Hillary Carls and Learning from Focus Groups
Ever marveled at the power of a compelling narrative on a jury? Ever wondered how those narratives are crafted? Hillary Carls, a dynamic trial lawyer, joins us in a riveting conversation about the role of focus groups in crafting winning narratives. We recount our experiences and share how these groups have altered our approach to even the most complex cases. Hillary shares her journey to becoming a trial lawyer and how focus groups steered her to victory in a challenging sexual abuse case.
The power of visual aids and focus groups in trial cases cannot be overstated. Hillary and I dive into this, sharing our insights on creating visual aids for arguments and understanding your audience. If you’re looking to refine a story and turn a complex narrative into a compelling argument, this episode is for you. Hillary reflects on how a focus group’s input was pivotal in her sexual abuse case, and together, we emphasize the necessity of focusing on causation in trial cases.
In this episode, you will hear:
- Exploring focus groups in challenging cases
- The importance of visual aids and focus groups in trial cases
- PowerPoint presentations and the “show me yours, I’ll show you mine” strategy
- Preparing mediators in advance
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Supporting Resources:
Would you like to learn more about Hillary or connect with her on a case?
Email her directly at: Hillary@carlslaw.com
Episode Credits:
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Episode Transcript:
Elizabeth Larrick:
Hello and welcome back to the podcast. It’s Trial Lawyer Prep with your host, Elizabeth Larrick. I am excited here today. We have a guest joining us. A good friend of mine from Bozeman, Montana, Hillary Carls is here. Hillary and I met, gosh, it’s been a couple of [00:01:00] years. I’m always excited and blessed to get to go up to Montana trial lawyers and talk at their CLE, but we met there have become friends and have done a little bit of work together.
So I thought, you know what? It’s time Hillary needs to come on the podcast. So welcome to the podcast.
Hillary Carls: Elizabeth, thank you so much for having me on. I’m delighted to be here. It’s such an honor.
Elizabeth Larrick: She is kicking ass up in Bozeman, y’all. We’ve done some focus groups together, so that’s what we were going to talk about here today.
She’s always working on something different and fun and exciting. Hillary, just for some background, what got you into, let’s just go back. Why are you a trial lawyer?
Hillary Carls: I’m a trial lawyer a little bit by accident, but it was a fortunate accident, my first job. After my clerkship in back in Montana was with a firm that was doing a lot of work in court.
And so I really cut my teeth just doing a lot of criminal defense and personal injury, just some car accidents and stuff. And my practice [00:02:00] really has just evolved over the last 18, 19 years into solely plaintiffs. Civil litigation practice. And it really right about the time when I met you is when I was making the complete transition to plaintiff’s work.
And I was on the Montana trial lawyers board and really starting to get involved in kind of that focus. And it’s just blossomed from there. I will definitely say what we got in focus groups was because of the trial lawyers. I was talking with colleagues and I’m learning how they were approaching things in our, in our practice.
Friends, Sig McKenna and Justin Staren sold me on just the great work that you guys were doing with focus groups. And frankly, I walked away feeling like I was an idiot for not doing it before then. So I have some tricky cases. I do take easy cases when I get them, but most of my cases have like a tricky component and I had some in particularly tricky ones when you and I started doing focus groups together and it really just changed my whole perspective on how we can approach difficult stories and get it right.[00:03:00]
Elizabeth Larrick: Yeah. First of all, you’re not an idiot. Okay. Focus groups are challenging. Whenever I was practicing and going to CLEs, I would hear about it, but I didn’t really know what it was. We didn’t really get to see what they were talking about. It would just be like, Oh, we did focus groups and they told us X. And it was like, well, is it that easy?
Do they just say that? And sometimes it is that easy. Sometimes it’s not. So I appreciate you saying sometimes we just gloss over it, but it’s. Something that I think everybody should be doing, but it doesn’t mean you’re an idiot for not doing them. I may just not even know about them. So Justin and Sid, who are up in Missoula, who I have tried to get on the podcast and if they’re listening, then they know now they have to be on the podcast because you called them out.
So you had a couple of tricky cases. What kind of cases did you use for focus groups?
Hillary Carls: So I think I, the first case. When I was thinking about coming and chatting with you, I was thinking about the first case I think you and I worked on, and it was a sexual abuse case. And generally [00:04:00] speaking, my, the allegations were I represented a fifth grader who had alleged that she was digitally penetrated by her fifth grade teacher and the police department had investigated it.
They hadn’t found any wrongdoing or that her allegations were credible. The school district had investigated it and found that there wasn’t any credible allegations. And so I knew, but there was something very credible to me about this girl and her story. And I found her credible. And, but I knew I was working against I guess good judgment and judgment of a lot of other people.
And so after I learned about this process that you guys use and focus groups, I just reached out to you and we actually did. And when I say the deep dive, I think we did, you did help me with some witness prep for depositions and then we focus grouped it. And, and so that was a really difficult case, difficult situation.
The focus group in particular though, just blew my mind in terms of how a jury or an audience could really hook on and link to my [00:05:00] client’s story and believe her, even though all the prior audiences hadn’t believed her. So it was really, it gave me a lot more confidence going in, certainly into settlement conversations and prepping for trial and all of that.
Elizabeth Larrick: Yeah, that was a kind of a, it’s a hard one, but I feel like we get cases like that all the time where we hear the client and it’s okay, that makes sense. But then everybody else, the police report, the employer, the other car. So it’s sometimes it’s really hard to have a lot of confidence in what the story is and tell Okay.
We tested it. These folks are humming in. Yeah. And that was a kind of a tricky case beyond just that whole like story thing. It was, I think sexual abuse cases can be a little bit difficult. And you guys also had a lot of other factors too. We’re glossing over, which was conservative area, like small towns, like what kind of mentality is going to, it’s going to show up.
And again, testing it with focus groups. I’m glad gave you some confidence. I know that. Cases since resolved luckily, but helped you learn some [00:06:00] things. I know there’s another case we did too for focus groups. And I feel like do we do that one twice?
Hillary Carls: Are we talking about on the last one really quick? I don’t know if I ever shared this with you, but I will tell you, I think the most impactful thing about the focus group was when we recorded it and I played it for my client and they were so on her side.
That was like such a healing and validating moment to see a group of strangers hear her story and believe her. And I don’t mean to jump back to it, but it was just a different way of thinking. I mean, it wasn’t a litigation tool in that way, but in the human experience, seeing her scene, her story told.
And it was just a different way of thinking about it. And people saying, yeah, I believe her. And that’s horrible. It was just like amazing. Though. That’s
Elizabeth Larrick: awesome. I don’t remember that. What a wonderful tool, because I know that she did not, it didn’t advance and there wasn’t a trial. And so many people get a little hung up on like their day in court.
Now. Obviously she was not hung up on that. [00:07:00] She was just hung up on not, not being felt heard and understood and that people believed her. And so good on you. What a like quick thinking on your feet thing that I think some people would have missed that moment. And when you’re so like when your client Ford.
And you’re really trying to think of how to help them. Sometimes we forget we may have a tool available and it’s not money. Okay. It’s just this other thing that we may be able to, so good on you for being creative and Hey, that’s a good use for a focus group.
Hillary Carls: I always try and do it to your goals and help the people that we have the opportunity to work with.
The net, the other, I think we’ve done a couple of other focus groups, but the one that I’m really thinking about is the one where it’s a discrimination case, is that the one you’re thinking about? I
Elizabeth Larrick: was going to put that one aside, but that one was super interesting too. So here, let me just give a little background for folks who are listening.
So Hillary has been such a good, like. Very open to, Hey, let’s try this. So sometimes people, it’s hard to feel [00:08:00] creative or it’s hard to be like, this is what I need. So let’s just do the focus group this way. But Hillary was like very open to being creative and let me be creative on several of her stuff.
We’ve done different styles for almost all the focus groups, especially the one that you’re talking about. We did. Witness clips in preparation for deposition. So a lot of times people want to do the witness clips after and like getting ready for trial. You want to make sure, Hey, what are people going to think and how should they be talking to the jury through their deposition?
So that one was definitely eye opening.
Hillary Carls: And I think it gets back to kind of something you were talking about is what are the most surprising things? That you learn in focus groups or something we’ve talked about and it was like Approaching it in a creative way because you can learn you every time you have the opportunity to get feedback from an audience you just learn so much more about how to present the next time and improve upon it and whatnot and I do a lot of discrimination work it seems like these days and [00:09:00] these are nuanced conversations and so finding out about what a group of strangers thinks about these very fine lines and moments is really important, really important.
Elizabeth Larrick: Yeah, we got a lot of good what they expect out of this particular discrimination testimony and hey that’s what you want and what they expect.
Hillary Carls: It just then threw me to that as a case I just tried that we focus grouped before we did the plaintiff’s opening and then a focus group on the defense’s opening on it.
And that was a really, I lost the trial and I now know what I wanted to focus group it next time when I get a new trial.
Elizabeth Larrick: It was close y’all now don’t, Hillary’s not giving herself enough credit. Like it came down to the wire, tell them what the jury actually, what the jury verdict came back with.
Hillary Carls: Yeah, so it was like, it’s a negligent intersection case, so it’s a tough case, but my, my client had walked 90 plus percent of the road [00:10:00] across the roadway and got hit as a pedestrian by a suburban going 45 miles an hour.
But our case was about the design of the highway. and causing this accident. And 11 to 1, the jury agreed with us that the state was negligent. 11 to 1, excuse me, 10 to 2, however, that negligence did not cause. My client’s injuries, which is a tough pill to swallow, but a
Elizabeth Larrick: little bit, yeah, that’s when people say, Oh yeah, we won and we got a thousand dollars.
Like that’s the cringe or they gave us 1 or no dollars.
Hillary Carls: And actually I do think it was 11 and one 11 to one on both votes. So it completely switched. After we talked to the jury or someone talked to the jury on our behalf, we found out they had gotten to damages. They had gotten past causation and one juror pulled them back and it changed the whole conversation on causation.
So we’ll see. We’re on appeal and hopefully I’ll Best focus group ever, jury trials, [00:11:00] followed by yours.
Elizabeth Larrick: First of all, good on you for appealing it, but yeah, it’s, and good on you for talking to the jury. I know some people do, some people don’t, some jurors just won’t even talk to you at all. Sometimes it’s hard to get.
Information like that, but in those focus groups, we had done two and the nice thing about those focus groups we had done, we looked at your timelines, right? And we fashioned those one, what they wanted. There was a lot of visual aid work on how to look at this particular intersection that I think you guys did fantastic listening to the focus group and making those changes, even though it may not have been like what We as lawyers intuitively would have thought that’s what they need to see.
Hillary Carls: You know, if you haven’t had the opportunity to work with Elisabeth on a focus group, this case is a great example of just what an asset she has on it. Because this exhibit thing that we’re talking about. Is exactly it. Not only did Elizabeth put together this whole focus [00:12:00] group and lead it and guide us on how to like best present the evidence or the, our story to the focus group.
But you had such an, you really were engaged about our exhibits and helped make them better. I was like, Elizabeth is my co counselor right now. I
Elizabeth Larrick: really love visual aids. Like I just get so excited when people, oh my gosh, if they’re doing it, And anyone who’s probably worked means, yeah, she’s going to say you want a timeline.
I get so excited about them. I have forms for them. I have templates. Like I get so excited about timelines and visual aids. And I, I use Canva a lot and just sidebar. Canva is a great resource. You can get a free account. There are so many things like cool things you can do like bar graphs and all kinds of stuff.
So if you are interested and want to just play like canvas, a good place to play, but, but yeah, I was totally into your visual aids
Hillary Carls: because I love that. Yeah. Yeah. No, but it’s so important because again, it’s just another way. We’re all trying to win our arguments, right. Or persuade our [00:13:00] audience. And I guess when I, since we’ve gotten into focus, you’re being, uh, It’s really forced me to put aside the, recognize my own ego in my storytelling.
And just because I think the story is this way, or this is the best way to talk, communicate what happened to our clients from it. Who am I to think that I’m like, could see it the clearest. And you just learn so much from what the 10 people that you, that are more reflective of actually what people will think about this story or the facts than, and certainly me.
And my computer,
Elizabeth Larrick: that’s just what we do. We have a lot of experience and we put it together, but I do think sometimes those focus groups just help us kind of fine tune. And a lot of times it comes down to the order and that’s where you figure out where the, Oh, That’s all of a sudden that’s the highlight now.
It’s okay. How do we use that? Or in that particular case with that visual aid, what we found out was they love the backstory, but they were getting lost in it. So then [00:14:00] that’s where our timeline came in, of course, but it really then helps solidify like all these available points of data that they, you’re engineer minded, there it is.
You’re whatever it is. It was in black and white. They could not have ignored it on that timeline, which I think. You guys did a great job putting so much focus on that timeline and the complaints and all those things that people want to see and know versus sometimes you guys had, again, great. And I said, this sounds terrible, but this is what happens when you become a plant installer.
The injuries were just darn horrific, just astronomical. She had some great visual aids for that, but it was just like, you don’t need to worry about damages because those are taking care of themselves. It’s going to be getting the hook on there and making sure that they had the ability, the knowledge and whatever kind of funky.
Montana statute you
Hillary Carls: guys had. What’s interesting about that is talking about what different groups go. And it’s certainly the difference between an [00:15:00] hour long focus group versus a week long trial. We had picked out some of the key damages, like pictures that really show just how broken my client’s body was.
And after the week, I think one of the lessons learned in the jury trial that you’re hoping to get a new trial on is that the jury, those were seen almost too much because they did get it. They saw the damages, they knew the damages, and that was an important lesson thinking about when we go into the next time is focusing more obviously on causation a whole lot more because the damages were pretty clear.
But they were pretty gross. I think I grossed them out by it and seeing it so often.
Elizabeth Larrick: I’ve never seen it. I like one of the injuries this guy had was like his skull completely broken half. I’ve never seen that in any case. So of course I’m like, show me the picture. You had the x ray. So it was just like, Because if you tell somebody [00:16:00] and we do a lot of visual aids and I encourage a lot of people to do, even if it’s just a graphic, just the MRI, like you’re giving them something.
But whenever I hear we show a visual of a broken knee and exactly how it broke, or this guy’s poor broken face. And I hear from from a juror. I don’t need to see that picture. I know it’s a broken bone. I’m like, you don’t give one toots about this poor person. Is everybody else? Whoa. Cause saying, oh, you broke your knee.
Oh, I broke my face. Okay. But how it happened. And like the whole thing separated, like your mind goes to a thousand other places versus just saying it.
Hillary Carls: Cause yeah, the name of that fracture is Laforte fracture three. And you’re like, What does that tell you? Nothing. But then when you see the top and the bottom of the skull separating from each other, you’re like, that hurts my actual eyeballs right now, and my nose, and the whole thing.
And you, it makes sense why his whole face is numb and when he can’t, he bites his lips [00:17:00] and can’t breathe out of his nose and all the all the things. Yeah. But that is that’s the one it’s when it’s a that case in particular I was listening to you interview another colleague of ours Lucas Faust another Bozeman, Montana attorney Gosh, however long that goes and listening to his focus group regiment or routine.
I would say on his cases Again, so enlightening and I was like, I really got to do this more often like you got to do it early but I keep doing it and refining these themes because The difficult cases are one of the, the great cases in my view, they require finding that sweet spot and that how to best tell the story.
And on my case that I lost, I’m looking forward to my do over because I’ve certainly learned a whole lot and look forward to the challenge.
Elizabeth Larrick: I think statistically you’re more likely to win the second trial. I always tell it to people who have new trials and that doesn’t help me, Elizabeth. I’m just.
Telling you statistically, but I was scrolling through LinkedIn the other day [00:18:00] and Keith Mitnick is in my feed and fantastic. If you’re not following Keith Mitnick on LinkedIn, you’re missing out on so much great information, but he’s talked about one of our key jobs is to find the fatal flaw in our cases and doing a focus group.
Earlier will allow you to find it earlier and fix it along the way. And so that’s why sometimes like having Lucas on to walk through, it sounded like, wow, that’s a lot of focus groups, but really lives of our cases, especially down here. A year and a half, two years, if you’ve got a COVID case, we’re talking, we’re kicked down the road, just still on making up cases from before COVID.
You got a long, you got a long life here. You’ve got time to finagle things if you get in there early. And that’s what I always encourage people to do, especially if we’re going to spend a big old hunk of money. Pile of money.
Hillary Carls: Oh man. Cause we invest in our case, right? We, if you want to invest in an expert, okay.
50, 000 or whatever the number is. A focus group is a [00:19:00] bargain in comparison to that. It’s when we were in, we just saw each other in Missoula. I was talking with another Montana attorney then. I’m really like really intrigued by what Elizabeth was saying. Are you serious? Like it really works. What is it?
Like how much time do you invest? I go, It is seriously the best bang for your buck. It’s like you’re researching. Yeah, we can get on Westlaw and research law and find all the cases but this is researching the like human experience and Sure, you can’t perfectly replicate a focus group with a jury, but it sure is pretty good No, absolutely.
Absolutely. It’s Invaluable. And I really do. I actually, even as I’m talking here right now, I’m like, reminder, get this on the calendar. Schedule some more focus.
Elizabeth Larrick: And I think one, one thing that, and I did it too. And I, sometimes I still phone a friend, you pick up the phone, you, or you got the monthly meeting and you say, Hey, can I run a case by you?
And that’s all good. But we live in this world. We [00:20:00] live and breathe in this world. And. I am always amazed when I’m doing focus groups at people on the outside, looking at our, looking at what we do and seeing things change. And I think one of the CLEs that I came was just, Hey, y’all, the world is a little different after COVID people got a little bit different expectations about things.
And one of the things I’m seeing in a lot of spaces in LinkedIn and on different CLEs are jurors. Don’t really care as much as you think they do. And most of them are even more angry now about being called to jury service than before. And I’ve seen that. And so it’s just, Ooh, don’t you want to know? It’s a simple question.
Hey, if you got called down the courthouse and this is something you’d listen to. Would it be a waste of your time? Yes. How come? Like, so even just having that, how do I pique their interests? Like, how do I get them not emotionally invested? Cause you can, or sometimes you can just [00:21:00] depend on what it is, but just knowing that, okay, like that funky thing or that little bitty piece, or that’s what annoys them or get rid of that.
Even if you just learned one thing, like it’s, I guarantee you, it’s going to be something that you would have done at trial. And you would have pissed somebody off and you just and you never would have known and that’s sometimes the kickers. I don’t know what happened. I’m like, oh boy, you always want to know so you can fix it for later.
Always helpful. I think naturally I’m totally biased though, because that’s what I do is focus groups.
Hillary Carls: No, but it is. It really is. Especially the cause of civil litigation right now. If you’re not If you’re investing anything in your case, you really need to prioritize a focus group and the investment as well, because it’s, it’s good money after bad, if you don’t do it really.
And it’s the whole piece of the puzzle, two things that you were just saying. And one, Keith Miknik, I’m going to say his last name wrong. I apologize. I never get last names right. But I was just listening to him being [00:22:00] interviewed on another podcast and he, you were talking about the fatal flaw and it was, he just, This is like a focus group.
Somebody says something and it just like keys you in, but he was talking about it’s always earlier than you think it is and it’s farther back in time. And it just triggered all these cases I have that grounded them in the moment that we really had. And it was like, yes. And it was like these light bulb moments.
And that’s what the hope you get from this kind of education and these things and the whole deal. Um, I’m curious, too, what you have found in all the focus groups that you do, because in a couple of these cases that we’ve done, I’ve used them, I’ve tried to get the mediator or the settlement master to watch it as well, or talk about it, because they were to get some feedback.
I was like, really? Because we’re just a bunch of lawyers trying to guess this. And I’ll just be frank, none of the mediators talk onto it and they always clue me and tell me they’re not interested. And do you, have you heard of anyone successfully doing that?
Elizabeth Larrick: I [00:23:00] will tell you that I have not had, I will just say from my personal experience, not had great experience, but what I have learned is a lot of it is in the setup. Meaning like I have to start planting that seed with them when we set mediation that this is something that. If we’re going to, you’re going to have to watch it.
And again, people are like, well, that sounds like a condition. I’m like, it is a condition, but the other thing that I always hear or that I’ve heard from mediators, and I think John Rubin is local mediator here. And you just throw it at us. You just throw it at them and they’re not prepared. They’re it’s all over the place.
So it’s a, I think a lot of it is in the setup and. I think also, I, let’s just say from my experience, I didn’t tell them that I did it. I created a PowerPoint and then that was my opening, right? And I know that you guys don’t do, Montana doesn’t do a lot of openings, right? [00:24:00]
Hillary Carls: It depends on the judge or the circumstance, but sure.
Yeah.
Elizabeth Larrick: Okay. And some people are getting away from here in Texas. And that recent mediator we had on here was like, stop doing away with that. Do the openings. Like, even if it’s just 10 minutes, because this is that shot to talk, you know, that they like it. Cause they want to talk to your client. You like it.
Cause you want to talk to the decision makers. And so I did that. I had an opening and I made this soul crushing PowerPoint. This was very early on. Didn’t tell anyone I was going to do that. I just. There was no way we were settling it
Hillary Carls: after you’re talking about openings and mediation. We don’t do that.
Sorry. I thought you were talking about trial and
Elizabeth Larrick: mediation and with this really bold, I would say, and of course crushed any possibility of settlement, which we needed to settle the case. But has it worked before you? Is
Hillary Carls: it? Do you think that’s an effective? I I guess step in your guys mediation process, or can it
Elizabeth Larrick: be?
It can be. I think it 100 percent can be. I think you got to get the mediator on [00:25:00] board and you got to do the warmups and the, some of the things that I think are difficult. And I’ll just say, Texas, we got a lot of lawyers. We got a lot of mediators. Montana, a little smaller crowd, a little smaller pond, sometimes maybe harder to convince your mediators.
But I was like, from what I’ve heard and what I understand is you got to warm it up early and you got to really say this is five minutes and if you don’t like, here’s all the information I can give you. Here’s the non disclosures, here’s the names, here’s where they live. It’s not my voice. And I think if you sometimes.
And someone’s going to hear this podcast and be like, that’s not how you do it. There are lots of ways to do it, but I’m just telling you from my experience, I didn’t warm anybody up and not warming people up and getting them set up for that. And just telling you can even tell the other side, Hey, we were running focus groups and this is what we found.
And I will just tell you, I’ve done it by ambush. And that never works. [00:26:00] I did. I’m thinking of another case I did by ambush, Oh, whoopsies don’t do it by ambush because they’re not expecting it. So I think it’s all in the warmup and I think it’s also the way I’ve seen it uses it’s you show me yours. I’ll show you mine.
Hillary Carls: So that’s interesting. So when now I’m curious on this whole mediation opening and ambush idea, because you’re right, because it’s getting back to your audience. You want your audience to respond positively to what you’re suggesting and stuff. And it ambush puts up our defenses and all that. When you do, like, an opening and mediation, is the defense also watching it?
Is it mediator and defense is watching your I think, see, I think that’s actually a really interesting good idea, because you want cases get settled when both parties are a little bit nervous about what’s going to happen, and I think it’s a I could see how under ambush you get super defensive and guard up.
However, if you prepped it exactly what you’re saying and all of it, it could be really effective to be like, want to have an honest conversation [00:27:00] about resolving this case, see my best day. Here it is.
Elizabeth Larrick: That’s right. In the most effective, and again, I, Cause I don’t have to mediate anymore, but most people that I am talking to, and we’re doing focus groups, we’re doing that, unfortunately, like it’s, we got multiple mediation situations on these larger cases.
So you’re just buckle up buttercup. Like we, but that being said, like having that, always having an expectation and knowing what you’re working for and where you’re going and what the issues are. And then just knowing I, you think this is an issue for me. I am not afraid. Why, why I’m not afraid of that.
And it’s almost having that level of preparation. Sometimes I think that scares them more because you are doing the work. You’ve got the visual aids you’ve got. And so I always. When I hear people say, we’re not, once we get past mediation, then we’ll do ABCD. And I’m like, you’re just too late. Like you should [00:28:00] be doing all of those things and we don’t want to spend it.
And then mediation, you may get more value. There’s value in doing all of these things. It’s not like it’s going to go by the wayside or be lost.
Hillary Carls: It’s a season of mediations. It seems. So I feel like I’m a mediation all the time. And you just described so many experiences. It’s, it can be such a hit or miss experience in terms of, and I can’t, yeah.
I’m constantly thinking because of course our clients want to settle their cases. I do, I agree exactly with what you’re talking about is our best card forward and trying to leverage the best moment for them to settle their cases. We’re going to trial. You’re afraid of me. I’m prepped. I’m ready to go.
Here we go. And all this stuff. And in the last couple of weeks, I’ve probably mediated, I don’t know, four or five cases and I’ve had the spectrum of experiences. One case, they knew I was prepped and ready to go, but it was really, the parties just came to the table and we had the right kind of facts to make them nervous early on.
And I had this other one, we’re on the [00:29:00] verge of trial and they’re, everyone’s just calling each other’s bluff. And I know the defense didn’t come to the table with this at all because. They think something that I’m not afraid of at all is undermining the case. And I, so anyhow, getting back to the original question about like focus groups and like mediations.
And now my very, I’m very interested in openings for mediations because I tried to actually do it in this case where they basically told me to go fly a kite. And I was like, wow, they just couldn’t hear
Elizabeth Larrick: it, but I probably didn’t prep it right. When you’re asking people to do something that they haven’t done.
And you’re asking people, that’s not how it’s done. That’s not true. In many other states, we have, there are openings. In mediation, it’s just one of those things sometimes where you’re just like, I can’t come in good faith unless I know you’re actually going to have a space for me and a space and space open for you too.
So it’s sometimes I feel like, because here, especially most counties in Texas, especially where we are, where [00:30:00] I am, like it’s mandatory, you don’t have a choice. So it doesn’t matter whether you come with a dollar or four. 5 million, like you got to do it. And a lot of you just, you’re jumping through a hoop and it’s, we just wasted.
And so I know a lot of colleagues who just basically say, Hey, I filed a motion that says we don’t need to go to mediation. It’s a waste of time, waste of money. And then if the defense, no, we got to do it. You got to go in front of the judge to argue about it. But it’s such a, kind of like a hoop you jump through, which is frustrating.
Hillary Carls: And so. I agree it on all I go up and down on mediation so much I there’s bright moments and bright lights where it’s really effective tool that I’m grateful for my clients were able to use, but there’s a lot of way mediation can be a soul crushing experience, which is maybe that’s why it’s probably that’s what I don’t like about it for plaintiffs is when it feels like The process is to tell them all the defenses in a way they hear defenses in [00:31:00] a different way than we do and that it beats Them up over a day to try to get them to like minimize the value that they see or whatever But it’s a human experience.
Of course, that’s we do it on both sides arguing defenses and strengths and all the other things But I would like to I know mediations do work and all the same with my take most state courts Most of Montana State court orders it. Federal court, you’ll probably get order to it. I dunno, but it’s not as mandatory.
But it is. It’s a hard,
Elizabeth Larrick: it’s, it’s become, it didn’t always be, it wasn’t always this way. It wasn’t always where it’s just the word, but it, it is a struggle. And I think a lot of people, there are a lot of great books. There’s a couple really good books out there about it. There’s a couple good classes about it, but.
Yeah, sometimes it’s just a slog and it’s just like, but I love, here’s what I love to do about with mediation is I love to spend, even though Texas is a big state, we got a lot of mediators, we do a lot of the same mediators. So I will prepare my client for the exact speech they’re going to get with [00:32:00] the particular mediator and exactly what they’re going to say.
And the media leaves the room, the client’s like, Oh, that’s exactly what you said was going to happen. I was like, I know, isn’t it weird? And like, so they’re not like, They’re mind blown. Like that’s actually going to happen. Cause they don’t believe me initially. I’m like, yeah, they’re going to come in here and tell you that your case stinks, that you weren’t hurt.
Your bills. No, we were not going to pay the whole bill. It’s just, which they’re like, what do you mean most? And that’s what I love about focus groups. We talk about reducing bills or what do you mean reduce the bill? Like it’s the bill, like, like all of a sudden the hospital is taking a discount, but that’s my, one of my favorite things to do with mediation is just listen, this is what we’re going to do.
It’s what we’re not going to do. We have a very kind of, it’s not as in depth as depo prep, but I spend quite a bit of time doing the mediation prep, just to make sure, like you said, we don’t have the air come out of the balloon and fall out.
Hillary Carls: Cause the longer you do this, you learn that lawyers think about things.[00:33:00]
Not the same way that other people in day to day life think about things. And so I become more like calloused or things don’t shock me as much of the, whatever it might be. And again, getting back to preparing your audience, when you’re preparing your client for mediation, like the expectations or what they’ll hear and like the processes and stuff and it, I do give up because I obviously I’ve in the last couple of weeks I’ve been doing quite a few mediations and it is the same intro because that is what the, that the client needs to hear on the whole thing.
I do wish defendants or insurance companies would understand that they also could Approach it in a way that maybe left the plaintiff feeling a little bit more respected, they’d probably be more effective, right? Which is like vinegar.
Elizabeth Larrick: Hands down. That’s why I’m just like, I’m not sure how you guys are missing the mark here.
All my focus groups, if they would just take responsibility and say that, yeah, they caused the wreck. What are we doing here? I’m just like, those are the scariest cases, right? Where the defendant’s really nice and [00:34:00] says, yep, I totally crashed in the back of them. But that’s, it’s, here we are talking about mediation tangent.
Sorry, I think we do mediation focus groups and stuff like that, but I just. I think again, it just really goes back to helping you set expectations. Focus groups do, especially before I go to mediation and getting that outside perspective. Cause you know what the defense perspective is. You know what the insurance carrier’s perspective is.
And it’s like, how do I get them to look at this other perspective? Like you’re ignoring this. I know you don’t run folks groups. I know you think that this is a joke that I planted all these people, but I’ll show you the bad stuff too. Like you want to see the bad stuff. I’ll show you the bad stuff, but.
It’s a conundrum. And again, I think you nailed it. If the process was just a little bit more respectful, then I think we’d get a little bit farther with mediation and don’t get me wrong. There’s some great mediators who are, who do the process beautifully. And when the other lawyer recommends that person, you’re like, Oh, okay.
Like [00:35:00] now we’re serious because this is a good mediator. And other times you mediate, you’re just like,
Hillary Carls: there’s nothing better than an effective mediator. And there’s just some that are really master that and do a good job, really do a good job. No, they’re great. And it’s actually interesting. One of the most effective mediators, I think in Montana right now, I’ve.
I have this one defense counsel who refuses to mediate with him. And I couldn’t believe it, quite frankly, because he’s an unbelievably respected attorney. And I was like, huh, that’s because he gets cases done. You pay more than you, you are, whatever it might be. But it It’s telling on that for sure. So we’re in the dispute resolution process, right?
And ultimately the jury trials where it all, or a judge trial, whatever it is, the final way we do that. But mediations, depositions, they’re pre filing. These are all moments that we have the opportunity to resolve whatever our client’s dispute is.
Elizabeth Larrick: Yeah. [00:36:00]
Hillary Carls: It’s a slog.
Elizabeth Larrick: It’s a slog. It’s a total slog. I just, I’m so like, I would still be like, thank you for being a trial lawyer because it’s a slog.
Like litigation, sometimes it’s a battleground. Thank you so much for coming on. And I’m so glad we got to have a tangent talking about mediation because I know a lot of people want to use focus groups and mediation and I wish I had a better, I wish I had a better answer. And you know what? I’m going to find a better answer because I know I’m thinking, I got a lawyer right here in my mind.
Who uses mediation, uh, who uses focus groups at mediation, and I’m going to get him on here and he’s going to tell us how to do it. Oh, I love
Hillary Carls: that. That’s great. Cause there is, there’s really effective ways to use trial tools to continue to advance our client’s goals. So thanks for going on the tangent with me.
Elizabeth Larrick: You’re welcome. It’s always enjoyable, Hillary, to talk with you. And I’m always. Again, just like you’re doing good work. Please keep up, keep up the work in this log.
Hillary Carls: Absolutely. Thank many. Thanks for having me on. It’s been really fun. Thanks so much. Awesome. Thanks so
Elizabeth Larrick: much. All right. If you all [00:37:00] enjoyed this podcast, which I hope that you did, please review it on your favorite podcast platform and until next time, thank you.
