The jury selection process is changing and evolving. Are you willing to be bold and confront jury selection challenges head-on?
This was a popular and very actionable conversation that I had with Sharif Gray last year, where we talked about what could be broken with your jury selection.
We looked at assumptions and stereotypes that are often made, and I think it’s a question worth returning to as we get deeper into 2026, when you may have trials coming up on the horizon.
It could be very useful to consider these suggestions and tips when you’re making important decisions on selecting, or deselecting, your jury members.
Sharif turns the tables on many standard approaches and perspectives, and suggests that instead, we take potential concerns and weaknesses and turn them to our advantage.
In so doing, you will demonstrate credibility, authenticity, trust and respect, for the potential jurors, the judge and even the defence.
“We’re there for fairness. So I’m looking for jurors who are going to do right by my client, but I’m also looking for jurors who are going to do right by the defense. Because it’s not justice if you’re going to close your eyes and just vote for my side every day of the week.” – Sharif Gray.
Sharif is a trial lawyer based in Richmond, Virginia, and the host of the Courtroom Stories and Tactics podcast, where he and his guests do deep dives on topics like voir dire, jury selection, the role of the legal system, and one of my favorites: focus groups! I was honored to be a guest on Sharif’s show earlier this year.
In this episode, you will learn about:
Challenges in Traditional Jury Selection
Building Credibility with the Jury
Starting Jury Selection Right
Effective Communication Techniques
Building Credibility in the Courtroom
Handling Juror Bias and Concerns
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Are you confident in knowing the difference between trial strategy and trial tactics?
Because ultimately the question is, does your jury understand what you’re doing?
Today, we’re looking at how to identify a clear strategy as the overarching theme that guides the trial, followed by the tactics to achieve that strategy.
There’s a risk of confusing the two, including wasted time and causing confusion for jurors. The best strategies combine preparation and flexibility when you’re in the courtroom.
And remember, focus groups can test strategies early in the trial preparation process, showing you where to refine those strategies early.
In this episode:
Confusing strategy and tactics can lead to juror confusion.
Tactics should be flexible and adaptable during trial.
Jurors expect consistency in case presentation.
Wasting time on tactics without a clear theme can cost cases.
Focus groups can help test and refine trial strategies early.
You can also watch this episode on my YouTube Channel:
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries, gather up strategies to be persuasive, and how to use focus groups along the way. I’m your host, Elizabeth Larrick. In this episode, we’re going to talk about trial strategy versus trial tactics and how this can often get confused. So let’s straighten it out so that you can be on the right path.
Here’s the thing, trial lawyers mix up often and frequently, and it’s not really our fault. We’re constantly bombarded with new CLEs, new tactics, a new book, and here’s the thing. We get these things mixed up because there are lots of new fangled tactics that are thrown out often at new CLEs or away somebody did their trial. We try to pick all these things up.
and put them together, which can cause some disorganization of our presentation. And that’s how we can end up losing cases. I’ve seen it in focus groups, I’ve seen it in the courtroom. And I can immediately tell when people are throwing any kind of tactic against the wall without an overarching strategy. So it gets backwards. And of course it confuses your audience, whether that’s a jury or a judge.
So today we’re gonna talk about the differences between trial strategy and trial tactics. Not just what they are, because I think most of us understand what they are, but when you need them, how they work together, and what happens when you get them backwards. I promise you your focus groups will reveal confusion faster than anything else, but you may be missing that this is a tadic
versus strategy problem versus other kind of problems with confusion. So we’ll talk about that as well. So let’s dive in to the very first point, which is strategy sets direction and tactics executed. Tactics gets you there. So the simplest way I’ve found to understand or make clear
Elizabeth Larrick (02:16.898) what trial strategy is versus tactics is I like to think of strategy as your destination. Strategy is our 30,000 foot view of where we need to get. And then your tactics are the very specific little pieces that get you there, right? So the little jumps here and there that can ultimately get you to your overarching destination. So again, strategy is your
big picture, our overarching theme, right? Our story that we are trying to tell, our two to three very critical points that the jury needs to come down on our side in order to get the V. But tactics are really about that specific cross-exam question, right? The metaphors that you’re using in opening statement, the very specific visual aids, and even down to the colors that you’re using, right? Those are tactics.
So let’s talk about a very common trial strategy that I hear, but is also very challenging to actually prove, which is part of the thing. If you’re gonna choose the strategy of corporate greed, right? Profits over people, profits over safety. That’s a total strategy and this is your destination, right? This is where you want the jury to be ending up and thinking. However, it’s our tactics that get us there to be able to
So again, thinking through our corporate documents, our discussions you may have in deposition, right? And then how you’re putting that together for visuals, how you’re putting that together for cross exam, what’s the order of witnesses that gets you to that ultimate destination of corporate greed, profits over safety. Your strategy is really kind of an overarching why. Now I have seen,
organization tactics that are helpful for memory, that are helpful for getting people ultimately to the jury to the verdict that you want. If we’re thinking about those kinds of things, that’s like when we’re having an organizational way, like the ABCs or one, two, threes presentation that goes through in a way where your memory is going to pick it up.
Elizabeth Larrick (04:41.72) Those are very helpful things, but those can also end up just being tactics for just throwing several different things and not, again, having this overarching strategy. Let me give you an example. So if your trial strategy is to show the jury, the company, the defendant knew about the danger but did nothing, right? That’s our overarching strategy. Now we’re gonna look at our tactics. So.
who’s gonna be our first witness? Well, that would be a company, corporate representative, or maybe it’s the safety director. And then it’s the very specific documents that you’re going to use in the order of those documents. Again, the order of cross exam, the style, the questions of cross exam. Each of those tactics is gonna serve your strategy. And so here’s the thing, you can have a lot of tactics without strategy,
and it’s going to leave jurors not putting the whole thing together. Many times we try to lead the horse to water and hopefully they’ll drink, but you’ve got to actually put it all together for them with our trial strategy. So I’ve definitely seen focus groups where there are lots of great tactics with, we’ve got opening statements and maybe some videos of cross-exam, but without
the full direction of you giving that strategy, then generally jurors are pretty well lost. So we wanna make sure that we had these two things together. So let’s talk about then point number two, which is when do we think about these things and when do we start planning for them? Now, most of the time we wanna be thinking about strategy from the very beginning, even with our basic bone facts.
we can be thinking about our strategy because most of the time our tactics can’t really be formulated until we’re getting into that trial prep phase. So our strategy comes early thinking in discovery so that we know the documents that we’re aiming for to prove that they put safety over people. We’re looking for those documents that show that they
Elizabeth Larrick (07:05.154) chose to ignore the danger or made a different decision, maybe that was cheaper. Those are the things we wanna be looking and thinking about discovery, our depositions, questions. Those are things that are really gonna feed into our overall strategy. And a great thing you can do is focus group early to see if your working strategy is working. So, and we talk about this often on the podcast.
but using focus groups early to make sure that we’re making good strategic choices. Don’t forget, that is something that I can help you with. If you are curious about how to test your strategy early in a case, you can book a free call with me. The link will be in the show notes. What we want to be doing in these early focus groups is just making sure the theme is resonating, right? Or a lot of times what I work with lawyers on is
This is my theme, I feel really good about it, but what is it missing? And when we do focus groups early enough and you get the feedback back from focus groups, you can actually go get it, right? Maybe it’s more documents, maybe it’s another witness. Sometimes it’s an expert, not always, most of the time they would rather see a document or a different witness versus an expert, but sometimes we have a lack of education.
and you need that education to make your theme work. So always be keeping that in mind if you’re missing an education piece there. So then after you do your focus groups, then you can really look at what worked, what didn’t work, what fell flat, how do we unconfuse people about this? And of course your tactics will come later because once you’ve made it through discovery, you’ve made it through that final mediation, now you have a good grasp on all your evidence.
You know what your theme is, so now it’s about how do you pick the best tactics to put that theme in, but also knowing tactics can change in trial. Witnesses who don’t cooperate, right, how do you then use a different tactic to get what you need to meet that theme? And that’s why tactics are flexible, they’re adaptive, there are many different ones, like I talked about, there’s lots of different ideas. You can do the David Ball opening, can do Sardegna-Lomade opening, right?
Elizabeth Larrick (09:23.04) Some people think the same thing. My point is we hear a lot about tactics. There are lots to choose from, but we need to choose the right ones to meet our trial strategy. Okay, let’s move into our last point here, which is what can it cost you when you confuse the two? Or like we talked about earlier, you do it backwards. You think all about the tactics and you come up with that theme a little later.
So we talked about this just very briefly, which is you can really waste a lot of time and energy and effort on tactics and the jury never get the overarching theme. And then they’re just kind of lost. They may let you score a couple points here and there, but ultimately you’re not gonna win the game and that’s what we need. We need to win the game. So.
you can end up doing a lot of wasted time and focus groups. This is where when folks come to me and they say, well, we’re just, we need to test everything, right? So then they’re like, we want a six hour in-person focus group. And we can totally do that. But a lot of times until you skinny things down and you simplify it and you get it down to these three key points with this six key documents, all right, let’s test that. And that’s why
in almost all of my focus groups, we have extensive planning because while testing everything you maybe think is helpful, not everything comes down to how jurors make their decision, right? They can’t take in everything. It’s almost impossible for our brains. So we wanna make sure we narrow it down to those few things so that you can really have feedback and analysis on those one or two, three key points and then you know,
they stay in or they stay out. Now I can move to the next thing versus thinking, it’s all 30 things. Well, generally not. So we don’t want to waste your time in those focus groups. The other thing that can happen is, again, we talked about inconsistent case presentation. I see this sometimes, unfortunately, where we have teams of lawyers trying cases and they’re not on the same theme. And so they’re using different tactics that can somewhat
Elizabeth Larrick (11:44.642) be a little out of alignment for jurors. The best way I’ve heard this put is from one of my mentors, Don Keenan, who would talk about doing a cross exam that’s like the McCulloch chainsaw where you just like, you just ripping that person up or it’s the paper cuts, right? So when you have a tactic of you’re just gonna rip up this person and just tear them down all the pieces and then you have somebody else that you’re doing paper cuts,
it’s a little bit out of alignment because jurors begin to expect certain things out of the lawyers when they watch it. And when things come a little bit out of sorts, it doesn’t match their expectation like, you know, it actually caused a little bit of discombobulation in their brains. You may think Elizabeth, people are humans, we are more complicated than that. We are really not. mean, at grand scheme of things, our brains like things simple. We’ve talked about that here.
And so when we do these strategies, these tactics, and we’re a little out of pace, it can be very confusing, even if it’s just that simple of a difference in cross-examination. So we wanna have consistent case presentation. Yes, of course we wanna have consistent case presentation for our strategy, but also for the jurors and the thing of what they’re expecting out of you, what they’ve seen, what they expect, okay? We don’t wanna cause people, whoa, hold on a second, right?
We wanna be meeting their expectation that we’ve set an opening which is, I’m gonna teach you, look at me, I’m gonna tell you the truth and the facts and follow me, I’m gonna tell you what’s right. You make your decision about those guys over there on that other table. All right, so we can totally get these things wrong and that is of course the real danger. If you’re just executing tactics without understanding your underlying strategy, things may fall apart and it’s hard then to put it back together.
So if witness doesn’t come across well or a piece of evidence gets excluded or the judge rules against you on something, you may be stuck. And because you’re relying on a tactic rather than your overarching strategy, you can get flustered, not know what to do. And that’s definitely not what we want to happen in the courtroom. We want you to be very clear on your trial strategy and then have tactics that you can adjust on the fly. This is where when I work with lawyers getting ready for trial,
Elizabeth Larrick (14:05.26) we have a witness, we have plan A, B, and C, okay? Because I want you to be prepared, no matter which way they go, right? You are very comfortable, you’re calm, you have a plan for that versus making your brain come up with that plan on the fly. Because that’s what happens in the courtroom. Bullets are flying, you gotta have a couple of different tactics so to make sure you’re always gonna get your theme across. All right, so let’s do a quick,
little recap here, which would be we’ve talked about strategy is your destination and tactics are the way that you get there. Together is how we win. So we always want your trial strategy to be started early and in our discovery phase so that we can be building things along the way. Our tactics come in a little bit later when we are getting ready for trial and we’re having
Several different tactics to meet our strategy and also have a coherent presentation throughout the way. If you confuse these things and you’re just going for tactics, you’re gonna confuse your jury. They may give you a couple points, but ultimately, again, they’re not gonna give you that verdict at the end of the day. Talked about how we can use focus groups to test those things so that you know which way you’re going. And if you’re preparing for trial right now, you want to sit down and say, okay,
Number one, what is my strategy? What is my overarching theme? And then underneath that, what are the tactics I know that can get me there? All right, thank you so much for listening to Trial Lawyer Prep. Until next time, keep prepping to win.
“What part of this story just doesn’t hit you right?”
How would a potential juror answer that question? We’re talking about gut feeling, instinctive reaction: something that’s there, and they’re trying to put their finger on it.
These are very good avenues to explore in focus groups, and can uncover emotional and cognitive responses that you weren’t expecting.
Today’s episode features three questions that are deceptively simple yet powerful in their nuance and framing. Successfully applying them will not only make your case stronger, but help you be much better prepared for what the other side is thinking as well.
In this episode:
Strategic questions can reveal case weaknesses effectively.
There are hidden weaknesses in your case that you may not see.
Asking jurors to explain the case in their own words can uncover confusion.
Emotional responses are crucial in jury decision-making.
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:www.calendly.com/elizabethlarrick
Are you a lawyer looking to run your own virtual focus groups? I have a free starter kit that can help you get started that includes checklists, questionnaires, confidentiality forms and more!
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Elizabeth Larrick (00:00.746) You think you know your case’s weaknesses. You’ve lived with this file for months, maybe even years. But there are hidden weaknesses even you can’t see. And the right focus group questions will reveal everything.
Welcome to Trial Lawyer Prep, where you learn to better connect with clients and juries, gather persuasive strategies, and learn how to use focus groups in the process. I’m your host, Elizabeth Larrick, and in today’s episode, we’re gonna dive into a direct how-to for your focus groups.
Today, I wanna share three questions that you can use to expose problems you didn’t even know that you had. And these aren’t necessarily obvious questions. In fact, sometimes when lawyers hear them, they’re pretty surprised. But great questions can reveal really great hidden biases in your cases. Now, these are just three questions from hundreds that I have developed over the years of running focus groups.
I pick different questions based on the specific facts that you give me on the problems that you’re trying to solve and what we’re trying to discover as a focus group discussion unfolds. But these are the three that give you a taste of how the right questions can uncover the case weaknesses you didn’t know you had. So if you’re heading to trial or maybe you have that big mediation coming up and wanna make sure you have strategic insight about your case,
Let’s talk about setting up a virtual focus group for you. I run several every single month. And you can click the link in the show notes for a free consultation. All right, let’s dive into these three specific questions you can use. Question number one. If you had to explain this case to a friend who knows nothing about it, what would you say? This question is excellent at trying to get
Elizabeth Larrick (02:08.696) the focus group members to regurgitate your presentation and they take a different frame because they can’t just tell you exactly what you said. Now they’ve got to explain it to someone. So it’s very creative in the sense that we’re getting out of our typical tell me what you think. It also kind of bypasses some legal jargon and gets you out of your own way as a moderator. But really what this is revealing is where is their confusion?
where are their missing steps? Whereas you have created maybe this presentation, you’ve created this opening statement, you feel like it’s got everything they would need, but this question will show you really what they have in their minds because they’re then recreating it, okay? And that’s really what we wanna make sure because that’s how memories are made. Now, let me give you a quick example of this. We often have lawyers that come in and they will practice an opening statement.
and then we will go directly into getting feedback from our focus group. So in these situations, do fairly often hear when I ask this question, focus group members are missing vital pieces of the presentation that’s been given by the lawyers, and then they just fill the holes with things that they never even heard. Or there has definitely been times where I ask this question,
And when I get back is a blank stare because then they actually realize I don’t even know how to describe how the crash happened. I can tell you where it was. I’m pretty sure I can tell you a couple things about the injuries, but I don’t even know how this crash happened. That is a huge problem and definitely something that you want to know. Also, this gives you an idea of some of those facts or assumptions that people make when they just hear some of the facts, but not the whole thing, right?
And again, this is where that regurgitation comes from when they give it back to you. So you can see where that confusion was, find what they’re missing and then be able to reconnect them and figure out ways in that strategic insight session to learn how you can present a little better. So we always wanna know how our case comes off to people. Well, ask them to explain it to someone else. All right, our second question that we have for you today,
Elizabeth Larrick (04:33.742) kind of falls more into the, I would call an emotional category. We always wanna be thinking about how our cases are emotionally hitting people. We’re emotional creatures, we make almost all our decisions that way, that’s what brain science tells us. So in focus groups, we really wanna be asking questions that get to how the participants are feeling, and that’s really hard to get to without sounding like you’re.
pandering or looking for sympathy. this particular question I find very helpful and that is what part of this story just doesn’t hit you right? Maybe it just doesn’t sit with you, right? That’s all it is a very simple question and it’s broad for a reason because we want to gather up anything that may not be sitting right with them, but it doesn’t make it so specific that they
kind of say, well, I’m not really sure because they maybe can’t put their finger on it either. So it gets to our emotions without using the word feeling. A lot of folks, when you ask them, well, how are you feeling about it? Sometimes they don’t know, right? So it’s hard to get them to answer that question. That’s why I love this one because again, it’s pretty broad. It avoids the appearance of pandering for sympathy. And then again, kind of reveals some of these hidden things that they may not be able to totally put their finger on, but rather,
tugging at them or whatever that hunch may be. So again, this question’s super neutral and it gives people kind of the option to say something that may not be fully formed right in an opinion, but it just doesn’t sit right. And one of the examples that I have for this is we recently ran a focus group, a fairly long focus group I would say, on a nursing home case. And so the facts were really, there’s some severe negligence claims going on.
And we wanted to know where were the feels in this case. were lots of different things that we had expected to hear, but one of the things we did not expect to hear when we had this question was that the fact that they had stopped charting in the medical records. That was something that just did not sit right with a large portion of the panel. And again, not something that we had flagged as an expectation before.
Elizabeth Larrick (06:56.696) There were many other pieces of egregious facts that were very touching, very terrible, that would give somebody the feels, but that particular one was not one we expected and very glad that we asked that question because then we were able to kind of gather it up and be able then to put that at the forefront of the case when they were getting ready to formulate their presentation. So when something doesn’t sit right with focus groupers, with our jurors,
they find a way to tap into that and rule against you. We don’t want that. We want to be able to find where it is those feels are not matching up before you get there, right? That gut feeling that they may be having, you wanna be sure and discover those early on so then you can reshape your presentation of evidence, reshape how you are talking about the case as well. All right.
Our last question to share with you in this episode is kind of a strategic framing question. So there’s two parts to it, okay? And you’re gonna see why there are two parts. The question goes, the plaintiff loses, why do you think that would be? Now I’m using the word plaintiff with you because if I tried to use an example, it’d be challenging. So in this scenario, you would want to put in whatever the main
name or if you said person driving car B or the red car. And then you would flip flop and you say, if the defendant loses, why do you think that would be? Now I love this question because we’re getting both sides of the coin here. So we’re really as a moderator, as somebody seeking feedback, we are looking very neutral and we’re also having them put on two different point of views. This works excellent.
when you have a focus group that feels like it’s very weighted feedback on one side, because then you’re going to force people to put on the other point of view and give you their thoughts. And it really makes them articulate the strongest arguments for you and get rid of any fluff. If there is any. Again, I like this from both sides. And typically when I use this question, I tell them ahead of time, we’re going to take both sides. Okay, so let’s start with this one. If the
Elizabeth Larrick (09:20.994) blue car loses, right? Why would that be? And again, if we’re just looking, we’ve got a short time period and we just really wanna get in there and get those main case weaknesses, this is a great question to get right on it. And again, it’s pretty broad. If you wanted to finagle with language, which you don’t have to, remove that word why and just say, how come? If FedEx loses,
How come, right? You could make it even shorter and simpler than that. But again, you can use the whole one as well. Obviously I’ve used this question many a times and it’s very helpful when we get to see our focus groupers take both sides of it. And again, in the frame of why lose, okay? Not why win, okay? But why lose? Very key on that. And again, helping you understand where is the true battleground for your case.
So this question does a lot of heavy lifting for you and it shows you kind of those real weaknesses that are boiled down to those simple points. And you can do it without revealing your own bias. These are three very simple questions you can start using today in your focus groups. So let me say them one more time for you so that we make sure we get them right. And of course, you know there’s gonna be a transcript somewhere that you can also
look at. again, question number one, if you had to explain this case to a friend who knows nothing about it, what would you say? Question number two, what part of this story doesn’t sit right with you? Question number three, if you were the plaintiff, if you were the defendant, loses, why do you think that would be? Or in a shortened version, if you’re the plaintiff,
If the plaintiff loses, how come? If the defendant loses, how come? Now, you’ll notice none of these questions are asking our jurors to vote, right? Yes or no, or make any kind of decisions. Instead, we’re really trying to reveal how they are thinking and feeling, which is really key in these focus groups. And really what you need before trial, before that big mediation,
Elizabeth Larrick (11:45.142) Instead of just a simple note, we really want to know how things are working in their brains, how they’re synthesizing things and analyzing your case. That’s the key point, of course, of doing focus groups. If you found these three questions helpful and you would want more specific strategies, then please join my monthly newsletter. I share one email a month that has practical tips, focus group techniques, witness prep, how-tos,
to help you each month and the link to join the email newsletter will be in the show notes. Thank you again for listening to Trial Lawyer Prep and until next time, keep prepping to win.
It’s your favorite episodes, topics and themes from Trial Lawyer Prep in 2025, as reflected by the data: you know how much we love facts!
I look at what you enjoyed the most, and why, with all the links below if you want to revisit or catch up on these episodes and their valuable information.
I’m excited in 2026 to bring you more content on trial strategy, more inspiring guests, and useful tools that help us in our preparation as trial lawyers. I love providing advice and insight to help you present the best case possible, whether you’re a long time listener or brand new to the podcast.
And if you want to start off 2026 with a focus group, or you’re curious about it, don’t forget to book a free consultation call:
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Welcome to Trial Lawyer Prep, where trial lawyers learn how to better connect with clients and juries, gather tips and strategies for better persuasion, and how to use focus groups in the process. I’m your host, Elizabeth Larrick, and in today’s episode, we’re going to tell you what trial lawyers wanted to hear in 2025.
2025 is wrapping up and before we head into the new year, I wanna look back at what resonated with you and more importantly, what I learned from the dozens and dozens of focus groups that were conducted this year that I think every trial lawyer needs to know. You made some clear choices about what you wanted to hear. So let’s jump into your top picks from the podcast and then move into the patterns that I saw.
Top pick for the podcast was guest episodes. Now, these were fantastic episodes about jury selection, assessing risk, and even time management. So our top picks were episode 149 with Sharif Gray, where he and I talked about challenging traditional Voydier methods with research-backed alternatives. Another great episode was 138 with guest Ben Gideon.
where he talked about assessing risk for trial lawyers, a few tools to do that, and also Dina Cataldo’s episode 133, which was time management for lawyers. Now, these were topics not by me, but by consumption rates, which were over 75 % for each of these episodes, which tells me you enjoyed them and got wonderful pieces of advice from them. So a link will be in the show notes for each of those episodes.
Now, another top thing that came out of the podcast this year were three specific topics, again, with our statistics not lying over 80 % consumption. So we saw trial strategy, witness prep, and persuasion as the top listen to topics, but let’s dive into those specific episodes. So if you wanna go back and re-listen, you certainly can. For trial strategy, we had episode 131. What is trial strategy and what it is not?
Elizabeth Larrick (02:21.166)
This clarified the difference between strategy and tactics, which is a pretty big one for lawyers. But one of the key takeaways was doing our strategic thinking early with focus groups. Now, this brings me to something that I see almost every year, but especially in 2025 as even more lawyers went to trial, was waiting to do those focus groups in the 30 to 45 days before trial.
And this is where we could be missing out on testing things early in order to make corrections. This is exactly why I encourage lawyers to run early focus groups during discovery. When you can test strategic frames, try some tactics if you want early though, so you can course correct before you’re locked in. If you’re heading in a 2026 with a trial scheduled or a big one going to mediation,
and you want some strategic clarity, let’s talk about scheduling a focus group. You can book a free consultation call with a link in the show notes. Now moving to witness prep, we had episode 143, which was rewiring your witness prep with brain science. This was a great episode. If you have a deposition coming up or even a trial with how to make your witness prep more effective with three simple tips. And again, that link will be in the show notes.
And finally, our top episode for persuasion was episode 144, the eight second rule. This taps into the what we know to be so true, but primacy. We have about eight seconds to grab attention and then the next 43 to keep it. If we don’t get our audience’s attention during that timeframe, it is an uphill battle to get them to hear what we are saying and also understand it.
And that’s for any audience that we’re talking to, jurors, judges, mediators, even your client. So this was a great episode and the link will be in the show notes. This particular primacy point is something that I talk about often. And a recent post on LinkedIn that a lot of people appreciated was a story I told about a lawyer who was practicing their opening statement with me and started out with reciting a piece of law from a very famous law professor.
Elizabeth Larrick (04:45.186)
And I had to stop him because people were going to be lost, right? The judge would have been lost, jurors would have been lost. And what happens is our brain is trying to figure out what is he saying and why is he saying? And while our brains walk around confused trying to figure out what they’re saying, they don’t hear anything else in your opening statement. So we don’t wanna do that. So I stopped that lawyer. We went back and refashioned that opening to make sure we…
grabbed that eight seconds, kept him for the 43. His opening started with the bang and he felt so confident in the point he was making in that first minute that he was able to echo it. Again, demonstrating this is important, y’all. We’re gonna say it again throughout the trial. So we wanna start out with a bang. We wanna grab that attention. That episode 144 is a great way to refresh on that point. Now,
let’s talk about the trends from focus groups in 2025. Again, over 75 focus groups conducted. And so these were some of our main takeaways that we saw. Number one, visual is always important, but the more fine-tuned point was comparison. So we see comparison in almost everything we do. Scroll on Instagram, going to pick a car, everything has a side-by-side comparison.
And so the pattern that came across from multiple focus groups was that jurors were really struggling to understand the both sides when it was just a verbal presentation or had a few visual aids. Commonly used visual aids that reiterated this point were property damage photos, right? They’re using those photos to compare to injuries, to compare to how people could explain how the crash happened.
Our brains love visuals. 60 % of our brain is dedicated to understanding visuals. So we love them. But also when we have that side by side comparison, we are making it easy. Our brains love it easy. And then it gets fast, right? So we want our audience to quickly be able to evaluate and find in our favor. So one of the things we’ve talked about is when we have a comparison, maybe it’s a
Elizabeth Larrick (07:02.69)
Fact pattern versus the safety rule or the standards or the norms. That’s a super important way to visualize that comparison for our audience, whether it could be jurors or even in our focus groups. But also another great one is experts. We see dueling experts in almost every large case, almost every case, there is a dueling expert. Maybe you have one, maybe they have one, right? They’re fighting it to the death. And a lot of times as lawyers, we put a lot of credence in what experts are saying.
focus groups, not so much. But a way to test it, because I know this is a strong point for many trial lawyers wanting to test experts. Are they gonna follow the other one? Are they gonna follow this one? What is it that they’re doing that maybe is swaying our jurors, doing a side-by-side comparison? Were you distilled down what the expert did, what their opinion is? Credentials don’t really matter, right? It’s really about what did they do and what was their opinion.
and distilling that down onto one PowerPoint slide or one visual significantly helps them be able to quickly evaluate and give you feedback. A helpful tip for focus groups, but also very helpful for a jury trial in that visual aid can be used again during cross and in closing. All right, let’s move to our second trend that came out of our focus groups, which was emotional detachment.
When I say emotional, mean like maybe they’re tragic facts, maybe they’re egregious defendant conduct, and it just fell flat, right? No emotional movement. This particular red flag was more predictive of a no juror, a juror you would not want, than some of our demographics. So tracking that early, putting some of those things in early to test emotional feedback and jury selection is one of the biggest tips that we saw.
But another piece of interpretation on that emotional flatness, occasionally, sometimes both, it detects our no-jurs, but also detects a big block that’s missing, a gap in education or just overall knowledge and experience. Story recently saw this where our jurors were falling completely flat. We had tragic facts. We had…
Elizabeth Larrick (09:24.15)
a defendant clearly ignoring safety rules and a safety altogether, but nothing was jiving. As the discussion kept going on and the feedback continued, it became apparent that they were very clueless about the industry of the defendant. So we said, all right, what’s our takeaway? We got to educate early and often just to make sure they’re not making the wrong assumptions about this industry or comparing it to industries that are completely skewed.
and would be skewed against you. Okay, our last trend from our focus groups would be lawyers underusing your focus group investment. I see this where lawyers will sit in, take notes. They’re super excited and enthused after we have our focus group strategy session and then nothing. They don’t go back and revisit the transcript or the focus group reports. And I know this because I am able to track.
when people are downloading and using those things. Now, this is a huge point for me because when I spent a year with the Keenan Law Firm, one of my largest takeaways was the goal that was lying in those focus group transcripts and reports. I do this for the reports for my clients, but also you can do this just with going back and rereading the transcripts. We would spend hours going back to focus group reports and transcripts in order to find, okay,
Let’s get back in there. What were they saying? What were the exact words? Can we work those words, those phrases into opening? Can we work those words and phrases into deposition questions? What was their attitude for against us? How do we use that to our benefit? Also, what were some of the main questions that they had when they were just talking, right? Free flow, conversation with them. Not necessarily that pointed what was missing here. Sometimes people draw a blank.
when we ask that question. But if you just go back and read through the transcript, you will see when things are missing, people naturally percolate. They’ll tell you that first, or it’ll naturally percolate for them in just conversation and then listening to other people as well. So that’s a huge point. We want to make sure we get from our focus group transcripts. We don’t miss it. So if you have something coming up in 2026 and you ran a focus group in 2025, go back, reread that transcript.
Elizabeth Larrick (11:48.576)
you will gleam so much more information out of that group. And again, this was a large investment, so let’s use it as much as we can. This just taps into the point that our brains can’t focus and concentrate on all things that are happening. We’re not going to see all the body language that’s going on. We’re not going to be able to take down a note and hear what every single person is saying. Again, that’s why that transcript is so helpful to make sure you didn’t miss anything. Okay, so let’s recap what you loved in 2025.
guest episodes, trial strategy, witness prep, persuasion, and our top trends from our focus group. Comparison, but use of a visual, emotional slattness, detecting that, and then also going back and reusing our focus groups and squeezing as much as we can out of that focus group investment by rereading those transcripts. Now, as we look ahead to 2026, I am very excited to bring you more content on trial strategy.
on guests, on other things that we can be doing to improve our preparation. Which brings me to don’t forget that I have an email newsletter that provides more how-to and tips. Once a month to your email inbox, you can sign up for that newsletter in the show notes. All right. Thank you so much for making 2025 so amazing for me. I love learning from you and I love providing what I can back to my long-time listeners.
and to folks who are just coming to the podcast. I appreciate either way, you being here. And if you want to start off 2026 with a focus group, you’re curious about it, don’t forget to book a link in the show notes. All right, until next time, thank you so much.
We’re going back to the basics this week, asking, “Why do trial lawyers even do focus groups?”
Focus groups are not primarily for determining case value or winning cases. Instead, focus groups provide valuable insights into jury perceptions, case weaknesses, and effective storytelling strategies.
I share some real-life examples of effective use of focus groups, including a doozy of an example that, although it was a rough go, it left the lawyer with much more clarity on the path forward, and where to concentrate their time.
In this episode, you will learn:
How focus groups help in understanding jurors’ perspectives.
How focus groups allow for deeper conversations.
Why starting your opening in the right place is key.
The hidden attitudes that can be revealed by focus groups.
How to build a stronger case, thanks to the feedback you receive.
Elizabeth offers virtual focus groups with several options. Book a free call with the link below to find out the options for your case:
Elizabeth Larrick (00:00.526) Welcome to Trial Lawyer Prep, where you learn to better connect with clients and juries, gather persuasion strategies, and how to use focus groups in the process. I’m your host, Elizabeth Lerick, and in today’s episode, we are going to talk about why do trial lawyers even do focus groups? This episode is going to take us back to the basics
but it comes from a recent focus group that I wanna share with you. Many times when lawyers come to me and they want a focus group, or when I hear lawyers talk about focus groups, they talk about finding the case value, but that’s really not what focus groups are for. Also, lawyers come to me or they’ll talk about finding the percentages of fault or responsibility. Also, not really what focus groups are for,
And also, most importantly, focus groups are not here to win. Now, there are tools to find your case value that are reliable. There are tools that you can use to find the assignment of fault on all the parties involved. There’s a tool for that. And of course, there’s a tool for you being able to stand up and try to win. But it’s not focus groups.
And this episode directly comes from a recent focus group that I had where it was a rough go. They did not like the plaintiff. They ultimately almost put over 90 % of responsibility overall on the plaintiff. But what that lawyer said, the first thing they said after that focus group was over, said, this is why I focus group. Because
This focus group alone, even though we heard pretty much all things negative, tells me number one, I’m going to trial. And so for the next four months, I know what I need to spend my time concentrating on. Also, I learned the facts that the jury will create in their own mind when they hear the story of what happened. I also learned
Elizabeth Larrick (02:21.076) Overall, this venue, this jury poll is gonna be very unfamiliar with a lot of topics that are gonna be discussed in this triumph. So I need to learn what I need to educate my jury on very early, almost first before they actually hear the facts of what happened in the case. So those are three really huge takeaways, but they don’t have anything to do with the case value.
And they ultimately don’t have to do with the exact percentages of fault that they’re going to put on somebody. And they definitely don’t have to do with winning. So I really want to emphasize in this episode, how valuable focus groups are, even though they’re not going to give you that case number, that assignment of liability, or they’re not going to tell you, this is a total slave dunk, you’re going to win. Right? And so this,
comes down to a lot of how to do focus groups because when we run focus groups, what we’re talking about here, what gives you all these awesome things, why you’re losing the facts they’re gonna use, the facts they’re gonna create, is because these focus groups are designed to have conversations with each participant and have time for follow-up, right, to understand even deeper about where some of these comments
these ideas are coming from when it comes to each participant. Okay, so these are not deliberation style focus groups, right? These are focus groups that allow a lot of space, a lot of comfortable conversations, even though they’re uncomfortable for lawyers listening to, but they allow for a lot more space for conversations. And again, one of the key things about how to do focus groups is that you don’t want to argue or fight
or even if you see the focus group getting the facts wrong, you don’t step in and try to just reiterate. So this is actually a really big pitfall that lawyers fall into when they’re running their own focus groups. And again, I’m saying this from my own personal experience, but also having years of experience watching lawyers step into do focus groups. One of the biggest things that comes, and you don’t think that you’re being
Elizabeth Larrick (04:48.224) argumentative or trying to persuade, but it absolutely is. So it is really common for you to give a neutral statement of the facts. And then what happens when they give you back what they heard, they invent facts or they fill in gaps or they make a lot of assumptions. That’s their analysis, right? But you try to repeat facts. And so instead of saying, okay, all right,
Tell me more about that. You say, well, wait a second. No, no, it’s the white car and then the black truck. No, and then this is what they said. No, no, the black car says, right, so you’re actually in a way arguing with them. This is a huge pitfall. And so I want to bring that to your attention if you’re running your own focus groups, but this is exactly why I offer virtual focus groups with several options so you can avoid these mistakes.
get the feedback you need and be really confident in relying on the results to build your case. If you want to talk about the options for your case, book a free call with the link in the show notes. I really want lawyers to be able to run focus groups and know the reasons why. What is the value that is going to come out of focus groups? So let’s talk about a few other examples that I have. And number one to feed off what we just talked about is
how they will explain your case to you. So how they bring it back to you. Recently, we did a very short focus group that involved several different factors, but one of the things was quotas and possibility that was a quota given possible gender discrimination. And one of the point of views we got was, well, no, that’s the new person. A new person should always have more workload and be expected to work harder than the people who are already on the team.
Now that’s not a perspective that was ever entertained by the lawyer. So again, how are they going to explain their case to themselves right once they hear it? So great way to grab value from a focus group. The other thing that we talk about here on the podcast, but just to reiterate, is they’re going to find the case weaknesses. Now those could be facts or those could just be attitudes that they have. And naturally of course they’re going to find your strengths too.
Elizabeth Larrick (07:14.382) But most of the time when people come to focus groups, they want to know what am I missing? What is there that is a weakness that I need to know about and fix? An example of this here recently again, another employment case, different situation, but the real big concern of the lawyers was offer letters and how were offer letters going to be perceived? Was it negative? Was it positive? Was it going to be a weakness for them? Turns out the feedback we got was no.
Offer letters are good. Nobody would want to change a job without having an offer letter to know that this is a true offer. It’s not risky if they’re going to lose one job and go to another one. It was great. So another great thing that we grab from focus groups and a reason to do focus groups is learning what point in time do you start your case? So
This goes back to our privacy and recency. The first thing people hear is generally the strongest piece in their brain that they’re gonna remember the most. So when you make the decision about where to start your opening, where to start your order of proof, it’s very important to know where do I start the story, right? Where do I bring this in? This also can be one of those questions of, I need to educate first before I can get to?
wrongdoing or pieces of the story. This example that I have comes from a food poisoning case. Now, naturally, the target defendants were in the distribution, right, not in the actual place where the actual event occurred. So we had to dial back to get them to the point of the story where it’s getting on the truck and it’s being shipped out, right? So that’s not normally where people would start the story and our focus groups
really keyed in on focusing on the last step, which was the delivery to the customer, right? well, it’s gotta be them, the restaurant, where it’s happened, right? It has to be, because that’s their personal experience. So it was very key when looking at and having a strategy session after this focus group was where to start. How do we get the focus away from the restaurant and onto the distribution line and the distributing company? Okay.
Elizabeth Larrick (09:39.992) So that particular piece was gonna be key for them. And it’s key for you. Because if you start in the wrong spot, that’s where they’re always gonna go back to is the first thing they heard about your case, that’s what they’re gonna remember the most. So that’s where you can plant good seeds or get stuck in a bad seed and have to try constantly to overcome, right? That bias they may have in their mind immediately. All right, just a few other fun things and reasons why we focus group, finding underlying.
hidden attitudes or assumptions, learning what visual aids are needed. What can they just not conceptually put together in their mind, but maybe words on a page is not gonna help, but they literally need some kind of drawing to get them there. Also assessing case themes, if you’re using safety rules as part of a case theme, like focus groups are great to give you feedback on that. So ultimately, why trial lawyers focus group?
Well, we want to see and we want to hear how people think and talk about our cases, right? Regular people. But what does that really help us do as trial lawyers? Well, number one, we want to build better cases. That means you want to have stronger liability. You want to have stronger damages case. You want to have a case that has higher value before you went into that focus screw. And that is one of the main reasons why
I strongly encourage lawyers to do focus groups early on. Remember how we started this episode? We had a humdinger of a focus group, but the number one thing, the number one takeaway from that lawyer after listening to two hours of a really hard focus group where they were just dragging that case down was, this is going to trial and I have four months to prepare to come back to this table again and try again. But I know now,
which path I’m on and I need to stick to my guns and use my time wisely. So I hope that you have enjoyed this back to the basics episode about why trial lawyers focus group. And I hope you also know the other tools that you can use to get case value, apportionment of liability or responsibility, or big data study.
Elizabeth Larrick (12:01.656) those are much more reliable tools because again, the field is going to be 2000, 3000, 4000 people, right? That’s a whole lot more reliable than sitting down with our discussion, the conversational focus groups. All right. And if you just want to win, then set yourself up a mock jury. That’s going to be the place where you’re going to go in, put on your best case, put on your best suit, have everybody else dress up, play witnesses, play the judge. And that’s where you can.
practice to win. All right. I hope this episode was helpful to you and until next time, thank you so much. Did you know that I also offer strategies, tips and stories in an email newsletter? That’s right. And if you join now, you will get access to the focus group trends email that’s going to start going out in 2026. So
You don’t want to miss any other free advice, then use the link in the show notes to sign up for the trial lawyer prep newsletter and the focus group trends email. They’ll start going out in 2026.
In this week’s episode, we’re looking at a powerful and often overlooked tool for persuasion: side-by-side comparisons.
Discover how this method can simplify complex information and sway jury decisions in your favor. I shares practical insights from my virtual focus groups, which offer strategic ways to leverage this tool throughout your case.
Our brains respond intrinsically to visual comparisons, and I’ll show you how to implement this tactic in opening statements, mediation packets, and beyond.
Learn how side-by-side comparisons can become your secret weapon for a better case outcome. And book a free consultation for virtual focus groups using the link below.
In this episode, you will learn:
How our brains always look for patterns, and how comparison is a powerful persuasion tool.
How our brains also crave easy decisions, and comparisons helps clarify positions.
How focus groups reveal jury preferences.
How to use comparison in your opening statements.
Why visual aids are crucial for understanding.
Want to learn more about the virtual focus group Elizabeth does with lawyers? Schedule a free call:
Elizabeth Larrick (00:00.448) If you want to know what persuasion tools will work best with your jurors in your case, that’s exactly what I do in virtual focus groups. I test your themes, your facts, your arguments, your visuals, and then give you strategic insights you can use throughout your case. This is your secret weapon. And don’t worry, I’ll be there to help you and add any other persuasion tools I can so that you can get the best outcome possible.
If you’re ready to do virtual focus groups, up a call with the link in the show notes below. Hello and welcome to Trial Lawyer Prep, the podcast dedicated to trial lawyers preparing better cases and better outcomes for their clients. I’m your host, Elizabeth Larek, and today we have a fun episode about a tool you can use pretty much anywhere in your case to win your point. Now,
Fundamentally, jury trials are challenging because cognitively we have a lot of information to bombard our jury brains with and we have to do it in an organized fashion. We have to think about word choice. We have to think about how much information we’re giving at each point and when we need to stop and summarize. Lots of different things to keep in mind so we avoid confusion.
We want always to make decision making easy for our audience. May it be the jury, maybe it’s a mediator, maybe it’s a judge, maybe even it’s our clients. And so today’s episode is dedicated to comparison, a powerful, overlooked persuasion tool. We use it just a little and I want to use this episode to talk about how we can expand using it.
Now, let’s just take it at face value and think about it in your mind, a side-by-side chart. Your side is on one part, the other side is the defense. All right, and so what happens when we do a side-by-side, just taking it as in your mind? What we can see are extreme positions that are being taken. We can also see the things that have to be ignored in order to accept the defense’s position.
Elizabeth Larrick (02:24.684) And ultimately, we make it extremely easy for that brain to make a decision quickly and in your favor. So let’s talk a little bit why does this side-by-side comparison work so well. We’ve seen it work extremely well in our before and after witnesses that we use for our injury cases.
We use it really well with our plaintiffs getting ready for their depositions. We walk them through that in preparation. Okay, let’s talk about the things that have changed. Maybe you do that for your demand letters. Really good, helpful thing so you can write about it. But why can’t we use it somewhere else? And so this came up here recently as I was helping a group get ready for a jury trial. And we began to do focus groups and saw a very clear
theme that ran through almost all of the focus groups. The participants hated, even despised the defense’s number. And the number was a calculation. So this is not a traditional personal injury case, okay? It’s a different kind of case. I help on those too. So we saw this as a big strength, but how, how could we use this as a strength, right, to bolster
their position and also show how absurd it is and boom, it’s the side by side. And so they began to develop this side by side chart with at the top, right, the numbers to show again, number one, the absurdity and then what they had to rely on to come to that number. And again, this is a case that has complicated calculations and lots of expert testimony and
in the focus groups, it was kind of getting lost and they would only pick up on certain points. And so that’s where the comparison side by side became, okay, this has got to be something that gets down almost perfectly in the sense that we need to have simple, clear language, simple points, but also just a few so that they’re the most powerful points. And so the visuals created, the focus groups are…
Elizabeth Larrick (04:41.024) lined up to test it and I will let you know in later episodes how it fares out in the jury trial. So let’s talk a little bit about why, why does this work with our brains? And number one is our brains always look for patterns. When things are unfamiliar, we try to find a pattern and comparison is an easy pattern. is quickly, it’s something we use often. And again, brains love things that are familiar.
So comparison is something that we use all the time in making decisions in our lives. Think about the last time you booked a trip and you used any of the numerous travel websites that show you all the airlines side by side and the costs and the bags and all the things so you can make an easy decision. A couple years back, there were insurance websites where they would run a quote for you and put the competitor side by side.
We do it all the time. go to the grocery store. We just go shopping for clothing, right? We put things side by side to make the decision easy for us. Our brains crave easy decisions. So that is why comparison works. It’s a familiar pattern that we use often in our lives and it makes that decision making easy when we can see it all visually, right? Which is the other strong thing.
about the brain science here is 60 % of our brain or more is dedicated to analyzing, detecting, finding, seeing visuals. And so having this as a visual is so powerful to make it easy for our brains. And again, this is an easy visual for you to create thinking again, it’s just a simple T chart, a side by side so they can see the things. The harder part is coming up with the things that go on that chart because they have to be evidence.
testimony, things that you know for sure will come into trial. And we’ll talk about that a little bit, how we can use them in other places. The other thing about comparison, and again, this draws from the recent experience we had was how obvious it was once we put things side by side, the absurdity of the position. Now, just talking verbally to someone and trying to explain comparison is a challenge.
Elizabeth Larrick (07:02.048) Our brains can only hold three to five things in short-term memory. So when we try to verbally explain our position and then compare it to the defense position, things are just naturally gonna get lost. And that’s where this visual becomes very helpful in showing the absurdity of the defense positions. So let’s think about this in comparison of experts on the topic of causation.
experts on the declaration that there is no injury, right? Or even life care plans, right? Having that side-by-side comparison of just the simple facts, the simple differences, the simply put opinions, right? Will help them be able to understand the positions, but also again, see who is ignoring facts, understand the defense’s position, right? Making it clear to them. This is one of those things where as…
defense lawyers making it confusing, making a variety of things available for possible causes, possibly this, possibly not right. That just makes everything muddy. And with this side by side, you make it very clear. It’s very difficult to argue against when you do that hard work of boiling things down and writing it down till they can make their decision quickly.
So let’s talk now a little bit more about where we can use this. Now, the main example that we have again is our before and after witnesses, before and after testimony. But like we just talked about comparing our expert opinions is so helpful, especially when we have an expert that’s ignoring a fact, right? So again, think about our experts who give opinions about
it’s a sprain or a strain, there’s no real injury here. And so what does that mean? What do they have to ignore to get to that position, right? Having that side by side with what your expert has done. And so maybe it’s as simple as they never examine the person. There was, know, examination six separate times, right? This testing, no testing, right? And we have done a lot of this already in many of the cross-exam.
Elizabeth Larrick (09:18.638) CLEs that have been out there for a while have talked about how to do this in cross exam. But what I am encouraging you to do is to use that comparison in your opening statements. Use comparison in your mediation packets. Boil it down, make it simple for the mediators to understand where is the hitch in the giddy up? Why can’t we seem to get this thing done? Where are the positions are and what are the facts that are being relied on?
And again, also helpful in hearings for our judges. Same thing, they can only handle three to five things at a time. It’s just their brain, it’s my brain, it’s your brain. So how do we get around that, right? Make that comparison, your position, their position. What are the facts they’re relying on? Putting case law on a comparison chart does not necessarily help them, okay? I’m talking about making the simple points side by side so they can see what’s happening. All right, so.
I hope that you found this episode helpful. I hope you have in your mind right now as we sit here, the next place that you are gonna sit down and make a comparison chart. Now, you may not be 100 % comfortable with writing, but you could put this on a PowerPoint slide. You could even make one of the big blow ups for demonstratives for your hearing, even for jury trial. But it’s a helpful persuasive tool because our brains wanna make decisions.
and you wanna make it easy for someone to decide in your favor. So if you’re wondering what persuasive tools you can be using in your cases, then the best way to find out is virtual focus groups. In my virtual focus groups, we test not only your case, your facts, but we also find the best ways to persuade the jury. If you’re interested in doing a virtual focus group, please use the link in the show notes to book a free time to talk.
Right now, are still spots available for January and a few for February as well. Thank you so much for tuning into this episode and until next time, thank you.
Today, we’re talking about the advantages of using virtual focus groups to enhance jury selection, especially in jurisdictions with limited voir dire.
I share a real-life success story where a lawyer used virtual focus groups and a detailed jury research chart to navigate a challenging trial with confidence.
We then look at the nuts and bolts of how to conduct virtual focus groups, create insightful jury profiles, and maximize the value of focus group feedback. By analyzing qualitative data from focus groups, lawyers can identify potential jurors who may not align with their case, thereby making informed decisions during jury selection.
This episode is a great starting point for learning practical strategies to better understand jurors, identifying their emotional engagement, and improve your overall trial strategy.
In this episode, you will learn:
Creating a jury research profile helps identify unfavorable jurors.
Demographics alone are insufficient; life experiences matter too.
Judges may make impulsive decisions during voir dire.
Multiple focus groups enhance confidence in jury selection.
Transcripts from focus groups are crucial for extracting insights.
There is no perfect method for jury selection, but strategies can improve outcomes.
In our last episode, we heard from Tim Bechtold, whose perseverance ultimately led to a verdict in Montana of over $27 million for his client.
Today, we’re joined by Tim’s partner in the case, John Heenan, for his perspective on the process and the role he played in achieving the result, particularly as someone who joined late in the day to help push it over the finish line.
We talk about how to approach the trial, the importance of adding someone new to a team for crucial fresh perspectives, and advice for working with conservative mentalities on juries and trial presentation.
John emphasizes the importance of empowering jurors and leveraging collaboration to achieve results in the courtroom, while also reminding us of how we can measure success, keeping an honest assessment of our role in the outcome.
We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
Guest John Heenan of Heenan & Cooke Trial Lawyers, Montana.
Do you have an upcoming trial and want help writing your opening statement? Book a free call with Elizabeth to see how she can help.
Don’t want to miss an episode? Join the Trial Lawyer Prep Newsletter for resources, tips and episodes by going here: www.larricklawfirm.com/connect
Episode Transcript:
I’m your host, Elizabeth Larrick, and we have a treat today. We have guests, John Heenan joining us all the way from Montana to talk to us about a recent verdict. Hello, John, and welcome to the podcast.
Hey, Elizabeth, thanks so much for having me and what a treat to get to be on your show.
Speaker 1 (01:02.136) Well, I think it’s gonna be our treat because you guys had an amazing verdict, 27 million. And so I’m excited to have you here to talk a little bit about that. But before we jump in, for folks who may not be familiar with you, tell us a little about where you practice, what your main focus is. Give us a little background.
So I’ve been a in the trenches trial lawyer here in Montana for 20 years now. Cut my teeth on some federal criminal defense and have been a consumer protection lawyer. So I’ve for many years sued debt collectors, banks. Back in the 2007, 2008 time period, I kind of did nothing other than sue mortgage servicers for defrauding people.
had some good results at trial in those cases. And yeah, I fight bullies. I take on bad guys. And here in Montana, everybody’s somewhat of a generalist. So I think I get referred cases involving people getting picked on by bullies.
Okay, well that’s a good background to give us and of course if you want to reach out to John his information will be in our show notes. But what I find so curious about this verdict was you jumped into this case kind of just a few weeks before trial. So what made you get excited? What made you say yes to going to trial in this case?
Well, I think probably like many of your listeners, my least favorite part about the practice of civil plaintiffs law is how long it takes to get a case to trial. And so, you know, my normal case is like probably everybody else’s where I file it, grind it out for years and years and years before finally after all the doors have been closed on the defendants, we finally get our day in court.
Speaker 2 (03:03.714) This one was kind of every trial lawyer like me dream. I was literally sitting at the brewery having a beer with my good friend and we had another trial coming up and he told me that he had back to back trials. And I said, what’s the other trial? And he told me about this case that we’re here talking about. And I said, hey, do you need some help? I work on tips.
Hahaha
So that’s literally how I think that was two or three weeks before trial that I first heard about this case. And I do think and I a lot of times help other lawyers either jumping in and helping them try a case at the last minute or at least kind of giving them a fresh set of eyes. And that’s a big thing that I want to visit with you about Elizabeth. And I know that you specialize in is, you know, I think lawyers.
grind all these issues for years and years and years. And so we just think because it’s important to the other side or the court that it must be important to a jury when 99 % of the time it’s not at all. And so I do think whether you’re willing to relinquish the control and let somebody else try your case, that’s always hard, but at least getting fresh sets of eyes on a case that you’ve been staring at for a long time.
is incredibly beneficial. I brought a fresh set of eyes to the case.
Speaker 2 (04:37.432) helped my good friend to help his client get a fair result.
Absolutely. You guys have so much wisdom and knowledge. I really wanted you each to come in and give your own thoughts.
Kind of the flip side of this case and working a case for three weeks is Tim and I just finally got resolved a case that we’ve had for eight years together. So that’s sadly more the norm in the civil practice than a couple weeks.
Absolutely. mean, I think you’re going to be preaching to the choir to most people who totally understand the slogging it out. This case is a case that it really kind of lingered pretty significantly long. It took a while to get to trial. There was an appeal. So there was a lot of, you know, back and forth, a lot of slogging out. know that Tim really had to do a lot of fighting and digging in this case against a private prison. And so we did a focus group together. So I am curious.
You you got to take it all the way through into trial. So tell us a little bit about what you learned from that virtual focus group.
Speaker 2 (05:40.366) Yeah, it was hugely beneficial. And I mean, for more just kind of, you know, interesting story or whatever, somewhere between the bar with Tim and agreeing to be on the case. And then I had a long planned road trip that I drove from Arizona back to Montana. So for me, thank God for the zoom nature, the virtual nature of your focus groups, because I was in a geodesic dome at a campsite in remote Utah.
in range of their Wi-Fi in order to participate in this focus group. And so I’ve always done focus groups in my cases way back when before Zoom, we, you know, put an ad in the newspaper and bring people into the office, feed them a sandwich and give them $20. So I will say that, you know, that was the first time that I’ve ever worked with you.
Speaker 2 (06:40.462) And I was incredibly impressed with not only the people that you found, because in my experience, it can be kind of the usual suspects when you’re trying to do it yourself. There’s a certain kind of group of people that likes to do the I mean, rightly so. I think it’s fun, but you get the same people. And so their perspective gets kind of stale. And also, you know, we’ve read the books.
I what we thought was the best, then I watched you handle one and realized that what I had been doing up till then was not the best. So I know who I’m going back to next time. It’s not me running an ad in the newspaper anymore.
I appreciate you saying that and I will say from all my virtual folks you had the coolest background because you were
Yeah, I’ll send you picture if you can link it because the geodesic dome was a pretty neat place to office from for the day.
It was, I, you know, as far as getting up to speed so quickly and thinking about those three weeks and thinking about that focus group, I you yourself did an amazing job getting up to speed on the file because you did part of our presentation in that focus group as well. And then, you know, sat back and watched everything else people were saying. So there was a lot of information to kind of synthesize down and then get that feedback. And then you took that then and
Speaker 1 (08:05.1) you know, recreated and went back and create an opening statement that I thought was fantastic.
Well, and I really also continue to sing your praises, Elizabeth. mean, I’ve done focus groups with other people too, but that never involved kind of, hey, let me look at your opening PowerPoint slides, because I might have feedback, and you had amazingly good feedback. One of the things I like most about trial is the collaborative process and just the finished product that the jury sees is…
It’s never the work of one person or I would say it shouldn’t be the work of one person. I definitely the way we do it in my office is it’s very collaborative and through that process, the jury gets the best version.
Absolutely. think you used a beautiful word for that, which is stale. You know, we get so stale, our stale perspective as lawyers and having more people get eyes on and give even just very small things make, I feel like the biggest difference. And in this case, I think you guys had a really good challenge of getting the focus in on the really bad violations. Cause you had so many ways to go.
so many bad acts it was really trying to connect everything together and keep the jury focus.
Speaker 2 (09:25.068) Yeah, and that was, you did a great job of helping us with that. For the listeners, I think I had four or five things I wanted to prove them guilty of, and you correctly said, let’s just go for three. I couldn’t help myself in closing. I reminded them of the three that we were told them we were gonna prove, and then I put up a four, five, six.
think that’s brilliant!
just to kind of sugar coat it for him. Yeah, so I…
I think that’s, mean, that’s, you know, that’s one of the things I was hoping they would, you’d kind of tell us a little about because one of the things about, think sometimes can be difficult when you’re approaching a trial, especially in your case, right on the eve of things, you’re taking in all the information and creating all the crosses and the openings and being able to then think through and tailor opening into closing. But you use it in a way where it was just like, and let me show you what else we proved. You know, they were not paying attention.
Yeah, you know, we all get good ideas from, at least I get good ideas from other people and just kind of, you you crib them and you make them your own. A mentor and friend of mine is Carl Bettinger, who wrote an excellent trial guides book, 12 heroes, one voice. And that’s kind of my go-to for how to put cases together. It’s the Joseph Campbell, it’s just a way to tell a story.
Speaker 2 (10:55.246) is explain to the jury what’s going on, kind of what they’ve entered into and what their options are for either stepping up and doing something or choosing not to. And that’s the way I sue debt collectors, it’s the way I sue banks, I do bad faith insurance stuff, it’s the way I present bad faith cases and that’s how we presented it here too.
And I think it works. mean, you tell me if you’ve been successful before.
Yeah, yeah, it does work plaintiffs lawyers. Our instinct is we feel so by the time of trial we feel so kind of emotionally wrapped up in our clients. We uniquely know all the crap that they’ve been put through behind the scenes, how disrespected they are almost always through this process. And so kind of we go in with a chip on our shoulders that the judge, the jury, nobody else.
has that perspective. And so when you start off from a position of, and I guess I’d say too, Montana is a very conservative venue. Our jury here was a federal court, Eastern Montana. These are farmers, ranchers, people that do not want to give money away, period. Everybody says, that hurts, rub dirt in it, get over it. You know, and that’s great. And that’s
kind of the only place I’ve ever, I’ve had a couple cases in California and stuff like that and I won’t lie, that’s pretty fun too. But on a case where kind of values have been broken, think a conservative jury is your best jury because they understand right and wrong and are willing to act when they see wrong.
Speaker 1 (12:44.04) Absolutely. But I mean, let’s spin it a little more here because it’s federal court. You guys are pulling from 300 miles to get people.
Yeah, it’s the Canadian border to North Dakota. That’s right. Damn near Idaho.
You’re doing a private entity, which is one of the biggest employers in that entire area. Everybody knows where this place is, who’s, know, and the fear would be, my gosh, right? You’re going to put these people out of business. Like they’re the main employer. Also, let’s be real here. These are prisoners. Like you deserve to be there. Why should we even care about this situation? So you guys kind of had a little bit of an uphill battle to get
and really position the case and frame it in a way to where, like you said, you focus on the values and correcting the wrong.
I think a lot of that happens in Bordier. Bordier isn’t just the place to select your jury and get rid of the people that you don’t want. It’s the place to frame your case for the first time and stake out the posts of what ethical drama, what are the moral values and moral issues that are going to come into play in the trial. And I think I always do cards up and tell the jury panel it’s cards up.
Speaker 2 (14:07.074) And that’s just cribbed Jerry Spence stuff. I mean, there’s no, it’s not so original, but it’s really effective when you say, here’s the warts in my case. Let me show you what they are so that the jurors are hearing it for the first time from you. So yeah, we had a prisoner, a positive meth test, stuff that might scare somebody away from taking their client’s case to trial.
Absolutely. don’t know if you, there was much of a choice here though, was there? don’t think there was even anything remotely that would give any of you guys an opportunity to settle, I should say before.
Yeah.
Want to know what jurors really think about your case? Stop guessing and start testing. I run virtual focus groups that give you real insights from real people without the hassle of conference rooms and catered lunches. We’ll uncover the landmines in your case before they blow up because the best surprise in the courtroom is no surprise at all. Ready to see what you’ve been missing? Let’s talk virtual focus groups and book a free consultation call with the link in the show notes.
Well, talk us through if you can, anything a little bit about jury selection or opening statement. Is there anything that you can kind of share with us as far as thinking through? Cause there are lots of people who have the same bout, know, the same battles, conservative venue, uphill battle against a defendant, a not so great plaintiff. So tell us a little bit about if you can, things from the trial.
Speaker 2 (15:39.18) You know, jury selection, obviously one of the big things that we had to kind of put front and center was does anybody think that people in prison don’t have the right to be kept safe? That, you know, stuff happens because that was going to be their big defense and we knew it. So kind of getting ahead of that, having the jury panel openly talk about, you know, and some people did say basically, why should somebody like that be kept safe?
So that’s, don’t fool yourself into thinking if you don’t have the discussion with the panel, they won’t think of it on their own as they’re deliberating. So, you know, we had that conversation and we had the hard conversation about money and that’s always been the scariest part for me is talking about money and especially getting ahead of the jury because I do really think that you can kind of like when the record screeches, like
Every, you the music’s going, everybody’s having a good time warming up and then you say, $20 million and it’s like, and the record screeches and that can be hard to come back from. And my friend, Brett Turnbull, he came up with the good idea that, you know, I’ve used since I’ve stolen from him on in Vordir, it’s just millions and millions of dollars. There’s not a specific amount. There’s not a litmus test.
but it’s putting it on the table. I mean, if the case justifies it, defer to everybody in your own venue, but I don’t think just asking for millions and millions of dollars gets juries to award millions and millions of dollars. think there’s a credibility component and you’re gonna get burned if you start throwing big numbers around and the case doesn’t justify it. But if the case justifies it, I think it’s really important to let the jury know where you’re going.
so that they have the opportunity to talk about it. And we a lengthy conversation at the jury panel, people saying, I’ve never seen a million dollars. How would I know whether I could award a million dollars or two million or more? But they kind of had that discussion amongst themselves. And then, so by closing, I mean, there were specific things that the people that ended up on the jury said that we were able to harken back to.
Speaker 2 (18:06.35) kind of remind, use their words as they were contemplating what the verdict was gonna be. And I think it was all from a position of empowering them that they didn’t have to award any money, much less a lot of money, but they certainly had the power to if they decided that was appropriate. So our client, as you know, Elizabeth, I mean, he has a brain injury and so he can’t walk. He has kind of a…
stunted gait, he talks very slowly, it would be obvious to anyone that he has problems to eyeball him. Well, in Vordier, one of the potential jurors basically said candidly, you know, I feel sorry for your client. Unprompted, she just said, I feel sorry for your client. And we use that as an opportunity to talk about how no sympathy in the courtroom.
Our client didn’t want sympathy. He wanted, I love the phrase we used was cold justice. And we kept going back to, know, he just wants cold justice and not your sympathy. And in Bordeaux, had a panel, had a nice conversation about this is America. We don’t just take money from a big company and give it to somebody that got hurt. So I do think getting ahead of that.
and kind of staking out the high ground of that kind of language, especially with the conservative jury. Here in Montana, you’re not going to get sympathy. So throw that idea in the garbage and talk about what the rules are and get a commitment to follow the rules.
Awesome, wonderful. It sounds like you guys had an ample time for journey selection.
Speaker 2 (19:58.092) Yeah, it was great. Federal court, the judge did about an hour and he did a great job and then let the parties each do about an hour. In state court here anyway, we can get half a day. But, you know, I also think working under a timeline can be helpful, keeps you efficient and sure, there’s ways to dribble out the clock. Even if you have four hours, I’d say use one hour if you can.
Yeah. Yeah. Awesome. And you guys ended up with a panel that you were pretty pleased with, right?
Yeah, they were, I mean, a good cross section of Montanans, but everybody was committed. Before COVID, sometimes there were potential jurors that were just downright hostile to the whole system. I do think that people are more open to serving on a jury now since COVID and everybody was kind of locked inside. But I mean, another thing I asked and I think I’ll always ask now again is,
who hates being here, who wants to be here, and who’s somewhere in between. And that even was kind of a good conversation of taking people’s temperature to see. you don’t want the person that hates being there. The person that loves being there is also a little bit dangerous.
Yeah, I was like you kind of actually want somebody in the grave
Speaker 2 (21:21.086) Yeah, like I want a five out of ten.
That’s right. That’s right. Yeah. I think that’s a great question because I’ve seen juries here in Texas where before I feel like people were kind of little subtle about like not wanting to be there. Some people made excuses, but it is like eye rolling, huffing and puffing, like, you know, very obvious, like they do not want to be there. And if you have to get stuck with that person, cause I’ve seen it happen. It is not, it is difficult to overcome that, that burden of them not wanting to be there.
Yeah, I’ll say, mean, jumping around on you, but I mean, the other I’ve gotten burned on technicalities enough time and I’d gotten burned on, especially in federal court. You get that one juror that just wants to play NCIC investigator and they want to, it tanks the case. It really does. And so if I can lend one good thing to the listeners here, it’s, you know, in closing, before I got into the case, I gave him.
kind of helpful hints on how to do their job in deliberations. And one of them was I use the analogy of an escape room, which, you know, I told them that my family, we always do an escape room at Christmas and you go in the room and Santa wrote a letter and every word in the letter has some hidden meaning and you have to figure out what the hidden meaning is. And I said, that’s not what this is. This isn’t an escape room.
The judge isn’t trying to trick you with the jury instructions or hint, use your common sense. And that was really designed to neutralize that one person that can go back there and deliberations and tank your case and say, well, they never talked about this weird thing or why did the judge use the instead of them or what? mean, just whatever, but just
Speaker 2 (23:17.954) talked to enough juries after verdicts that didn’t go our way where it was just like you bang your head against the wall because you’re like, how could anybody have anticipated? But then that’s probably a good segue into how important it is to get a focus group because there is a lot of those things that you might not anticipate. But if you hire Elizabeth to do a good focus group for you, the people on that focus group panel will anticipate. There’s nothing better than in real trial.
solving mysteries that you didn’t know existed until you learned about it in a focus group.
Yeah, I mean, you definitely hear all the off the wall possibilities where, you you as a lawyer think, okay, well, that’s not likely to happen. But it still goes into a category of if I get this kind of person and they’re stuck in there, they could be thinking about, well, you know, where are the fingerprints? Well, how could there not be a video of this or maybe and it’s like, no, like we’re all doing.
To me, one of the biggest values of a focus group is that cognitive dissonance is a real thing. And if you’re prosecuting cases and don’t understand it, you’re doing your clients a disservice. we think my plaintiff had a hip replacement surgery, so I think I want people on the jury that had hip replacement surgeries. Maybe, but probably not. Because they’re sitting there going, nobody gave me a million dollars when I…
got a hip replacement surgery. Human nature is to sit there and go, how would I have never been in the circumstance that this plaintiff was in? And I’ve heard some preposterous, you I’ve heard people saying that they never listened to music while they’re walking down the sidewalk, because they’re always ready to jump out of the way of a vehicle that jumps the curb. mean, crazy stuff, but that’s what we need to be anticipating and closing doors on.
Speaker 1 (25:21.334) Absolutely, and I think that’s where you know the creativity of focus groups always blows me away. We’re just like my gosh They’re trying to put themselves so far from the position of the plaintiff and I mean in this case None of your people were probably were been in prison or in jail. So Right. It’s hard that point of view in a case like this is very difficult because that’s always what you want to be seated is knowing what the point of view is of the jury are they with us or against us and in the situation
no one’s going to have the point of view of being in prison. They’re more likely to be working at the prison.
Yes. Yep. Not for sure. Well, surprisingly, though, I mean, I’d never handled a prison case before, but I do do a bunch of assisted living cases. so I I kind of presented it as an assisted living case. And even in Vordir, we talked about who’s had loved ones at a facility that, you know, they’re dependent on other people to take care of them. I mean, it was kind of a natural analogy.
Obviously different reasons why you’d be in an assisted living facility versus a prison, but
Sure. Definitely. But I think, you know, the way that you guys framed the case and of course, starting first with focusing on the defendant and the conduct there, not focusing on injuries and that kind of stuff. Like you said, sympathies out of the courtroom. Were there any other takeaways that you feel like could stand out that would help other trial lawyers either getting ready for trial now or just putting a tool in their toolbox?
Speaker 2 (26:59.0) Yeah, a couple things. mean, one is you never know when lightning’s going to strike unless you’re on the field. And so I’m guilty of it. We’re all guilty of it. But handling a case for so long, the defense can say, well, you might lose on this. You might lose on that. You can talk yourself out of taking a case that ought to go to trial to trial. And you can talk yourself into
convincing your client that something’s better than nothing. And often it is, I mean, every case is different, but when you’re getting low balled, when the defendant or the insurance company are not offering any work in the neighborhood of close value for your client’s damages, you know, we’re trial lawyers for a reason. And part of that means showing up and trying cases every once in a while. And I use the line with
insurance adjusters and defense counsel sometimes that’s, and I probably stole this from somebody, but I’ll tell them like, you know, yeah, if I’m batting 250, I’m playing in the major leagues. You know, I just got to win one out of every four. And they hate that because they don’t want to be the one hit that you get. And I think my average is better than that. But I still, mean, even if you’re only one out of every four for the right reasons, you should probably be taking those cases to trial.
I think we as plaintiffs’ lawyers make ourselves a bigger part of the equation than we really are for big wins. I think that if I set my ego aside, most big wins that I’ve had in my career and I’ve watched others have, have more to do with compelling facts, compelling plaintiffs, and then the magic spice on top is often not what we as plaintiffs’ lawyers do.
but the way that the case is defended. No holds barred, no accountability, beat the plaintiff in the submission might sound pretty good when it’s the insurance company and the defendant and the defense lawyers all huddled up. But sometimes when you watch it play out in front of real people, it just looks kind of ugly. And I’ve seen that happen quite a bit. And so I guess my…
Speaker 2 (29:22.434) Council in those circumstances is don’t re-inject yourself as part of it. Get out of your way. If there’s particularly nasty cross of a plaintiff or a family member, maybe just let it play out instead of objecting. Like we just presented it straight up. There wasn’t any razzle dazzle. Some people are.
better at the razzle dazzle than I am. And some people are in places that that’s maybe better received, but razzle dazzle doesn’t work in front of conservative Montana juries and they don’t like feeling tricked. And so I think just, you know, straight up the middle, cards up the whole way.
I’m sure you had some razzle dazzle in there, John. You know, okay folks. He went in there with, know, pretty much a no offer case. I’ll say pretty much and turned it around, gave it to them, empowered them, asked for, you know, a range and then they settled themselves on around 27 million. So, I mean, that’s a pretty, there’s gotta be, like you said, I think the magic of the courtroom.
does so much good for us than we can ever anticipate. It’s just hard to trust that that’s gonna happen.
Yeah, I think and even the, you know, people want to try and boil it down to a science, but it’s just not, you know, if you try the same case 10 times to 10 different juries, you’re going to get 10 different results. And that risk makes us scared, but I promise you it makes or should make the other side more scared. I think a product of what happened here was a company that’s used to getting sued by pro se litigants all the time and just kind of
Speaker 2 (31:15.458) beating them down and not really understanding their own risk exposure. But it’s, you know, it’s our job to create risk and create exposure for the defendants and the insurance companies. And that’s how we get more money for all of our clients.
Absolutely. Well, John, it has been a treat to have you and listen to you give us your pearls of wisdom for trial because there are a lot of folks that are struggling with conservative venues and a lot of people just say, I’m just not going to do it. But I hope that everyone listening says, okay, we can do it. It’s totally possible. John’s not get out of the park there in Montana and other other folks in other parts of the country doing the same thing with conservative jurors. So.
John, you’ve been such a good guest here today and I appreciate you coming on. We’re gonna put in the show notes, your contact information and also your mention of that wonderful book by Carl Bettinger. Is there any other resource books that you would recommend?
It be the big one. mean, trial by human, the ball on damages. Most people that have read, you know, the trial by human and ball and rules of the road and stuff like that. Carl’s book is a little bit less on people’s radar. And it really is just a, that formula will work for every single case you have.
Yeah. And then, like I said, I think what I find, there are so many books out there. It’s the one I go back to, right? Like it’s the one I’m like, where’s that thing again? where’s that idea? And it sounds like for you, it’s Carl’s book.
Speaker 2 (32:56.462) It is. I mean, it’s just like, okay, how do I put this one together? Read that book? Okay, that’s how to put it together.
Well, thank you again, John. I appreciate you joining here today and have a good rest of your day.
Tim Bechtold spent years fighting a a civil rights case involving a prisoner from the Montana State Prison System.
In today’s conversation, we look at the intricacies of the case, detailing the client’s wrongful conviction, subsequent assault in a private prison, and the challenges faced due to procedural delays and missed deadlines.
However, the perseverance of Tim and his team ultimately culminated in a favorable verdict and a reward of just over $27 million.
Tim explains the importance of a focus group in shaping their trial strategy and reflects on the quick-paced nature of their trial, as well as the broader implications of justice and advocacy for marginalized communities.
Tim Bechtold is a Montana-based trial lawyer known for his work in civil rights and environmental law.
In this episode, you will learn about:
How the case of Nate Lake highlights systemic issues in the justice system.
How the verdict of over $27 million underscores the importance of accountability.
Why justice for marginalized communities often requires persistence and dedication.
The role of storytelling in trials that is crucial for juror engagement.
Do you have an upcoming trial and want help writing your opening statement? Book a free call with Elizabeth to see how she can help.
Episode Transcript
Speaker 1 (00:19.832) Touch with the emotional birth
Speaker 1 (00:36.024) Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we are continuing or beginning, I should say, our series where we’re going to talk about the $28 million verdict, but we got to start somewhere. So I’ve invited Tim Bechdel to come and talk about building this case. Tim, welcome to the podcast.
Thanks for having us, Libous.
You are a phenomenal lawyer. I don’t need to tell you that. Okay. Award-winning. You’re doing amazing work. I saw some other stuff just searching you, but I have to tell you, did you know that you’ve been listed as one of the sexiest lawyers in America?
I still can’t believe that Alana Felkin’s cheerleader is more sexy than I.
You’re number 32 according to Business Insider. I just want to point that out to folks. We’re going to have a link to that in the show notes, okay?
Speaker 2 (01:34.306) No, there you go. Just so know, I’m 30 seconds in last.
In all seriousness, really excited for this conversation, but tell us a little bit about you, your background. I mean, you have been fighting for, you know, people’s rights and taking the underdog for a really long time and doing some amazing work. But tell our audience a little bit about you since you may be new to them.
Well, I grew up on a dairy farm. I do not like milking cows. So I went to Harvard, was a bio major. I worked in the environmental field for a couple of years and then got my master’s degree in environmental studies at University of Montana. A couple of years later, I went to law school and got my JD and began to work primarily in environmental cases. And then by hook or by crook, I got called up by a native family from the Fort Belknap reservation.
who had been involved with environmental stuff and they wanted an attorney to deal with some situation that happened on the reservation. And so I started getting into civil rights cases on reservations. And then that led to a bunch of different cases around the civil rights cases and not just on reservations, but throughout the state of Montana. That’s how I got into civil rights cases, but I still, my caseload now is still.
a significant chunk of environmental cases and a significant chunk of cases for Native Americans and some civil rights cases.
Speaker 1 (03:01.25) Yeah. I mean, it is amazing the work that you do. You’ve been recognized, I know by the Montana trial lawyer’s association for, know, again, fighting for the underdog here every single time. So I definitely appreciate the work that you do. And I even saw just getting ready to talk to you today. You’ve got a pretty large environmental case going in Seattle right now. And so that’s, that’s a pretty big one too. So we’ll have a link to that in the show notes for folks who are interested, but I want to talk about this amazing verdict that you got.
for a prisoner involved in the Montana State Prisoner System. And it has a pretty storied past. I mean, this thing had been out there for a while. So tell us a little bit about how you got this case and really why you took it.
Well, it turns out that a woman named Mindy Driscoll, while she was in law school, had worked on the Innocence Project on this case for this guy named Nate Lake. Nate Lake, who was our client in this case, he was a guy who grew up near Missoula, was a high school athlete, very good student in high school, went on to the University of Montana, intended to major in pharmacy and become a pharmacist.
And about the time he was about 20 years old, he developed schizophrenia. It’s an affliction that’s not uncommon among young men of that age. And unfortunately, Nate was one of those people who developed schizoaffective disorder. And so he decided to live the life of Jesus and became homeless and depended upon what people would give him. For years, he slept by a log next to the river.
near Missoula. He did some odd jobs, landscaping sometimes. And then he was accused of attempted sexual assault. The case went to trial and over the course of trial, the trial judge decided to prevent some DNA evidence, very exculpatory DNA evidence from being admitted into evidence. And so Nate was convicted and the Supreme Court eventually overturned that conviction and he was released.
Speaker 2 (05:10.84) But in the meantime, Nate had been incarcerated at the Montana State Prison System and they had assigned him to this private prison near a small town in Missoula called Shelby, which is just south of the Albertan border by 20 miles. So in this private prison, Nate was assaulted by another inmate and was in a coma for over a month and then in the ICU in the hospital for another several months.
before he was released back to the private prison for about another six months before the Supreme Court eventually got to his case and overturned it. And so at that point he was released. So Mindy Driscoll, who by that time was out of law school and became an attorney, decided to take a civil case on Nate’s behalf for what she thought was going to be a false incarceration, but eventually turned out to be this case against Corps Civic for the assault that he suffered while he was incarcerated.
Unfortunately for Mindy, she developed long COVID and had some serious, both mental and physical issues associated with that. And she was unable to act as an attorney. She unfortunately missed a series of deadlines. And as a result, court civic move for summary judgment based upon the plaintiff’s attorney’s unresponsiveness. And at that point, Mindy actually called me up and said, I can’t do this case. I can’t be an attorney right now. Can you do it?
And I said, I’m happy to help. Let me know what’s going on. And so I picked up the case. And the first thing we had to deal with, of course, was the pending motion for summary judgment against Nate. And then what would come of it? So my argument to the court was the situation that Nate was in was due to no fault of his own. It was because of the health situation that his attorney was faced with. So the court eventually ruled that Nate could
Because you’re a really good guy.
Speaker 2 (07:08.312) prosecute his case, but the sanction for all this was that Nate would not be able to pursue some punitive damages against CoreCivic. In a case like this, which was, I feel, a fairly significant sanction and one that we have asked the court to review several times and he’s…
Sure. Yeah. mean, you had the case for many years. This is the thing. You’re not like, you know, the case had been many years by the time you got in. And when he means unresponsive, like the discovery things had passed. I mean, there’d been a lot of things. And again, you had decided, you know, taking it on, even though they took away the punitive damages claim.
Right. And so then we began the case in earnest, started doing discovery and worked up the case to see how it all, how it all shake out.
What year was that? I feel like that would have been 2021. Is that a ton about right?
It was a long time ago. was like, there you know, was like, man, that was a long time ago. And so there’s ancient history.
Speaker 1 (08:10.51) Well, the, know that, you we’re looking at the reviewing the case notes, you know, to get ready for the focus group that we did. Like it was very like, my gosh, you basically took this thing where it was, where it stood and began prosecuting it, even though years had already passed at this point. So many of the things that you needed were just gone. You know, I mean, some of the people who worked there weren’t there anymore. And some of the documentation just completely gone or.
Yeah, it just wasn’t there. luckily, because of the criminal case against the assaulter, the core civic had maintained the videos of the assault. And that’s one thing that your listeners should know is that the facts of this assault are actually quite simple, is that the assaulter buzzed himself out of his own pod, walked down the hall, buzzed himself into Nate Lake’s pod, walked up to his cell, beat him unconscious.
Walked downstairs, washed the blood off his hands and face, went back to the door, buzzed himself out, walked back to his own pod, buzzed himself in and yucked it up with his buddies. And that’s all on video. And that’s primarily because they were charging the assaulter with assault and criminally.
which is really good because we needed those videos to really put together the timeline of events. Cause Mr. Lake, he really had a terrible time recovering and you know, speech and a lot of really challenging difficulties from just recovering from the assault altogether.
Yes. So he has difficulty walking. He practices walking. has difficulty going upstairs, lifting his feet. Balance is an issue. He talks quite slowly. He has a cognitive delay. His memory is very spotty. He will sometimes remember things and then the next day will not remember that thing or even remember that he remembered it. So it’s very difficult. I should say the assault itself is not on camera.
Speaker 2 (10:16.11) because the camera is not inside the cell. We can see the assaulter go into the cell and we can see him come out of the cell three minutes later. But we don’t know exactly what happened inside the cell other than that Nate suffered some serious brain damage as a result of it. whether he was being choked or just being punched, we don’t know.
Right, right. And that, you know, one of the things when it finally came down to trying the case and getting ready for it, you decided to do a focus group. Tell us about why you decided to do that.
You sure did. I should say that first, you came to the Montana Trial Lawyers Association Convention a couple of years ago and gave a special presentation for plaintiff’s attorneys just prior to our convention. And at that time, you went over the process that you use for focus groups, how you selected people, and your idea of what a focus group was designed to do for particular issues. Was this a focus group for mediation or a focus group for a trial?
or a focus group for developing voir dire. So there’s different, in a foci for different things that we’re looking for in a focus group. And in this case, we were looking for a focus group for trial. And you were able to gather a pretty diverse group of Montanans. mean, not just from anywheres, but Montanans from across Montana. So we could figure out after the focus group took place, what kind of juror we wanted.
you know, were we looking for a young male? We’re looking for an elderly female, that sort of thing. And that was really helpful to go through the process of presenting a streamlined opening that included some of the points that we were trying to make a trial and how they responded. It was a very effective tool in reshaping our opening and frankly, reshaping the way we presented the case, particularly on direct. So that was super helpful.
Speaker 2 (12:17.1) And I should say too that you were super helpful in characterizing the feedback from the jurors to basically say, he said this and this is what he meant.
Well, that happens sometimes where they say something in the, doesn’t line up or it doesn’t match with what they wrote down. Cause we have, you know, we had them type things and we did the, we did a virtual, course. One of the things about your particular, where you’re trying the case is we’re not in state court. You had a large swath that was where people could have come from. And so it was like, okay, when you’re faced with a dilemma of virtual or in person, we knew if we try to do in person, there’s no way you’d get that good swath of everybody.
from all the counties you needed. So Virtual really helped us or helped me be able to gather you in people from as many counties as we could for that group to get that feedback and help you. yeah, they definitely will say something and then it doesn’t, you know, got to help translate sometimes.
Yeah, so I mean, just to help your listeners understand that we drew our jury pool from an area that was a thousand miles wide and about 200 miles north to south. So a thousand miles east to west and about 200 miles north to south. So a big area of land with not very many people.
Pretty rural too, yes, I to say. Definitely a diverse panel. We tried obviously not to seat it too young or too old or just to get a good variety for you. But you come in with so many different ways they had made violations. And so I felt like one of the things that was really helpful was, like you said, they told us what was most important. And then you and John were able then to come back in and refashion it and then also think through order of proof and like you said, direct.
Speaker 1 (13:56.299) exam.
For a lot of our medical things, we streamlined it quite a bit instead of going into gory, gory detail, just to keep the focus on Nate and what had happened to him.
Gotcha, gotcha, awesome. Well, is there anything else that you felt like was beneficial from doing the focus group?
Well, practice, you you get to do a practice in front of people who are listening to you. And it’s always nice to, you you deliver an opening statement and then, you you don’t always get to have juries say, well, what about, you know, whereas in the focus group, you deliver your opening statement and they say, well, what about, and you get to anticipate what a real juror will want to know about.
And they had lots of good things to tell us. So, awesome. Well, tell me, I know you guys went to trial and tell me how long was the trial, how many days and how many days did you guys put on evidence?
Speaker 2 (14:49.954) We put on evidence for two days and the defense put on evidence for a day. And then it was delivered to the jury on the morning of the fourth day with jury instructions and closing on the morning of the fourth day. And then the jury was out for about an hour and a half and they had a question. We came back for the question and the question had to deal with categories of damages. And then a half hour later they came back with their verdict.
gotta be a good feeling. Yeah. He’s, he’s the humble guy here. Okay folks, Tim, it was an amazing, you guys set some history here, right? mean, $28 million was pretty large, right?
Yeah, it’s a significant verdict. No question. So it’s 27.75, not 28. So as part of because it was a civil rights case, we could ask for attorney’s fees. And so we did that. And that pushed it over 28. And the bond that CoreCivic had to post in order to file an appeal is 28 million something.
Okay, okay, all right.
Speaker 1 (15:53.272) So you guys are still on appeal right now.
Yeah, and of course, Civic has also filed a motion for a new trial over the alternative judgment notwithstanding the verdict. And that will be argued later in July. We’ll see how it all stands out.
And you’re not afraid of appeals. think you’ve probably done a few appeals. Am I right?
I have done many appeals.
Yes. So you’re handling the pillow.
Speaker 2 (16:17.9) Yeah. Yeah. So we will, we’ll see what Corsiva comes up with their trial strategy. I think limits their ability to have success on appeal, but you never know.
You never know. You never know. That’s why we’re not going to talk too much about it. do. I do think though, you know, as far as there are simple things, of course, that anybody we can talk about and draw from. that is one that is a very, very fast trial today. It was fast.
Yeah, you know, the one thing about the federal courts in Montana are run really efficient trials. And so I think the practitioners have gotten used to getting to the point. And it’s certainly not uncommon for one of the judges to say, all right, we’re done with that one. What else you got?
I think most people talk about how, can you make this short and sweet and fast and simple because people just, attention spans are gone and people have no real patience for coming to the courthouse for weeks at a time or even a week people complain about. So that is pretty awesome. So does that mean you guys then did jury selection all in one day?
We did jury selection on Monday morning, picked the jury, the jury went out for lunch and we start offering evidence at one o’clock on Monday afternoon.
Speaker 1 (17:33.998) Okay, then you guys roll right into it. Awesome. I know we can’t really talk too much about it, but is there anything else that you would want to share to our listeners? Some of the things you guys thought through or just, you know, the approach? I know you didn’t really have a choice here. There wasn’t a lot of offer on the table, right? As far as
That’s certainly true. So we had demanded $6 million as a starting point. And we went to a mediation with a private mediator. In this case, Cori Civic did not want to have a magistrate judge mediate the case. That’s fine. It’s their choice. And so we had a private mediator who basically said, they’re not going to offer a million dollars. So why don’t you just keep coming down to some amount and see how much you’ll put on the table. And they eventually put a half a million dollars on the table.
Nate was there with his stepfather and just like anything else, you weigh the odds of how things might turn out. And they decided they would rather take their chances going to trial. And so that’s what we did. You know, one important aspect of trial that isn’t always front and center is for a party to tell their story, make their story public and say, this is what happened to me. It’s not right. And we need to do something about it.
And even if they may lose that trial, you know, even if a jury decides not to give them very much money or any money, I think there’s an important cathartic experience for someone who’s been wronged to tell their story about what happened to
Yeah, I mean, there’s so much power in just being heard. think that sometimes we can get wrapped up in doing things for a case or wrapped up in case themes or whatever. But the point that you make is excellent that people, especially I know for you and a lot of your clients, like being heard, being witnessed, their story being witnessed means so much to them on a personal value level, right? Just being valued by somebody hearing your story means so much. And then like you said, empowering the jury to know
Speaker 1 (19:34.606) this is what you’re doing here. There’s a lot of value of you being able to decide what is safe in your community and what is not. Sometimes it just feels like, there’s there for a car wreck and no big deal, but sometimes getting the bigger picture and especially in this particular case, right? You’ve got a private prison in a pretty remote area. That’s one the largest employers at this area.
and a prisoner, right? I I know that he was exonerated at the time, know, prisoner versus prisoner, you know, so there’s sometimes where it’s just like, well, what’s the community safety? You know, these guys are just in prison. So you all did an excellent job weaving that together at trial and having them be empowered to do something about what happened to Mr. Lake.
Yeah, and I would say, you know, my co-counsel, John Heaton, is he’s just really good at reading people and adjusting on the fly to reading the room and figuring out what’s the, you know, what’s the best way to respond to things. So really indebted to him and his people skills, really. I think it was a big part of how the trial turned out.
But you guys made a great team, right? You can’t have one without the other. You know, it’s like peanut butter and chocolate.
Yeah, so yeah, we’ve we did a trial earlier in February that would turned out well for us and I’m really happy that we had two good results so far this year.
Speaker 1 (20:58.85) Was it a similar case that you guys did in February?
It was a case where Bureau of Indian Affairs police officer raped a Northern Cheyenne woman while on the Northern Cheyenne reservation. And the question was whether or not the rape was in the course and scope of his employment. And the case went on for eight years, went from district court to Ninth Circuit or the Montana Supreme Court, back to Ninth Circuit, back to district court, back to Ninth Circuit, back to the district court over the course of eight years. And we finally got it to trial.
in February of this year and returned a verdict for our plaintiff, this poor victim of rape. And just so know, the cop denied it categorically, but unfortunately she was impregnated and decided not to have an abortion. And the FBI did a genetic testing when the child was born and proven conclusively that the cop was the parent. It’s just a really tragic case, but…
Because he was an employee of the United States, the United States denied liability for eight years until we finally got to trial.
Wow, and that’s the case that you won the Montana Trial Lawyers Association Award for.
Speaker 2 (22:10.146) That was originally for the Pellet Award because as I just said, we had to go through three lines of field and ultimately we were successful on that. We kept getting ruled against and then appealing and winning, appealing and winning, appealing and winning. So sometimes persistence pays off.
for sure and so you guys got a victory in February. Is that on appeal?
No, that is not on appeal.
that’s that. mean, that’s another win in and of itself. Congrats on that one. That is amazing as well. I’m sure there’s a link to that somewhere on the webs somewhere on the wide web. I’ll find a link and put that in the show notes because that work that you’ve done in that case is it’s amazing. And again, like you said, justice can take many, many years and sticking with it is half the battle.
That’s right.
Speaker 2 (22:57.09) Yeah. And, you know, the Montana state legislature passed a new definition of consent based on that case saying that anyone who is being questioned by law enforcement cannot consent to a sexual encounter and anyone who is in a prison cannot consent to a sexual encounter with a guard. So basically we got the law changed in Montana statutorily about the meaning of consent. So there’s, there’s no way that
someone who has that power over another individual can argue that the individual consented to a sexual encounter.
Wow, that’s amazing, Tim. Congrats. That’s powerful. know, like make it long. Fantastic. that’s a really lovely note to end on. mean, how do you stick with it? Let me ask that question. How do you just keep sticking with it,
That’s what you gotta do.
You do what you gotta do. You do what you gotta do. And also I gotta tell you, you love what you do. mean, this is a deep, true, passionate love for correcting injustice and sticking with it no matter what.
Speaker 2 (24:09.378) Yep. That’s what we do. That’s the idea. You know, it’s really tough. Taking Native American cases is really tough because justice for them is really hard to find. Taking cases for prisoners is really tough because justice for prisoners is really hard to find. Similarly, cases for people who suffer civil rights and dignities from law enforcement, it’s tough because justice is really hard to find for them. And so that’s what we’re trying to do. We’re trying to find justice.
Our system isn’t always fair, but we try to do what we can with it and to make it more fair for everyone.
Absolutely. All right. Well, Tim, thank you so much for coming on the podcast. I really appreciate you coming and talking about the lay case and then telling us about your other victory, which is super important and changing laws for consent. If anyone has questions or you want to reach out to Tim about his recent verdicts, either one, know he’s willing, environmental torts too. We’re going to have like all these links for Tim in our show notes. If you want to reach out to him, he is very generous and has a good ear if you have.
any questions, I know he’ll be happy to answer them.
Happy to help and big props for you. I mean, your focus group was awesome and your trial advice, quite frankly. I don’t know if that was just thrown in for free, but I’d sure appreciate it.
Speaker 1 (25:27.95) I’m happy. Hey, look at me, I’m happy to help. I want to get that justice for your clients as well. And like I said, I mean, that’s my passion is helping you do your job as best as you can.
Super good. Well, your aid in this case was great. Really appreciate it.
Awesome. All right. Well, thank you all so much for listening to this episode. Like I said, we’ll have Tim’s contact information and tune in because we’re going to have John Heenan follow up this episode with his take on the trial and getting ready. So again, thank you so much for listening and until next time. Thank you.
Our episode this week demonstrates why even small focus groups can go a long way towards saving your case.
Running focus groups in discovery can accomplish a lot in even just 50 minutes, giving you data and analysis that you simply wouldn’t have otherwise.
I outline three specific types of focus groups that can save cases: neutral narratives, timelines, and deposition preparation. Each type serves a unique purpose in helping lawyers understand their cases better, identify weaknesses, and prepare their clients for testimony.
We want our clients to do the best job possible, so why not give them a leg up and do a focus group test run, to help figure out where jurors will land on the testimony.
In this episode, you will learn:
How focus groups can save your case during discovery.
Understanding jury perception is crucial for case strategy.
How fresh perspectives can break stuck thinking in cases.
Identifying assumptions early can guide case direction.
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Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and today we are going to talk about focus groups you can run in Discovery that can save your case. I know it’s a big statement, but these little focus groups, and you’ll see what I mean here in just a little bit, can help you learn so much in such a short period of time
to get you on the right track and avoid wasting energy and money on the wrong claims, the wrong stories, and starting in the wrong spot. So I’ve talked about this before in episode 139, doing focus groups in discovery so that you can be on the right track.
Today I want to use this episode to talk about three very specific styles of focus groups that you can use. And we’ll dive into the details, talk about what you can learn, and I have some examples to share as well. So you may be thinking right now, well, that all sounds nice, but these are generally pretty expensive little endeavors. And I usually wait until before mediation,
Elizabeth Larrick (02:27.242) or after expert depositions to run focus groups. I hear you. But these focus groups are little, meaning they’re short. You can get them done usually in 50 minutes. And if you have a complicated case, you can probably still get it done in 90 minutes. And of course, as you know, all these can be done virtually, as I always encourage people to do. And we’re gonna give you the specifics here today. So let’s dive right in.
We have three specific focus groups and the first one I encourage people to do to save their high knees is a neutral narrative. Now, you may be thinking, well, this sounds pretty much like a traditional focus group. We just put together a statement. Usually you have a statement from each side, but in this situation, what I’m asking you or what is being asked of you is to put together a statement like you’re a journalist.
just the facts. We’re gonna give context, facts, and depending on the style of case that you have, you may put in what each person is saying happened, what your client says happened, what the other person says happened. But you’re gonna think of it like a journalist, and that way you can just basically read the statement or give the statement with a PowerPoint if you have pictures, and then ask them what they think.
Normally the mistake I see lawyers make when we’re doing a neutral narrative is to not give them very many facts, to give like five minutes of facts. And you get really stumped with that because what they’ll end up doing is just asking you questions, many, many questions about more information versus giving you analysis. And we want analysis here. So I encourage people to put together at least 10 to 15 minutes of a journalist statement.
including pictures if you need to, to help with context, and then just ask them what they think, what’s going on, what else they want to know, and let the ponies run and just see what the conversation is. These neutral narratives are very helpful in finding out hidden attitudes, hidden assumptions, the weak facts that you have, the strong facts that you have,
Elizabeth Larrick (04:48.55) and generally maybe what could be missing. That’s super important if you’re starting out and you’re still in discovery and you want to be able to pick the strongest claims and go forward with them. And also it’s really helpful just generally to set up your discovery to know where your holes are, where things may be missing that you just didn’t even see it because again, we get stuck in our bubbles and it’s hard for us to see things from a non-lawyer’s perspective. That’s okay.
So my example of this is recently we had a single car crash. It involved a driver and one passenger, both of whom were 16. Now we ran a neutral narrative and set it up very neutrally and then just asked them what they thought. And the group almost totally, almost all 12, about 10 of them assumed that alcohol was involved without any mention of it at all.
That opened the discussion to, well, it couldn’t be just the driver’s fault. It had to also be whoever gave the person alcohol. It opened up the whole discussion talking about alcohol and intoxication. It was a really important assumption to learn because in the rest of the facts of the case, there is alcohol involved. And the lawyers realized,
This is going to be what people come in already written in their minds when they hear this case and it’s going to be something we need to navigate even if the judge says, we’re not talking about that. It’s not something you can consider. You would want to know that. That would definitely be a case saving assumption you would need to know before you walked into court. Now, you could do that focus group earlier and then figure out how to navigate depositions. We’re going to talk about here pretty soon, but
That is a great example of something you want to know what assumptions people are blindly making, whether the evidence is there or not. Our second focus group that I encourage people to do to save their case early in discovery is a timeline. Most of the time when I mention timelines, people automatically assume we’re talking about in a personal injury case, the medical timeline, right? What has been happening after the event. But really what this
Elizabeth Larrick (07:10.164) exercise is about is using a timeline of events leading up to the injury or the firing if it’s an employment case. Because really what’s important for us to learn early in the case is where do we start the story? We always want to be focusing on the defendant action, but which one? And this focus group will significantly help you find where in time you should be starting the story.
it will also help you be able to pinpoint the moment or rather the event at which things could have been prevented and by who. Now, sometimes this turns out to be in our focus groups, your client, but obviously you wanna know that at what point they would be responsible for their actions before the ultimate injury or firing or whatever the event that’s causing the litigation. So these are really important when you have complicated
Facts with multiple defendants. men mal is a great example of a case to use a timeline focus group with because traditionally there are appointments before the surgery or the malpractice happens and it’s important to document those out and figure out at which point in time it could have been prevented. So that’s a great example, but the one that I have very specifically to talk to you about is a plant explosion.
Now this one happened a couple of years back and there were several defendants that were a part of the possibility of causing the explosion. And so we had several target defendants and we had several different themes. Was it the installation that went wrong? Was it the maintenance that went wrong or was it something else? And so we ran actually several different focus groups looking at the timeline of events and where to start the story.
So very important because in a case like that, it was easy to just blame the people who own the plant. And so we used several different five actually focus groups to help us figure out which point in time to start the story so that the jury was focused on the target defendant. Ultimately, in that case, the jury found $18 million in a verdict and put I think 30 or 40 % on some of our target defendants, which is pretty much what they needed to get in order to
Elizabeth Larrick (09:36.876) Get over that hump, if you will, for contributory and comparative negligence and be able to collect. All right, our last focus group that I suggest people doing for case saving, and that is deposition prep. Now, I understand this is actually a little bit of a traditional focus group, but what I don’t want you to do is have your client give testimony live. What I would like you to do is pre-record with a Zoom. Now, when you’re able to do that,
you can obviously ask very open-ended questions. You’re not going to be trying to change anything that your client is saying, but rather you can ask a little bit easier questions than those deposition questions that sometimes come out of people’s mouths. It also allows someone else in your office with their voice to make the Zoom recording not yours. What I also encourage people to do is in a focus group like this, we wanna give a little bit of context, we wanna have a little bit of facts. We wanna play…
our clients, Zoom recording, and then you wanna have at least one or two other recordings to be able to show them. And those can be deposition testimony of the defendant or another witness, but it’s very important in order for an analysis to happen that they have a comparative as well. And that way you can get a good conversation going about what was their blink reaction, what is the credibility, what kind of questions would you have for this person? And it really helps the client also be able to have a practice session.
And then also knowing what the feedback is, be able to understand how people are perceiving them. It can be really difficult as a client who has never done a deposition to understand how a jury of 12 people would perceive you. Most of the time we think about, just how the person across the table is perceiving me. Also important, but we want to make sure that we are nailing down our testimony in a clear and credible way because
We normally just have one shot at this. And if we have some testimony that comes out unclear or comes out in the wrong way, it’s kind of sealed. I know you can try and correct it with a corrections sheet, but let’s be honest, it’s kind of stuck. We don’t want that to happen to you. I want you be able to have great, clear, credible testimony so you can check that box and move forward. This is super helpful when you have, again, a complicated
Elizabeth Larrick (12:03.148) liability case or in my example, you have a client that feels very strongly about testifying a certain way. Whereas you feel very strongly they should testify a different way. You may be thinking, Elizabeth, how is that possible? There is only one truth. come on now. We know that that’s not true. But I’ll give you a good example and that would be there are times in certain cases where a client may need to take the Fifth Amendment. So they could take the Fifth or
they can answer the question. This is a great way to test which way they should go because it’s kind of like A-B testing. You make two different videos and use two different focus groups to figure out which way is gonna be credible and how damaging is it to take the fit? How damaging is it to answer the questions? It can be significantly impactful for obviously the client to know which way to go but also overall for the case in a situation like that.
But I’ve even seen it to where people do these, even just a regular car wreck case, just to make sure our clients give clear testimony on how it happened, on their injuries. But really sometimes with car wreck cases, the how it happens can get a little bit confusing for jurors. We just don’t want that to happen on the very front end of your case, because typically that’s kind of the first discovery that happens, maybe some written discovery and then jump right into depots. So I wanna make sure we have that clear and the record is straight. All right, overall.
As I mentioned earlier, all three of these focus groups can be done in 60 minutes, 50 minutes or less because we are limiting the amount of information we’re giving them and we’re also being very structured in how we’re doing it, giving all the information and then just going straight in for feedback, not adding more information after that.
Of course, these are all three great ones that you could do virtually. I actually host virtual focus groups every single month for lawyers and we do these exact styles of focus groups to help them find their blind spots, those assumptions that people are making, figuring out how to give clear testimony for our clients, where to start our stories, which are very important, especially when we have multiple defendants, and also just to get you on the right track.
Elizabeth Larrick (14:16.918) It is amazing how much a fresh perspective can give you new energy on a case. Great ideas that weren’t even mentioned before and sometimes just break us out of stuck thinking that happens when we live with a case for longer than we want. All right, just to make a quick review, we’ve got three case saving focus groups you can do in discovery. The first one is a neutral narrative. Remember, we’re gonna put together a statement just like a journalist and read it to them.
Second one is a timeline. We’re gonna put our events on a timeline and throw it to them to figure out when it could have been prevented and where to start your story. And last one is depo prep. Depositions are so key. We want our clients to do the best job possible. So why not give them a leg up and do a little test round and figure out where jurors will land on the testimony. All right, I hope that this was helpful and we’ll move you forward in your cases that you’re working on.
