and it’s a blanket that can cover the, any situation we’ve got.
We generally just move on. However, There may be situations where it’s a really close call. And so this episode is going to walk through a little bit of the privileges and have friendly reminder for some [00:02:00] folks and maybe just a quick education for others. Either way, just appreciate you joining. And no matter where you are on knowledge on this topic, I think it’s a good refresher because every client needs to look at some document before their deposition.
Even if that only document they look at is the notice to tell them where to show up and what time to be there. But really we’re looking at, you know, situations and cases that are involving volumes of documents. Think about a business dispute. Think about a personal injury case with lots of medical records, or think about employment case where there’s volumes of employment files to go through.
And traditionally, when we’re getting ready for deposition prep, we’re going to use documents to help refresh the client’s memory, right? Because. And generally speaking, several [00:03:00] months, sometimes even years lapses in these lawsuits before the deposition comes around. Or we want to specifically show pages to the client because we know that they’re going to be scrutinized over what’s in the documents.
And so we want them to review them. I also think it’s helpful because document questions can be tricky. It’s easy to lure the witness, the client, into argument or defense mode when there’s something in black and white, whether it may be a mistake or a lack of, right, an omission. It can sometimes force a person into a precarious position, which we want to avoid altogether.
And as a lawyer, our job is to decipher what to use in deposition prep, which we’re going to cover in the next episode, because we know they’re going to be asking us questions. that question, what did you review in preparation for your deposition? And [00:04:00] like I’ve already talked about, most of the time, these documents are things that are already in discovery.
So there’s no panic and there’s only a few scenarios that I can think of and I’ve been through one of these scenarios where kind of panic can set in. And one of those scenarios may be you’ve not seen the notes or the documents the client’s referring to when they say, yes, I looked at these notes or, oh yeah, I had this journal that I looked at and you don’t know what it is.
So not having seen the notes or documents that can cause panic. Usually depending on the type of case you have and the type of co counsel, there’s a chance you haven’t produced the notes, the documents the client refers to in their deposition, but you should have already done it. And again, this can set in panic if you’ve got particularly anxious co counsel or a very strict judge on discovery, or if you’re violating a discovery order altogether.
That can cause some panic. [00:05:00] And another scenario would be if you had shown the client some documents, maybe it’s a undisclosed expert opinion or some timelines or an animation that you’re working on behind the scenes, and then they tell the defense lawyer about it in that opening question, that can cause a little bit of panic.
And then occasionally, which is the scenario that’s happened to me, where there are notes that were created in deposition prep by the client, and they start talking about reviewing those to prepare for deposition. And again, in that situation, I just blurted out, no, don’t answer that question. We’re not producing that privilege.
And I actually had. The attorney sent a letter and we had a call about it. She’s trying to get me to produce these notes that were created in Deposition Prep and I just said, well, I don’t agree with you. If you feel so strongly that you need them, then, you know, let’s go [00:06:00] talk to the judge, do motion to compel.
And of course she didn’t, she didn’t need them. And also something we had created together. In any of these scenarios, I just demonstrated the reaction would be to assert privilege. And again, sometimes you’ve seen things, sometimes you haven’t, sometimes you really didn’t want the client to be talking about them.
And if it’s just, you know, a set of documents or notes that hasn’t been produced and is discoverable. You may or may not cause panic to you and you just produce them and there’s no real worry about privilege. And so what I want to talk about are the two main privileges that we generally think of that would actually cover this part, which would be attorney client privilege, which is really aimed at communication.
And researching this, of course, in me being in Texas, I went and looked up the Texas rules. And so it is called lawyer client privilege and it’s in the Texas rules of evidence 503. And this is a privilege that’s. held by the client, right? So the client has to assert it and refuse to disclose or prevent another [00:07:00] person from disclosing confidential communication, right?
So that’s the key part of the lawyer client privileges, this communication piece, right? And then the other privilege being work product. And that being more about the mental processes of the attorney, analyze, prepare a case, and the cool thing about the work product privilege in my mind, that is, is it covers materials prepared, mental impressions, develop communications and anticipation of litigation or for trial.
And sorry, for the work product, we’re looking at the.
I’ll put both of these in the show notes, if you’re curious, you may not be, because we just talked about them, but what is really cool, I will say a little bit about the Texas rules, in particular on both these privileges, is they are really broad and That’s cool because it’s not broad in other places.
And so we think about really broad. So particularly let’s talk about the lawyer client [00:08:00] privilege in that particular role, it lays out all the people that this covers. So we’ve got lawyer, we’ve got a lawyer, somebody in their office. Right. Anybody who works for the lawyer. We’ve got the client. We’ve even got clients representative, right?
So somebody who is affiliated with them in even sometimes even agents, right? So that’s really broad, right? I mean, you know, want to make sure that, Hey, if you’re even going to go consult with a lawyer, right? Those communications are confidential. And that’s great. I think the key there would be communication.
And then for the work product, again, this just really, really broad. We’ve got the attorney, client representatives, rule itself goes really far. So we’ve got party, we’ve got litigants, we’ve got consultants, sureties, indemniters, insurers, employees, or agents. That’s really, really broad, which is great. I mean, it’s [00:09:00] not great if you’re trying to get some things, but again, this is really supposed to intend to cover, right?
When you’re preparing for litigation or for trial and communication is also thrown into work products, but it’s not the same all over. So when I did a little quick review and when I say that, I mean, I, Google that for some time to see what was out there. There’s definitely locations that limit things.
And specifically one of the cases that I came across that came out in 2020 was basically a particular deponent had. been sent medical records from his lawyer to review. And then he’d taken notes while he was reviewing them. And of course, when asked that’s one of the questions they ask, Hey, did you make any notes?
He’s like, yeah, where are they? They’re not here. And it’s like, oh, well I want them. It’s like, well, and so of course this all goes up and down, you know, courts, yes, courts, no. And ultimately they decided that They were not protected by [00:10:00] privilege because they weren’t ever communicated to the attorney, right?
So this particular witness had just taken their own notes and never actually showed the notes to the lawyer, right? So they said, Nope, you got to fork those things over. And another place, is that basically representatives and insurers and consultants are not always covered by attorney client privilege, for sure.
I know that sometimes people, you got to be really careful about that. If you are going to be doing that type of work to make sure, hey, you got to have the lawyer there to make sure it’s all covered. And occasionally having that third person there can then break it. So you got to be really careful there as well.
We, you know, what we’re really aiming at for deposition preparation with the worry here is that there are notes that have been created somewhere, or there are undisclosed expert opinions or timelines or animations that they may not be [00:11:00] discoverable or you weren’t ready, right, to put them out there. You just don’t want to necessarily reveal things.
Too early, and I think that’s the purpose, right, of the work product privilege altogether. So very short review of those two particular privileges. But I know that at the end of the day, like is it worth the fight if it’s some handwritten notes that are on there? And maybe it is, maybe it isn’t. That’s one of the things that in looking through this particular topic on listservs with other lawyers, and that’s generally what most people say is yes.
You can throw it out there, but depending on who you’re facing, is it worth the fight? If you’ve got a defense counselor or opposing counselor who is tooth and nail gonna go for it, they’re bilinearly, they don’t really care and they use that particular issue to make you look bad in front of the judge.
Yeah, you might not want to do that. I imagine they just give it over or bargain with it. There’s something that you want, bargain with either way, and I think that we [00:12:00] sometimes gloss over this particular topic because we don’t use a lot of documents with our clients for preparation, or sometimes we use so many, they just get in there, let’s go, I just, I looked at everything.
Then it, that becomes a long part of the deposition because they’re slowly going through everything. So we’ll kind of talk about the next episode, how to decide what to review with them or what to give with them. Because I do think that there’s a way to do it properly, to do your job, right? It’s one of the things we’ve got to do is get them ready for those documents that they’re going to see, but also to say it in a way that we’re not necessarily being unethical by saying, Oh, well, you know.
Well, I’ll just tell him you can’t answer that question. So just for a quick review, right? We’ve got two particular privileges that we can use in these scenarios where we may or may not know what’s on these notes or things, which would be attorney client privilege, which is again, the client’s privilege, right?
Not the attorney’s, not the lawyers or work product. And again, here in Texas, very, [00:13:00] And I think that the, in the event you get crossways with somebody, they actually have to, it’s on their burden of them to prove there’s no other place they can get this information. All right. Well, thank you so much for tuning in.
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