elarrickbrand, Author at Elizabeth Larrick

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

elarrickbrand on April 23, 2025

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

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

In this episode, you will hear:

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

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Supporting Resources:

Guest Ben Gideon of Gideon Asen

Email: bgideon@gideonasenlaw.com

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

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

Books referenced in the episode:

On Edge: The Are of Risking Everything by Nate Silver

Thinking, Fast and Slow by Daniel Kahneman

Episode Transcript:

Elizabeth Larrick (00:02.592)
Want to learn what cognitive biases you have as a trial lawyer that could be holding you back? Want to learn to assess risk better? Well, buckle up because our guest, Ben Gideon, is here to share his approach

in this episode. Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a wonderful guest here today. Ben Gideon is joining us all the way from Maine. Good morning. Hello, Ben. Morning, Elizabeth. I’m thrilled that you invited me to episode 140 or 141. That’s incredibly impressive. well, thank you so much. And I appreciate letting me come on your podcast. I recently got to guess.

on Elevate and it was wonderful and I’m glad to do that. And I’m excited that my audience gets to have you here today and talk about risk. So you have an amazing career, thoughtful, well put together, running your own office, many, many successful trials. So I know the folks listening are excited to hear your take on risk and how we can do better as trial lawyers at assessing risk. So let’s jump right in. Okay. Like

I know, I already know. You think that most trial lawyers say, you know what, I can handle the risk, I can do the big talk and the walk, but in fact, we’re really risk-verse as trial lawyers. So tell me a little bit about that. Yeah. So I started thinking a lot about the concept of risk after a recent trial that I’d lost. There’s nothing like having a devastating defeat to start to frame things for you and force you to think critically about issues that maybe you hadn’t thought as much about before.

Elizabeth Larrick (02:23.316)
And of course the idea of risk is elevated in center of mind when you’ve just lost a lot of money and turned down a big offer and received a defense verdict. So I started thinking about my own decision-making, about the decision-making that the client had to go through to make that choice, to roll the dice with the jury. And then thinking back on my career and also about other great trial lawyers that I’ve come to know who have had a lot of great

verdicts and just thinking about what, where the right balance is between taking risks for yourself as the trial lawyer, for your client, for your law firm. So what you said about that, it was one of the first observations I came to, which is in my career of doing this, which is now 25 years or so. One thing that strikes me is that as trial lawyers, we tend to be too risk averse that we

settle too many cases that we probably should be trying, that we take too many low dollar offers, that we don’t put it on the line as often as we should. And when you look at the lawyers that have had repeated high level success with the significant verdicts that we all hear about that are reported across the country, first of all, one of the observations that I think is

obvious to most people is that it’s the same lawyers that get the verdicts time and again. And you’d think, well, if everybody was doing the same thing over time, that would spread out and everybody would have, you know, their share of those verdicts, but they don’t. And one of the reasons for that is that, I mean, it seems quite obvious, but one reason is that the lawyers who get those verdicts are willing to take risks that other people don’t take. And they take those risks repeatedly.

over time and that has a kind of self-reinforcing mechanism over a career in terms of what that does to their mindset that allows them to take on that kind of risk. Whereas if you get into the reverse spiral of not taking those risks, then your formative experiences are all teaching you that you shouldn’t take the risk and you should take a lower offer and walk away. So then the question I came to about it is, what is it about us that

Elizabeth Larrick (04:47.535)
that causes us not to take really intelligent risks or risks that if you were to do the just pure rational data-based analysis, that the right decision would be to take the risk. The right decision for yourself, many cases also for your client would be to take the risk, but you still don’t do it. Why is that? And I started looking and reading up on some of the cognitive research that

kind of underlies a lot of the modern thinking about it. I don’t know how much you want me to get into all this. When it starts to get into No, no, I think it’s fascinating. Well, let me just say real quickly, because I think when a lot of times when people are risk averse as trial lawyers, we take kind of a riskier path. We do contingency fees, we get to hold onto the expenses. And one of the thoughts that I think hams up for people when you hear-

so and so just got 21 million. so and so just got eight for me. that guy or that gal, she just got the multimillion. It’s, that’s just luck. They’re just so lucky. They get that. So that’s one of those thoughts I think that sometimes gets reinforced, which then goes back into our mindset or the brain science behind the paths that we make in our brain. And then trying to make a new path of taking risk is challenging. So talk a little through the brain science.

Yeah. So again, after that, that recent loss, I was feeling terrible about it and trying to think through how we, how I came to that decision and whether that was a smart decision or a dumb decision. Of course, the decision to take a risk always looks dumb when you’ve lost. So, but I was trying to go back in real time and decide if I had to do it again, would I do the same thing or would I do something different? Because what lesson am going to learn for the next case? So.

My partner actually had just finished a book by an author named Nate Silver, who somebody, many of your listeners may know from the FiveThirtyEight website. He did a lot of political statistical analysis and prognostications. So this book by Nate Silver, who wrote a book about risk, again, I highly recommend it. And what he does in the book is he compares

Elizabeth Larrick (07:08.294)
people that are in professions where they’re highly skilled at analyzing and making decisions on risks, such as venture capitalists, such as poker players, versus people in the mainstream, doctors, lawyers, other people who aren’t as accustomed to making risk-based decisions. And what people in those industries do is they employ what they call probabilistic thinking, which is essentially figuring out what the expected value of a decision is.

and then making the one that’s optimal. So in poker, if you have a particular hand and you can see the cards on the table and you’re experienced poker player, you can assess what the odds of winning that hand are based on what the likelihood of you having the best hand would be, you know, just based on statistical odds and really good poker players do that. And the expected value is their odds of winning multiplied by what’s in the pot. So.

Now, if there’s $10 in the pot and you have 50 % odds of winning, the expected value is $5, right? So as a trial lawyer, you can do the same thing. If you know what the expected verdict value is and the likelihood of winning, can figure out, well, this case is the expected value is $10 million and I have a 50 % chance of winning. So the EV or the expected value for this case is $5 million. If they offer you $1 million, that’s

really not a great offer. I’m assuming all of those, that data is correct, right? And one of the challenges of doing what we do is getting data that you can rely on. One way to do that is focus groups, which is what you do and helping people to have at least a more quantitative understanding of risk for their case, which, you know, in the old days, you just made decisions based on your own quote unquote intuition or experience.

or what your most recent experience might have been. So you tried a case and you did really well. That case was a rear end collision. Now you have another rear end collision. So you may assume, well, I’m going to do the same in this case. But of course, every case is very different and we all know that, right? Even one little difference can change an entire case. But assuming you could figure out, and it’s a big assumption, what the expected value of the case is, then you can make smart decisions for yourself and your clients in each case.

Elizabeth Larrick (09:30.631)
subtle cases where they’re offering more than what the expected value would be, and going to trial in cases where they offer less. It’s my hypothesis that trial lawyers that you hear about getting the big verdicts routinely, even though they haven’t overtly stated that that’s their process, having gotten to know many of those lawyers, I believe that’s essentially what they’re doing. They’re making

decisions that are much more closely aligned to actual expected value, which if you do that, and this is part of the Nate Silver book, if you do that over a long term, you’re going to be far better off, right? It’s like in any individual case, you might get it wrong because if you a 50 % chance of winning, it’s 10 million and you turn down 3 million.

and you lose, obviously in that one case, you’re going to be worse off. You would have been better off taking the three. But if you have 10 of those cases and you always make the decision based on expected value over the course of your career, you’re going to be far better off making the analytically correct decision about risk. and I think also too, but what goes into that is when you’re thinking about these folks that are going over and over again.

and having expected value and using big data to understand all of those things. You still have that person, that brain that has accumulated the risks of going to trial like this on these kinds of numbers, these kinds of cases, that person, that brain is way more accustomed to risk than the lawyer who is just stepping into the arena and they’re taking their first million dollar or two million, three million dollars.

you know, so I do think it’s a combination of that getting used to that risk, you know, stepping into that place, but then also again, like you’re saying, have some of these expected value and be able to compare and have that a little bit of that data to make the decision. Right. Absolutely. It’s self reinforcing in that if you, so for one, one thing is if you’re a lawyer who only gets an occasional, you know, seven or eight figure case, maybe once a

Elizabeth Larrick (11:43.567)
year, or even once a decade, you don’t have a diversity of those cases to balance out that risk. So you’re not in the same position as a poker player playing a thousand hands. You’re actually much more like the client who only has one case. And that’s another point I wanted to cover, which is that the risk to the lawyer is actually quite different than the risk to the client. So the lawyers who are trying

repeatedly trying seven and eight figure cases to verdicts, they have an entire docket of those cases. So they’re similar to the poker player who’s playing a thousand hands of Texas Hold’em, right? Their expected value is going to even out over the long term and it’s going to trend toward the mean of what the actual value is. Whereas if you only have one case as the lawyer, you’re putting all of your eggs into that basket and

you know, if it’s a 50-50 chance of 5 million or zero, you may not be in a position with your practice to be able to diversify the risk of that loss across other cases, right? And the client can never do that because our clients always only have one case. I mean, for the most part. Right. We’ve multiple times, but for the most part, they only have one case. And so then you’re in the position of advising your client about

the risks where for you as the trial lawyer, if you are fortunate enough to have a lot of high value cases, you can afford and you probably should rationally take the risk to insist on getting expected value in your case. Whereas for your client, each marginal dollar is less valuable because the risk is so much greater for them once they get over whatever that threshold number is that they need to be secure and protected.

from the risk of loss, right? And so that’s just a really difficult dilemma. And I think that part of dealing with that issue is just recognizing it to begin with, that you as a lawyer do have a different tolerance, potentially a different tolerance for risk than the client is. Also the lawyers, mean, frankly, different lawyers, as we’ve discussed, do also have different tolerances for risk. And if you have that case that’s worth $50 million,

Elizabeth Larrick (14:05.867)
but you only have one of those in your practice, can you realistically take that risk, the appropriate risk that you should be taking? The answer is probably not, and you probably can’t afford to invest in the case as you should, which is also a risk, which is why a lot of those cases do get referred to the, you know, the small number of lawyers who routinely handle and try those kinds of cases. So there’s a certain logic to it. It’s pretty interesting stuff to, you know,

drilled down on it. It definitely will. And it is one of those things where I think people, whether you say that it is risk assessment or whether you say it is, they, this is in their wheelhouse. They have the, the war chest to invest in something that I don’t. Right. I think it’s still a matter of risk assessment. Like can I take this? You know, do I have, you know, the, it takes it to go invest the right way, but also take the risk all the way knowing

you know, I can go in because the value of the case. think most people say, well, that person’s done this before. And also they’ve got the war chest to invest in ways that I may not even know about and don’t have time to teach myself. Whereas I do think there are people out there who have that one and they say, you know what, I got this. And they do their own investment, meaning invest in themselves and then invest in learning. And then basically find a way to build the case.

with help or alone or whatever it may be and then really do try to take it all the way. But I think those are pretty rare. Those are the most amazing stories. And then those are the people that end up generally moving into that rarefied crowd and doing it repeatedly. I you have to start somewhere. That’s right. Yeah, exactly. I think no one’s going to hand you a 58 figure cases when you start your career. So you have to build that up. Yeah. Well, you know, take some risks to get over that hurdle. But

Right. And then like you said, I think there are people who do, and then if you have a bad outcome, even if you have one or two, but like they just, they notch down their risk level, right. And then they do end up being referrals and, working on things that they feel comfortable with. This is what I like the data so much. And I like the focus group practice so much because I think it’s a way for us to rationally think about and manage risk. I mean, I’m sure one of the

Elizabeth Larrick (16:28.258)
things that you talk about a lot in your podcast is the way focus groups are used to help refine your case and to make it stronger and to make it better for trial present, get the right case frames, the right themes, troubleshoot problems, overcome obstacles on all of those things, which are incredibly important uses of focus groups. But there’s also another use of a focus group, which is to in combination, I think with some quantitative data, more on a big data level, but.

But it starts with the qualitative data on the focus group is that you start to get more of an objective sense for the actual case value, win loss rate and risks that are independent from your own kind of subjective biases. And I think it’s really important to do that because we all bring a bias, our own bias. And of course, when we’re very deep into the weeds of cases and feel connected with our clients and the cause, it can be very hard for us to see the difficult

challenges in the case or to do it the way an ordinary juror might look at it. So as part of this kind of risk analysis, I was reading up on the literature, which I’m sure a lot of listeners are familiar with, the Kahneman-Tversky model, which is exploring why people often make irrational decisions based on cognitive bias. And when you read that in the context of being a trial lawyer, a lot of it really rings true and also…

you can see what the defense and insurance companies are doing to us routinely. So just to highlight a couple, some of the things they found when they did their research and how people make decisions is that people tend to perceive the risk of loss with greater value than the equivalent amount of gain, actually almost two to one, because you’re so worried about risk of losing that that elevates

in importance in your mind. losing $100 is much more impactful to you than the possibility of gaining an equivalent $100, even though rationally it should be the same, right? Right, right. That’s one of the things they found. Another one was that people will pay extra for certainty because people don’t like uncertainty. So going back to the expected value, if you have a certain 3 million,

Elizabeth Larrick (18:49.24)
but the expected value of your case is 5 million because 50 % of 10, people perceive the three as being much more, as more than three relative to the five because it’s certain, whereas the five is contingent. But that again is irrational because the expected value of 50 % of 10 million at five has a substantially higher value than 3 million, right? But still people perceive that differently. And then there’s the final thing, Nate.

they found, which is that people value things that they own much more than things that they don’t yet own. So it costs more to force somebody to give something up than what someone is willing to pay to acquire the same thing if they never owned it. And when you think about those different cognitive biases, think about how negotiations happen and mediations in a plaintiff’s case, right? They want to put enough money out there that

they are triggering your client and the lawyers for those cognitive biases to kick in. When they put the three million out there on the table, it’s very different than you sitting down with your client and saying, would you take three million? Well, I don’t think so because the expected value in this case is five million. But now it’s on the table. In a sense, you have it, you own it, it’s yours. And now in order to try your case, you have to give that up. So that endowment effect,

of people perceiving the value of something they own greater than something they don’t yet own, or the value of certainty over uncertainty, or the value of the risk of loss versus the equivalent amount of gain. All of those biases factor in. And I don’t know if insurance companies have studied this in terms of human cognitive decision-making as to why they negotiate the way they do. But I think some do, some don’t.

It doesn’t matter. They’re employing these techniques and they’re very effective because we all know exactly how that works, right? Your client says, no, no, no, never, never, never. But as soon as that money is on the table, that whole discussion changes. I’ve always thought about that as well. Our clients sort of being disingenuous, you know, maybe they they’re always saying no, no, no, no, but they actually don’t really mean it. But actually, that’s not really the case. It’s that that cognitive effect has not yet occurred.

Elizabeth Larrick (21:11.734)
which is a real, very real thing. And when it happens, it has an actual impact. Probably at some deep level of brain chemistry that I don’t understand. If you recognize that that’s what’s happening, even if it’s still going to happen and still has a powerful impact, I think it’s useful both as the lawyer and in advising your client to think about those things and why you’re doing what you’re doing. And then going back to focus groups, you can, to some extent, I think, counterbalance those forces with actual data.

because now you’re saying, well, you know, okay, that’s on the table. But we know from, you know, the 10 focus groups we did that the mean verdict about was this, and you had a 90 % win rate in this case. And so, yeah, that number kind of might sound good, but actually that’s offensively low for what this case is actually worth. Sure. At least it’s something to talk to your client about to counterbalance that. Sure. And I think that that definitely

Absolutely. As far as being able to have some kind of risk assessment tool besides yourself. I think when it’s just you assessing it and telling your client, like it’s very difficult for them to counterbalance it versus if you have some focus groups or you know, if you have the ability to do that big data study, then it significantly helps them balance things out in their minds. Especially if you get there beforehand and you know, before you get to that mediation, that pressure point that they’re going to feel and it’s

harder for them, I think in the long run, because if you, again, like you’ve pointed out, and you always have to remember that this is their one thing, their one thing. So the risk is going to be magnified versus for us who do it often frequently. And I think we tend to forget about that perception that they’re going to have versus us, even if we’re not one of the ones that always goes to trial, we still have that, this is just how it works.

you know, okay, that’s okay. That’s going to work. You know, here we go, but just move along because we just don’t want to risk anything. But when you have the focus groups there, it’s definitely harder for you to say, Oh, we should just go against what they said and just settle now because you know a little bit more in your brain about the risk and what, what they’re saying. And the other thing about the focus groups is they find risk you completely missed. I mean, that’s why I enjoy when folks, even if you just do one issue spotting, like

Elizabeth Larrick (23:35.449)
it’s going to find risks you may not have known was there. And then you can assess it or you can say, this is not something that we could probably overcome given the evidence we have and what I know and what I can talk about or do another focus group to assess more risk. Yeah, I agree. And we started this new law firm about four years ago and we just revisited our sort of core values as a firm. And one of the core values we came up with is that we are going to make decisions based on science.

and data, not fear or ego. So that’s, that is one of our firm core values now. And we’re very committed to in every case that’s moving forward to trial. Now we do multiple focus groups because we like the qualitative response from actual people. And then we, we do a big data study, at least one, and we’re committed to recommending settlement. If the case values come in above what the expected value is in the data study and to recommend trying cases of

the expected value is less. But that’s when we have the conversation with the client about that they only get one case. And so there needs to be some adjustment there for that extra risk. That’s not just a case specific risk, but is the risk of having all of your eggs in one basket. It would be like investing in the stock market by only buying one stock, right? Which nobody would ever do. So a differential is going to be different based on their own life circumstances and

tolerance for risk, but at least we can have that discussion with them. But we don’t recommend settling for our benefit unless it’s expected value or above. At that point, it becomes the client’s choice. If it’s less than expected value, then we talk about how much less would be reasonable to give them the discount there for that extra risk. it’s just a really great way to have an intelligent conversation with your client about this subject and to take your own ego out of it.

to take these cognitive biases out, to take fear out of it and just try to make the best decisions we can based on the information available to us. Sure. Well, let me throw a scenario at you because this has happened multiple times with folks I know that are listening. And that is, let’s say you’ve assessed the risk. You’ve done maybe, maybe one or two focus groups. Maybe you’ve got 20 trials, 30 trials under your belt. You’ve got some, you know, multimillion dollar verdicts.

Elizabeth Larrick (26:00.981)
And the risk assessment comes back on a case and lo and behold, they get a settlement offer that’s more than that. The client says, no way, I want to risk it all. So how do you, in that scenario, have you have basically a completely risk averse client? How do you navigate that? I mean, there are clients who truly want their day in court and they want the catharsis of having justice done. And personally, I believe that that has great value and

I would be thrilled to have clients that wanted, that pushed us to try cases that, you know, where we could take a chance that even went beyond what the risks says. However, I think my experience and probably yours too, that’s pretty rare. Our clients don’t tend to be highly risk averse. I find the opposite is much more true that most clients are very worried about going to court. They don’t want to.

have to be in a courtroom and testify. For our clients, everybody who does plaintiff’s work for the most part, our clients are not. They don’t have resources that allow them to take risks at a high level. And they probably, for the most part, should not be doing so. I find it’s much more the opposite that when you start to get multiple seven figures on the table, clients are very wary to put that at risk to go to court.

And I totally agree that most people fall into the category of being high. You know, they don’t want to do it, but most people don’t have multi million dollar cases. Most of them have, you know, smaller cases. And what I find when you actually kind of dig into this person who has this absolutely not, there’s absolutely no amount of money that can ever cause nothing’s ever going to fix this. You know, typically there’s something else emotionally that is going on. And that’s where

you know, yes, we can have all this intelligent conversation, but at the end of the day, I think we have to really think about the emotional things that are going on because there are times where we may get a verdict one way or the other and we talk to the jury and what has happened is something that’s emotional and subconscious and like, you know, all they can tell us is, I didn’t like your tie been in your thinking. Okay. Well, that really probably wasn’t the thing that made you decide.

Elizabeth Larrick (28:22.493)
Yeah. No, I mean, I just had a client in the office two days ago and this was a case we did a data study on. And what I found is actually most of the time, the data studies come back with numbers that are higher than what I would have expected. Back in the days before we did data, my intuition would have valued them below what actually juries are valuing them. So that’s been a nice revelation for me.

I think that’s part of the culture and climate we’re in right now with a lot of the nuclear verdicts and that people are willing to see value in other humanity. And also just there’s a lot of anger out there and people are expressing that in verdicts. But in this particular case, the results came back considerably worse than we would have expected. And there’s some atmospheric reasons why that’s probably the case. So we settled with one of two defendants for what was what I think beyond expected value for the entire case.

And our client, just like what you said, she is not, she was not particularly thrilled with the settlement, but for the party that settled, they also agreed to do something, a non-economic thing beyond the settlement. And this case involved a death of a child and they’re willing to do something to recognize that probably didn’t cost a lot of money, but it was very meaningful to our client and made her feel like they took the claim seriously.

that they were taking responsibility for it. so, yeah, there are definitely cases where there are things beyond money that are very meaningful, whether it’s a day in court, just having that jury say, you know, the other side was wrong and you didn’t do anything wrong. Well, and that’s still pretty rare that most, but you anything will non-economic would come through. But I just think, you know, most of the time when you have somebody who has something else emotionally that they want to be satisfied.

for what it be to be, it is to be heard. Maybe it is to be, you know, you know, acknowledged in the sense of, and many of the times it never happens, right? Even if you have a jury of like that doesn’t give an acknowledgement by the defendant, but that’s just kind of one of those things where we are on the other side, right? Of where we’re trying to convince somebody else of the risk knowing we’ve done, you know, the research and, it is pretty rare that those happen, but they’re out there. I mean, I, clients are

Elizabeth Larrick (30:44.177)
They’re complex humans, just like everyone is, and people are have, they’re going to be different motives and lots of layers, probably in every case. But what I’m trying to focus on in terms of thinking about the risk here is more that I don’t want to be making decisions based on my own ego or fear. If I can take that out of the equation, at least that’s one big factor to remove. Now my client’s going to have fear. My client has an ego. My client has many desires and are not necessarily driven by

know, crunching numbers and expected value of cases based on focus groups and big data. I get that, but I don’t want to be making decisions on that because I’m the professional here, right? And I should be trying to make smart decisions, not take dumb risks because it would serve my ego to get a verdict, but on the flip side, not caving into these cognitive biases that might be impacting me because, I’m afraid of the risk of loss or I’m valuing the certainty of

dollars in my pocket over the greater value of going forward, which I shouldn’t be doing those things as the professional in the relationship. So the reality is, as you know from doing all these focus groups is, first of all, none of these are precise science. It’s not in poker, you can look at a hand and say, if I have this hand, I have the third best hand you can have, and my odds of winning are 72.5%.

You can never get to that. don’t think we’re ever going to get to that in our business. There’s not enough human nature and jury decision making is too unpredictable to be subscribed to that kind of analysis. But the reality is when you do big data and combine that with a qualitative focus group where I think you can get pretty close, I think you can get within a range that gives you a pretty good sense. You know, are you at a 70 % win rate or are you at a 30 % win rate?

You you definitely can get a lot closer than you could with your gut without it. So, yeah. So obviously, Ben, I think I can hear that you really like big data. I think I can hear that. And we talked about some of wrong ways to assess risk, which would be ego or fear. So what’s another way that maybe would be the wrong way to assess risk? Well, I think one way is to is to use a small sample size to

Elizabeth Larrick (33:05.917)
have large scale extrapolation. So if you do one focus group and you had a great result, that doesn’t mean you’re going to win your trial. And if you had a bad result, it doesn’t mean you’re going to lose your trial because we all know as long as it’s a small sample size, it’s highly influenced by individual people or just like you said, maybe what you wore in your tie that day or some other factor. Sure. Well, and I think if you’re just going to do one focus group, you shouldn’t be targeting, is it a win or a loss? You should be targeting.

what are they saying, how are they saying it, you know, that kind of stuff. you know, totally agree. The one shot doesn’t get… Yeah. And also, I mean, I think you can always stack your presentations to dictate your outcome in your favor. So, I mean, if you’re not honestly confronting the real difficult arguments that the other side has, whether it’s in focus groups or doing data studies, you might get very favorable results and you might feel good about that. But that it would be a big mistake to use that to

make decisions or to advise your client because you’re not really, you know, honestly presenting the case. And I think having that discipline to try to honestly confront the difficult problems in your case, even if you didn’t use the data for predictive quality or anything is worth it alone because that exercise is going to make you a much better lawyer and make you much better prepared for trial because

It’s not fun, but you’re dealing with the difficult issues before you get in the courtroom and you figuring out solutions to them. So, right. And you definitely don’t want to be doing that in the courtroom. But I think another way that we often and frequent do this, and it’s not just that we just as trial lawyers, but we go down the hall or we call somebody up when we ask them to give us their risk assessment and then really rely on our neighbors or our, you know, our colleagues assessment of things we do. And we also, I think,

And this is one of the Kahneman and Tversky points as they call it availability bias. But basically you tend to put greater emphasis on things that are easily accessible or right in your face at the moment. So if there was a big verdict in a similar kind of case, you would tend to say, well, I’m likely to get a big verdict in this case, even though maybe that same kind of case, was nine bad verdicts before that, that you didn’t hear about.

Elizabeth Larrick (35:26.063)
It’s the concept that, you know, when people are at the beach, they’re worried about shark attacks, even though that happens, at least in Maine, that’s happened once in the last century. But it did happen a couple of years ago and everybody’s afraid of shark attacks now just because of the recency and, kind of that being front and center in someone’s mind, which I think is why people that start getting verdicts to that becomes their recent experience. Well, I just had a great verdict. So now the next case, what are you thinking about? I’m thinking about my last case and

that gives you that extra confidence that things are going to go well the next time. And you know, the reality is we’re also in somewhat of a confidence game. So there’s a value in just having the confidence, which, you know, when you do the focus group and you do your data and you’re if you’re doing it with robust process and thinking critically about the difficult issues and the other side and you’re still winning and feeling good about it. Yeah, you get some extra confidence going in the courtroom as you feel like you’ve got the win in your sales and

that itself, I think has great value. Absolutely. And I do think you can gain some certainty out of your case, you know, running them and figuring out the case frames and the sequencing of evidence, which is again, brain science, right? Primacy, recency, you know, all the things that we can take advantage of because we get to go first. And again, knowing that things are working at the focus groups, that definitely gives you that confidence and certainty. So, okay. So what’s a key takeaway that we need to give folks before we end our episode?

What I’d like to see people do is just step back and reflect on the idea of risk and think about where you are in that, in the process of arbitrating that both internally in your own mind and trying to confront your own biases and egos and fears and also the perspective of your client and where they’re coming to you from this. I think if you can step back and even just

thoughtfully consider those things, you’re going to make better decisions for yourself and for your client. And whether you decide the way to do that is with more focus groups, more data, or just thinking more critically about your case and not falling prey to those biases that may affect us otherwise if we’re not aware of them. I think that would have a lot of value for folks. I know it has for me. Absolutely. Absolutely.

Elizabeth Larrick (37:43.165)
Just to give people a little bit more of a reference point, Thinking Fast and Slow is probably the best book you could recommend as far as learning Daniel Kahneman and their work they’ve done. Yes. Yeah, I would start there. And then Nate Silver, his book is Thinking in Bets. No. It’s On the Edge. On the Edge. He’s got a couple of books, but that’s the one I was referring to. Okay. Okay. Awesome. Well,

Ben, thank you so much for joining us. If you guys want to talk to Ben more, and I know he loves to talk folks about big data. He actually wrote the preface for jury ball that just came out. So, you know, if you have questions about big data, please, we’re going to have Ben’s contact information, the show notes, along with the links to those books. If you’re interested in that, Ben, thank you so much for joining us. You have given us lots of wonderful gems here about assessing risk and cognitive bias and things to be aware of. So thank you so much.

Thanks so much for having me. I appreciate the opportunity and thanks for coming on my podcast, Elizabeth. It’s great. Of course, of course, of course. Thank you so much for tuning into this episode with Ben Gideon. You can find his contact information in the show notes along with the two books that were recommended during our episode. And if you want to learn more, you can join the trial lawyer prep newsletter. Thank you.

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

elarrickbrand on April 9, 2025

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

In this episode, you will hear:

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

Follow and Review:

Supporting Resources:

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

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

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

Episode Transcript:

Elizabeth Larrick (00:02.604) Do you ever wish your client would give testimony at trial that echoed your case themes? You are not alone. Most trial lawyers want every piece of their trial to echo or repeat

the case themes and trial strategy. Welcome to Trial Lawyer Prep. I’m your host, Elizabeth Larrick, and thank you for joining me today. This episode combines two of my favorite topics, witness prep and trial strategy, which by the way, if you are struggling with a client who is having difficulty, having clear testimony for deposition or trial, book a chat with me and let’s see if how I can help. Now,

You want your client to echo those case themes, give some great testimony that also kind of assists the lift in the case for those things. And trust me, there is a right way and a wrong way to do this. So let’s talk a little bit about the wrong way, which would be having your client memorize language or phrases.

So they’re echoing back the exact same thing or scripting questions and having them answer in a very scripted way. Let’s give an example, which would be if you are a follower of the edge or reptile mantra, one of the questions that’s asked in voir dire is what is your passion? Now, I don’t have any problem with this question. It’s great. But what ends up happening sometimes is lawyers can get a little lazy.

Elizabeth Larrick (02:19.713)
And instead of coming up with a different way to ask that question, they have the exact same question to their client to try and like weave that theme in there. It is really obvious to the jurors what you are trying to do. So why would that not maybe work? And that would be number one, it’s very robotic. It’s very scripted. It’s very mechanical.

And what happens is number two, the jury just doesn’t believe it at all. They know that it’s scripted and not persuasive, which then leads me to the last point of losing credibility, which is huge for your clients. They already have the opposite end of the belief in them because they’re bringing this lawsuit. They’re taking people away from their lives. And most jurors are a little upset about that. And so they judge our clients scrupulously.

And so we go for these kinds of low level hanging fruit, it really causes them to lose credibility, which is extremely difficult for them to get back. So let’s talk about the right way to weave trial themes, trial strategy into your client testimony. Number one, we gotta have a trial strategy or case theme. So if you don’t have one of those, that’s okay. Jump back to episode 131, where we talk about what

trial strategy is and is not. And hopefully that will help clarify some things. So once you get that in order and you know, all right, here’s where the order of proof is going to be. Here’s how we’re going to weave this theme into opening and jury selection and through these witnesses. And so you want to ask yourself right out the gate, where does the client fit in? What is a topic that they can actually take on their plate, testify about?

and do so in a way that actually does echo your case themes. So thinking about, let’s take liability first. There are cases out there where it would be really difficult for the client to add to a case theme or trial strategy when it came to liability because liability requires expert testimony. Maybe it’s a product liability case, maybe it’s medical malpractice. However, a place where I find it is helpful for clients to testify when it comes to strategy,

Elizabeth Larrick (04:39.297)
on liability is rules. So car wrecks are a great example here. We have rules of the road, but there are rules pretty much in every case. And there are things which I would call expectations that our jurors will have of our clients. so liability and rules are a great way to pair those things together when the client gets on the stand. Let’s turn then to damages. Typically people will have a damages theme. You’ll have before and after witnesses along with your client who are gonna testify.

And there are things definitely that the client must tackle on damages. However, sometimes it can be done in a way that will echo your theme. My example would be if betrayal is one of the themes that you have in your case and having your client testify about the trust and examples of that trust and how it led to blind trust. And then again, having the rug pulled off underneath them.

There are great ways to weave in your case themes, thinking about liability and damages. But what you want to do on this first step is just see where is it possible? Where do they fit in? And maybe they’re not the best witness for fitting in the theme, either on liability or damages. So think about that. Get your little bucket. Okay, where can they help on liability and where can they help on damages? And the next thing to do is to step two, which would be, let’s go see what they say.

meaning let’s check the deposition. How did they testify already around these themes? If at all, sometimes they don’t at all. And then where in our prep sessions can I designate some time is to sit and listen to them talk through some questions that you may have for them. And so in this second part of just really seeing what they’ve said and then listening to them, like learning their language and how they actually explain and have stories,

I like to use an organizational chart. I find it really helpful because it helps me be able to listen, right? And they have the knowledge that they’ve got to fill this chart out together. But basically we just take a giant notepad, we divide it into four different squares and we walk through each square looking at, okay, what are examples of either it’s the physical injuries or maybe the mental injuries that have

Elizabeth Larrick (07:00.239)
kind of change things, examples of that. And the four squares, which would be home and family, social, work and me. And as we go through and your job is a lawyer’s just to ask questions again, how has this impacted? And just listening and writing up those examples. The hope is that you’ll have a great page that is filled full of lots of examples. And then you can in that last step, right? Step number three of trying to work in

the case themes through the client testimony, is to sit down and really craft those questions very well. And sometimes they’re very simple questions. They’re not long-winded questions, they’re not kind of the wind up questions. They’re just really simple questions. And most of the time it’s really about signposting to help the client know where you’re going, but also have the jury follow you. But having done the work of listening to them in that second step,

they will feel very comfortable knowing about what you want them to say. That’s generally the number one thing people always tell me, what do want me to say on the stand? You want it to be normal, natural, you want to be very conversational. And that’s why doing this, working in your case theme does take some time because you want to feel really confident in your case theme and your trial strategy.

So timing of this preparation really comes very close to the time of actual trial. Because at that point, maybe emotions and limiting have been ruled on. You’ve heard a lot of the themes that will be coming out of the defense. You know really well what your other testimony is and your opening statement. And then being able to do this work with your client will really help you be very clear about what place that they may take on their testimony as far as helping the theme or echoing.

and where they won’t help. Maybe you have other witnesses that can help and tell different stories or fit in different ways with your case themes. So you may be thinking, well, what if I go through these three steps and it doesn’t work? Meaning there’s nothing that I can get the client to, you know, testify along with my case theme. Well, sometimes I always say, let’s go back to the drawing board then and let’s think about it. What does the jury need to hear? What does a client already have to say?

Elizabeth Larrick (09:23.567)
It’s not a bad thing if there can’t be any overlap between case themes and case strategies. Typically there is, it’s just having to go back through and think about it in a different way, either through the jury’s perspective or working a little more on your questions. Or one the things I always suggest too is looking to other witnesses that maybe are testifying more clearly or have a better memory. There’s lots of memory issues sometimes with our injury clients. And so that significantly helps go back and rework

but also, I would say two main tips here, which was number one, try to avoid putting a lot of pressure on your client when it comes to case themes and strategy. Typically, I don’t even mention any of those things to a client because the thought of even walking to a courtroom and testifying for a group of people is terrifying. The risk that they are already taking in bringing their case to trial is already overwhelming to them. To try and add another thing that they must

understand, educate themselves, and then feel pressure to fit in is too much, right? So again, this is why my second tip is subtlety here. We don’t want to be hitting anybody over the head with our case themes over and over and over again. And so you have to be very subtle in how you work these things through and making sure that it works very naturally with your client and how they think and how the information is stored in their minds. But yet you’re pulling out in a way so the jury understands. All right. So

If you’re thinking, have this trial coming up, but I’ve got somebody who I don’t communicate well with, or maybe they would be challenging to try and understand where they could actually add on a case theme, the link in the show notes to book a free call with me and see if I can help with that. All right, let’s recap really quickly. Number one, please don’t make your client memorize words or phrases in order to echo the themes you have in your case. Number two, figure out what they’ve already said.

and then listen to them in a prep session and help them organize some of the things for damage and disreliability where you can then craft questions that subtly echo the themes that you have in your case. And again, if you’re thinking, I’m not even sure I have a theme or a trial strategy, visit that episode 131, link will be in the show notes. All right, thanks so much for tuning in.

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

elarrickbrand on March 24, 2025

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

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

In this episode, you will hear:

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

Follow and Review:

Episode Transcript:

Elizabeth Larrick (00:02.604)
Hello, and welcome back to the podcast. I’m your host, Elizabeth Leric, and we have a new episode here for you today. And I want to talk about Zoom focus groups because…

Despite talking about this and having lots of other folks in the trial lawyer world talk about doing online and virtual, I still have a few holdouts. So today we are going to talk about Zoom focus groups, what do I mean, what are the benefits, and how they really compare to in-person focus groups. So first I want to run down my stats because I think it’s really important to help

everybody listening to have a little bit of context about how many folks are really running virtual or Zoom focus groups, if you will, versus in-person. And just looking at my last year of 2024, I had four in-person and 62 Zoom focus groups with, that’s probably easily 40 plus lawyers. So we have some lawyers that come in and do multiples. I will talk about that here in a second, but

What I want us to really look at is how Zoom focus groups can really be different than in person and sometimes have added benefit. Before we jump in to the added benefits and a few other factors about Zoom focus groups, let’s dive in about what do I mean when I say Zoom focus groups.

Elizabeth Larrick (02:06.594)
because there’s a lot of people talking about virtual, about online. Sometimes that’s a survey and not necessarily the same thing. So for me, when I say a virtual focus group or a Zoom focus group, I’m talking about either a one hour, a two hour, or a three hour dedicated time where you’re having face-to-face interaction with eight to 10, up to 12 participants and having kind of a conversation with them.

And the styles of focus groups can significantly change with Zoom. And so we’ll talk a little about that later, the freedom that you have in sculpting those. But typically we’re talking about a shorter timeframe. We’re talking about doing all different kinds of topics and the size is very manageable for one person. And we’re really getting those one-on-one conversations. And so that’s really what I mean when I say Zoom focus groups is very different than a survey.

where basically people are coming in and maybe they’re watching a video and then they answer questions. This is really kind of a group dynamic where we’re having conversations with folks. And so let’s talk then about those added benefits from Zoom focus groups that you cannot get within person. So what do I mean by added benefit? Well, it goes right with my episode title, which means getting in their faces. On a Zoom focus group, you have the ability to record everybody’s

very close and personal faces and their reactions. And that’s just not something that can be replicated in person. In person, you typically have one, maybe you have two videographers. And typically within person, you’re going to get a very wide screenshot of participants and a videographer will also be on the presenter. So you don’t get this very up close and personal reactions that you would in Zoom.

Likewise, what you get to see, so does everybody else. So those participants are also getting and being impacted by the face-to-face interactions they can see from their fellow participants, which has an impact versus thinking through jurors who are sitting basically most of the time and they don’t see each other’s faces at all until deliberation. So there is a lot of extra benefit there in being able to have those face-to-face reactions. Let me give you a couple of specific examples.

Elizabeth Larrick (04:31.092)
When you have video testimony, when you have video footage of the event, it is crucial to be able to go back and really dial in and see who is reacting and how are they reacting? What faces are they making? Recently, we had a focus group with some dash cam footage and really wanted to understand what do they see first and what is there? they having a blink reaction? And

you know, being able to have that Zoom feature of seeing everybody’s face and then be able to go back and watch it. It’s super helpful to those lawyers to be able to determine, how do we do these depositions that are coming up? And how do we need to even modify this video to help the jurors ultimately, when they do get to see the video, make decisions about it? So that’s super helpful. Number one, added benefit that you can’t get in person. Number two is the convenience factor. This is huge. Before the pandemic, we…

probably could not have the amount of Zoom focus groups that we do now because the technology barrier is completely gone. People are using Zoom for school, their kids’ school, going to the doctor, talking to financial advisors. They use it all the time. They’re very familiar with it and they’re used to it. And they find it as convenient as you do to be able to push that button, join that meeting and push it to leave. And so that is number one that we are really going to be able to save a lot of time, hassle,

expense, energy versus doing in person. And that’s why I always tell people it’s really convenient to do these because if you need to do one quickly in less than a week or maybe a week, you can do that. You can’t do that in person anymore. There are so many barriers that have been put up by places that rent rooms out that make it difficult, if not impossible, to be able to move quickly on a budget.

And so we avoid a lot of the expenses, the room rentals, the food, the travel time to get there, even sometimes parking and having to pay people additional money for that hassle, right? You can actually pay people less on Zoom focus groups than you can in person because you’re cutting out a lot of the hassle that they get to avoid by being able to push that button quickly on their computer. And just to give you an example of some of the hassle recently on one of these in-person focus groups that I did was

Elizabeth Larrick (06:51.15)
we had a larger than normal group. had over 24 people there and they didn’t set up the room exactly as we wanted. Always an issue. But we need another table. So I go ask for another table, don’t think anything of it. And then they charged me $20 for the extra table. They just said, put it out. We moved it. So it’s these little bitty things that are getting kind of nickel and dimed in there and not to mention the other expenses of videographers. So

It’s just much more convenient. You can reach more people than you would in person, right? So if you’ve got kind of a, I won’t say unique, but a different geographic area, for example, folks out in Montana, they have a very, very wide spread state. It is not convenient to jump in the car and drive a couple hours to be able to do an in-person focus group, whereas easily set up Zoom and get folks from all over to be able to join. Now.

Another really important bonus that we get when we do Zoom focus groups is the freedom and flexibility. Because we are doing smaller timeframes, these one hour, two or three hours, we really have the ability to have freedom to do different styles, right? So typically with these in-person groups, because you’re going all in, you’ve got the large expense, you’re going to be doing a mock jury. You’re going to be even maybe you’re doing a mini mock jury, but still you’re having a lot of time and you’re doing the whole case.

With these Zoom focus groups, you can piecemeal it out and do different pieces of a case. You can do pre-lawsuit Zoom focus groups to figure out, I want to even file this lawsuit? Do people even care about what’s going on? And also, how do I frame it? What do people get drawn to? What are the questions in their mind? A pre-lawsuit is a great place to do a Zoom focus group to get you on the right track. And again, sometimes to avoid some pitfalls. The other thing is just

We could easily run a style where it’s just depot clips. How are they piecing it together based on the testimony? How are they going to gauge the credibility of your client? Do they like him or not like him? What’s missing from that testimony? You can do a pre-mediation. You can use them to find your safety rules if that’s strategy that you want to use. Test your visuals. There’s a lot of freedom here. If you just have one concern about a case, it’s much easier to run a one-hour or two-hour focus group than it is to

Elizabeth Larrick (09:12.526)
put everything together for an in-person. Even if you wanted to do a short in-person focus group, you want to be able to make it longer to squeeze all that effort, that energy, and that money that you’re putting into it. It just doesn’t make sense to do a two-hour in-person unless you own the space and you’re willing to do whatever it takes to have those happen. And that is totally an option if you do. Naturally, people walk into a law firm to do a focus group, they’re immediately biased. They’re not gonna buy that it’s not your case.

There’s going to be other factors that roll into that. So let’s get back to our freedom and flexibility. And one thing that we mentioned earlier, which is the speed with which you can put these things together. And if you need one quickly, you’re at trial, you need one on a Saturday, your team could put that together, go in there, practice your opening or whatever it may be between trial or maybe you just really want to get that extra information before you go to that deposition. Or recently, ran a two-hour focus group for some folks.

And they went to deposition and lo and behold, the defense gave a whole new position on the case. And so they called me up and they said, okay, this is the one issue we need. Only thing we want to test. said, okay, let’s do one hour and let’s see what they think. And we can then put those things together, which that’s the other part about doing Zoom is you can do more than one on a case. You’re not going to break the bank by doing one Zoom focus group, right? You could break the bank by doing one in-person focus group or mock jury. And so

This episode really, I want to be able to have people open to the idea of using Zoom for your jury research, for your focus groups, because if you can get some clarity, some certainty about how people think, you can make better decisions in your case, make that decision about settling or trying the case, and or knowing what your number is. One of the episodes where I talked to a lawyer hit her first focus group, I got to do together with her Zoom focus group.

which was Brooke Rogan, and I’ll put the link in the show notes. She talked about the confidence that those focus groups, very simple focus groups gave her when she went into those depositions, take those last minute expert depositions, and to know what her number was and not back down from it. And she got it. They didn’t even have to go to trial. So there are a lot of extra values that come from doing Zoom focus groups. And being able to do these in-house,

Elizabeth Larrick (11:39.022)
makes it a whole other amazing gem to add to your practice. And I will link in the show notes to the two blogs that I’ve recently put out on how to do your own virtual research. They’re long, that’s why there’s two, but you can catch those in the show notes as well. All right, I hope that this episode was helpful. I hope that if you’re on the fence, that now you feel better, maybe, okay, maybe I’m gonna try it out and go talk to somebody else.

plenty of episodes and I always talk to folks here on my podcast about if someone’s on the fence, what would you tell them? And the consensus overwhelmingly is so eye-opening what you can learn. And they’re so beneficial beyond what you even imagine what you’re going to get that you don’t want to go without doing them once you start. All right. Thank you so much for tuning into this episode. Don’t forget, you can catch it on YouTube. All right. Until next time, thank you.

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

elarrickbrand on March 12, 2025

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

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

In this episode, you will hear:

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

Follow and Review:

Supporting Resources:

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

Episode Transcript:

Elizabeth Larrick (00:02.604)
Hello, and welcome back to the podcast. I’m your host, Elizabeth Leric, and we are going to talk all things trial prep strategy, focus groups. But today’s episode, I want to talk about

zooming out to get our trial preparation started. And I know that it can be overwhelming and our brains can really kind of sometimes exaggerate things, we’re getting ready for trial prep and we can lose sight of things as well. So what I want to do is kind of walk through my process that I go through with folks thinking through a trial strategy. And it’s a three-step process. It can take a little bit of time, but I do think that this

will significantly help you in your trial preparation. So let me just jump right in because I know we don’t have a lot of time and I wanted to get you this information. Number one, the place where I always start when I’m gonna look at trial prep and zooming out to get the jury’s perspective is I have to start with doing an overview of the file. And that just includes reading kind of the main depositions, always starting with what was the last mediation statement?

and reading through those to see where the points were that we were making and then go through depositions, read through the medical records, just do an overview of some of those expert reports, but really go through kind of the file itself. And this can include focus groups if you’ve done those. If it’s not, that’s okay. But what you really want to be doing is when you’re making this overview of the file, what I normally do is I kind of have two lists.

Elizabeth Larrick (02:17.9)
One is liability and one is damages. And I kind of list the issues or concerns. So let me give you some examples. Thinking through liability and looking through a file, I always want to know, is it really clear or are there any kind of blurry gray issues? For example, looking through a file that has a video recording of the crash or a partial view. That’s typically what we end up with as a partial view. And what does that view compare with what the

defendant’s deposition was? And does that make it really clear? Is there an issue? And so recently in looking through and helping a client get ready for trial preparation and looking at trying to put together some strategy for them, their position was it was abundantly clear. But when I watched the video and I looked at that testimony, there was a lot of gray area. It was kind of in the middle. There wasn’t a clear…

Yes, they were taking responsibility, but there wasn’t a clear no. You know, there wasn’t like a position here we could maybe polarize. So it’s really something gray in the middle. So I put that on our list for liability. And again, that’s kind of one of those things that we sometimes feel really confident about. We go back and look at it, think, that was kind of in the gray. So I’m going to put that down on my list of concerns. Going to our damages side again, thinking we’re making two different lists as we’re going through our overview of the file. You know, here, just looking at, so

Let’s look at that life care plan again. Let’s look at where my client is right now. Is that really matching up? And again, an example that I have here recently is life care plan projects a future surgery 20 years out. Yeah, but what’s happening right now with the client. So that may be one of those things that you list on there. Again, when we’re doing this overview of the file, we’re just looking at issues and concerns so that when we jump to, well, we’re doing this task. Let me not jump ahead.

When we’re doing this task, what you can find is sometimes you have really long lists and this really then kind of becomes like, okay, if I have this many issues, this many concerns, is this really a case that I need to try? Do I need to work a little bit harder for settlement? Or what you may find is, okay, I still have some work to do, but I feel pretty confident. And so when you have those lists after you’ve gone through the file, and again, this can take some time, an hour, two hours, it depends on how large the file is.

Elizabeth Larrick (04:34.372)
that you’re going through, but making those lists is really helpful just going back through that file and get your fingers back in there because then the second step is basically looking at it through the lens of a juror. Now, what I want you to envision though is a worst case scenario, the worst day in court and having a juror look at this and say, it yes or is it no? Putting it in a very clear, is it black and is it white? Because what you want to do is you want to be able to know what is the worst risk that we have here and if going through

this trial and I have the worst day in court, what is that juror going to say? Are they going to look at this issue and say like, no, that liability? No, that’s not with you. Or they’re going to say, yes, yes. So you really want to be into a place where you’re looking at it through the eyes of the jury in a worst case scenario. Because really, in reality, jurors are forced into really confusing jury questions that seem extremely black and white, right? We’ve got a lot of wording like occurrence in question and proximate cause.

And so really sometimes it does just come down to like a vote of yes or no. And you also want in this process to remove any bravado, any thoughts that, my closing is going to sway people or cross exam will add on this point, like, no, I really want you to put this into a vacuum to say yes or no. Based on the testimony, based on the evidence, do I get a yes or a no on this issue? And then sometimes you just go back and rank it, meaning like, where does this really, how detrimental would this really be in the file?

Some of them are small, they’re just small things and that’s okay. So then you look at, okay, so if I have a yes or a no on these issues, going to my no’s, are there things that I can fix or there are ways to neutralize this if it is an issue that you know is gonna be detrimental? And so then you kind of make a list like, okay, how are ways we can fix or neutralize this? Maybe we need to go find more before and afters. Maybe we need to go back to our client and get more answers, more understanding.

Maybe we need to go take a deposition and shore up that position of the police and the police report to clarify testimony, go back to that treating doctor to get them to really give you something concrete so that you can feel good. Okay, we’ve put that issue aside. Maybe it’s you actually need to drop a claim altogether to just avoid that evidence coming in altogether. Maybe it’s just you’ve got a really low number on lost wages, and it’s gonna drag things down. Or maybe it just…

Elizabeth Larrick (06:59.11)
they really didn’t miss too much of work. So maybe we need to go and drop that again to make things clear and keep your eye on the prize. Sometimes we have claims we put in and the evidence is kind of wishy-washy. Thinking about here in Texas, we have gross negligence. Some of you all have the same thing where you may be just under a different name, where there’s kind clear and convincing evidence that somebody went ahead and did some action that clearly would have jeopardized and put people in danger.

that’s kind of a hard burden you really need to look at, like, what is our judge going to think and what is the information we have? And again, kind of going back to the example I mentioned earlier, a case where there’s a crash, it’s partially on video, and we have a very wishy-washy position from the defendant. Now, from one perspective of the lawyer was, this is gross. We’ve got it. It’s clear from the testimony. But in reading it and taking our juror of our worst case scenario, it was like, no, you don’t have this. So do we need to keep it in there?

Is it going to cause more confusion or just do we need to drop it? Another thing is to, okay, we have this thing, do we need to take a real strong stance in opening or in jury selection and develop some questions for what year? Maybe there’s an opportunity to do emotion and limiting on some of these things. And maybe it just needs a clear timeline. Like some of these issues can be resolved with just a little more work and some of them are going to be major and really cause you some pause about whether to go or trial.

or not. And that’s part of trial prep. And so when I encourage you all to do this three-step process when you’re far enough out that you have time to do emotion and limiting, you have time to take that extra deposition if you need to go get those folks, those before and afters, or you have time if you need to just turn the ship and do settlement discussions instead. And again, that’s all kind of part of trial prep and making sure. this is an easy three-step process. It is simple.

on purpose is time consuming, yes, but putting things in this vacuum and looking at it from the jurors perspective really will help you figure out, okay, is this a yes or no? And then how can I fix or neutralize this? And then maybe I just need to go back to the drawing board and talk about settlement again. So wrapping this whole episode up by using our jurors lens, right? Our worst case scenario juror, you can better assess the risk and also the amount of work that is needed. And

Elizabeth Larrick (09:21.466)
If you do this far enough out, you can really kind of look at what is a strategy that will work best. We talked a little bit about some books that you could read to kind of get your mind going and excited about trial strategy. That was our last episode and I will link to it in the show notes because there are some really great places out there for polarizing people’s positions, defense positions. There are some really great

medical illustrationists, there are some good timeline, there are things that can be done with what you have left on your list of concerns that can really be helpful. And sometimes with enough time, you you can easily overcome it and get really excited again about going to trial. Okay, I hope this episode was helpful. Again, thinking about zooming out to get your trial preparation and a easy three steps. Number one, do that overview, make those two lists.

liability and damages, list of concerns or worries. And then number two, taking those lists and putting them through that worst case scenario juror of a yes or a no on those issues. And then finally, can we fix or neutralize these issues knowing that they may be a no for our worst case scenario jurors. All right. Thank you so much for tuning in. This concludes our episode. If you enjoy it, please rate or review on your favorite platform. And if you want to hear more from me,

Join the email list, trial lawyer prep newsletter. The link for that will also be in the show notes. And this episode will also be airing on YouTube if you would rather have a video. Thanks so much.

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

elarrickbrand on February 26, 2025

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

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

In this episode, you will hear:

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

Follow and Review:

Supporting Resources:

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

Books to Kickstart your Trial Strategy Planning:

Trial by Human by Nick Rowley & Steven Halteman

Rules of the Road by Rick Friedman & Patrick Malone

Polarizing the Case by Rick Friedman

From Hostage to Hero by Sari de la Motte

Damages 3 by David Ball

Trial by Woman by Courtney Rowley & Theresa Bowen Hatch

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

Winning Case Preparation by Bozart, Cusimano, Lazarus and Wenner

Learn more about how Elizabeth helps trial lawyer here.

Connect with Elizabeth on LinkedIn.

Episode Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Episode Credits

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

Time Management for Trial Lawyers with Special Guest Dina Cataldo [Ep 133]

elarrickbrand on February 17, 2025

Explore practical time management and mindset strategies tailored for trial lawyers with expert insights from lawyer coach Dina Cataldo. In this episode, Dina shares her journey from criminal prosecutor to coach, offering actionable advice to manage stress, prioritize tasks, and overcome negative thoughts. Discover how small habit changes can lead to significant improvements in your legal practice and personal life.

Elizabeth and Dina address the unique challenges female attorneys face, balancing demanding careers with personal responsibilities, and provide strategies to enhance daily productivity and instill confidence. Learn how structured planning and healthy routines can conserve energy and reduce stress, essential skills for the fast-paced world of trial law.

Dina reveals methods like “Sunday planning” and setting time limits for tasks to streamline workflow and improve efficiency. Understand the importance of addressing internal resistance and fostering a healthy relationship with time for professional growth.

In this episode, you will hear:

Time management strategies tailored for trial lawyers.
Importance of mindset in enhancing courtroom performance and managing stress.
Techniques for optimizing energy levels and reducing daily frustrations.
Structured planning methods, including “Sunday planning” and setting time limits for tasks.
Addressing internal resistance and developing a healthy relationship with time.
Emphasis on self-care and prioritizing personal goals alongside professional duties.

Follow and Review:

Supporting Resources:

Learn more about Dina Cataldo: www.dinacataldo.com

Get Dina’s Free Workbook: 3 Sneaky Problems Stealing Your Time and Productivity (and How to Fix Them Now!)

Schedule a Strategy Call

Follow Dina’s Podcast Be a Better Lawyer

Learn more about how Elizabeth helps trial lawyer here.

Connect with Elizabeth on LinkedIn.

Episode Transcript

Elizabeth: Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a treat today. We have a wonderful lawyer coach who’s going to talk us about time management. So Dina Cataldo,

Dina: thank you so much for joining. Thanks so much for having me on your [00:01:00] podcast, Elizabeth. I’m really excited for our conversation.

Elizabeth: I am too, because I know that I am going to learn some things about managing my time that I did not know, but you know, I. Here’s the thing, and I know that folks who are listening, our trial lawyers in the audience, like, we all want to be more productive with our time, and we all struggle with having too many things to do with our time.

Elizabeth: So I thought you would be an excellent person to come tell us about how we can be better. And, you know, just help us maybe solve some even small things that can make a big impact.

Dina: Oh my gosh, of course, and it’s my pleasure to do it. This is what I do all day, every day with lawyers. So I love talking about this topic.

Elizabeth: Awesome. Well, and let’s talk, I would love for folks to know just a little bit more about like, what does it mean to be a lawyer coach? Because I obviously totally love having an outside perspective. That’s one thing I love to do for my lawyers when I work with them with focus groups. But tell us a little bit about what does that really mean to be a lawyer

Dina: coach?

Dina: Well, I was a criminal [00:02:00] prosecutor for about 16 years. And what I discovered was that coaching was something that could change my entire outlook. It changed my entire experience of the work that I did. And for me, coaching is really understanding my mind at the highest level, at being able to self manage, at being able to self regulate so that I can not procrastinate on all of the things that my brain tells me I should be procrastinating on.

Dina: Or if I am doing things that aren’t serving me, that I recognize it and I change gears and I do something differently. And what I know as Myself, like I call myself a lawyer coach because I’m a lawyer and by trade, right, by training, and I only coach lawyers. Like I specifically just coach lawyers because I think that there’s a very specific type of person who enters the legal profession.

Dina: And [00:03:00] I can relate to that person because I am that person. And so, you know, the things that I have learned the hard way and the things that I teach my clients the easier way. Are things that I think that every single lawyer needs to know to really function at their highest level in the legal industry.

Dina: And I know that the people listening are high achievers. They would not be in trial practice unless they wanted to be amazing at the work that they did. And there’s no way for us to really be at our best unless we are managing ourselves, managing our time effectively.

Elizabeth: Absolutely. And there is an endless list.

Elizabeth: It never ends with the things that we have to take care of and the files that we have. But, you know, we always, it’s, you nailed it, like, especially, you know, personal injury lawyers, like, we have to keep that wheel going. And sometimes it’s just like, oh, wow. Things just fall through the cracks or by the [00:04:00] wayside.

Elizabeth: And so I’m really interested to hear, you know, a little bit more, but I’m curious before we go a little further, because there are some people who have coaches that it’s like a done for you. If you know what I mean? Like I’m going to do this for you. And some people are like consulting. Well, yeah, I mean, I think the line can get a little blurred where sometimes it is consulting.

Elizabeth: Sometimes it’s coaching. So some people, it’s like a done with you, somebody has it done for you. So tell us a little about like how you like to work with lawyers. Well, I don’t do the planning for them, right?

Dina: I mean, we’re really working at. I mean, let’s take it even a step back. Like, let’s really talk about what mindset is because we have about 60, 000 thoughts a day, and most of them are on repeat. And most of those thoughts are really crappy. There are thoughts like, I have so much to do. This is so hard. I don’t know where to start.

Dina: This is just the worst. And when we’re [00:05:00] thinking in that kind of a mindset, even if it’s unconscious, Especially if it’s unconscious, it is going to have a negative impact on our practice. We’re going to feel lots of overwhelm. We’re going to feel a lot of pressure and anxiety. And what ends up happening is we start to act at the effect of the world around us.

Dina: So we think the reason that we feel bad is because there’s a dozen cases in our inbox. We think the reason that we feel bad is because there’s a million emails in the inbox. We think the reason that we feel bad is because our assistant isn’t doing what we told them to do for a millionth time, right?

Dina: Yeah, but what’s really happening is that we’re not managing ourselves to see how we’re impacting what’s going on, whether it is the negative performance of an employee, which may surprise people listening that if you’re not training your assistant and telling them exactly what you want and having it in writing and giving them something like an S.

Dina: O. P. In order to follow it, probably not going to do it the way you want them to. Right. And that’s something that, you know, [00:06:00] so many of us put to the wayside because we’re in this hurry, this constant rush to get things done. Okay. I got to jump into the work. I’ve got to answer this email. I’ve got to answer this call.

Dina: I’ve got to do these things. So we’re constantly, if we’re at the mercy of these unconscious thoughts, most of them that are running through our brain. We’re just reactive all day long. We’re just jumping from phone call to email to person walking in the door. And we’re feeling hectic inside. We’re not managing ourselves and we’re unable to manage ourselves simply because we don’t have the awareness of what’s going on in our brain.

Dina: Right? So a lot of the work I talk about is time management, right? So I work with. you know, people privately. And then I also have a program specifically around time piece and helping lawyers like really calm their overwhelm and plan and all that. But we’re talking mindset all the time because it’s not about the calendar.

Dina: It’s not even about your work that you put on the [00:07:00] calendar. It’s about how you are thinking about your work. It’s about how you’re thinking about your ability to manage the work. It’s how you’re thinking about yourself and what you’re making it mean. If you don’t do the work, if you don’t enter your billing, if you don’t do those kinds of things, right?

Dina: And that has a tremendous impact, negative impact. If you’re thinking a lot of the thoughts that a lot of lawyers I work with initially come to me thinking, right? So I have this. analogy of, think about a firefighter, right? They go up to a house and it’s on fire, right? And there’s a lot of options of thoughts they could be thinking about this house on fire, right?

Dina: One set of thoughts is, oh my gosh, the house is on fire. Another is, this is so bad. Or another is, oh my gosh, if I go inside, I could get hurt. I could die, right? And if they focus on those thoughts, that mindset, They’re going to run in the opposite direction.

Elizabeth: Yeah.

Dina: But a firefighter is [00:08:00] really trained to have a different kind of mindset and it takes practice, right?

Dina: We can’t just like. Think there’s no place like home and suddenly we’re in Kansas. We actually have to practice this. And so a firefighter, they go through specialized training to get experience going into these high stress environments. And so when they look at a fire, it’s not that they’re not thinking, Oh, the house is on fire.

Dina: They’re not, they’re thinking that, but they’re also thinking I can do this. I can figure this out. I can help them. Let’s take this one step at a time. And so they are consciously using mindset to calm their nervous system down. So they’re not feeling overwhelmed. They’re not feeling anxiety or pressure or stress going into a situation.

Dina: A lot of people would just call is innately high stress, kind of like a trial. So if this firefighter is not consciously managing [00:09:00] their mind, they are going to be in a high stress position. They’re going to have this heightened state and they are not going to think clearly. They’re not going to be able to perform.

Dina: There’s a higher likelihood that they’re going to get hurt. There’s a higher likelihood that the person inside if there’s someone inside is not going to make it. Right. So if you are going into trial thinking that a trial is just an innately hard thing that is just got to be stressful and it’s got to be really tough and you don’t really want to go, I don’t want to go and all the things right.

Dina: It’s going to be harder and it’s going to increase problems that are going to happen in a trial regardless, like if you’re not paying attention, there’s going to be evidentiary issues. There’s going to be all kinds of things. And if you’re not managing your mind, you’re not going to see them. And if they happen, you’re going to be more reactionary and you’re not going to think about the consequences of whatever decision you make in the moment.

Elizabeth: So it’s obviously, I mean, you know, very [00:10:00] much a building block of, we’ve got to figure out from the very start, get go, get thinking on the right track. It’s not just, Hey, here’s a calendar, fill it up blocks in time. Like not how it works, you’ll just go back and make the same mistake again. It’s like, I’m sure you’ve read somewhere where people tell you, you know, Dina, I’ve bought all these planners and none of them work.

Dina: Oh, yeah. And now they have these things where there’s AI and you can, if you just type your work in, it’ll pop out a schedule for you. And I’m like, yeah, whatever. So those kinds of things are out there and we’re so desperate in our society to feel some control around our time. But the interesting thing is that we’re looking for something outside of us to control the time for us.

Dina: I’ve had so many lawyers tell me, I wish I just had a secretary who just would tell me what to do. I’m like, that is the opposite of control. That is the opposite of taking charge of your practice. And it’s just so fascinating that when we don’t have the tools that we just hope [00:11:00] somebody else will take care of it for us.

Elizabeth: Yeah, it’s true. And I think, you know, we do hard things. Lawyers do really hard things. And sometimes it’s just when we have this. overwhelm, frustration, things fall through the track, you know, you’re not having some news helping you that need help. Like you do sometimes just like, oh, you know, throw up your hands and just like, I wish somebody else would do this when it’s like, well, it’s really this really kind of small few things.

Elizabeth: And then it’s really makes it a lot easier.

Dina: Yeah. I mean, I saw that with my own trial practice and this was something I learned late in my trial practice because there was nobody at my office who have these kinds of skills. Nobody had heard about a coach. I mean, it’s kind of like this vague thing. It’s like, like, what do you do exactly as a coach?

Dina: What do you cheer me on? You know, it’s like, no, but it’s interesting because. A lot of the lawyers I worked with, they overworked themselves. A lot of them you could tell were unhealthy because they were not putting time into their health. [00:12:00] And for those who were, I mean, they always had someone in the background kind of taking care of the world.

Dina: Like you could see this with a lot of male attorneys, you know, it’s like, Oh, okay. Your wife takes care of everything. You just do trials like, Oh, okay. So they can take care of themselves, but I think female attorneys are in this unique position because not only are you doing your trial work, but you’re also expected to do other things, right?

Dina: You might be able to ask for help, but at the same time, you are in charge of transporting people or I don’t have kids, but I saw this with other trial attorneys, they had their own responsibilities. I had other responsibilities that were outside of that, but it was just really interesting to watch the attorneys.

Dina: And they’re not all men attorneys have it all together, but there were the very few that I saw were usually men who had like somebody else helping them like in a large capacity. But when I learned later in my [00:13:00] trial career is that the stress that I felt in my trials early on didn’t have to be that way if I planned.

Dina: And I was like, wait a minute, what? And I didn’t jump into planning right away. I really took it really small. Like I took small steps for myself. So can I just offer some of that for people listening just to take like a small step for themselves? Yeah, absolutely. So for me, I started with the baby step of my morning routine because I hated how I felt in the morning.

Dina: So I didn’t really think I had any control over it for a long time. I just thought, Oh, this is just what it is. This is my day. I just get up and I run and I go and I all the things and I’m already rushed. But then I started to just notice how I felt. It was just one morning. I just. felt so rushed and I just decided, I don’t like feeling this way.

Dina: I just don’t like it. And so I said, well, what can I do about it? And so I think that was the only, or the first time that I ever really said that to myself, which is what [00:14:00] can I do about it? Like, it doesn’t just have to be this way. And I said, well, I guess I could wake up a little earlier. And so I started playing with the idea of, okay, what does it look like from, what do I want my morning routine to look like?

Dina: Do I want to have a cup of coffee? Do I want to be able to sit and, you know, journal? What do I want? I never asked myself those questions. So when I just asked myself this about my mornings, then I started to make a shift. But what I noticed is that shift didn’t happen overnight because what happened is the next morning, I still woke up late.

Dina: I still picked up the phone and, you know, hit snooze a dozen times. I still scrolled. I still did all the same habits. And I was like, well, gosh, like why, why? Am I not? And I think that was the first time I didn’t beat myself up for not doing what I said I would do. I think it’s the first time I just got curious.

Dina: And I think that’s where we really hit a block when we’re trying to create a new habit, is we beat ourselves up for not doing it differently because we tell ourselves, well, I should know better, [00:15:00] versus just getting curious, like, why not? And so then I discovered, well, you know, I didn’t sleep very well because I stayed up the night before and, you know, I had coffee late, you know, in the afternoon and so I could then analyze it like it was a science project and not make it mean anything about me.

Dina: And so then I started to really have this routine and I could see, oh, I can’t leave my phone in the room. I have to put it in the other room because otherwise I’ll just stay in bed, right? So it’s those kinds of things that. When we start to make progress on just one little thing, one little habit. In our life, we begin to get more confidence that we have more power, that we have more control over our life, that we don’t have to be at the mercy of what time, you know, court starts.

Dina: We don’t have to be at the mercy of whatever else we think we’re at the mercy of. We can take charge of our life.

Elizabeth: Absolutely. And I think having just thinking about being curious and [00:16:00] also just starting with something as simple as what time you wake up in the morning. And so many times, I’m sure you’ve probably heard this again, but that people will say, well, I tried to mirror, like, you know, name some highly productive person or multimillionaire and it just didn’t work.

Elizabeth: And I’m like, well, you know, cause when you try to force such a giant change, it really makes it really impossible, but. It’s so funny. We are highly evolved creatures. We, especially, you know, going to law school, we get all this training and like, it’s just sometimes super simple just to trick your body and just like put the phone in another room.

Elizabeth: Yeah. You know, they shiny object syndrome. I mean, that’s basically one of the first things I did when I was like, okay, what’s distracting me. It’s. this thing, it’s going in the other room. So if I really wanted it, I would have to get up and go and just that little thing. I was like, I didn’t do it. So it’s really sometimes such small things that you can experiment with to figure out like what’s going to make you feel even just [00:17:00] a little bit better.

Elizabeth: You know, using your time to do something other than rush out the door or immediately get to

Dina: work. Yeah, and I think a question to ask, like it’s good for all of us to ask this question is where do I feel frustrated, right? Where am I frustrated throughout my day? Am I frustrated when it’s 11 30 and I don’t have any food in my office and I end up going and getting some garbage food across the street, right?

Dina: Does that frustrate me? And then ask yourself, well, what do I want to do about it? And so that might mean that, okay, well, maybe I create a plan where I get some healthier foods and I just stock them in the fridge. You know, it’s just those little questions we can ask ourselves and reduce the frustrations throughout our day.

Dina: Because if you think about it. We’re batteries, right? But we have finite amounts of energy throughout the day. So if you start a day fully charged with a lot of lawyers, a lot of us don’t start fully charged, right? But if you did [00:18:00] start fully charged, by the end of the day, you’ve made a million decisions.

Dina: You have done a lot of work and your battery is depleted, which is why when you get home, you feel so exhausted. But what people don’t know is that our emotions can be very big power drains. So when we feel overwhelmed, when we feel anxiety, when we feel frustration and stress, it’s like Putting your phone in the freezer, it like zaps all of the energy from your phone.

Dina: If you’ve ever brought your phone up to the mountains and you’re like, why is my phone dead? It’s like, it’s because it’s been zapped of its power. So the emotions, when we get into those kinds of emotions, they can drain us. So if you start to reduce your frustrations, you’re going to find that the less frustrated you are throughout the day, you’re going to get just like a little bit of energy.

Dina: You’ll have a little less in the middle of the day. Oh my gosh, why didn’t I think about this and this? You’ll have thought about it. You’ll have taken care of it.

Elizabeth: Absolutely. And I [00:19:00] think, you know, you mentioned earlier about just like having a trial docket and learning how to plan that. And that’s one of the things that is really hard as a newbie or even even 10 years out.

Elizabeth: Nobody really tells you that. And that’s one of the biggest things that I gathered when I went off and I did my fellowship with. Don Keenan was, we did three major trials, but we did them all the same planning. And so it was like, Oh, like there was a lot of like relief of knowing, Oh, okay. There was delegation.

Elizabeth: There was. Planned out time, you knew what time things were going to happen, and so even though trials can be so chaotic, we had a plan to know, okay, this for sure is what’s happening, and that’s the same thing that can happen any day of trial, you know, of having or being a litigation lawyer is that every day somebody, like you said, could walk in the door with something different, or there’s a fire that has to be put out that day, and it is those little things of like, well, let me just plan for what I know I have to do every day, which is eat.

Elizabeth: Mm Yeah, and what I [00:20:00] know will drain me and I feel like sometimes we’ve Until you kind of start to experiment with like, Oh, why don’t I block just a, you know, 30 minutes after that hearing, even if I know that drive is only going to take 15 minutes, maybe you can just decompress for 10 minutes or, you know, having that set list of groceries that no matter what happens, you’re always going to buy, you know, carrots, hummus, and like something else that’s good for you, no matter what.

Elizabeth: And so there’s so many little things that to experiment with. And I feel like sleep and food. Yeah.

Dina: Top of the list.

Elizabeth: Yes. Yeah. To manage that energy and, you know, to really just kind of check in and say like, wow, I am exhausted. Why did I plan to have, you know, back to back hearings and meetings with people when I knew I was going to use all my brain power in that hearing?

Dina: Yeah. And I think that really comes to a point where you mentioned about. giving yourself a little time to decompress. And one of the things I see with lawyers, we [00:21:00] tend to like to squish things in our day. So we’re like, Oh, I’ve got an extra five minutes here. Let me put this 20 minute project in that five minutes.

Dina: I can definitely make some progress on it. And so we’re just like mushing stuff into our day, thinking that we should be able to get it all done. But what I want to offer is that giving yourself. A little bit of decompression time between projects, between meetings makes a world of difference. I had a client who was just having back to back consults and she was noticing she was forgetting writing notes.

Dina: She wasn’t, you know, doing things and I’m like, okay, let’s talk this through. And so she realized, oh, hey, I’m not giving myself any space between these meetings. I don’t want to have so many meetings in one day. I want to have those delegated or. Designated for specific days during the week, instead of just kind of letting my assistant hodgepodge them throughout the week, like let me decide where I want to have these sessions.

Dina: So then I give myself the space that I need. And [00:22:00] then she started doing that with her whole calendar and she started recognizing that her billing went up, that she felt more energized at the end of the day. She was taking better care of herself because she had those moments to take a breath, get organized, and then she could move into the next task.

Elizabeth: Yes. I feel like sometimes just even like remembering, like, you’re going to have to use the restroom at some point.

Dina: Like, leave space. Yeah. Please leave space because there are some people that I’ve talked to who do not use the restroom or I, before they worked with me, I think they didn’t use the restroom because they were like, I’ve got to build this.

Dina: So just give yourself the grace. You deserve to be treated like a human and not a robot. Need bathroom breaks.

Elizabeth: Yes. And eating breakfast and eating lunch and not skipping a meal. It always, you know, I know for trial lawyers, it’s, and I’m sure you probably had this too, like you just get so nervous you can’t even eat anything more than, you know, like a granola bar.

Elizabeth: Mm-hmm . But it’s just mm-hmm . The more you play with like the energy [00:23:00] intake and all that kind of stuff, the more you realize, like, okay, I may not feel like it, but I got to overcome whatever the stress is happening in my brain. And I know my body needs this.

Dina: Yeah. I mean, if you think about a marathon runner, they may not feel like eating, but you bet they’re eating.

Dina: Right. I actually learned this late in my practice too, which is I need to have a meal. And it needs to be something like it doesn’t have to be a rich meal or anything like that, but it needs to be something like a salad and some protein because protein is energy. And if I don’t have that energy in the second half of the day, my performance is going to wane.

Dina: So same thing with a runner. They’re paying attention to what is their food intake? How are they sleeping? Like what they need to pay attention to those things. So when we start to think of our performance as reliant upon the input, the fuel that we give ourselves, it makes it a little bit easier to say, okay, I may not feel like eating, but having this bit of protein is going to help me in the second half of the day.

Elizabeth: Absolutely. And don’t get me started on protein. We could probably do a whole episode [00:24:00] on eating protein. You know, as a building block of energy and, you know, keeping us all going. So, so let’s talk a little bit about, okay. So we talked about the core, you know, block of everything, which is getting your mindset straight.

Elizabeth: And I know you’re not going to make a schedule for us, but tell us a little bit more about like what it means, like, as far as, you know, I think you mentioned time piece, like tell us a little bit more about kind of what you do.

Dina: Yeah. So I mean, there’s basically, it’s very simple to manage your time. I will share them with your audience.

Dina: Like it’s, that’s not a problem. It’s a beautiful thing, but that’s not where the problem comes in. The problem comes in with implementing, which is where I come in, but I will share exactly the steps to manage your time. Do you want to hear them? Of course. Okay. No.

Elizabeth: Okay.

Dina: So, so basically you start with, you know, you’ve got a bunch to do, right?

Dina: You’ve got your different things in your emails. You know, there’s different people who, [00:25:00] you know, things on your voicemail, you’ve got things in your inbox. Okay. You’ve got probably appointments on your calendar. That’s usually what lawyers use their calendar for is just the appointments. Maybe they put deadlines on there.

Dina: That’s it. What they don’t do is think about their whole week, right? And they don’t think about it in a way that allows them to think, what can I delegate? What is the most important thing for me to do? What can I take off my to do list this week? What can be put off to another time? We can’t even think about those things until we think consciously about the things that we need to do.

Dina: A lot of lawyers have a to do list, and it’s just this ongoing running to do list.

Elizabeth: I can show you mine.

Dina: And a to do list itself is not a bad thing, but what are you doing with it? Like you might have a very effective. way of using your to do list. I have no way of knowing. But if you have a [00:26:00] really effective way of using your to do list and you don’t feel overwhelmed and you don’t feel overworked, then great by all means keep doing that.

Dina: But if you create a list of items and you go through them and you look for the ones that are the most important, maybe there are deadlines on Friday. Let’s say today is Monday. You’ve got some motions or whatever due on Friday. Okay. So you’re like, okay, I want to work on those, you know, other items. What needs to take priority this week?

Dina: I need to talk to this client. I need to talk to this client. I need to get this project going so that I can turn it in. next week, right? So maybe there’s an email you need to send out. So basically you list out everything you need to do now at this point, only spend about 10, 15 minutes doing this. I know a lawyer can spend like hours doing this.

Dina: If you do 10 to 15 minutes of this, I guarantee you, you have the most important things on that list. Don’t use this as your procrastination time. 10 15 minutes [00:27:00] tops to write that list. Now go through that list and circle the items that need to get done this week. And then next to each of those items, estimate how long each are going to take.

Dina: And this is where so many lawyers get caught up. Because they tell themselves, I don’t know how to estimate. That is not true. You estimate all the time. So go in, make an estimate of how long you think it’s going to take. If you really don’t know, add a little extra time to it. And then. Once you do all that, I want you to go back and I want you to put yourself on the to do list.

Dina: What do you want? Do you want to go to the gym three times this week? Do you want to do something else this week? What do you want? Do you want to have 30 minutes every morning so that you can sit with your coffee and just, you know, scroll social media because it’s fun. Whatever you want to do, I want you to put it on the list and then I want you to look at Do you have any other commitments?

Dina: Do you have commitments with your [00:28:00] spouse? Do you have commitments with your kids? Like anything else like that, put that on the list too. Because there’s an order of operations. When you put these things on the calendar, knowing that yes, you already have appointments and already on the calendar, that’s fine.

Dina: You’re going to put the items that are a priority in this order on your calendar. You first. You have to go on the calendar first. Wait a minute. Hold on a second. What about my

Elizabeth: consultations and my

Dina: I mean, that stuff, it’s just there. It’s like, I just pretend it’s like, okay. But we got to put you on the calendar, right?

Dina: So. You have to be the person who decides I’m leaving the office. This was me. I’m just describing what I did. I’m leaving the office at four o’clock to go to yoga at four 30. That is my non negotiable. I would leave the office four o’clock. Boom. Okay. Four o’clock. Was everybody else leaving at four o’clock?

Dina: No, but I knew that later than that I was going to be exhausted and then I wasn’t going to go. So I needed to prioritize that [00:29:00] for myself. I would do the work. I wasn’t worried about that, you know? So. I made that a priority for myself and that went on the calendar first. And it seems so counterintuitive.

Dina: And I think a lot of women have a problem with this idea of putting themselves first, because. They’re trained, we’re trained to put everybody else first and that everybody else gets our attention. Everybody else gets our time. But when do we get to have that time? So it’s important to start training your mind.

Dina: So this is where mindset comes in to say, look, what I want is important. And so you have to believe that in order to put yourself on the calendar first. What I want is important. And if you’re not putting yourself on the calendar, you’re not believing that what you want is important. Which is, it stinks to say that out loud, but I mean, it’s huge and that’s

Elizabeth: sometimes like probably the biggest, [00:30:00] hardest realization that people have when they look at their calendars and their lives and just realize like, oh, I’m not putting myself forward or first at all.

Elizabeth: Like, what does that say about how I feel about myself?

Dina: Yeah, because the calendar really reveals a lot, right? So, Oh, I’m giving my time to these organizations that I don’t even care about. Why am I doing that? Oh, I don’t have anything that involves me on my calendar. Why not? And that’s when it comes down to what do I really think about myself?

Dina: What do I really think? Am I not valuing myself and my time? So it can be kind of confronting when you start getting into the conversations and coaching around time management because we start to see, Oh, I am not looking at myself as my most valuable asset in my business. Right? I’m not treating myself like the fuel for my business to continue to grow because I’m not putting myself on the calendar.

Dina: I’m not putting time on my calendar to work on my business. So if I’m not doing that, nobody else is going to do it. I’m responsible for that. [00:31:00] Yeah. No. Back to the order of operations.

Elizabeth: Okay. So we’re making a list. We’re putting ourselves first. Okay.

Dina: Calendaring yourself

Elizabeth: first. Okay. Yes.

Dina: And then you put on the calendar, your family commitments, your friend commitments, all that good stuff.

Dina: And then you put on the work, right? Then you put in, okay, and this is where I want to give this tip. Start to pay attention to your energy levels throughout the day because everybody’s a little different. My energy is highest in the morning, and so I’ll put my more the things I need to think more about early in the morning, whereas in the afternoons, I’ll tend to put things that aren’t as focus dependent, and it makes my life easier.

Dina: So at the end of the day, we tend to be. You know, our energy is coming down and we’ve maybe done some heavy lifting earlier in the day. And so if we’re putting high intensity [00:32:00] projects in the afternoon, we’re might be setting ourselves up for failure. So just notice that where you’re putting things on your calendar.

Dina: And then put space in between your calendar. Start to just pay attention. Like, Hey, do I have back to back meetings? When I look at my calendar, how do I feel? If I feel overwhelmed, how can I make my life easier? Like ask yourself those questions. Where can I delegate, right? What order of operations needs to be done?

Dina: And that brings me to big projects, right? Like trials. So a trial isn’t, you know, it could be, all right, all day long, I’m going to be in court. But most of the time you’re not in court. You’re preparing for trial. You are creating exhibit lists or you’re organizing exhibits. You’re thinking about the questions you need to be asking.

Dina: You’re reviewing documents, you’re reviewing depositions, you’re reviewing all these things, right? So if you are not blocking time specifically for those items. And you’re just saying, I’m going to work on the [00:33:00] Smith file all day long. You’re setting yourself up for failure. You want to give yourself designated blocks.

Dina: So you want to say, if you’ve got the Smith trial you’re working on, before you put it on your calendar in blocks, you want to think about, okay, what do I need to do specifically in the Smith trial? Estimate how long each of those individual tasks are going to take, and then you can spread them out so you’re not getting burned out on the Smith file.

Elizabeth: Absolutely. Or trying to start the thing that makes you least excited. Like maybe it’s an opening statement and you’re just like, Oh, I don’t want to do that. You just sit there instead of doing, you know, like work on a cross exam or read, you know, I mean, it’s kind of one of those things like reading your energy and it’s definitely, you know, happens where you’re just like, again, mindset, like, I’m not good at this.

Elizabeth: Therefore, I’m not going to start this. Um, but it’s like, Okay, let me make a list. Let me at least organize and use this time for, like you said, like the Smith file or writing cross exam, [00:34:00] which people love or, you know, doing direct exam, like writing it out and, you know, when you take those steps further out, people always run into me and they’re like.

Elizabeth: Oh, in two weeks, I’m starting this trial and I’m just like, okay, and just walk me through what’s your, you know, order of proof. And like, let’s talk about that. I was like, oh, well, I haven’t done that yet. I’m just like, oh, okay. You know, just take a step back. But it’s so funny how much work we can get done ahead of time.

Elizabeth: Even if you feel like, oh, well, this is going to change because of emotion limiting or that’s going to change because they have the like, Okay. Just getting in and having that think time and writing it down like significantly helps you in the moment when you get there to know you’ve at least done reviewed and at least had a start on something.

Dina: Yeah, I think that’s something we underestimate how much we can get done when we use. Those brief moments, like if you give yourself an hour on a day to, like, think about the opening, right? Or an hour to think about [00:35:00] the exhibits and organize them, right? That has a compound effect. So, by the time you’re about to go into trial, oh, you’ve taken care of everything because you were paying attention to it.

Dina: And I just think about it in terms of. If I’m not thinking 10 steps ahead, then when the day comes of trial, I am going to feel so flustered that I won’t be able to think straight. And that’s not good for me. It’s not for good for anybody in the courtroom.

Elizabeth: Mm hmm. Yeah. Well, and I also feel like. Sometimes when you walk in or you watch a trial or you watch a motion, the lawyer that knows their file forward and backwards, it’s like smooth sailing versus you’ve seen the lawyers that get flustered and they just, you know, they’re looking, they’re digging around or trying to find an answer.

Elizabeth: And so it’s like, even just having, like you said, 1 hour at a time or 2 hours at a time and just being in that file really helps you just know the facts so well. [00:36:00] When there is something that comes up, that’s, you know, you weren’t expecting. It’s okay. Cause you at least know, like you said, okay. So they said, Hey, so I’ve got one, two, three.

Elizabeth: Okay. What’s going to work, you know? And so it really helps you be able to think on your feet, 10 steps ahead.

Dina: Yeah. And it’s also, I mean, trials are show. And I remember being a prosecutor and you always want to know your case front. You know, forwards and backwards. And you always wanted to know it so well that it was very clear to the judge that you knew what you were talking about and to the defense attorney that you knew what you were talking about.

Dina: So that if you were going to resolve that case, which is the goal so often. That was going to be the time because you knew your case so well and you knew the value of your case that the opposing counsel wasn’t going to pull one over you. And they also were more inclined to try to settle the case. And the judge would sometimes put a little pressure and be like, are you sure you want to go to trial?[00:37:00]

Dina: Do you see what’s happening here? So it’s important that we also do that for the sake of, in the civil context, it’s like for the sake of the client. It’s like, okay, what’s in their best interest?

Elizabeth: Absolutely. And, you know, most of the time, you know, in civil cases, they go years and years and years. So there are mountains and mountains of facts that go in with all that stuff.

Elizabeth: So it’s, you know, it’s again, having an organized, thoughtful planning way to go about revisiting and getting things ready for the show. That trial is really just. It puts you head and shoulders above so many other trial lawyers that are out there. And again, it makes a huge impression on judges.

Dina: Yes. But yeah, when you go into a courtroom confident, it’s going to make a difference in your case.

Dina: Managing and planning your time out in a way that’s effective is going to give you an advantage.

Elizabeth: Yes. And let me just point out confidence is different than the ego. [00:38:00] Yeah, yeah, definitely people who instead of planning, just try to rely on ego and that, you know, I can tell you jurors see just right through that very quickly.

Elizabeth: If you were just trying to rely on ego versus You know, confidence and knowing your file.

Dina: Oh, we can help. We could do some more stories on ego on this one.

Elizabeth: I love your three steps. I will say just from my personal experience in trying to, you know, grow business and really try to manage my time. I love this idea and I started to do it. I just call it my Sunday planning and I just take. 20 minutes. That’s all I’ll allow myself to do because I’ll do it for hours and do the same thing and just look at, you know, the week ahead and the week next and just not 20 minutes.

Elizabeth: Like you said, make some priorities, you know, puts things in different places so that I can Make time correctly. And I think one of the fallacies of every [00:39:00] person, no matter where you were, is we always underestimate the amount of time it’s going to take to do a task. Yeah. So having a little extra padding is just, you know, and not being hard on yourself for not getting things done at the perfect timing.

Elizabeth: I do want to

Dina: add this though, because this is something that’s so fascinating. And I’ve seen this. You in court where all right, it’s 12 o’clock council. I want you to find the answer to this question and come back at the 1 30 so that we can resolve this. And so having that hour because essentially I need to eat.

Dina: I need to get the answer. All of that in that hour and a half walk to court. I could do that. I researched, I found the answer, but it was because I had that limited time. I was able to do that and not feel like, okay, I need to spend five hours researching. And I think that sometimes I don’t know if you’re guilty of this.

Dina: I know I [00:40:00] have been going into research. We think we need to know everything versus let’s narrow it down to a specific topic. Let’s really narrow the search terms and then let’s go in and focus on that particular topic. And if you give yourself a limited time, like if you say an hour, you will be more likely to do that.

Dina: So there are certain tasks.

Dina: I’m only allowing myself 20 minutes to do this. I’m only allowing myself an hour of research on this particular topic. And then if I find something that’s particularly relevant, and I think I need additional time, I’ll find the time. But that can really help limit the procrastination of going down a rabbit hole.

Elizabeth: Oh, absolutely. And I totally, absolutely agree. I think it kind of goes back to when you’re sitting that estimate things like, and you’re going to write a blog or you’re going to write, you know, like 15 minutes is just not really. Let’s be [00:41:00] adequate, but I also love the same thing of like, okay, I have an hour.

Elizabeth: I need to get this done now because I am totally that way. Like if I’m going to research something, oh my gosh, I go down so many rabbit trails and I have, you know, and so one of the best pieces of advice is sometimes I got from the coaches I work with was like, okay, Elizabeth, just do three. Okay. Don’t do 10.

Elizabeth: Okay. Don’t try to find 10, just three. Really, really. I’m like, okay. Okay. But that’s really kind of one of those things where it’s like. We love research. Lawyers love to investigate and just find everything possible. And I’m, but you know, it’s like, Limit it. Give yourself an hour. Give yourself the rule of three, you know, because at the end of the day, like everything we have has a time limit.

Elizabeth: Opening statements have a limit, you know, the day has a limit in court. You know, we want to make sure that we really focus in and use our time correctly. But absolutely. I love the idea. And that’s what I do to myself too. Is like, when my calendar goes thing, then it’s done and I got to move on to the next thing in order to make sure that I have enough time to get it [00:42:00] done.

Elizabeth: Yes. Love it. Awesome. Thank you so much. Okay. Well, is there anything else to share? Because I know like thinking through, we’ve talked, we’ve covered so many wonderful things. Mindset, you know, the three top tools that you just talked about as far as prioritizing and calendaring and putting yourself first, which is So essential it is for any lawyer.

Elizabeth: So is there anything else that you feel like kind of can stand in the way, like thinking of like what the way lawyers think about things that maybe we just, we can’t even see that it’s standing in our way.

Dina: Yeah. I mean, one of the biggest things, and you did touch on this, is how we talk to ourselves. And I like to, Say it this way, which is talk to yourself like you want to succeed because so often we don’t talk to ourselves like we want to succeed.

Dina: We tell ourselves this is so hard. I don’t know what I’m doing. I’m such a bad attorney. Like, shouldn’t I know this by now? Like, what are people gonna think about me? Are they gonna think I’m a failure? And really, when we think about what other [00:43:00] people think about us, it’s actually a reflection of what we’re thinking about ourselves.

Dina: So, really, we don’t see how we’re talking to ourselves day to day. We’re not recognizing all the little digs that we make at ourselves, like, Oh, I should have known that one. Oh my gosh, I’m such a moron. There’s some people who talk like that to themselves. And I used to be really mean to myself, like I created so much shame around The work that I was doing and it put me in a position where I would overwork because I was trying to outwork the feeling of failure.

Dina: I was trying to really push myself to perform, but I was doing it at my own expense, at my own mental and physical wellbeing, because I felt like I needed to prove that I was. good enough, but I was always good enough. We’re born good enough, but because I was speaking to myself in that way, I had the mindset of somebody who didn’t really truly believe it.

Dina: And so it was really [00:44:00] causing a lot of problems. It was also causing a lot of procrastination because the more I pressured myself, the less I wanted to do and the less energy I had to do it. So a lot of people blame themselves for that. They tell themselves there’s something wrong with them, that there really is something bad or malfunctioning.

Dina: It’s not that at all. It’s just a mindset thing that needs to be addressed. And one of the ways you can begin addressing it is by having compassion towards yourself, really recognizing that you are a hard worker, that you are good enough, that what you want matters. And at first you might not even believe those words.

Dina: If I’m saying it out of my mouth and you’re hearing this, and this is the position you find yourself in listening to this, then you might not even believe it. But I want you to know that it does take practice thinking those thoughts because it’s a new mindset. It’s a new way of being. It’s a new way of recognizing your value and it requires you having fierce compassion for yourself and [00:45:00] reminding yourself of how good you really are and all of the things that you are doing right.

Dina: All the reasons why you are good enough and you are doing the things that you are meant to be doing. So I would add that.

Elizabeth: What a wonderful, wonderful addition. And just so true. I mean, you started off telling us we have 60, 000 thoughts a day and a lot of them are the same ones. And unfortunately they’re mostly about ourselves.

Elizabeth: You know, it’s such a gentle, true reminder, but just so lovely. Okay. Before we end, I want you to tell us a little about your time piece management.

Dina: Oh yeah. Okay. So, well, first of all, I have a podcast called be a better lawyer, but I say that because I talk a lot about time management and mindset in the podcast and I have a program that is specifically where I’m working with lawyers inside a group and it’s all about time management.

Dina: And if you go to Dina Cataldo. [00:46:00] com forward slash time piece, I actually, it’s not open for enrollment right now, but I have a. Freebie there. So if you want to learn more about it and get some mindset working, it’s a workbook that allows you to really think through some of the issues we talked about in this episode, even so link the show notes for that.

Dina: Oh, excellent. Yeah. So time piece is really where we talk about. All things time management. And this week we were talking about resistance to doing work, resistance to, you know, doing the things we know, like we tell ourselves we should be doing. And so every week there’s usually a theme that goes along with what everybody is experiencing that week.

Elizabeth: Awesome. That sounds amazing. So, okay. So we know we want to know more. We have your podcast, being able to be a better lawyer. And then even if somebody wanted to work with you one on one, I know there’s strategy calls that you do as well.

Dina: I do. And I work with lawyers who have their own businesses. And [00:47:00] they want to grow their businesses and they want to do it without feeling overwhelmed.

Dina: So if that describes you and you’re listening to this and you’re vibing with our conversation, you can book a strategy session at Dina Cataldo. com forward slash strategy session. And we can talk about what that would look like.

Elizabeth: Awesome. Yeah. We’ll have links to everything in the show notes. Also, I want to plug your LinkedIn cause it’s always lovely and you put wonderful things out there as well to help people.

Elizabeth: So a great podcast as well with lots of really. Interesting, but like super helpful things to, if you’re growing a business, which most of us who are in employment and personal injury, we’re out there plugging ourselves away in our solo small firm. So I’m so glad that you were here to share with us and we’ll put all the links and everything in the show notes.

Elizabeth: So thank you so much, Gina, for coming and talking us through and giving us some wonderful tips. I won’t say strategies because really time management. If we call it a strategy, that means it’s like a time hack or whatever, which is totally not. It’s a [00:48:00] fundamental, you know, learning to, like you said, talk to yourself and having a mindset and putting yourself first and being super healthy about the relationship you have with time.

Dina: Oh yeah. This is a really great conversation. Thanks for having me on. Of course. Thank you.

It’s Not Too Late for Courtroom Persuasion: 3 Simple Ideas to Use Now [Ep 132]

elarrickbrand on January 31, 2025

Even with the mounting pressures of trial preparation, Elizabeth offers three straightforward strategies any lawyer can implement: strategic timelines that tap into natural chronological thinking, active notepad writing to command attention, and the persuasive rule of threes.

Whether you prefer simple sketches or polished presentations, Elizabeth offers guidance on easy techniques that pave the way for a successful trial strategy.

In this episode, you will hear:

Strategies for mastering courtroom persuasion for trial lawyers
Utilizing timelines to organize narratives and simplify complex information
Techniques for enhancing jury engagement through storytelling
Practical tips on using giant notepads for courtroom attention and memory retention
The power of the “rule of threes” in simplifying and organizing presentations

Follow and Review:

Supporting Resources:

Learn more about how Elizabeth helps trial lawyer here.

Connect with Elizabeth on LinkedIn.

Join the Trial Lawyer Prep Newsletter to get quick tips and ideas for your case preparation and trial persuasion. Go here to join.

Episode Credits

Episode Transcript:

Elizabeth Larrick (00:02.594)
Hello and welcome back to the podcast. I’m glad that you’re joining me today for this new episode about courtroom persuasion.

And it’s not too late, okay? I’ve got three very simple ideas, you may have already heard them but possibly forgot, that are extremely persuasive to our audiences. Now, this episode piggybacks off of my last episode where we talked about trial strategies and I gave you five questions you could ask to create a strategy for your next trial.

But I wanted to give you three really simple ideas today in this episode so you can add them to any strategy that you may have coming up. And these come from my experience in doing focus groups, of course, in learning through continuing legal education, reading books. And again, these may be things that you have heard, but you may have forgotten because they are so simple.

And why are they persuasive? Well, all three of these ideas work with our brain and short-term memory because when we step into a courtroom, we have a limited time. We always have a time constraint, whether jury selection or opening statement or even with our motions and arguing there will be a limitation. And so we always should be thinking about our audiences and how to work with that short-term memory.

Elizabeth Larrick (02:15.596)
Because there is a limitation and we don’t want to overwhelm it and we want them to remember. So let’s jump right in. Number one simple idea is a timeline. If you’ve worked with me at all, you know how much I love timelines and I always encourage folks, you’ve got a case, let’s put it on a timeline. Because people naturally, we naturally think chronologically. Okay, so beginning, middle, end, right? Think about our stories and

when we put it into a visual and it could be as simple as, know, literally draw a line across the page and have five points that come across chronologically where you can become even more persuasive is where you start your timeline, right? And where you end your timeline. So naturally people may think, okay, let’s take, for example, a car crash. You’re gonna definitely have that point on your timeline, but do you start there?

Well, persuasion and many other trial consultants and books would tell you, maybe not, because maybe we always want to be focusing on the actions of our defendant. And so we start with a point on our timeline that begins focusing on the actions of the defendant. OK, so boom, we’re already doing some persuasion there. Where you end, obviously, some people would end with the events that brought them there. Sometimes you go a little bit further. Either way, you are

creating something that is very familiar to people. Again, making it easy on our brains, that cognitive ease. They see a timeline that, oh, this is familiar. I’m going to get this. And it has like placing the information in a sequence so that they don’t have to hold it in their brain because most of the time our timelines are going to be a little longer than four or five points. If you can make them that short, great. But most of the time we have a few other things that have to go on there. And so having it

Organized and holding a place on a piece of paper in an order is very, very persuasive and helpful for folks. Also, you will find that if you have a really great timeline, you can use it with many different witnesses. And again, you can make it fancy. Hire a company to create you a fancy PowerPoint. You can keep it super simple and just literally draw it on a notepad. Don’t overthink this. However, just know that when people

Elizabeth Larrick (04:37.528)
think about a timeline, especially our audiences, they’re gonna think about it like you would see it with a timeline and events popping up, Not necessarily a list, okay? So this is sometimes where we get a little bit confused. I will ask lawyers, hey, you have a timeline and they send me basically a Word document or a PDF that it’s just a list in order. That’s a list, not timeline, okay? So remember, it’s literally time on a line, okay? So number one point would be use a timeline.

wherever you may be, right? Even if you’re just arguing emotion about discovery, like that back and forth, they can get Huisynthesimil and Huisynthesimil, like put it on, make it easy for the court to see how hard you have been working to get that confer and get that information, okay? Use that timeline. So my other very simple idea for court persuasion is to get one of those giant notepads and write on it.

I mean, this is so simple, but it is so overlooked and generally complicated by lawyers. When I ask people to do this, they generally look at me and the first thing that they say is, I have terrible handwriting. It’s okay. Because here’s what happens when you stop what you’re doing in the courtroom and you move over to that notepad and you begin to write, you have the full attention.

of everyone because they don’t know what you’re about to write and they want to know, right? It’s like the mystery in the room. Okay. So you have their full attention, which is really hard to do. If you’ve sat and watched any kind of trials recently or even in your own, you’re going to notice there are folks who are just not paying attention. They’re off in La La Land, but no one’s talking. Everyone’s watching you right out, right on this notepad. And if you’ve been to Mark Lanier’s Trial Academy, he has a whole.

fancy, I’m going to call it an Elmo, where basically he does the same thing, right? Puts a white sheet of paper up there, these black fancy pens, and he writes, right? And he knows that folks are watching with bated breath what he is doing. He has their attention. They want to know what’s coming next. This is so simple, right? It doesn’t have to be a roadmap like he does. It could be as simple as just a checklist with one or two words on it. Draw a T chart with before and after.

Elizabeth Larrick (06:50.194)
or even just points from a testimony as summary. mean, this is one of the easiest places where when people are working with their clients on direct exam or an expert on direct exam, you got to switch it up. Otherwise, people really will be falling asleep. But using writing on that giant notepad will significantly help. Plus, what I have found when I’ve used this is and save that notepad and bring it back for closing. Remember what we heard from our client? We heard from our plaintiff here who said

This is how long this lasted and here were these numbers on our pain scale and here are the things that they did, right? it all comes back. okay, great. And instead of me just saying it out loud, it was right there. They could have read it themselves. okay, I remember when you’re writing all that. that’s true, right? And so the other thing that happens is when you write it down, it becomes much more concrete in their memory. They’re having to remember whole bunch of stuff and that notepad can make it really easy.

right, to keep their attention. And also you write down the words that of course have the most persuasion, okay? Again, thinking through these things, but if you haven’t thought and you’re just going on the fly, get that T-chart up there, get that checklist going, or again, just write points from testimony to summarize what someone has been saying, but very, very helpful and super persuasive. The last idea, again, I’m not telling you anything you guys don’t already know. This is fantastic stuff, but it generally gets a little…

lost in the shuffle of when we are getting ready for trial, and that is putting things into the system of threes, right? So again, thinking through our how we learn in our story, like story format beginning, middle, end, So three points, right? Keeping it down to just three points. Think about the title of this podcast episode, three simple ideas, okay? Why are threes? Well, they have found

that three is the smallest number to create a pattern in our brains. And our brains love to look for patterns. They also know that really our brains can only hold typically three to seven things at a time. And I would say three to five. But now at this point where we are and now it’s 2025, I would say three is it, okay? That’s pretty much all we can hold in our short-term memory. So we don’t wanna overwhelm it. The lovely thing about the rule of three is it really helps you as a lawyer be able to…

Elizabeth Larrick (09:13.002)
really fine tune and cut the fluff. And these are the top three things. Okay. So think about going through your opening statement, top three things. Think about doing your direct exam. Here are the top three things. Cross exam, top three things. And that doesn’t mean that you can’t have like sub points, but I think what you want to be able to do is be able to simplify for your audience point number one, timelines. And then I went into it, right? Point number two, writing on the notepad, right?

Then I went into it so that it’s easy. You’re going to remember all three of these things. You’re also going to say Elizabeth is not original. Of course, it’s not. Say that it was. But simple, right? Three simple ideas is what we came here for this episode, because what I want to remind you is that it is easy and it’s not too late. Even if you are starting trial next week, OK, you still have time to put together a timeline that has five events on it. Get out that notepad and write two or four or three things on it, right?

look at your organization of your information and put it into the rule of threes. okay? make it simple for your audience. and that way they can keep it in their working memory. okay? and they’ll tell it to each other. right? that’s why when we look at some of the the trial strategy on opening statements and our CLEs, they typically go and use the rule of threes. right? three safety rules. okay? you can have more or less, right? but three safety rules. right?

When we talk about preparing folks for trial, maybe it’d their trial testimony or depot testimony, we try to push things into three points. Again, we just want to make sure because that’s what people remember. Okay, now three simple ideas that it is not too late for your courtroom persuasion. And if I were you, you could use all three. Okay, these do not necessarily crowd the other, okay? And number one would be a timeline.

got several events, which you normally do in your case. Please use a timeline. Help your audience be able to hold the points in reference to each other. That’s also really helpful for a comparison, okay? Next one, it’d be to write on that giant notepad. Figure out a way to make a checklist. Make a T-chart, for and after, right? You can just writing up simple words from testimony will help keep people’s attention, keep it focused. And again, if you take that extra step and think through, like, okay, you’re gonna have a very persuasive.

Elizabeth Larrick (11:35.156)
exhibit in front of the jury that’s going to stand up there. And last, of course, which is our system of threes. Thinking through our presentation, how can we get it into three main points to make it easy for our short-term memory to keep it and for our brain to connect it as a pattern? All right. I hope that these were helpful. They were either gentle reminders or if they were new, that’s awesome as well. Again, if you’ve worked with me, you know I’m always going to be creating a timeline for you, whether

most of the time for focus groups and even with our opening statements. One of the best examples that we talked about was with Michelle Gesner in episode 129, where we looked at her case and saw she needed two timelines. Go back and revisit that episode. I will put a link in the show notes for you so you can go back and re-listen to us talk about that and why we felt, oh, this is really necessary and who to use it with. So that was one of the things too that can be persuasive. All right.

Thank you so much for tuning into this episode. And don’t forget, if you are interested, I have a trial lawyer prep newsletter. If you want to join that, you get one email a month, try not to bug you all too much, with extra tips and strategies for preparation of your cases, maybe focus groups, witness prep, trial strategy. Each month, you will find that link in the show notes, or you can go on over to lyricallawfirm.com slash connect to fill out that. All right, thank you so much for tuning in.

And until next time, thank you.

What is Trial Strategy and What it is NOT for Trial Lawyers [Ep 131]

elarrickbrand on January 21, 2025

Join Elizabeth Larrick as she shares insights on developing trial strategies that resonate with juries. This episode is designed for trial lawyers seeking to enhance their courtroom success by focusing on a comprehensive strategy rather than just meeting deadlines or relying on emotional narratives. Elizabeth delves into the importance of using focus groups to anticipate jury reactions and prepare multiple contingency plans for trial preparation.

Gain tips on crafting compelling narratives, prioritizing crucial information, and employing strategic questioning. Learn how to sequence witnesses and evidence to streamline your courtroom presentation. Elizabeth emphasizes the significance of flexibility in your plans to handle unexpected challenges.

In this episode, you will hear:

Understanding trial strategy beyond deadlines and persuasive elements
Importance of a cohesive, big-picture plan considering the jury’s perspective
Utilizing focus groups to predict jury reactions and develop contingency plans
Crafting memorable and clear narratives through effective communication
Strategic sequencing of witnesses and evidence to streamline presentations
Simplifying and prioritizing information for impactful trial presentations

Follow and Review:

Supporting Resources:

Be sure to check out the Michelle Gessner episodes to hear about her trial strategy formulated from the focus groups.

Episode 128

Episode 129

Episode Credits

Episode Transcript:

Hello, and welcome back to the podcast. I’m your host Elizabeth Larrick, and we have a new episode today talking about trial strategy, what it is.

and what it is not. This episode is prepared for you so that you can be able to clearly [00:01:00] assess what you need for your upcoming trial and to create an overall plan of action so that everybody on the team can stay focused on the targets in order to get that win on the verdict form. and avoid getting caught in the weeds.

You’re getting ready for trial. Maybe it’s 30 days out. Maybe it’s two weeks out. Maybe you’ve got 60 days or more. Either way, you may be sitting down and asking yourself, okay, how do we win this thing? And what can happen is we get super caught up in the deadlines and the motions and the last minute questions about settlement.

And we can sometimes push things like strategy aside. And so what trial strategy is not, is meeting your deadlines. It’s not doing those depo line designations or writing out those motions in Lemony, right? That’s totally in the weeds, right? All those [00:02:00] things are necessary and needed, but those are all kind of things that sometimes we use forms for, or sometimes we may or may not win those, right?

Depo designations, judge may decide something different. Motions in limine, judge could decide something different. And we don’t necessarily want to create a trial strategy around things, meaning testimony or evidence that may or may not come in. Because if we create an entire strategy around one piece of testimony or one piece of evidence, And then it doesn’t happen.

We have to really, really scramble. And definitely when we talk about trial strategy, we want to have plan A, plan B, plan C. Okay, that’s just being a good trial lawyer, making sure we can get everything in. But trial strategy is not sitting down to do those DEPA line designations and that, you know, jury instruction form, or worrying about how to fix one witness, or, you know, Really, what I see sometimes as people think trial strategy is basically how [00:03:00] can I talk more persuasively?

How can I really rest on things that are in the case, meaning maybe it’s a sympathetic picture, or maybe it’s really sad stories, or really egregious injuries. Those things are definitely part of strategy, but they are not the entire strategy. And unfortunately, I see that happen at times where people just believe, well, this is powerful enough.

I don’t need a strategy for anything else. This is all I need. This is just as persuasive as it’s going to get. People are just going to automatically roll over when they see this picture, or they hear the sad story, or they. Understand this complicated medical surgery, people are way more complicated than that.

And what I want you to do is be able to sit down no matter where you are with your experience, no matter where you are with your trial and getting prepared and sit down to look at creating an overall cohesive plan of action to win. And making it simple on you and your team and so that you won’t get [00:04:00] distracted along the way.

So, really, what is trial strategy? Okay, well, strategy overall, like we talked about, is a plan of action to achieve a win or achieve an overall goal. So, it’s really this, this big, overarching, cohesive, think about like a 30, 000 foot view. Okay, because again, if we get down in the weeds about this piece of testimony or this, like, We’re missing the strategy.

Okay. We’re too far in the weeds. You need to pull all the way back. And trial strategy really comes from a compilation of your focus groups because trial strategy really sits down and looks at things through the point of view of the jury. All right. And always thinking through, okay, if they see this picture, if they see this testimony from my client, how are they going to perceive that?

And If you’ve done focus groups, obviously you can compile all those together. If you’ve not done focus groups, you can still sit down and look at it and say, okay, [00:05:00] what’s the point of view here of the jury? Not me, not what I think about it, but what they’re going to think and how they’re going to perceive it.

And that’s really a big key point of your strategy is just making sure to look at it. It’s like, okay, how are they going? To see this, are they going to be just overall annoyed? Are they going to be overall confused? And how do we fix that? Right? Because that’s where you really want to be able to come in with your trial strategy and say, okay, knowing what I know about this entire file, which is a lot of information, what are the top three things that.

We have to win that. We have to get in so that we can get that W on the verdict form. And how do we sequence the information that we have our witnesses, our evidence, our documents to get a W again on that jury verdict? Because we can. Provide all the information to someone to make a decision, and they maybe [00:06:00] don’t know how to sequence things well, or maybe they don’t know how to sequence things.

Well, a jury doesn’t have that luxury. They have to sit and they have to listen and take in a lot of information in a format that is very, very foreign to 99 percent of us. Okay, because we are Okay. in that learning environment anymore. Most of us don’t go to school every day or sit down and listen to a lecture.

And that’s really what jurors have to do. They have to sit down, go from zero to 60 on your case, and have to put it all together. And if we don’t do our job to give it the best sequence, the best order, We are really missing out on a big piece of strategy because we get to go first, right? So we have this large primacy effect where we get to set the stage.

And one of those things that makes a huge difference for. And so that is one of the biggest pieces of trial [00:07:00] strategy is really thinking through your sequence of evidence. Best example we can talk about is here recently with my episode interview with Michelle Gessner and episodes 128 and 129, where she learned from her focus groups that.

Number one had to be those H. R. notes, right? That was her number one key point. Number one piece of evidence. And so she had to make sure and get that out and in front of them very quickly and clearly. And she learned that from her focus groups. And if you’ll remember again from that episode or those two episodes, she did small bites at focus groups.

She did one hour here and one hour there and one over there. So there weren’t these really long mock juries or really long focus groups. That allowed her to be able to go back and test again. And in working with Michelle, we really used the time in between focus groups to look at our strategy. Is it working?

Is it not working? [00:08:00] How do we retest this? What’s missing, right? I mean, what are we missing here? Because again, we can all get stuck in the weeds if we feel really good about something and forget to test other things. And that leads me to the other part of strategy, which is simplifying, removing, cutting information, getting down to the simplest, clearest case that you possibly can.

What do you need to get rid of, right? Because we want to make sure that we can be quick about our trials. Joe Fried talks about having quick trials, right? Folks, have Not a lot of patients. If you’ve been to the courthouse lately, people have very, very little patience. And so we want to make sure that we can get to the point as quickly as possible.

And that’s really the next important key. That’s the next. Key essential in trial strategy communication, how are you going to communicate these key points thinking through your witnesses, right? Thinking through [00:09:00] questions in direct exam, thinking through cross exam, right? And how can we continue to teach them this point through visual aids?

Maybe it’s even just writing it on a notepad, having a checklist, right? What images can we use? What metaphors can we pair with our key points? Maybe there are pictures in the case, maybe there aren’t. Maybe there are pictures we can draw, right? But we always want to make sure that we’re remembering how can we teach them and make it sticky.

May it get stick in there. Because again, they’re going to get a lot of information and we want to make sure that we don’t give them too much, confuse them, all right, or give them something that doesn’t go anywhere. That’s one of the key things that I always talk to lawyers about when we talk about opening statements and we’re even just giving a presentation with our focus groups.

And that is you gave them a piece of information and they didn’t know where to put it. And what happens is sometimes our brain just holds onto it to keep trying to put it somewhere. And we waste a lot of energy and a lot of time, like, and our jurors still [00:10:00] like, where did this go? Right? You’ll hear that in your focus group feedback.

Where did this go? Well, I heard this, but I never heard where, like, what was the resolution of that? And you’re thinking, we don’t need to be talking about that. That is how much people will grab ahold of something if it doesn’t fit. So always make sure that. When you are communicating, you have the essentials and ditch the rest, okay?

Because sometimes we can pick what we need for our opening statement and we can save the rest for cross exam. We can save the rest for direct exam. There are a lot of things in our cases that need more explanation than we can give in an opening statement. And that’s another thing that you can really gain from doing focus groups is learning, Oh.

We didn’t give him enough information for that, so let’s save that. Maybe that’s for a direct exam. Or, you know what, that actually needs to be paired with this document and this visual aid, right? Okay, well then it needs more explanation, then let’s take out an opening statement, because we just really don’t want to confuse anybody right off the [00:11:00] bat.

Because if we make things simple, right, then we’re, we’re keying in on our cognitive ease, our brain shortcuts. That can be made versus if we present something that’s very confusing, it looks very complicated, our brains are naturally just going to kind of, it’s going to resist that because we’re going to try and making it work harder than it already is.

All right. So thinking through trial strategy, here are a couple of questions that you can sit down and think about, write it out, round table it with, you know, folks on your team who are going to be trying the case with you. But I found that these couple of questions really kind of help us sit down and create at least a little bit of a strategy so we can stay on point when we get into the courtroom.

And that is number one, how will the jury perceive my case? Number two, what is the best sequence of witnesses and documents evidence for the jury? Number three, what am I missing that the jury is gonna hate? What am I missing that the jury would love? Number four, how can I [00:12:00] teach the jury quickly and efficiently?

Is that with a visual aid, a checklist, using a notepad, metaphors, words? And number five, what can I cut out of my case to make it clear? And simple. What’s the fluff that we don’t even need? All right. So, sit down, do a little trial strategy, see if it helps, right? Because we want to make sure that we’re using all of our information from our focus groups, okay?

If you’re curious about how to squeeze as much as we can out of our focus group, go back and listen to episode 130 where we talk about maximizing our focus group feedback and ways to do that. And again, even if you haven’t done focus groups, right, you can sit down and ask these questions and look at you, look at your file, and be able to say, okay, I can still create a strategy here, I can still come up with the best sequence of evidence, and I will tell you, the earlier you can do this, the easier it will be [00:13:00] on witness scheduling.

Okay, sometimes I see a pitfall if people don’t do this particular thought process. And then it just comes down to, well, Betsy’s available only on Tuesdays and Dr. So and so’s only can do Thursdays. And you kind of have this mishmash where you’re not putting together the best sequence of evidence. You’re just throwing together availability.

And when things are out of order, It’s really hard for the jury. You can say that. We’re going out of order. Okay, great. You know that. The judge understands. The defense counsel, the jury is like, what do you mean out of order? Because they don’t know, like, they don’t know what your order is. Okay. Everybody else in the room does, but they don’t.

So if you can do this early, then you can really sit down and think, okay, I really got to have this person first. Okay. They are key. I got to have them go first. And if it’s not a possibility, or. If, again, going back to listening to Michelle Gessner in her interview, one of the key persons she wanted to go first was going to be a defense witness.

[00:14:00] And she didn’t know if she was going to be available on day one. So she created a plan B. And plan B was still important and it laid the foundation. But of course, plan A would have been to have Art, that defense witness, go first. But it didn’t actually work out. So she had plan B, which was, let’s lay a foundation here.

Just as important, we’ve already got out what we need to get out in opening say, but we’re going to get to the good, good juicy stuff, but laying that foundation would allow a little bit more time before we get to our essential point that she needed for her trial. So, plan A, plan B, right, to allow some flexibility, but to also know that you’re putting together the best sequence possible for your trial strategy.

All right. I will put a link in the show notes to episodes 129 for Michelle Gessner. If you haven’t listened to those yet, they are great. She talks about her focus groups and putting things together for her trial for her big verdict against Wells Fargo. And if you didn’t know, I actually have a trial lawyer prep newsletter that runs once a month to [00:15:00] your email inbox.

If you’re curious and want to join, please look at the link in the show notes for that as well. It’s also at Larrick law firm. com slash connect. All right. Thank you so much for tuning in and until next time, thank you.

Maximizing Focus Group Insights: A Guide to Reflective Practices [Ep 130]

elarrickbrand on January 6, 2025

In this episode of Trial Lawyer Prep, Elizabeth Larrick discusses the importance of immediate and thorough reflection on focus group feedback for trial lawyers. She emphasizes early recording of impressions, detailed review within seven days, and actionable steps to improve trial strategies. Elizabeth shares her methods for compiling and analyzing data to ensure focus group insights are effectively utilized in courtroom preparations.

00:00 Introduction to Trial Lawyer Prep

00:40 Welcome and Episode Overview

00:53 The Importance of Reflection in Jury Research

02:39 Immediate Reflection After Focus Groups

06:28 Seven-Day Reflection and Analysis

10:03 Implementing Feedback and Next Steps

16:08 Conclusion and Additional Resources

Episode Transcript

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello, and welcome back to the podcast. I am glad you’re here. I am your host, Elizabeth. And if you’re joining me today, it is January 1st, 2025.

And. As usual, kind of the end of the year, I thought it would be a great episode to talk about reflection, but more [00:01:00] importantly, talk about using reflection to get the most out of your jury research. Here’s the thing. You spend time and money and energy running focus groups and mock juries to understand better what juries are thinking and what they want to know about your case.

And sometimes all we really want to know is Do we win or do we not win? But what I want to do is give you an episode to talk about how to get the most out of your focus groups. Because what I see so much in lawyers is you get your initial impression and then you just move on and I really don’t want you to miss out on going deeper and getting the most out of what you receive from your focus groups so that you can Use it better and more effectively in your cases,

maybe you are getting ready for trial. Maybe you’ve just done a focus group for mediation. , maybe you’re deciding whether to take a [00:02:00] case or not. Even in all those places, you can learn so much more about what the focus group is giving you and that feedback. If we take a little time to do some reflection.

Now, this episode of course comes out of my own personal reflections in looking at working with lawyers in 2024 and of course the many years before that with focus groups and where folks are missing the mark. And again, don’t want you to do that. You use all this energy and time to create these things, to work, , with others in doing them.

So let’s talk very quickly and make a brief episode here. Point number one. So important to do an immediate reflection after your focus group or mock jury. I see so many lawyers who just finish up and pack up their stuff or leave the zoom and don’t take those moments right after you [00:03:00] finish a focus group to reflect and put their thoughts down on paper.

Yes, of course, all of our focus groups are recorded. However, I rarely see lawyers go back and actually re watch their focus groups. So, if you are going to add any kind of step after your focus groups, after your jury research, it would be to stop what you are doing, sit down, and do an immediate reflection.

Because in even as little as 24 hours, our memory begins to fade, right? That’s just kind of how our brains work. We have to take in new information. So you want to sit down while it is fresh, right? Those immediate things on your brain and write it down, write down those takeaways. Of course, if you have others there with you, that is a great time to sit down and have just a super brief discussion.

And this is what I do with all of the lawyers who work with me in my [00:04:00] focus groups, because I think it is so invaluable to have even a quick discussion after you finish your focus group to ask, what do you think they understood? What do you think they missed? Where do you think they were confused? What surprised you?

What didn’t you hear? that you thought you would hear. Because, , we walk into all of our focus groups testing different facts, testing different evidence, testing sequence , of information, testing our witnesses. And we come in with our preconceived notions. We think, Oh, that particular defense is going to work really well.

Maybe it’s social media posts. Maybe it’s pictures of somebody. Doing a handstand, those have totally happened by the way, and you want to know, oh, those are definitely going to have traction. Well, you already come in as a lawyer and as somebody creating these focus groups [00:05:00] with a preconceived expectation about what they’re going to say.

Did they say it or did they not? You know, that’s kind of one of those things where we can look at when you create your focus group plan and your goals and what are you testing? Like what is a hundred percent going to be in your presentation? That should be a hundred percent. The question you’re asking after you finish, what did I hear about that particular topic?

So many a times when I work with lawyers, what I get back when we do this reflection, this immediate debrief discussion is Oh, well, I didn’t have enough time to give them X information. I always try to bring people back to the core of, I just want to know what is your brain telling you right now about what they get?

What was this feedback that you heard? Because what is so important when you have a round table and you have multiple people to bounce things off is what you’ll hear is. You know, Bobby Joe over here heard that [00:06:00] it was bad, but then, you know, Susie said it was good, so then it’s like, oh, wow, everybody heard a little something different.

Well, who did you hear that from, right? And now you can actually kind of really be able to see and put some things together about different participants, what they’re saying and where it may have come from, because that’s that next level of being able to reflect on what you heard about And why you may have heard it.

And having other people in that immediate reflection time is also very important. Naturally, you want to record all that good stuff too, because the next step in reflection would be to go within the next seven days of your focus group and take a look at the transcript. Take a look at the chat. If you’re virtual or if it’s in person, look at those paper votes.

What was actually written down in the transcript? reactions to the questions. And [00:07:00] what I like to do is compile that information into a chart or enter a table, because when I do that, , creating a memo or creating a report, however you want to label it, but just basically taking that information and taking it from all the separate little places and putting it into one.

So you can really compare what they actually wrote down, what they actually put or said. And when you’re able to do that, your brain. Oh, you get a whole nother level of reflection because you’ve got your initial immediate thoughts and takeaways. Now, when you’re actually going back within those seven days and looking at, Oh, this is really what they said.

Oh, wow. Everybody actually wrote down this same point or something very, very similar. Oh, okay. And how are those people then talking about it? Because one of the good things about having A chat or having in person votes is you can take those what they actually wrote down or what [00:08:00] they typed and then compare it to what they said in discussion to really see.

Did they tell me the truth? Were they actually giving me a true answer to something, or were they just telling me what I wanted to hear? That’s a very good way to check to make sure, okay, was this a good focus group, or did they just tell me what I wanted to hear? Because they’ll trip up somewhere in between those two things.

And the other thing you can do, too, is look at what you presented. Maybe it was an opening statement, or maybe it was a PowerPoint. And in comparison with what they wrote, what they typed, what they said in discussion, , were there pieces where, Oh, you know what? That’s probably why they said that. I added this fact into the timeline, or we mentioned this in the opening statement.

I can hear that reflected in what they’re saying. So then you’re able to really see connections better on the information and then compare it to what your initial thoughts were. Because many of times what will happen is in our initial takeaway. Our brains will get hung up on maybe one comment and typically that comment is negative.[00:09:00]

And then when we go back and we look at in , our seven day reflection, we can see , Oh, that was just one particular person saying the same thing over and over and over again, that my brain got ahold of. Nobody else was saying that. And that way we’d say, okay, so don’t because you don’t want to take action in your case based on one comment from one person that nobody else in the group took ahold of.

That is the danger of what you could be missing out on if you don’t do this extra reflection. So again, the other thing we can do is write down at this point, , we’ve done our immediate reflection, we’ve done our seven day reflection where we’ve really compiled all the thoughts, all the information into a one document.

You can call it a memo, call it a report, but just put it all in one place so it’s easy to find. We need to go back and look at it, but then also that really tells you, okay, what do we test next? What’s the next step for this case and what do we need to retest? And what do we need to [00:10:00] do new for the next one?

And finally, what I like to do is make. an immediate list of changes or steps that need to be taken for the information. , for example, if you did an opening statement, Go in and immediately start putting in those edits or put in those comments so that you can begin to work it into your opening statement.

If you need to create a timeline, go ahead and put that in there. Or if you did create a timeline, move things around, go ahead and make those changes right now while that feedback is fresh on your mind. And then sometimes I will put in a comment, if you’re working in Word, so that I know, Oh, this is where that comes from.

So if I try to change it back or somebody comes and change it again, they can know, Oh, that’s, that came from that focus group where we, we mentioned this. The other thing to do is make a list of action steps for discovery. For example, if the focus group told [00:11:00] you things that they wanted to hear or see, now you need to go ask for that request for production, go ask for that interrogatory.

Or maybe you need to go talk to your expert who’s about to give a deposition or maybe you are creating questions for your deposition for this fact witness you’ve immediately gotten that feedback. And more importantly, what will happen is you can actually use the language that the focus group gave you versus you using lawyer words,

It if you don’t make this list, it’s typically it’s lost, right? What I see a lot of times is lawyers will run focus groups.

We’ll have a memo or report. We’ll have it all in one place. And then we come back together to get ready for an opening statement or we get ready for the next focus group. I’ll say, okay, well, did you go and get that thing that the focus group wanted? Did you ask that expert for that? Did you, and they’re like, Oh, No, no, we didn’t.

I was like, okay, well, it’s lost, right? We don’t want, I don’t want you to lose that. I want you to be able to have that [00:12:00] information and immediately take those steps. That’s the whole purpose of the focus group, right? To not only help us better understand the way the jury thinks, but to help us now shape our case to how they think and how they expect to see this information.

The other thing you can do as well, along with making a list of steps To take or making those immediately changes to your presentation is to do a comparison to your other focus groups. This is something I enjoy doing for my lawyers that work with me on multiple focus groups is we basically end up doing kind of a large visual chart.

Again, you know how I love to make visual aids, but if we can put things in a way where our eyes can really see them right next to each other, who were the jurors that were good profiles, who were the negative profiles, and be able to just really see that, Oh, okay.

Oh, and that when we tested this, Oh, but the next focus group, we took it out. We didn’t put that in. And how did that really change things? That is really helpful for us because, , when we’re coming down [00:13:00] to trial, we’re synthesizing a lot of information, plus new information that is coming across from opposing counsel.

And so to be able to have that, , document where everything is beside itself is extremely helpful to quickly. analyze and then make very quick decisions on things that you need to put into jury selection or opening statement or direct exam cross exam. So recently we had two focus groups on a particular file and we did them two months apart and ran two kind of different styles of focus group.

One was very kind of exploratory, what are the concepts and themes, and the other one was very much directed with a very specific presentation about. The facts and evidence in the case. And what we were able to do is basically look for recurring themes and retest things that we heard that we believe to be positive,

and what that really helped was guide , Oh, did we see it? Did we hear [00:14:00] it? And then have a lot of confidence, , Oh, we did it. So this needs to be included 100%. And , when you’re able to really dive into the focus group feedback, then you can really use it again for the next one.

And then again, gain a lot of confidence, in what is positive for your case. And you will also hear what is dragging down, your case as well. I don’t want you to miss this step. I want you to be able to really get the most out of your focus groups. And so plan the time, right?

You work really hard on the front end. You prepare, you spend money and energy getting ready for these focus groups. Take that extra 30 minutes, right after and just book that on your calendar so that , okay, immediately once I, walk out of that room, those focus group participants leave that room, or I get out, exit out of that Zoom, I’m going to immediately go and write down my thoughts.

And again, this is not a [00:15:00] detailed, what did everybody say list. This is, what are my takeaways? Again, answering those simple questions. What did they understand? What did they not understand? What did they miss? That’s generally always a really good question is what do we give them that they didn’t even talk about?

And then, of course, taking another step of reflection within the seven days to really look at what they actually typed or wrote down for us, in response to directed questions and looking back at that transcript, looking at our presentations, and then putting everything into one document, being either a memo or report, whatever you want to title it, and then being able to go back and compare our initial thoughts with what was actually typed in or said in the transcript.

And of course, that last point, which is taking those immediate steps, we’re making a list, of steps and actions that need to be taken to get the focus group, those folks, what they needed to hear or see or talk to your experts [00:16:00] or your witnesses, even to make sure that that testimony is not lost, but it’s going to be given over to the focus group.

All right. I hope that you enjoyed this episode and take a little more time to do reflection after your focus groups and jury research until next time. Thank you so much. And don’t forget, I do have a monthly trial lawyer prep newsletter. If you’d like to join, check the show notes for the link. All right.

Until next time. Thank you.

How Michelle Gessner Won a $22 Million Dollar Verdict Against Wells Fargo Part 2 [Ep 129]

elarrickbrand on December 18, 2024

In this episode of Trial Lawyer Prep, we delve into the role that focus groups can play in legal trials. This episode explores whether focus groups are worth the investment, as we continue our conversation with Michelle Gessner. Through a case study involving Wells Fargo, Michelle shares her experience in utilizing focus groups to anticipate juror reactions and refine legal strategies, ultimately providing an edge in the courtroom. This episode underscores the financial considerations and potential rewards of employing focus groups, highlighting how they can reveal juror perceptions and help counteract defense tactics.

Moreover, the episode sheds light on the applications of focus groups in trial preparation, particularly in determining the order of witnesses and enhancing witness preparation. Michelle emphasizes the importance of using focus groups to establish a sequence for presenting evidence, which can significantly influence juror understanding and case outcomes. The discussion also highlights the value of having an external perspective during witness prep to identify potential communication breakdowns. With these insights, trial lawyers can enhance their strategies and increase their chances of achieving favorable outcomes in court. Listeners are encouraged to stay informed by joining the Trial Lawyer Prep newsletter and leveraging the expertise shared in this episode to elevate their trial game.

In this episode, you will hear:

Strategic witness preparation and sequencing based on focus group feedback
Managing financial risks versus benefits of focus group insights
Role of focus groups in shaping depositions, summary judgment briefs, and evidence presentation
Techniques for refining opening statements and trial strategies with focus group feedback

Follow and Review:

Supporting Resources:

If you have more questions or have an employment matter to talk with Michelle about, please contact her at:

Michelle@mgessnerlaw.com

To learn more about Michelle, please visit her website: Gessner Law PLLC

Don’t want to miss an episode of the podcast? Join the Trial Lawyer Prep Newsletter to get an email straight to your inbox with episodes and resources for witness prep, trial strategy and focus groups. Use this link: https://larricklawfirm.com/connect/

Episode Credits

Episode Transcript:

Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick. I wanted to step in before we continue the conversation with my guest, Michelle Gessner, the interview where she details The information that she gained from focus groups preparing for her verdict against Wells [00:01:00] Fargo.

Don’t forget, Michelle’s information will be in the show notes if you want to reach out to her. And we will step into this episode right during the interview where I asked Michelle about are focus groups worth it? Okay. I hope you enjoy the rest of the interview. They tried the case. on things that didn’t matter and the tax things that didn’t matter had nothing to do with the actual request for accommodation.

And obviously the jury saw right through that. So many things you had to tackle in this case. And I know again, we’re here, we’re recording in September, you’ve got more appeals coming in this particular file. And again, I think People who deal with Wells Fargo get it. Like, oh yeah, other cases I’ve done too.

Like, this is just the way that they roll their dice. But what advice would you give folks who are maybe on the fence about doing these focus groups or, or wondering about them? Like, is it worth it? Yeah, that’s a great

Michelle: question. Absolutely. You know, when you do plaintiff’s work, The costs sometimes come out of your pocket until you [00:02:00] get to the end.

And so you have to make sure that everything you do is worth it. And there has to be some reward. But the most valuable thing that I did in this case was the focus groups. And my client would tell you that too if he was here. He didn’t participate in the focus groups. He didn’t, he wasn’t there, but he heard about what happened and what we needed to work on when we received the results from those focus groups.

But he absolutely supported knowing that in the end, when and if he gets paid, that would be a cost to the file in which that we would charge him. So I was eyes wide open and told him what they cost and what we were going to get out of them. And of course we pay the money up front. And so, and it’s not just this case.

Yes. Can he afford to pay for a cut focus group? Sure. Anybody who reads the record and knows what’s public information will know that, but there are other cases that people can’t. So I have to make a decision along with them. Am I willing to invest my own money into the case? In order to get what I need out of it in order to hopefully get the desired result.

And so it is the best money we spent in [00:03:00] this case. And let me pair it with something you just said. They tried this case attacking the plaintiff. They attacked his wealth. They attacked how he used the bathroom on the ski slope. They attacked the fact that he had a concierge health doctor, which he needs given his financial situation.

disabilities because he sees the doctor way more than most of us. They attacked every single thing about who he is investment properties. He has things his Children do for hobbies that he’s able to pay for even going and having a drink with his friends or even if he had more than one drink, they attacked him personally.

And so Knowing that that attack would really alienate the jury invaluable for this case, because it’s exactly what we thought they might do. And how would somebody respond? How is somebody who makes 7. 25 an hour and works at Bojangles, for example, which is a local restaurant, going to respond to somebody who made 7.

A lot millions of [00:04:00] dollars for Wells Fargo. Can they relate? Can they put aside what their own life circumstances are in order to fairly judge this case? And we only knew the answer to that because we had people from all walks of life. Who listened to the facts of this case, that we gave them very blunt and clear information about who this person was and what happened here, and was able to get the feedback we needed.

Again, you know, if I have to choose between spending the money and taking the risk or not doing it and just going to trial and winging it. I’m always going to choose the focus group. I’m going to find a way you’ll find a way. There’s ways that you can hire great people like Elizabeth who it’s invaluable.

And I’ll tell you why that minute that let me come back to that for something I’ve written down to say to you among many reasons, but you can also do them on your own. You can do them on your own. And there’s still a cost. You still have to pay to get people to show up because their time is valuable too.

[00:05:00] But you have to be able to know before you go in what’s going to happen with your case. And if you don’t know, then you’re leaving it to chance. And that’s a problem. You know, when Elizabeth does it, you can’t help in a case like this particularly. And if you’re passionate about anything in life and having the jury to really see through you, you know, it’s really hard to be stoic.

And to be not put your finger on the scale and want them to say what you want them to say during a focus group. I mean, I think I’m decent at it, mainly because I put on my defense hat and I try to have a, but I wear my emotion on my sleeve sometimes with the case and, and no matter what I say, they know who I represent, right?

Or they know kind of what we want them to say, and that’s not a good thing in a focus group. We want them to be real and tell us what they’re really thinking. So having Elizabeth do it and just getting out of the way, you get every single penny worth of [00:06:00] information. I mean, I can’t tell you how many times I’ve done my own and then said, man, you know, I think they just told me what I wanted to hear on this piece.

And I wish I hadn’t asked this question because It seemed to be too much of a softball, right? Or they saw my emotion in the case and so therefore they felt sorry for me, right? Because I couldn’t get through it without showing some emotion. But if you let Elizabeth do it and you get out, not only does she care about your case, she does.

But she can get every ounce out of that focus group that you’ve paid for. Because she’s done so many, right? You’ve done so many. I’m talking about you in the third person, right? You’ve done so many that you understand how to really push and push and push and get somebody maybe who isn’t talking or somebody who hasn’t said anything or somebody who said something that was negative and I didn’t follow up on it Right that you want to know why they thought what they thought so If I had a lot of money, I’d hire Elizabeth for every single one.

And that’s always the goal, but find a way to do [00:07:00] them is the critical. Yeah.

And thank you. Of course, it’s always lovely to help folks and get that outside perspective is something that we as lawyers have a real struggle doing because we get so ingrained, like. This is our case. It’s our babe. We’ve already invested a lot of time and money.

But I think also these focus groups that you’re doing, you did them one hours, maybe an hour and a half. Like we’re not talking about a full day commitment or a four, you know what I mean? You’re doing them in a very efficient way. And that’s why you can go do them on your own. I’ve got lots of episodes to talk about.

Like, how do you DIY your own virtual focus groups? And. It’s just sometimes, okay, we’re going to do it. Go find some folks and get them on the zoom and ask them some questions. And really it’s so amazing what you get out of just hearing someone else’s perspective, especially when it comes to an opening statement, because you think you’ve got it down, you’ve nailed it, you’ve worked on it.

And you tell them your opening statement and they go, they have any clue what the case is about. And it’s just, so there’s so many facets of doing an opening [00:08:00] statement that I so helpful for any, if you’re going to do a new one, you’ve never done them run an opening statement because it will open your eyes tremendously to what your evidence is, but also your themes.

And like you mentioned so importantly, the sequence of the

Michelle: absolutely. But as you said, I’ve listened to your podcasts and I’m a huge fan, but have an objective for what your focus group, what do you want to get out of this focus group? But I assure you, you aren’t, you’re going to get way more than just that one thing.

There’s going to be something else that you get out of it. And as long as you have that objective and you meet that objective, whether that’s your opening or if it’s jury selection, or what do you think of this demonstrative? You know, for example, the notes were a big demonstrative, but they were like tiny little print 25 pages.

How do we get them to actually pay attention to that piece of evidence when it goes back into the jury box into the jury room? You know, all of those things are things we tested, but tested it. In addition to whatever the primary objective was of that focus group, you know, nobody knows this. This is [00:09:00] sort of, I haven’t talked about the case, but during opening statement, defendants objected, Wells Fargo’s lawyers objected, and I didn’t get to use all of the things I wanted to use during opening that I had spent time and money testing, but it was such a gift because I was still able to get out what I needed.

And what did I know was the most important thing? I needed the jury to understand what the basic rules, the basic law was that they were going to be asked to think about and a timeline. And I got those things out right in the beginning. And so when they started objecting, I knew that the most critical things I needed the jury to hear at that point in time before I had earned any trust from them were those two things.

And so it was very short and I got most of the things I wanted to say in, but I had to shuck and jive and move around a little bit and try to figure it out on the fly because of the way that the objections were coming in. Now, in closing argument, I got to use it to say, folks, now I get to tell you and show you.

What they didn’t want you to see in the [00:10:00] beginning. And then use the things that I had developed for demonstratives. But if I hadn’t tested it, and if I hadn’t done focus groups on it, I wouldn’t feel as confident knowing that just those two things were enough. The timeline being most critical.

Mm-hmm

Michelle: Yeah. Which would help me do . .

Well, it’s just like one of those things where, you know, sometimes we get super excited, we jump in there and we forget like, Ooh, we need a little context in a very good, succinct way that makes sense with how our brains work. With receiving gobs of information. I mean, as a juror, they just get so much information in a very short period of time.

So awesome. Well, is there anything else? I know there’s so many things we could talk about this trial and just so many awesome things that, that you did and the shucking and jiving that you did. And I know that we can come and have you back once we get past all these appeals and really talk about the nuts and bolts of trial.

And I would say the only thing that to talk about would be the sequence of. Witnesses and witnesses and how focus groups helps [00:11:00] you kind of decide that.

Michelle: Sure. So kind of great segue knowing that the timeline was so critical. We knew that the minute that the jurors would see some of the evidence that backed up the timeline that they almost didn’t get past it once they saw it.

One of the most critical things were the notes, right? So once you got the HR person’s notes where she’s dip deep helling every event that happened, including the they said no and delaying the inevitable. The jurors couldn’t believe it, right? They couldn’t believe what they were seeing. So, we put her up first.

You know, got what we knew was important in the case in as quickly as we could get her in. I shouldn’t say first, she was our second witness. We put up the doctor first. So, we had a doctor who established what his disability was, And what he needed. And so that way again, we’re not speculating he has a disability and we’re not speculating what he actually needs.

His medical provider is who we put on the stand first to describe it and they had a chance to cross [00:12:00] examine him. And so we knew that through focus groups, explaining what did he really need? Was the work from home a want or was it a need? And how did that help him? So given that to them first, that took it out of their mind.

And then of course, the next witness was their own human resources person and getting them the notes because that was part of the timeline. So the thing that we’d put up in the timeline and opening, we immediately gave them the evidence that they saw with their own two eyes. really the history timeline in real time as what was going on at the time that she was trying to get an accommodation for him.

We then ended up using focus groups as to when did we need to put up the plaintiff? You know, what was his bucket to carry? Think about your putting your evidence in buckets. Which bucket did we need him in? Did the jury need to hear from him early? Or did they need to hear from him in the middle or toward the end?

When did we need him to be able to tell his truth and for them to hear and see him on the stand? [00:13:00] It ended up being in the middle and we knew that from focus groups. And did it change over time? Oh my gosh, for sure. I did a focus group the Saturday before trial. I think you know that, right? I think you know that I had a focus group at 11 o’clock on the Saturday before we started trial on Monday and I was testing damages in order of proof at that point in time.

So you never really sort of stop refining and you have objectives, but we changed the order of proof. We also Wells Fargo. There were lots of things that happened. We didn’t know which witnesses that were under their control. We’re going to show up on the day that we wanted to call them. So for example, there was a witness.

We wanted to call day one. They claimed he could not show up until day two. So we had to rearrange the order of proof on the basis of when they were going to control their witnesses to show. But again, we had focus group when in the timeline, yeah. Did the jury need to receive the evidence in order for it to make the most [00:14:00] sense and for them to get what was actually happening?

And when did Wells Fargo first have the time not to violate the law? Like when did they, when could they first have avoided all this? All of that came really from focus groups because the natural tendency is to want to just put your client up there first and tell the story, but they might not believe them.

Right. And I think you guys, when we kind of got down and it was like, well, there are actually kind of two timelines. There’s the, the perspective of the plaintiff in that timeline. And then there’s actually what’s happening with HR and what’s happening with HR is what’s going to win. Cause that’s, and it was like, we need that to be the right, the timeline of the case.

He’s the byproduct of their process. So

Michelle: we had done some focus groups again, just smattering on what do we need in depositions? What should we focus on in depositions? What do we need as far as even the judge with our summary judgment brief, we created good timelines for those. Those are all publicly filed as part of the file.

But the timelines help the judge to see what was happening. And if you read his summary judgment [00:15:00] order, he followed them. There was a timeline on the request for the accommodation and what happened. And then there was another timeline on the true quote layoff or the reduction of force and what was really happening.

And when you overlaid those two, it was almost like a big red light flashing, you know, big, huge red flag flashing saying. Warning, something bad’s going on here. And we knew that from testing it and doing it and having that type of reaction from focus groups.

Yeah. Yeah. And I know we’re harping on focus groups.

Y’all we really liked them, but that was really like how Michelle and I worked together was like, okay, give me what you’ve done. We’ll get ready for the next one. And then we’ll basically interpret what’s going on. What are consistent patterns to try and keep working on that opening statement.

Michelle: Can I say one more thing?

Of course I heard about this, but I’d be happy. I definitely wanna make sure we don’t stop witness prep. So I had the privilege of bringing in Elizabeth Larrick the best, the very best to [00:16:00] help me to prep the plaintiff. And can I do it? Sure. But I also had a lot of cross-examination to prepare for because we knew the most critical witnesses for us were not our own.

It was theirs. So most, we called defense witnesses in our case in chief. So I focused a lot on that. So I called in Elizabeth and she came to Charlotte and we spent a lot of time together with Mr. Billiston and it was incredibly invaluable. And so Mr. Billiston spent four hours on the stand in cross examination.

His direct examination was roughly 35 40 minutes. For Four hours over two days of cross examination Is how long wells fargo’s lawyers cross examine him and the first thing he said when he was completely done Was I can’t wait to call elizabeth larrick. I can’t wait to tell elizabeth how I did he was like a student Who wanted to tell the [00:17:00] teacher how well she had prepared him.

So Again, thank you so much the anticipation of the cross The how to not let them get under your skin in such a way that would cause a negative reaction and really just being so truthful that the jury could see the truth coming out of you, both in your body language and what you said. And it’s great when the truth is on your side, it’s easy, but it’s never easy to be on the hot seat, even when you’re telling the truth.

So if he were here with me right now, he would be saying exactly the same thing I’m saying, having you come and help to prepare him and being committed and dedicated to him in that regard is really was the secret sauce to his success when he was on the stand for those four hours. So again, can you help prepare witnesses?

You’re the person. I appreciate that. And he’s not here. So let’s talk about him. Uh, because we all have, we have witnesses that are just, they’re intelligent, smart people, but my gosh, it just does not serve them. [00:18:00] They overthink and they just, I mean, he just is. Was driving himself crazy with worry and we really tried to help it be an organized and then of course he would also say if he were here I put him through a lot of cross examination and he said this mine was worse than what they did actually on on the stands.

Work together too. And I think when you have somebody else in the room helping that gave Michelle a chance to really see, Oh, this is not what I need you to say on this point. And we were not woodshedding him. It was just more like Michelle was like, okay. So what happened was we would work, we’d work a good part of the day.

And then we let him go. And then it was like, okay, we need to marinate because we’re not hitting the points. We need to figure out where the loss of communication is. He’s got the information. So we work together on how do we create a direct exam that works for what’s in his brain, but also how he has [00:19:00] it in his brain.

Things were getting crosswise. We’re not coming out very clear. It was very confusing. And I think just because communication wise, the way we store things as humans and the way lawyers store things is very different. So we were trying to put two different hats on. Michelle and I worked really together on direct so that she would feel really comfortable and then they would be able to continue working.

Right. And then once opening came out, they’d be able to tweak again without him being completely thrown back into that worry circle.

Michelle: Exactly. And again, to your point, he’s so smart, but he also worked there 25 years, and he was aware of the way that Wells Fargo handled problems. You know, handled anybody who challenged him and acutely aware of potentially coming after him and attacking things that had nothing to do with the case, which is exactly what happened.

And so having someone sit there and endure being personally attacked on the stand in front of the jury about things that have nothing to [00:20:00] do with this case required incredible restraint from anybody. Anybody who would be on the stand who would have to say, what does that have to do with this case? or why are you asking me that?

It took a credible amount of restraint and self dignity and self worth, but to get there, we had to prepare him in a way to say, it’s okay for you to feel the way you’re feeling. And if you feel yourself even getting mad to describe that, look, I’m getting upset about this and here’s why. So the jury understands.

And again, I think the jury Lots of people have given lots of commentary. You just got to get on LinkedIn or Google it and lots of commentary. But attacking a plane of someone with a disability who asked for an accommodation went off like a lead balloon. It just didn’t work. And I think in my own personal opinion, it was to attempt to try to incite the jury against him.

Here’s somebody who’s got a lot of money who goes on extravagant vacations. Here’s [00:21:00] somebody who has multiple homes and you are not like him. So therefore you should, you should find against him and it just backfired. Yeah.

Yeah. They sent their message. I mean, that verdict, there’s 22 million, 20 million, right.

Is all in wages. back pay and front pay. And I know you said that earlier, but I just want to reiterate that is truly a jury that listened and said, you know what, this man needs to get paid because that’s a job he, he did love. I mean, he really loved that job. And by golly, we could not get him to explain that job because we’d all be lost in what he does.

But we didn’t have to, thank goodness, right, right. You know, we had to learn about all this. Michelle did all the heavy lifting and just letting them know like billions and billions people, this guy doing the thing for Wells Fargo.

Michelle: And they were a smart jury. They understood that he made the cut bank a lot of money.

Again, he made a lot of money. They paid him. Yes. It was a bonus for predominantly, but he made the bank a lot of money. And so the two things did not match. Why would you get rid of somebody [00:22:00] who’s making a lot of money? And they heard. a lot of evidence and saw a lot of evidence that they didn’t follow their own policies when they chose to fire him.

So again, we had a very smart jury. They were very attentive. They were from all walks of life and our foreman was a lawyer. So that’s another whole story. Oh, that’s

right. Yeah. Okay. We’ll have to have you come on. Cause I remember there, we had got little sidebars on that too. So we’ll have you come back and talk about the jury and, and the interaction and some of those cross exams.

Cause they had some surprise witnesses. So again, I’ll just go leave it at that. We’ll have you come back. We’ll talk about our surprise witnesses. Once you guys get through all these appeals. Absolutely. All right. Thank you so much for having me. Thanks so much, Michelle. I appreciate it. Wow. I hope you enjoyed that interview with Michelle and I will definitely be sure to let everybody know when she will be coming back on the podcast to finish out our conversation.

Okay. So we’re going to start with cross examination and a few details about trial. But before we close out this episode, I just want [00:23:00] to recap a couple of great things that we heard in this episode. Number one, are focus groups worth it? And Michelle’s take on that, but also really the specific details about using focus groups to determine your order of witnesses.

to help with depositions and even to help with your summary judgment responses. And naturally, we finished out with witness prep and having an outside perspective while your witness is being prepared so that you as a lawyer can watch and really be able to understand where there could be maybe a communication breakdown.

All right. Thank you again so much for listening to this episode. If you don’t want to miss an episode and you would like to be on the trial lawyer prep newsletter, please check out the show notes for the link to connect. And also don’t forget Michelle’s information will be in the show notes if you want to connect with her.

All right. Thank [00:24:00] you.

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