Five days before trial, a team chose to play defense witness deposition clips, instead of calling the witnesses live.
Instinct tells us, training tells us: do it live. Live is better. Live is more persuasive. Live is much more catchy for cross exam. Video puts people to sleep.
However, what I walk you through today really boils this down to a primacy question, or in other words, first impressions. In the case above, focus group data showed that clips were having far more impact in setting the stage, and locking in that first impression. So the team pivoted, and the trial took on an entirely new phase.
Playing short clips produced visible juror annoyance, and later live testimony only confirmed the negative impression, contributing to a verdict of over $7 million.
The choice between clips and live testimony should be data-driven. It could mean using either clips or live witnesses, but the principle is this: don’t just assume that live is better.
If you’ve got a trial coming up and a decision you’re wrestling with, and you want to test it out to find the first impression, book a free call with me:
How primacy affects jurors’ first impressions significantly.
Why live witnesses are traditionally seen as more persuasive.
Understanding juror perception is key to trial success, and focus groups help guide that understanding.
Testing witness credibility through focus groups is essential.
Why the first impression of a witness is hard to change once set.
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
AI has hit the mainstream, and not just in everyday life, but in trial law and legal prep.
The days of startups and experimental software have quickly evolved to comprehensive, through and reliable AI-based programs, used by countless law firms and lawyers every day.
As a result, it feels like we are racing to keep up. To jump on the bandwagon before it’s too late, yet making sure you’re using AI in accurate, and ethical, ways.
Matthew Fornaro is a South Florida business litigator, with over 20 years of courtroom experience and a long track record of representing small businesses, entrepreneurs and startups in commercial litigation, contract disputes and arbitration. But what brings him to Trial Lawyer Prep today is his insight on using AI in trial prep and the courtroom.
Matthew has dedicated his time to learning different AI programs, applying them to different types of cases, and analysing the results. He is thus well-placed to detail with us specific platforms and strategies for using AI, that enhance trial outcomes.
AI serves as a collaborative tool, not a replacement for human judgment. But knowing how to integrate it into your practice can pay huge dividends in time, accuracy, the effectiveness of response and rebuttal, and ultimately: better results for you and your clients.
In this episode, we cover:
The various aspects of AI application, including document review, jury instructions, and cross-examination
AI helps lawyers distil complex cases into understandable narratives
Using AI responsibly requires fact-checking and ethical considerations
How to make sure you are choosing software that is conceptually proven, not just theoretical (looks good on paper)
How AI can democratize access to legal resources for smaller firms.
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Running a good focus group is really a lot like conducting a good trial: Fundamentally, it’s about understanding people.
And you don’t need a psychology degree to do so. If you have an innate understanding for human behavior, relationships, biases and different means of communication, then you already have the instinct to make the most of your focus groups.
Today’s episode breaks down three key steps to be organized and prepared for your next group. Armed with these tools, you can then hit the ground running and really connect with juries and clients.
We cover:
Setting clear goals for focus group sessions
Developing a structured plan to ensure effective listening
Overcoming personal biases in focus group settings
Avoiding common pitfalls like overloading information and lack of organization
Conducting test runs to improve the quality of focus group feedback
Don’t assume that you’re a natural presenter; preparation is key
Make sure you’re listening more than speaking
Seeking help if you’re too biased to run a focus group
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Heading into deposition prep, your clients are typically nervous, anxious, overwhelmed and lacking confidence.
They are most likely in a situation they have never found themselves in before, and undoubtedly the stakes feel very high.
But we need to get them to focus, to remember, to think and answer clearly, and to let go of their fear and uncertainty.
This episodes focuses on three clear, distinct strategies that also help you remember how to get the most out of your clients at this crucial juncture. Clients will feed off of not just your confidence, but your calm demeanor and encouragement.
Elevate your practice with these insights for building a strong foundation in witness preparation. We tap into some fascinating brain science to help us all understand not just what to do, but why our brains, and therefore our emotions, function the way they do.
In this episode, learn how:
Your working memory holds only three to five things at a time.
Fear can block rational thought and memory retention.
Using clear language and expectations supports and empowers clients.
Roadmaps help clients understand their roles in depositions.
Repetition is key to overcoming the forgetting curve.
Role-playing scenarios help your client feel comfortable and confident during deposition.
Links from this episode:
Learn more about Hermann Ebbinghaus’ Forgetting Curve (via growthengineering.co.uk)
You can also watch today’s episode on my YouTube Channel:
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
We’re all busy trial lawyers and specialists, typically juggling multiple cases at once.
Time management and organization is crucial, and we can’t allow ourselves to get overwhelmed, to risk impacting not just the case but our own health and well-being.
It’s worth taking the time to make sure your tasks and workflow are efficient, your calendar flows logically, and your habits are positive and healthy. Even just a few minutes’ pause for retrospection and meditation can make a huge difference.
And I’ve been right in the thick of it lately myself! As a trial consultant, I was getting two separate trials off the ground here recently, and so was devoting a lot of time to helping those trials get their opening statements, hit lists, and order of proof ready.
This week’s episode was one of the most popular of 2025, and features lawyer coach Dina Cataldo. Dina talks to us about the unique challenges lawyers face in managing their time effectively, the importance of mindset in overcoming overwhelm, and practical strategies for creating healthy routines.
Dina reveals methods like “Sunday planning,” and setting time limits for tasks, to streamline workflow and improve efficiency.
And we talk about the unique challenges female attorneys face, balancing demanding careers with personal responsibilities, and provide strategies to enhance daily productivity and instill confidence.
In this episode, learn how:
Lawyers need to treat themselves as humans, not robots. Implementing time management is key for anyone in the legal field.
Self-awareness is at the core of managing time and reducing stress.
Healthy habits, including nutrition, impact overall performance and help you get better results.
Creating a structured plan can alleviate trial-related stress.
You can avoid getting caught underestimating the time needed for tasks. Address internal resistance and developing a healthy relationship with time.
We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
We know we live in an attention-deficit age, where attention spans and concentration levels are lower than ever.
It’s not just about social media though. These trends carry forward into every day life, including in the court room. We simply can’t assume that just because the jurors are there and present, that they will necessarily be paying as close attention as we expect. It’s human nature to start to drift away and think about something else when you’re not otherwise captured by a subject, and there is fascinating brain science that demonstrates why!
So today we look at ways to maximize your impact, grab hold of the narrative, choose the most effective facts and frame your arguments in a way that keeps jurors engaged and wanting more.
Even the judge will notice this approach! And will appreciate how you started with the hook.
In fact, you could say that regardless of the impact of social media doom-scrolling, understanding these persuasion techniques has been a winning strategy in courtrooms, and beyond, for generations.
So, get to the point, cut the small talk, lean into the hook and the best facts, and remember who you’re talking to: tailor your presentation so that it resonates with a juror’s brain.
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Elizabeth Larrick (00:00.398) Have you forgiven a presentation and then saw people be completely confused by things that you said? Or maybe you gave a statement in a hearing and then the judge completely misread what you said? Well, it’s totally possible that you’re using persuasion the wrong way.
Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries. Gather strategies to help you with persuasion and learn how to use focus groups along the way. I’m your host, Elizabeth Larrick, and in this episode, we’re gonna give some hard truths about how persuasion can escape trial lawyers. All right, I deal with this subject nearly every day with my focus groups and helping my lawyers prepare to give the best possible presentations.
Well, what I have found is there are three very simple ways that lawyers can confuse and get persuasion kind of messed up. So I want to talk about those today. And I want to help you do a better job. And these are three very simple things that we can consciously look at and change going forward. Now
You will see they are very simple, but they are also things that we can do in our preparation to change and make our presentations more persuasive. And they are based on brain science. Okay, so it’s not this magic that we’re gonna slip in there that you’ve never heard of. Okay. These are things that work with our brains. They come from lots of different areas of brain science, but my experience comes from doing focus groups and mock jury’s for over 10 years.
And so these are things that I help lawyers with when we prepare for focus groups. So every month I do focus groups from one hour all the way to three hours, but we always work and prepare with our lawyers for their presentations to be as persuasive as possible or to avoid the pitfalls of confusion. And so that’s what we’re gonna talk about here today, are three very simple things that we do as lawyers that can confuse our audience.
Elizabeth Larrick (02:19.99) Lead them down the wrong path or get them to completely turn off before we even get to the juicy stuff we need them to hear. So let’s get right on top of it. Our lawyer brains are not juror brains. We have been trained a very different way, and then we take that training and we work with it for years. And so we have patterns of thought that stick with us all the time and they work for us because.
That’s what we do all day is we try to take the facts and apply it to the law. And so our patterns of thought are very simple. And we sometimes assume that everyone around us has the same thought pattern. And that’s where it can get a little bit confusing or crossways. So our lawyer brain, what does that really actually mean? Well, that means most of the time our brains tell us I need to give all the facts to prove my case. I need to really explain.
All of these things that are going on for you to really understand what happened. And also, I assume you think like I do. Now I try to simplify all these things, which means number one, we love to fact it up. We just pile facts and facts and facts and facts. We investigate more to bring more facts and we just inundate our audiences with facts. Number two, we start off on the wrong foot.
I am not really sure where this actually begins, but pretty much every lawyer that I’ve dealt with has some training somewhere. And again, trust me, I was that person too, where we’re told how we start is that we talk about ourselves. All right. So we’re gonna talk about starting off on the wrong foot. And the last thing is we forget framework. People need framework. They need an outline. They need structure when we’re giving them presentations, a little something we typically forget.
So let’s talk about very specifically how does this show up? Well, our first topic facting it up. So I feel like when we have opening statements, we tend to just fill them with facts. And we bombard our brain. So what happens inside? We can only hold a few things in our short term memory, right? I believe it used to be five to seven. I think it’s more like three. And so we overwhelm the brain with facts.
Elizabeth Larrick (04:44.366) And then jurors lose it. They can’t hold them all in our short-term memory, so they get lost. And they don’t actually know the priority either. So they don’t know which ones are very important, which ones are not. So they have to pick their own. And typically they’re not going to pick the same ones as you. And so we really want to do our job in limiting and prioritizing.
So that our audience doesn’t have to do it. They know what our priority is, and we’re not overwhelming them with a set of facts. I see this happen pretty often in focus groups where we try to do either an opening statement or we try to do just a neutral narrative of the case. And facts upon facts upon facts upon facts. And then sometimes they just get repeated again in the same fashion.
And again, that’s sometimes where we think we’re repeating is persuasive, but not if it’s just a bunch of facts. So that’s where one of the best things we can do to fix this habit is to look at our presentation. Let’s just take an opening. Look at our opening and count the number of facts that we have in there. And then realize do they need all these facts in opening? Now I’m not saying remove them and don’t let them bring them in the case. You obviously think they’re important.
You’re gonna have to prioritize those things, right? So you wanna limit your facts that obviously gives priority, but then you want to rank them and deliver them in a way that also prioritizes them, okay? For the attention span of our audience. Now, you could be doing a hearing, it’s the same thing. You want to look at what your facts are, limit them to the ones that are the most important because you know you’ve already written a brief, you’ve already put it all in there.
Now we’re trying to talk directly to our short term memory of our judge and what’s the most important thing they need to know right now in this moment. By doing that, right, we alleviate our brains. We get we we don’t we don’t cause confusion immediately. So let’s move to number two here, which would be starting on the wrong foot. So this plays into the concept of brain science of primacy, meaning the first thing we say is given priority. It’s it’s given
Elizabeth Larrick (07:01.132) More memory space, it’s more likely to be remembered. And so what happens here is we start off introducing ourselves almost all the time, every time. Hi, thank you so much for being here. My name is Elizabeth Larrick. I represent the plaintiff, Bob Smith. Okay, great. But what have you done now with those first four, five, four seconds? Like you you lose them, right?
What we know so far about how our brains are right now, I would say, is we have eight seconds to grab the attention. And then you have a little, if you get it, then you get a little bit more time, a little more, like a little less than 40 seconds then to then get the engagement that you need to keep the attention. But if we’re using our the first seconds out of our mouths to talk about who I am, who my client is, you’re you’re gonna get to that. They’re already gonna know that. You don’t need to reintrodu introduce yourself, right? So that
Very quick eight seconds, we don’t want to start off on the wrong foot. We don’t want to lose our audience. We want to use that primacy for the best that we possibly can. So there’s a camp obviously out there that says start with the hook, an open statement. Start with the statistic. Start with the this is a simple case about boom boom boom, right? All of those are keying in on the
Persuasion that you gather with the first thing that you say. So primacy is so important. But we have to be very conscious about fixing this. Okay, so the fix it here on getting off on the wrong foot is because we are so ingrained, literally, we have to write it out, and either you need to read it or you need to memorize it so that you don’t slip back into that old habit of my name is Elizabeth, I represent the plane of Bob Smith.
Thank you so much for being here. My name is like though, but get to the point, okay? And so that’s where, you know, some people think, well, a little small talk is helpful. Think about a hearing, Elizabeth. That may I promise you, that judge is gonna really appreciate that the first thing that you said was the hook. The most important thing for them to hear. Right. So let’s not lose that beautiful gem of attention that we get in that first eight seconds and that concept of primacy, okay?
Elizabeth Larrick (09:28.086) Let’s talk about setting up a virtual focus group for you. I run several every single month. And you can click the link in the show notes for a free consultation. Now, let’s move into our third one here. This is going to be a pretty nice and short episode for you, which is we forget framework. Again, this falls back into we have our lawyer brains, our patterns of thought, we do them every day. We take the intake, we put it to law, we apply it.
And it makes sense for us, but it does not make any sense for regular folks. So we have made it in our brains very easy to find connections with fact and law. But regular people do not. This is where you have to help them make the connections. This is where our framework is so important because brains love patterns. They love to find patterns.
They love to see patterns that makes it happy. this is easy. I understand this. And so that’s why when you see a lot of opening statement frameworks or even hearing, like having a hearing, you have there’s a framework for that argument. It is so important when we talk about jurors that we pick a framework they are familiar with. So there’s a great book by Cliff Atkinson about PowerPoints, and there’s also a great seminar.
put on by Mr. Mark Lanier, where he talks about these frameworks and he picks easy frameworks. It’s the A B C’s, it’s the seasons, fall, winter, spring, summer, right? wait, I that’s a pattern that I know. That wait, okay, good, right? Because when we are starting something, right? We’re starting our opening statement. Yes, we have our eight seconds and our primacy, but we also have curiosity.
We also have anticipation that comes with that. And when you begin, we want to give them a framework. I’m gonna understand this. I’m gonna, okay, great. But the other thing is they can see the connections that their brains need to be making with facts and law without you hitting, you know, it’s subtle, right? So let me just step back here and give you a good example.
Elizabeth Larrick (11:54.382) So rules of the road, Rick Freeman, rules of the road, are great. But other things are not as easy to grasp as rules of the road. People know we drive, great, rules of the road. you’re speeding, that’s a violation. That’s simple, right? We can make that connection quickly. But other cases are a little more complicated. And so when you create these rules, safety rules, company rules, right? When you create rules that go with the case.
You need to help them make the connection with the violation. So that’s where you’ll have the rule and then the checklist for the rule that says, okay, trucking companies must hire qualified drivers. Okay, great. Oop, I like this rule, but now I I really am lost after that. Okay. Because again, they don’t know what all the the specific rules are. So then here’s the checklist. So how does a company hire what’s the checklist that they use?
Okay, well, number one would be: does the driver have a valid commercial driver’s license? Yes or no? whoa, that’s great. I got that. Check the box. So that’s where we’re making a simple framework, a checklist that helps them make the connections. So many times, what I see in focus groups, and what I see even in trial, is lawyers will bombard their audience.
with a lot of information and no framework. And when you can provide a very structured framework, here’s what you’re going to hear next. Here’s the checklist for this. Now, what does that allow you to do? You can then use the checklist with every witness. You can use it again in closing, right? So then we’re repeating our framework. Okay, it’s familiar to our brains. So it’s not unusual. We’re just now taking other facts and putting it and making those connections
Because we will assume as lawyers that they are making the connections and they’re not. If you’ve ever gone to trial and you lost, you know they didn’t make the connection. Okay. So we want to use frameworks. We want to work with the brain that loves these patterns and these familiar frameworks. So let’s back up and let’s talk again. We have talked about three things that we do as lawyers with our lawyers’ brains that can completely get
Elizabeth Larrick (14:14.41) Our audience on the wrong track and that are just the opposite of persuasion. And number one is that we fact it up. We bombard with all the possible facts. All the facts to prove are one point, or all our facts to prove are three or four or five points, right? Limit it. Prioritize it. Keep it simple for them, right? You’re gonna give them the rest of it in trial. Don’t worry. Our second one is starting on the wrong foot, right? Where we lose our audiences with an
Eight seconds because we are talking about ourselves. We’re saying things that make no difference to the case, right? That’s why we start with a hook. That’s why we start with this is a simple case about blah blah blah. Or you start with a stat, right? That’s why primacy is so important when we are lawyers and we’re talking to a new audience, or even if you’re talking with a judge, right? Maybe a familiar audience. Don’t lose out on that very first thing. Start off on the right foot.
And lastly, we forget framework. We forget that regular people need help making the connections that we make so easily in our brains. And how do we do this overall? And again, it’s making the time right to prepare, go back and say, okay, where could I be losing people? Do I have a framework? How am I starting? Okay, let me not get off on the wrong foot. Let me write this out and read it verbatim. And then
Obviously, let me limit the facts here to the most important ones and then prioritize them for my audience because they won’t know. They won’t know how to prioritize it. I’ll help them out and do it for them. All right. I hope that this episode was helpful because listen, it’s the hard truth to know that sometimes our brains are working against us, but simple ways to fix it. Thank you so much for listening to Trial Lawyer Prep. Until next time, keep preparing to win.
You’re not going to be one of those lawyers that only starts thinking about a focus group 30 days before the trial, right?
To make the most of the power and impact of focus groups, work backwards through this three-phase roadmap that helps you plan and prepare.
You will see, and feel, a remarkable difference in your confidence, arguments and ultimately, your case.
Why three phases?
This structure taps into the various stages of trial prep, and gives you focus groups that are appropriate and effective for the moment your case is in.
Whether it’s in Phase 1 (Discovery), Phase 2 (Settlement/Mediation), or Phase 3 (Trial), focus groups reflect juror attitudes, bias and weakness detection, theme and damages testing, witness credibility feedback, and help lawyers make better settlement-versus-trial decisions.
Work with me to fine-tune this strategy and ensure you’re getting the most out of your focus groups!
Mediation focus groups help assess case value and strategy.
Running focus groups early can provide critical insights.
Each focus group builds on the previous one for better results.
Timing is key; don’t wait until the last minute.
Lawyers should commit to at least one focus group per case.
I also talk in today’s episode about a common misconception we have on how decisions are made for mediation. There is a dedicated episode on this topic, Episode 142, which you can find here:
We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:
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The jury selection process is changing and evolving. Are you willing to be bold and confront jury selection challenges head-on?
This was a popular and very actionable conversation that I had with Sharif Gray last year, where we talked about what could be broken with your jury selection.
We looked at assumptions and stereotypes that are often made, and I think it’s a question worth returning to as we get deeper into 2026, when you may have trials coming up on the horizon.
It could be very useful to consider these suggestions and tips when you’re making important decisions on selecting, or deselecting, your jury members.
Sharif turns the tables on many standard approaches and perspectives, and suggests that instead, we take potential concerns and weaknesses and turn them to our advantage.
In so doing, you will demonstrate credibility, authenticity, trust and respect, for the potential jurors, the judge and even the defence.
“We’re there for fairness. So I’m looking for jurors who are going to do right by my client, but I’m also looking for jurors who are going to do right by the defense. Because it’s not justice if you’re going to close your eyes and just vote for my side every day of the week.” – Sharif Gray.
Sharif is a trial lawyer based in Richmond, Virginia, and the host of the Courtroom Stories and Tactics podcast, where he and his guests do deep dives on topics like voir dire, jury selection, the role of the legal system, and one of my favorites: focus groups! I was honored to be a guest on Sharif’s show earlier this year.
In this episode, you will learn about:
Challenges in Traditional Jury Selection
Building Credibility with the Jury
Starting Jury Selection Right
Effective Communication Techniques
Building Credibility in the Courtroom
Handling Juror Bias and Concerns
Follow and Review:
We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Are you confident in knowing the difference between trial strategy and trial tactics?
Because ultimately the question is, does your jury understand what you’re doing?
Today, we’re looking at how to identify a clear strategy as the overarching theme that guides the trial, followed by the tactics to achieve that strategy.
There’s a risk of confusing the two, including wasted time and causing confusion for jurors. The best strategies combine preparation and flexibility when you’re in the courtroom.
And remember, focus groups can test strategies early in the trial preparation process, showing you where to refine those strategies early.
In this episode:
Confusing strategy and tactics can lead to juror confusion.
Tactics should be flexible and adaptable during trial.
Jurors expect consistency in case presentation.
Wasting time on tactics without a clear theme can cost cases.
Focus groups can help test and refine trial strategies early.
You can also watch this episode on my YouTube Channel:
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries, gather up strategies to be persuasive, and how to use focus groups along the way. I’m your host, Elizabeth Larrick. In this episode, we’re going to talk about trial strategy versus trial tactics and how this can often get confused. So let’s straighten it out so that you can be on the right path.
Here’s the thing, trial lawyers mix up often and frequently, and it’s not really our fault. We’re constantly bombarded with new CLEs, new tactics, a new book, and here’s the thing. We get these things mixed up because there are lots of new fangled tactics that are thrown out often at new CLEs or away somebody did their trial. We try to pick all these things up.
and put them together, which can cause some disorganization of our presentation. And that’s how we can end up losing cases. I’ve seen it in focus groups, I’ve seen it in the courtroom. And I can immediately tell when people are throwing any kind of tactic against the wall without an overarching strategy. So it gets backwards. And of course it confuses your audience, whether that’s a jury or a judge.
So today we’re gonna talk about the differences between trial strategy and trial tactics. Not just what they are, because I think most of us understand what they are, but when you need them, how they work together, and what happens when you get them backwards. I promise you your focus groups will reveal confusion faster than anything else, but you may be missing that this is a tadic
versus strategy problem versus other kind of problems with confusion. So we’ll talk about that as well. So let’s dive in to the very first point, which is strategy sets direction and tactics executed. Tactics gets you there. So the simplest way I’ve found to understand or make clear
Elizabeth Larrick (02:16.898) what trial strategy is versus tactics is I like to think of strategy as your destination. Strategy is our 30,000 foot view of where we need to get. And then your tactics are the very specific little pieces that get you there, right? So the little jumps here and there that can ultimately get you to your overarching destination. So again, strategy is your
big picture, our overarching theme, right? Our story that we are trying to tell, our two to three very critical points that the jury needs to come down on our side in order to get the V. But tactics are really about that specific cross-exam question, right? The metaphors that you’re using in opening statement, the very specific visual aids, and even down to the colors that you’re using, right? Those are tactics.
So let’s talk about a very common trial strategy that I hear, but is also very challenging to actually prove, which is part of the thing. If you’re gonna choose the strategy of corporate greed, right? Profits over people, profits over safety. That’s a total strategy and this is your destination, right? This is where you want the jury to be ending up and thinking. However, it’s our tactics that get us there to be able to
So again, thinking through our corporate documents, our discussions you may have in deposition, right? And then how you’re putting that together for visuals, how you’re putting that together for cross exam, what’s the order of witnesses that gets you to that ultimate destination of corporate greed, profits over safety. Your strategy is really kind of an overarching why. Now I have seen,
organization tactics that are helpful for memory, that are helpful for getting people ultimately to the jury to the verdict that you want. If we’re thinking about those kinds of things, that’s like when we’re having an organizational way, like the ABCs or one, two, threes presentation that goes through in a way where your memory is going to pick it up.
Elizabeth Larrick (04:41.72) Those are very helpful things, but those can also end up just being tactics for just throwing several different things and not, again, having this overarching strategy. Let me give you an example. So if your trial strategy is to show the jury, the company, the defendant knew about the danger but did nothing, right? That’s our overarching strategy. Now we’re gonna look at our tactics. So.
who’s gonna be our first witness? Well, that would be a company, corporate representative, or maybe it’s the safety director. And then it’s the very specific documents that you’re going to use in the order of those documents. Again, the order of cross exam, the style, the questions of cross exam. Each of those tactics is gonna serve your strategy. And so here’s the thing, you can have a lot of tactics without strategy,
and it’s going to leave jurors not putting the whole thing together. Many times we try to lead the horse to water and hopefully they’ll drink, but you’ve got to actually put it all together for them with our trial strategy. So I’ve definitely seen focus groups where there are lots of great tactics with, we’ve got opening statements and maybe some videos of cross-exam, but without
the full direction of you giving that strategy, then generally jurors are pretty well lost. So we wanna make sure that we had these two things together. So let’s talk about then point number two, which is when do we think about these things and when do we start planning for them? Now, most of the time we wanna be thinking about strategy from the very beginning, even with our basic bone facts.
we can be thinking about our strategy because most of the time our tactics can’t really be formulated until we’re getting into that trial prep phase. So our strategy comes early thinking in discovery so that we know the documents that we’re aiming for to prove that they put safety over people. We’re looking for those documents that show that they
Elizabeth Larrick (07:05.154) chose to ignore the danger or made a different decision, maybe that was cheaper. Those are the things we wanna be looking and thinking about discovery, our depositions, questions. Those are things that are really gonna feed into our overall strategy. And a great thing you can do is focus group early to see if your working strategy is working. So, and we talk about this often on the podcast.
but using focus groups early to make sure that we’re making good strategic choices. Don’t forget, that is something that I can help you with. If you are curious about how to test your strategy early in a case, you can book a free call with me. The link will be in the show notes. What we want to be doing in these early focus groups is just making sure the theme is resonating, right? Or a lot of times what I work with lawyers on is
This is my theme, I feel really good about it, but what is it missing? And when we do focus groups early enough and you get the feedback back from focus groups, you can actually go get it, right? Maybe it’s more documents, maybe it’s another witness. Sometimes it’s an expert, not always, most of the time they would rather see a document or a different witness versus an expert, but sometimes we have a lack of education.
and you need that education to make your theme work. So always be keeping that in mind if you’re missing an education piece there. So then after you do your focus groups, then you can really look at what worked, what didn’t work, what fell flat, how do we unconfuse people about this? And of course your tactics will come later because once you’ve made it through discovery, you’ve made it through that final mediation, now you have a good grasp on all your evidence.
You know what your theme is, so now it’s about how do you pick the best tactics to put that theme in, but also knowing tactics can change in trial. Witnesses who don’t cooperate, right, how do you then use a different tactic to get what you need to meet that theme? And that’s why tactics are flexible, they’re adaptive, there are many different ones, like I talked about, there’s lots of different ideas. You can do the David Ball opening, can do Sardegna-Lomade opening, right?
Elizabeth Larrick (09:23.04) Some people think the same thing. My point is we hear a lot about tactics. There are lots to choose from, but we need to choose the right ones to meet our trial strategy. Okay, let’s move into our last point here, which is what can it cost you when you confuse the two? Or like we talked about earlier, you do it backwards. You think all about the tactics and you come up with that theme a little later.
So we talked about this just very briefly, which is you can really waste a lot of time and energy and effort on tactics and the jury never get the overarching theme. And then they’re just kind of lost. They may let you score a couple points here and there, but ultimately you’re not gonna win the game and that’s what we need. We need to win the game. So.
you can end up doing a lot of wasted time and focus groups. This is where when folks come to me and they say, well, we’re just, we need to test everything, right? So then they’re like, we want a six hour in-person focus group. And we can totally do that. But a lot of times until you skinny things down and you simplify it and you get it down to these three key points with this six key documents, all right, let’s test that. And that’s why
in almost all of my focus groups, we have extensive planning because while testing everything you maybe think is helpful, not everything comes down to how jurors make their decision, right? They can’t take in everything. It’s almost impossible for our brains. So we wanna make sure we narrow it down to those few things so that you can really have feedback and analysis on those one or two, three key points and then you know,
they stay in or they stay out. Now I can move to the next thing versus thinking, it’s all 30 things. Well, generally not. So we don’t want to waste your time in those focus groups. The other thing that can happen is, again, we talked about inconsistent case presentation. I see this sometimes, unfortunately, where we have teams of lawyers trying cases and they’re not on the same theme. And so they’re using different tactics that can somewhat
Elizabeth Larrick (11:44.642) be a little out of alignment for jurors. The best way I’ve heard this put is from one of my mentors, Don Keenan, who would talk about doing a cross exam that’s like the McCulloch chainsaw where you just like, you just ripping that person up or it’s the paper cuts, right? So when you have a tactic of you’re just gonna rip up this person and just tear them down all the pieces and then you have somebody else that you’re doing paper cuts,
it’s a little bit out of alignment because jurors begin to expect certain things out of the lawyers when they watch it. And when things come a little bit out of sorts, it doesn’t match their expectation like, you know, it actually caused a little bit of discombobulation in their brains. You may think Elizabeth, people are humans, we are more complicated than that. We are really not. mean, at grand scheme of things, our brains like things simple. We’ve talked about that here.
And so when we do these strategies, these tactics, and we’re a little out of pace, it can be very confusing, even if it’s just that simple of a difference in cross-examination. So we wanna have consistent case presentation. Yes, of course we wanna have consistent case presentation for our strategy, but also for the jurors and the thing of what they’re expecting out of you, what they’ve seen, what they expect, okay? We don’t wanna cause people, whoa, hold on a second, right?
We wanna be meeting their expectation that we’ve set an opening which is, I’m gonna teach you, look at me, I’m gonna tell you the truth and the facts and follow me, I’m gonna tell you what’s right. You make your decision about those guys over there on that other table. All right, so we can totally get these things wrong and that is of course the real danger. If you’re just executing tactics without understanding your underlying strategy, things may fall apart and it’s hard then to put it back together.
So if witness doesn’t come across well or a piece of evidence gets excluded or the judge rules against you on something, you may be stuck. And because you’re relying on a tactic rather than your overarching strategy, you can get flustered, not know what to do. And that’s definitely not what we want to happen in the courtroom. We want you to be very clear on your trial strategy and then have tactics that you can adjust on the fly. This is where when I work with lawyers getting ready for trial,
Elizabeth Larrick (14:05.26) we have a witness, we have plan A, B, and C, okay? Because I want you to be prepared, no matter which way they go, right? You are very comfortable, you’re calm, you have a plan for that versus making your brain come up with that plan on the fly. Because that’s what happens in the courtroom. Bullets are flying, you gotta have a couple of different tactics so to make sure you’re always gonna get your theme across. All right, so let’s do a quick,
little recap here, which would be we’ve talked about strategy is your destination and tactics are the way that you get there. Together is how we win. So we always want your trial strategy to be started early and in our discovery phase so that we can be building things along the way. Our tactics come in a little bit later when we are getting ready for trial and we’re having
Several different tactics to meet our strategy and also have a coherent presentation throughout the way. If you confuse these things and you’re just going for tactics, you’re gonna confuse your jury. They may give you a couple points, but ultimately, again, they’re not gonna give you that verdict at the end of the day. Talked about how we can use focus groups to test those things so that you know which way you’re going. And if you’re preparing for trial right now, you want to sit down and say, okay,
Number one, what is my strategy? What is my overarching theme? And then underneath that, what are the tactics I know that can get me there? All right, thank you so much for listening to Trial Lawyer Prep. Until next time, keep prepping to win.
“What part of this story just doesn’t hit you right?”
How would a potential juror answer that question? We’re talking about gut feeling, instinctive reaction: something that’s there, and they’re trying to put their finger on it.
These are very good avenues to explore in focus groups, and can uncover emotional and cognitive responses that you weren’t expecting.
Today’s episode features three questions that are deceptively simple yet powerful in their nuance and framing. Successfully applying them will not only make your case stronger, but help you be much better prepared for what the other side is thinking as well.
In this episode:
Strategic questions can reveal case weaknesses effectively.
There are hidden weaknesses in your case that you may not see.
Asking jurors to explain the case in their own words can uncover confusion.
Emotional responses are crucial in jury decision-making.
Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:www.calendly.com/elizabethlarrick
Are you a lawyer looking to run your own virtual focus groups? I have a free starter kit that can help you get started that includes checklists, questionnaires, confidentiality forms and more!
Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:
Elizabeth Larrick (00:00.746) You think you know your case’s weaknesses. You’ve lived with this file for months, maybe even years. But there are hidden weaknesses even you can’t see. And the right focus group questions will reveal everything.
Welcome to Trial Lawyer Prep, where you learn to better connect with clients and juries, gather persuasive strategies, and learn how to use focus groups in the process. I’m your host, Elizabeth Larrick, and in today’s episode, we’re gonna dive into a direct how-to for your focus groups.
Today, I wanna share three questions that you can use to expose problems you didn’t even know that you had. And these aren’t necessarily obvious questions. In fact, sometimes when lawyers hear them, they’re pretty surprised. But great questions can reveal really great hidden biases in your cases. Now, these are just three questions from hundreds that I have developed over the years of running focus groups.
I pick different questions based on the specific facts that you give me on the problems that you’re trying to solve and what we’re trying to discover as a focus group discussion unfolds. But these are the three that give you a taste of how the right questions can uncover the case weaknesses you didn’t know you had. So if you’re heading to trial or maybe you have that big mediation coming up and wanna make sure you have strategic insight about your case,
Let’s talk about setting up a virtual focus group for you. I run several every single month. And you can click the link in the show notes for a free consultation. All right, let’s dive into these three specific questions you can use. Question number one. If you had to explain this case to a friend who knows nothing about it, what would you say? This question is excellent at trying to get
Elizabeth Larrick (02:08.696) the focus group members to regurgitate your presentation and they take a different frame because they can’t just tell you exactly what you said. Now they’ve got to explain it to someone. So it’s very creative in the sense that we’re getting out of our typical tell me what you think. It also kind of bypasses some legal jargon and gets you out of your own way as a moderator. But really what this is revealing is where is their confusion?
where are their missing steps? Whereas you have created maybe this presentation, you’ve created this opening statement, you feel like it’s got everything they would need, but this question will show you really what they have in their minds because they’re then recreating it, okay? And that’s really what we wanna make sure because that’s how memories are made. Now, let me give you a quick example of this. We often have lawyers that come in and they will practice an opening statement.
and then we will go directly into getting feedback from our focus group. So in these situations, do fairly often hear when I ask this question, focus group members are missing vital pieces of the presentation that’s been given by the lawyers, and then they just fill the holes with things that they never even heard. Or there has definitely been times where I ask this question,
And when I get back is a blank stare because then they actually realize I don’t even know how to describe how the crash happened. I can tell you where it was. I’m pretty sure I can tell you a couple things about the injuries, but I don’t even know how this crash happened. That is a huge problem and definitely something that you want to know. Also, this gives you an idea of some of those facts or assumptions that people make when they just hear some of the facts, but not the whole thing, right?
And again, this is where that regurgitation comes from when they give it back to you. So you can see where that confusion was, find what they’re missing and then be able to reconnect them and figure out ways in that strategic insight session to learn how you can present a little better. So we always wanna know how our case comes off to people. Well, ask them to explain it to someone else. All right, our second question that we have for you today,
Elizabeth Larrick (04:33.742) kind of falls more into the, I would call an emotional category. We always wanna be thinking about how our cases are emotionally hitting people. We’re emotional creatures, we make almost all our decisions that way, that’s what brain science tells us. So in focus groups, we really wanna be asking questions that get to how the participants are feeling, and that’s really hard to get to without sounding like you’re.
pandering or looking for sympathy. this particular question I find very helpful and that is what part of this story just doesn’t hit you right? Maybe it just doesn’t sit with you, right? That’s all it is a very simple question and it’s broad for a reason because we want to gather up anything that may not be sitting right with them, but it doesn’t make it so specific that they
kind of say, well, I’m not really sure because they maybe can’t put their finger on it either. So it gets to our emotions without using the word feeling. A lot of folks, when you ask them, well, how are you feeling about it? Sometimes they don’t know, right? So it’s hard to get them to answer that question. That’s why I love this one because again, it’s pretty broad. It avoids the appearance of pandering for sympathy. And then again, kind of reveals some of these hidden things that they may not be able to totally put their finger on, but rather,
tugging at them or whatever that hunch may be. So again, this question’s super neutral and it gives people kind of the option to say something that may not be fully formed right in an opinion, but it just doesn’t sit right. And one of the examples that I have for this is we recently ran a focus group, a fairly long focus group I would say, on a nursing home case. And so the facts were really, there’s some severe negligence claims going on.
And we wanted to know where were the feels in this case. were lots of different things that we had expected to hear, but one of the things we did not expect to hear when we had this question was that the fact that they had stopped charting in the medical records. That was something that just did not sit right with a large portion of the panel. And again, not something that we had flagged as an expectation before.
Elizabeth Larrick (06:56.696) There were many other pieces of egregious facts that were very touching, very terrible, that would give somebody the feels, but that particular one was not one we expected and very glad that we asked that question because then we were able to kind of gather it up and be able then to put that at the forefront of the case when they were getting ready to formulate their presentation. So when something doesn’t sit right with focus groupers, with our jurors,
they find a way to tap into that and rule against you. We don’t want that. We want to be able to find where it is those feels are not matching up before you get there, right? That gut feeling that they may be having, you wanna be sure and discover those early on so then you can reshape your presentation of evidence, reshape how you are talking about the case as well. All right.
Our last question to share with you in this episode is kind of a strategic framing question. So there’s two parts to it, okay? And you’re gonna see why there are two parts. The question goes, the plaintiff loses, why do you think that would be? Now I’m using the word plaintiff with you because if I tried to use an example, it’d be challenging. So in this scenario, you would want to put in whatever the main
name or if you said person driving car B or the red car. And then you would flip flop and you say, if the defendant loses, why do you think that would be? Now I love this question because we’re getting both sides of the coin here. So we’re really as a moderator, as somebody seeking feedback, we are looking very neutral and we’re also having them put on two different point of views. This works excellent.
when you have a focus group that feels like it’s very weighted feedback on one side, because then you’re going to force people to put on the other point of view and give you their thoughts. And it really makes them articulate the strongest arguments for you and get rid of any fluff. If there is any. Again, I like this from both sides. And typically when I use this question, I tell them ahead of time, we’re going to take both sides. Okay, so let’s start with this one. If the
Elizabeth Larrick (09:20.994) blue car loses, right? Why would that be? And again, if we’re just looking, we’ve got a short time period and we just really wanna get in there and get those main case weaknesses, this is a great question to get right on it. And again, it’s pretty broad. If you wanted to finagle with language, which you don’t have to, remove that word why and just say, how come? If FedEx loses,
How come, right? You could make it even shorter and simpler than that. But again, you can use the whole one as well. Obviously I’ve used this question many a times and it’s very helpful when we get to see our focus groupers take both sides of it. And again, in the frame of why lose, okay? Not why win, okay? But why lose? Very key on that. And again, helping you understand where is the true battleground for your case.
So this question does a lot of heavy lifting for you and it shows you kind of those real weaknesses that are boiled down to those simple points. And you can do it without revealing your own bias. These are three very simple questions you can start using today in your focus groups. So let me say them one more time for you so that we make sure we get them right. And of course, you know there’s gonna be a transcript somewhere that you can also
look at. again, question number one, if you had to explain this case to a friend who knows nothing about it, what would you say? Question number two, what part of this story doesn’t sit right with you? Question number three, if you were the plaintiff, if you were the defendant, loses, why do you think that would be? Or in a shortened version, if you’re the plaintiff,
If the plaintiff loses, how come? If the defendant loses, how come? Now, you’ll notice none of these questions are asking our jurors to vote, right? Yes or no, or make any kind of decisions. Instead, we’re really trying to reveal how they are thinking and feeling, which is really key in these focus groups. And really what you need before trial, before that big mediation,
Elizabeth Larrick (11:45.142) Instead of just a simple note, we really want to know how things are working in their brains, how they’re synthesizing things and analyzing your case. That’s the key point, of course, of doing focus groups. If you found these three questions helpful and you would want more specific strategies, then please join my monthly newsletter. I share one email a month that has practical tips, focus group techniques, witness prep, how-tos,
to help you each month and the link to join the email newsletter will be in the show notes. Thank you again for listening to Trial Lawyer Prep and until next time, keep prepping to win.
