Don’t skip out on measuring the credibility of your witnesses and seeing the power of influence that they have over the decision-makers in your case. And one of the best ways to do that is through witness video clips in a focus group.
In this episode, we discuss the importance and the usability of witness video clips in a focus group. You can better understand how clients are perceived by outsiders. Focus groups can help you identify areas where clients can improve their credibility and provide insights into how they can present themselves better at deposition or trial.
Let’s dive in and learn how the use of witness video clips is an essential component of witness preparation so you can help make your client more effective.
In this episode, you will hear:
Witness preparation is key.
The importance of keeping a clear mind.
Understanding the value and power of witness testimony.
Why start using video clips in focus groups.
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hello and welcome back to the podcast. Thank you so much for joining us this episode.
I want to talk about the importance and the usability of witness clips. And I know I’ve [00:01:00] talked about this before, and I’ve talked about it with witness preparation, doing a clip, creating a clip with zoom of your client, and then playing the clip and then asking questions about credibility words to describe the person and that is super helpful.
I 100 percent think that is super helpful thing for you to do to help prepare your client to see any things that. Focus group members are saying that maybe you don’t see, but what I really want to talk about today was an example for some focus groups that I’ve been running here recently on a particular case.
And what was so dynamic was, we had a setup again, we’re doing a series of focus groups, and that’s because we want to compare the data. We want to make sure we want to tweak things. And so basically set up this 6 hour in person focus group. We had 12 people, 14 people. [00:02:00] 14 people in our focus groups, and we designed the setup to be the same and we did basically opening statements with PowerPoints that included exhibits.
Right? So, a larger, more in depth opening statements and then we played video clips from several of the main PowerPoints. Layers in the cases. Now we did not do experts. Well, I think experts can be helpful. I think most of the time in my experience. It’s the main players that get biggest scrutiny that also way more as far as evidence goes in the minds and how jurors decide things.
But what was impressive was we’ve had to focus group so far, and we’ve run the exact same clips. And we have 1 focus group that felt strongly about a particular client and then switched up and they had the opposite view in our 2nd focus group and [00:03:00] super helpful to know, but we went back and looked at it and I said, you changed your things in the 1st focus group.
Focus group with our video clips. Our theme was much more about personalized, the personal struggle of this person and a lot of their backgrounds is very personalized theme and approach to the opening statement versus when we ran it again, they did not take that personal approach to it. And it really showed that they did not appreciate some of the things that the first focus group said.
One way he was likable He wasn’t so likable, but I think also what really set that home was hearing some of the comments and we had 14 people and they had said, had made many comments about the video and the story. particular style of this person’s testimony. And so I just asked, how many people were swayed by the video?
How many people changed their [00:04:00] minds? And out of 14 people, we had almost about 50%, seven hands went up and said, by the video alone that changed their minds. Right. So just based on 10 minutes of information compared to opening statements and documents that sealed the deal for them and move them to the opposite side.
So, to me, 1, I think we’ve got a couple of good things. Roll around in here and that would be, don’t hesitate to use video clips and focus groups, especially of the main players and do it more than once. Secondly, witness preparation is key because. There was a clear difference in testimony styles, but then they actually hit one of the witnesses for being a little bit coach, but they said, you got to at least set up straight, but I wouldn’t even set up straight to answer questions.
You’re really going to [00:05:00] get so much good detail out of those video clips. And there’s a lot of power in doing that. Clearly, when we look at all the evidence and all the information that was given to these people, the video swayed them the most, right? So they put a whole lot of credibility, a whole lot of weight into that.
So let’s keep that in mind. And then one of the things too, that I think is super helpful, especially in this situation, which was a fact finding that was very complicated and very above. What anyone in the room had ever experienced as a business situation. I think that’s one good conclusion to draw, which is if your case matter and your back pattern is complicated, and it could be all kinds of things, complicate back patterns.
It could be things are long. It could be that it’s drawn out. It could be that it needs several different layers to understand it. It could be highly technical, scientific, medical, lots of things can complicate it. But just [00:06:00] the value and the power of witness testimony, that’s where a lot of people are going to draw a lot.
Their decision making all that to be said, I think overall super successful focus groups that we ran and we’re able to get to some comparison data, but really knowing, oh, my gosh, the weight and the power of the testimony in these particular cases, but also getting this comparison data. between these two focus groups on again, something super simple.
We did not complicate this. We made 10 minute clips of each person. It wasn’t all one side clips, right? It was down the middle, some good, some bad, but definitely flavors to, so the jury or the participants can see all the sides. And the person and then just followed up with really simple questions on a scale of 1 to 10.
How credible is this person? What are 3 words you’d use to describe them? What’s 1 question you want to ask them? And people are very forthcoming [00:07:00] about it. And then in our discussion, this is again, after they have additional information, right? More information came out more videos. They went back and they talked about that without being prompted.
Right? So 1 of the big things we can always draw is what do they talk about? What do they not talk about? Anyhow, my point of this episode today is you’ve got to start doing some of these focus groups where you’re making clips and it may be just clips of your client. It may be clips of key players and put it in front of the focus group, but it is such a valuable focus group.
It’s so easy to do. I do video clips a hundred percent virtually. It’s easy to do. We did our clips today in person. Don’t skip out on that. At least measuring the credibility of your witnesses and just seeing the power of influence that they have over the decision makers in your case. So, I hope that this was helpful.
Super fresh example. Literally today was 1 of our 2nd focus [00:08:00] groups. We’re probably going to run it again. And again, just they’re tweaking their themes. Obviously, that’s what I saw today was a little bit of a tweak in the themes. Anyhow, a huge encouragement to start doing some of these video clips. Make it simple on yourself.
Nearly all of my focus groups that we are doing that are an extended length of time, meaning two hours or even three hours where we’re going really in depth, um, almost requiring that we do some video clip of some witness so that we can give them a real face and a real sound and a real human to look at and listen to when it comes to testimony in the case.
I hope that this was helpful, short, sweet to the point, I hope as well. So if you enjoy the podcast, please like it, follow it on the Apple podcast platform. Apparently, if you go push the plus button on the new application, the new update that really helps other people be able to find the podcast [00:09:00] as well as review.
So I hope that you found this helpful and until next time, thank you.
When you’re going to get ready for trial, and you’re building your team to help you pick a jury, you don’t actually need a lot of people. Perhaps one to three people would suffice. Building a small group will help things become more structured for you. That being said, you’ve got to pick people that match up with your ideology on picking a jury altogether. Then let them in on what would help you best as a lawyer.
In this episode, I’m sharing my recent experience of helping a fellow lawyer pick a jury. They wanted my perspective as a female trial lawyer so I decided to show up. There were a couple of things that happened on the fly that I’m going to share here, which are things you may want to consider as you’re building your own team for jury selection.
In this episode, you will hear:
A strategy that worked well
Different ways of taking notes
Things to consider when you’re building a team
The benefits of taking notes and having notetakers
Why you want to only build a small group
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Hello, and welcome back to the podcast. It’s Elizabeth, your host, and I’m so glad you’re tuning into trial lawyer prep, a podcast dedicated to you trial lawyers getting ready.
It’s just me solo today. We’ve had lots of wonderful guests, but I wanted to jump on solo and talk about a recent [00:01:00] experience that I had helping a fellow lawyer pick a jury. A couple things happened. I thought, you know, this might be a worthy topic. A couple of things that happened on the fly, I was asked by a friend of mine to come help pick a jury and it’s going to be in what we have in Texas, a county court.
So we don’t have 12 jurors there. We just have six. So the panel itself is a little bit smaller. And so I was asked, Hey, can you please come? I’d like to have your perspective also as a female trial lawyer, your perspective in that sense. So I said, of course, here I come. So load up, and we had gotten some of the jury information before, all that kind of stuff.
So I show up, and there’s several folks. We had about six to eight people who showed up. Imagine a courtroom, which is a lovely courtroom. We have a new courthouse here in Austin, so always gotta mention that. And again, it’s a smaller panel. So I think we had a total of maybe 36 people panel. So 36 people panel.
We [00:02:00] have all the lawyers who are assisting her in the jury box. And there’s again, there’s eight of us and then there’s plaintiff’s lawyer, defense lawyer and clients. And that’s really it. It was a lot of people. And I would say in my vote, too many people for a couple of reasons. One is. That’s a lot of people who have a lot of opinions who might all not line up with what you need as the actual lawyer picking the jury.
So maybe just too many people to listen to. Also like I said, it might be just too many different ideas. Like people have different ideas about, Hey, this is what I’ve been taught and Oh, here’s what I’ve been taught. So again, lots of different ideas about how to do your job. And there’s just not a lot of time.
The judge should give us about 15, 20 minutes to kind of get together. And also what I found was a little bit maybe discombobulating is we’re there to help her pick a jury, but we don’t really know the order for questions. We didn’t even really know what [00:03:00] questions she was going to ask. Now I kind of knew because I’ve worked with this person before, so I knew the flow of where she was going.
But ultimately I just. Um, on the fly, just like the potential jurors hearing things for the first time in my gut, I’m thinking, Oh, well, is that a cause or is that a strike? Did she get it all the way or did she not? What are we listening for? I knew very little about the case as well. So when we get back, again, we’re just trying to toss all this stuff around.
I took notes a certain way. Other people took notes a different way. It is helpful to have extra people again to hear the things you didn’t hear. And we’ll talk about how many people I think is probably most helpful. But also something else that really stuck out that, I know was a strategy that worked and let me tell you why.
So the defense lawyer got up and said, geez. It’s a lot of lawyers to pay, just let alone me over here. Now, we already knew this guy, this defense lawyer scheme, we knew that [00:04:00] that was going to happen, or I knew to an extent it would, even if she just had one person helping her. But he kind of the way that he said it, it kind of worked.
And a juror actually stood up, potential juror stood up and said, I feel bad for you. Like, that’s a whole lot of people to pay and gosh, that was kind of like, wait, what? Whoa, hold on here. And I can’t. The judge had said, even the plaintiff’s lawyer had said, these are people from the plaintiff’s bar who are here to listen and to learn.
Of course, that went right out the window, but it just kind of like, oh man, he actually struck a chord. And if there’s one person who’s saying that, there’s going to be several people thinking the exact same thing. And people didn’t raise their hand, but it was not a very talking panel. So. Long story short, it was kind of a little bit of a discombobulation for her hearing all that and then us knowing that we’ve got to pick some people.
What I would suggest and I think that ultimately the panel that came that shook out that she got There were a [00:05:00] lot of things that just were really out of control out of her control out of our control And there were definitely good things that helped her get her some people struck For cause from the jury panel because we were there helping but what struck me was I’m sitting there next to another lawyer And he said well, I’m really curious.
Like how do you take notes? And do you have a system? And I said, I don’t really have a super clear system. I try to make it really simple and it really is simple. It’s a frowny face. If people are making a frowny face, like literally frowny face. I don’t really want to complicate it. I’ve seen people who have lots of different colors, like some big giant notepads.
That’s cool. What I found super helpful, and when I’ve worked with this lawyer before, what she found super helpful was getting down the words that people are using and saying that can get them struck for cause. That’s negative, right? There’s positive things too. Again, there’s my smiley face. But I don’t really have a [00:06:00] super complicated method for writing or taking notes.
What it really made me think about was what would really help people and what I think would have helped. And again, my suggestion is going to be when you do think about going to trial and you’re building your team. Thinking about how many people you would like to get on a perspective point of view for helping you.
But also having somebody in your corner that knows the flow of what you’re asking. And knows that, hey, this question right here, that’s to try to find those rats. And this question over here is really to find information. Who are some people that we want? Who are people who told really positive stories?
And If you know the flow, you obviously can keep the space on your page or your notepad ready for that. Because what I have found is judges want to hear, well, what did they say? You’re [00:07:00] up there doing your deal. You’re just trying to get people to open up. You’re doing the deal. You don’t necessarily remember, oh, that person said exactly this.
And you really don’t want to take notes. So that’s what your helpers are there for, is to take those notes with those things. Well, this is what they said, judge. Oh yeah, that’s right, they did say that. And generally it jogs their memory. Although, most judges will take notes as well, but my suggestion is you’ve got to find somebody who knows the flow of your questions.
Knows that you’re looking on this question to find people to write down those exact words now I understand we’re not perfect transcriptionists. So most the time it’s just oh, no that person said ABC Just a couple of words or these people raise their hands a lot of times what happened was she’d say, okay Now this question if you’ll just raise your hand for me And we’d take down people’s numbers and that was helpful to kind of group people together, but there were so many of us, right?
There’s eight people all helping. And that was the next thing that I had was [00:08:00] you really kind of want to build a pretty small group, right? You want to one, let your group in. If you’ve got one to two people, that may be enough. These are people that one, you trust, you want their perspective. They kind of have the same ideology on building The jury that you want.
So you want to make sure they kind of line up with all those things and you’re teaching them enough to know like, Hey, here’s where I’m going. Hey, this is the thing that helps me the most. And that’s just going to be a communication thing. But once you have a little bit of smaller group, you guys have a little bit of flow.
Meaning you know where the questions are going and what the purposes are so you can write down what’s needed. And then when you get back there to have that discussion about who do you want and who do you don’t want and what they say, it’s much more structured. Some of the best ways that I’ve seen it done when you have 15 to 20 minutes, sometimes you have less, is basically you run through your list of people who are like, here’s the strikes, here’s this, here’s what these people said.
Here’s my worry, [00:09:00] here’s the worry person I have, and the next person goes, and the next person goes, and then having done that because you’ve got a small group of people, you’ve really got a good amount of knowledge to help pick the people that you want and you don’t want. Because again, if you’re up there doing it, you have a hard time saying, Seeing everything else.
You have a hard time retaining everything. And that’s why you’ve got one to two people to help. Take those notes, record those things, find that body language, the frowning, the squirming. And again I know that 100 percent body language is not going to give us any help. It’s hard to predict what people are doing or not doing but sometimes people are pretty clear in jury selection like they don’t want to be there and They say things and then they match it with their body language.
Let me give you examples. So there was a juror who pretty much every question that she was trying to find the people who would not be fair to either But either party and this guy every time hands shot up every single time. I mean, he just, for sure, won it [00:10:00] off this jury. And then the body language matched right up with that.
And other people have body language that you can’t really tell. You’re not really sure they’re frowning. But we’re not really sure what that means. It’s mostly when people are pairing it together. For example, the guy who wanted to stand up to speak to say, I do have sympathy and I think that there’s too many lawyers over there.
All those lawyers getting paid. That seems like a waste. No, that’s a, that body standing up to tell me that. So again, some of these things are little notes, but. It’s easier to have somebody else taking those little notes for you while you are being present with the jury, asking questions, nodding along and giving your attention.
That’s really where you want to be when you are asking questions of the jury for jury selection. All right, so let me do a quick recap. When you’re going to get ready for trial and you’re building your team to help you pick a jury, you don’t need a lot of people, right? We need to have one, two people.
[00:11:00] Whatever those two people are, maybe three people, and let them in a little bit on the flow of where you’re going. Let them also in on what helps you best, meaning some people have really bad memories, so you writing down those specific words to help them go back and talk to the judge, that’s what they want.
Other people have great memories. But because they have a great memory, they may not be able to see everything else in the courtroom. And so they really want you to be eyes and ears around them while they remember those things. And that may also just come down to, hey, what’s your feel? When you heard that, what was your feel?
Mine was good. Was yours bad? Right? So sometimes we just go, hey, you may have felt that way. Here’s what I took that as. But you want to pick somebody again that kind of matches up with your ideology on picking a jury all together. So you want to pick a small team. But pick a team that lines up with your, your fault, your style.
And then also you want to let them in on kind of the flow so they know about [00:12:00] where you’re going and then what helps you best as a lawyer and as somebody who’s gonna maybe get up and argue those strikes or ask the judge for something specific. I hope that was helpful. I don’t have any real advice on note taking.
I think it really comes down to the person. If you like having a giant notepad and Like taking things down, having out like that’s great. That may work for you visually. I have a pretty good working memory. So for me, having just those little symbols sometimes helps enough. And then sometimes having just those key words that people say is enough for me.
Then again, I think also sometimes it comes down to, well, how much time do you have for jury selection? Some people end up getting days. Now, you’re really going to want some copious note takers. Some people get 30 minutes, right? And that’s. It’s very short amount of time. Do you really need eight people to help you?
Probably not. You’re probably good with just one person. So that also something to keep in mind, how much time you have. I hope [00:13:00] that this was helpful. I hope you think about a few of these things when you’re game planning, getting ready for jury selection to build a good system around you and with your peers to help you pick a jury.
None of us are smart enough for our audience to even remember anything we’ve ever said. They’re not going to remember anything, but they will remember how we made them feel. Hence, having that sixth sense is what separates great attorneys from the not-so-great.
While you’ll never be able to figure jurors out, you can always at least get a better idea of what is going right and what is going wrong in the cases you’re handling. If you’re interviewing and you want to have a positive result in anything, you should have some background or understanding of that audience.
In today’s discussion, I’m joined by Lucas Foust to talk all about focus groups, the different focus groups they’re using, and how using them has become a valuable resource.
In this episode, you will hear:
Their process of running focus groups
The value of figuring out your hits
The power of using videos in focus groups
The benefits of running virtual focus groups
The impact of using checklists
Valuable time vs. busy work
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hi there. Elizabeth here. Just want to pop in real quick before this episode gets started to give you a quick introduction for our guest, Lucas Faust.
Lucas and I met several years ago when I was working with Mr. Keenan, when we were doing a lot of reptile seminars. And you will hear us talk a lot about Mr. [00:01:00] Keenan and his method of doing focus groups. Lucas practices out of Bozeman, Montana. He’s done personal injury pretty much his whole entire career.
And a fun fact about Lucas is he is a referee for basketball games. So he knows how to call both ways. So I hope that you enjoy this episode. If you want to reach out to Lucas for any reason, or if you have something in Bozeman, Montana, his contact will be in the show notes. Please enjoy. Hello, and welcome back to the podcast.
I’m your host, Elizabeth. And for this episode, we have a treat coming all the way from Montana. Lucas Faust is joining us today. And we are going to talk about focus groups and a little bit of things that Lucas and I do together. So hello and welcome to the podcast.
Lucas Faust: Thank you for having me. It’s a pleasure.
This is great.
Elizabeth Larrick: Awesome. Well, I wanted you to come on the podcast because I know that you love focus groups and you do them a [00:02:00] bunch and you even started your own focus group company kind of like I did. So walk us through, tell us about how you got started and what really piqued your interest in doing more.
Lucas Faust: Well, really the big thing was, I remember an attorney one time explained to me that You will never figure jurors out. You’ll never figure people out. And I kind of took that on as a challenge saying, I think I probably can, or at least get a better idea of what is going right and what is going wrong in the cases I’m handling.
And that started the process of getting introduced to Don Keenan and the pioneering work he did on focus groups has, you know, Constantly evolving and we’re always learning more as this process goes. But I started off running a few focus groups and my wife, Heather, and I started a organization called, or a business we called Seventh Amendment Productions, named after the Seventh Amendment of the U S Constitution.
And it does a couple of things, having a separate business entity from my law firm. I had to find [00:03:00] a way to literally pay people. And that sounds like a silly thing, but if you’re going to pay folks for their time, you can either do it with cash or you can do it with checks. And I didn’t really want to send checks out in the community from my law firm’s operating account.
It just seemed like a much easier way to do it. I could charge the business, could, Cut its own checks, 7th Amendment productions. Those are essentially consulting folks. And we started the process of having our own little business. And really over time, what Heather was able to do, she became very adept at gathering people, finding out where regular folks frequent.
And we started off, Heather started off by just finding folks on Facebook. She entered every. Garage sales site. You could imagine every small town that there is out there and found really just regular people who would. look and sound a lot like a potential jury. And we started from there and she built her bank of people up from there.[00:04:00]
Elizabeth Larrick: And so what do you use them for? Cause I know there’s people in the audience who sometimes we use them for getting ready for trials or maybe just for mediation. So walk us through what you use them for.
Lucas Faust: I have a system for the focus groups and for focus groups and how we use them. I will not file a lawsuit until I’ve done at least one and usually two focus groups.
That’s a rule in our office, unless there’s a statute of limitation issue or something and that’s the exception of the rule. But as a rule, I don’t even want to take that case if it’s that late in the process. If it’s two and a half years out, we have a three year statute of limitation in Montana, I’m not going to get involved usually.
But with that very slim exception, we will run a first initial, what we call a narrative style focus group. And what I’ve done over the years and in large part, thanks to Mr. Keenan, his law firm that I’ve worked with on several occasions, we have basically a set standard of questions that we ask in our First Narrative Focus Group.
And those questions are consistent. The reason that they’re consistent is because I can compare [00:05:00] One batch of focus groups to another batch to another batch. And if you’re asking the same questions, you can compare what type of person is going to be more receptive to your case, to your situation or circumstance.
And over the years, I do a lot of construction site litigation where people are seriously injured on a construction site. And because of the type of case that we have, we found people who are excellent demographics for that type of case. You want construction workers. You do not want their spouse. Okay.
Their wives are terrible, terrible jurors because their husband would never get hit by a concrete boom. That would just never happen because he’s Jason frigging Bourne. He’s Jason Bourne. And he would have done a backflip somersault to avoid the situation. Usually the injuries are real serious and they cannot imagine or picture their husband getting hurt like that.
And I can’t blame him. That’s just a natural survival instinct. But you learn. Yeah. Yeah. What types of demographics kind of fit? So we’ll start a case off. We’ll do a narrative style focus group. I’ll do that [00:06:00] sometimes to decide whether or not I’m interested in taking the case. You can get a lot of feedback.
One of the first things we look for is the Keenan Law Firm calls negative attribution. So you have people who will blame your client for their unfortunate circumstance. And ironically, we found that the more seriously someone’s injured, The more likely they are to blame the person for their own injuries.
It’s kind of a defense mechanism we have as human beings. Setting all that aside, one of the things that happens is you develop a basket of information you develop from people. So there’s some generalities, but nothing beats trying your focus group out because your focus group members change over time, et cetera.
But we start with a narrative style focus group. I may run two or three of those. That’s the first group we do that gives us a pretty good idea of just generally where folks are standing right now and we asked the focus group members to assign responsibility, who’s responsible for it. We asked them what their gut check is, what else they would want to know, why they decided the way they decided regarding that.
And it’s impressive how [00:07:00] typically I run a case in about 30 minutes. That’s all the time it needs to get our narrative style focus group. So when we go to the trouble of putting a focus group together, we’ll sometimes run three, four, and even five cases. To one group. So, that’s the typical first step we take.
And then there are any number of types of focus groups. You can let your imagination run wild with them. But the biggest thing is this I’ve discovered over time how surprised I usually am with focus groups. They come back with answers like, Whoa, where’d that come from? And the biggest thing about focus groups that I’ve taken from this process is Somewhere along the line, during my legal education, all of the common sense between my ears was completely sucked out and replaced with a process of looking at a case that is wholly and completely different than the general public.
So, I’ll have friends ask me, what do you think about this, let’s say, hot in the news right now is the Donald Trump indictment. They’ll ask me about that. And my common response is, [00:08:00] Understand that some lawyers put that together. What’s more important is what do you all think? Because there’s a real disconnect and that’s really why these are so necessary.
Ultimately, if you’re interviewing for a job, you should know about the company. If you’re interviewing and you want to have a positive result in anything, you should have some background or understanding about that audience. You don’t know what you don’t know. So you just have to simply ask folks and you’ll get Feedback.
That’s what we found. So,
Elizabeth Larrick: yeah. I also, one of the things that you said that always strikes me when I do focus groups and working with lawyers is they always say, wow, we just, we learned so much and I’m like, absolutely. And the other thing is I always tell them, and what assumptions did you hear? you didn’t say anything a assume they’re like, oh, So, you know, it’s the ho maybe know were there or they just create things i you just never would have I have
Lucas Faust: learned over time In the way of their [00:09:00] cases, more than anything else, if you have a very good case and you know you have a good case and you know that the facts are shaped up in a way that’s going to make your audience upset, the surefire way to make your case a good case, turn it into a terrible case is to get in the way of the damn thing and tell people what they should think.
One of the things I was fortunate enough to attend Jerry Spence’s Trial Lawyer College in 2015, I took a few things away from there. One of the things I took away is this, none of us are smart enough for our audience to ever remember anything we’ve ever said. They’re not going to remember anything. They will remember how we made them feel.
And that’s a completely different part of the brain that this is used. And that’s the disconnect that we have. We are so smart. We think we’re so brilliant as attorneys. It’s not the case. Okay. The attorneys who are really good have a sixth sense of what is going to make people feel a particular way That’s what I found over time I have to do it with focus groups because I don’t [00:10:00] have the same gene that Jerry Spence does to Be an amazing trial lawyer, or maybe Mr.
Keenan or whoever the trial lawyer might be, but there is a way to find that. There’s a, well, there’s a way. And those are their focus groups get you there.
Elizabeth Larrick: Yeah. And I think overall as a profession, we are intellectual workers, we are knowledge workers. That’s what we were paid to do. That’s what we are, like you said, trained and that’s what we look for.
And then we start working and that’s what our brain molds to. And those are our habits. And so going back to that emotional. Thing the 14 inches from here to here from brain to heart, right? Sometimes really hard to do, but sometimes it’s so easy to make those quick emotional decisions. And that’s what jurors do.
And we’re just blown away. Like I just spent four years working and putting this together and they just dumped it in a heartbeat. And it’s like, yeah, and you would rather be dumped in a focus group any day than at the courthouse.
Lucas Faust: And you’d rather be dumped in the first two weeks of the case that you’re thinking of taking on than you [00:11:00] would in two and a half years later after all the time and energy and money that you’ve ever spent.
And you’ve, one of the things about it, I see attorneys all the time say, gee, I’ve got this great, brilliant expert. He or she is so smart. Oh man, they’re so great. The only expert you really need to know and really be familiar with is your focus group, your audience. What is the general public going to say about that case?
Because chances are They’re never going to remember anything about anything that the expert says. They’re not going to remember it. They’ll go back and they’ll tell you how they feel and until you know how they feel, you’re kind of at a loss. So we start early. We do them often. There are a lot of things that are really convenient about doing multiple focus groups at one shot.
You go through all, it keeps the cost weight significantly down and you’re able to save on that. And that’s, to me, it’s an invaluable process. It’s something that we absolutely do every time and don’t wait. That’s the key. Have it set in your checklist of stuff you do before you file suit. Get a couple of those in for [00:12:00] sure.
Elizabeth Larrick: Yeah. So talk a little bit about once you file, because sometimes I’ve talked about in this podcast and with other people, sometimes people want to do one after they have some depo transcripts or some videos to do the players, folks, group players, some people I find love to do it like right before the depo, they’ve gotten some written discovery, but they really want to know what would a juror want to hear, from this corporate rep or from this supervisor or this driver.
So tell us a little about what other places that you like to do a focus group.
Lucas Faust: No, absolutely. We’ll do them. Everything you listed is something that we consider before a 30B6 type witness, that type of stuff. Usually you found most of the stuff. If you do a narrative self focus group before you file, you found that out.
But if you have filed, it’s not the end of the world. Just stop what you’re doing and really think about going in the right direction because A couple of things that happened. I take my discovery. I take my focus group information and I’ll turn them into discovery requests. [00:13:00] There are things that they want to know documents that I never thought of that are important to my potential audience that never occurred to me as important.
I’ll use them for that. I will use them. Boy, I will use them after a deposition. And there’s a whole process. I’m at the Kenan Trial Institute now. I teach hit lists at the program. And one of the things we’re doing now is in our hit list, the program that we’re doing is you ask folks whether you got the point across that you were hoping to get.
You’re able to take video clips, figure out, make sure to see if you got the hit, see if it made sense. And. That is one of the things that is amazing to me is just how high the bar is. They expect us to be Jerry Spence and it’s like, holy cow, really? I mean, I’m doing a heck of a lot better than 90 percent of the guys that people that I’m out there with, but you, they really have a high expectation of being able to really pin that person down or do it properly.
So figuring out your hits, whether you get them or not. On the back end of this process is absolutely invaluable. [00:14:00] Then when you do your cross examination at trial, it just is, it falls right into place. You’re going to either get it, not get it, whatever that might be. You have the video clip to back it up, all that stuff.
I no longer take a deposition without a video. I mean, I can’t imagine doing that anymore because. That’s so useful for focus groups. If for no other reason you take the clips, see if you got them, that type of stuff. As the case moves forward and down the line, we do safety focus groups. We’ll do a focus group asking folks, Hey, how could this have been made safer?
How should it have been made safer? Those are the types of literally we’ll spend 20, 30 minutes just talking about that and they’ll come up, these folks, they’ll come up with some, every time I’m impressed with what their thoughts are.
Elizabeth Larrick: So
Lucas Faust: I use them there. I’ve had people approach us asking about. whether they should claim a certain particular type of damage and I had a guy ask me, he said, I’ve got a client who was injured.
She got shot in the leg. Okay. Bad injury. It has impacted [00:15:00] her work in the adult entertainment industry. Should I bring that as a damage? So great question. And I was like, I don’t, man, I’m telling you, I think this is not a good idea. This are going to really nail her. The seven focus group members we had virtually to a person said, Oh yeah, no problem.
The most adamant of this, I’m sorry, I was nine, the most adamant of the nine people. was the Christian bookstore owner. As long as it was not illegal, he did not care because his point of view was different than I thought it would be. His point of view was not self righteous. His point of view was a lot of countries, I couldn’t do what I do.
I appreciate that. So he was a hundred percent on, Hey, it’s not illegal. Knock yourself out. Right. So I thought that was fascinating. So I was, again, they always surprise you that you never, you’ll get interesting questions and I was chastising the guy and I was embarrassed afterwards saying I could not have [00:16:00] been more wrong about this.
Elizabeth Larrick: And sometimes that’s the fun part is to say, you know what, I was wrong, but thank goodness we actually asked some folks who would have to answer the question. So, well, you mentioned virtual and I know that you’ve been doing focus groups before the pandemic and we had the switch. So tell me a little bit, are you going back in person at this point?
Are you sticking with the virtual? Walk me through that.
Lucas Faust: Well, with the exception of getting ready for a trial or doing preparing for a voir dire, which is kind of an interpersonal situation, I really encourage people to practice their Regular folks and see how the flow goes. It’s critical. We’ve been doing them virtually almost exclusively and what we found are a couple of things.
First, folks really like the convenience. They’re able to get home from work. They watch it. They show up more often. People don’t bail. There’s nothing that physically gets in the way. They’re already home. They don’t cancel on you. And when we were doing them live, we would get 15 people and hope 10 would [00:17:00] show up.
That’s kind of where we were. Now we get 12 people expecting at least 10 will show up and it’s convenient. I will say this. This is, I have found this as well. People actually pay more attention. It seems crazy, but we all, we have been, since we were little kids, just. Hunker down in front of a television. So we actually pay more attention to a screen than we do to the other in a room where there are other distractions.
So that’s the virtual, I’ve found people to be more attentive because there are many more distractions in a room that you don’t think of, like clock or the look at what the person’s wearing over here. I mean, that type of stuff, it doesn’t happen on a, on a screen. Also, they know you’re looking at them.
They know that you can see them. They know that if they doze off or whatever. You can see them. That’s their faces right there at one time.
Elizabeth Larrick: I also love this aspect of it, which is I use Zoom and I think you use Zoom as well. Zoom has really upgraded many, many, many times since the pandemic started. And now, [00:18:00] which they always had like the gallery view.
What I love is. If you’re doing something long, like you’re doing an opening statement. And when I say long, like that means you’re having to talk to these people for 10, sometimes 20 minutes, right? It’s great. Cause you know, when they stop paying attention, because the screen is so close, you can literally see.
And if you’ve done any virtual, when someone has turned on a TV because the flash of the light or when their eyes are down or what, so it’s like, Oh, that part got really boring or you need to do some, you know what I mean? Like, so it. It’s helpful, even in those senses of when we’re looking at the content piece, but also like, okay, you lost them.
Like what happened in that moment? Because everybody went somewhere else because when you’re in person, it’s really hard to get that close up. Our cameras are good, but sometimes I feel like having that camera right there virtually, you really get to see that reaction.
Lucas Faust: And the chat section is invaluable.
That chat bar is something that Everybody, no problems with it. They’re [00:19:00] brutally honest, especially, I mean, you can set the chat bar up. So other people don’t see what they have to say. And they know if the other folks are seeing it, these are really what that’s really what they’re thinking. It’s kind of automatic.
And exactly like you said, you can see when you lose them, they’ll tell, they’ll tell you, they’ll be brutally honest about. that part of the process. So it’s a little more challenging when you run a focus group for your opening statement. You don’t want to run your own focus group for your own opening statement.
We do those very early on. If I have any chance at all, I have my, I will run a focus group for my opening statement before I file suit. That is a rule in our office. We have two focus groups. We do a narrative, at least one narrative, and then at least one opening statement, and your opening statement’s ready to go.
And that may sound crazy, like, oh my gosh, how could you do that? Well, you know your case already. You know kind of what you want to say already, and how it’s set up, and if there’s no reason you shouldn’t be ready to do an opening statement. Some things will change. They won’t be exactly the same. You’ll have new facts pop up.
Good, bad, ugly, but you have a pretty good idea where it’s going to go. [00:20:00] Or you shouldn’t be filing suit.
Elizabeth Larrick: Well, and I would say, let’s give a little background here, Lucas. And that would be, one, having known you for many moons now, like, your practice itself, to me, just again, as an outsider, like, has really significantly changed because you’ve, I’ve seen you take less cases, but also, like, Again, we’ve all learned from Don Keenan, the checklist of all these things to do, the investigations, the interviews that we do before filing suit that so many lawyers, because we’re bogged down with so many cases, can’t do that.
So I think to fill people in like, You do a whole heck of a lot of work before getting to that filing point, just in the file research and investigation and experts and making sure pieces are in place before filing. And if there’s other stuff that I’m missing too, that you guys do, but that’s definitely one of the things I would say, as far as a little bit of background that I think really helps people know, and you tell them, [00:21:00] like, has that been a good thing for your practice?
Lucas Faust: I went from a caseload of over 30. I have eight cases now, and on a high it’ll get to 10. My wife is my paralegal and there’s a very simple rule in our office. When we get to 11, she will walk upstairs and she will ask me, who are we gonna fire today? Because at 11 you’re a jerk. And at 10. You’re okay to deal with.
8 is better. 10’s okay. 11, you’re done. There’s a saturation point. But I will say this, one of the things that learning all this stuff that I went out really worked hard with the Kenan Trial Institute and took all the colleges, really worked my tail off, my income’s tripled. I mean, it just does. You take fewer cases, you’re more selective.
And maybe it’s just one of the things is this, I have a kind of a set parameters for cases that I take. If you’re a large law firm and you have 30, 40 lawyers, You’re going to take the automobile crash cases that are 20, 30, 000. I can never handle those. Or you’re handling workers compensation cases in a large volume.
Your business [00:22:00] model needs to, if it doesn’t fit this, it doesn’t make any sense to you. But for what I do, I’m a solo practitioner. I have a set number of cases. When I get a case and I have set it up like this, I am ready to try the case. When I file suit, I can try it within 60 days. Period. I’ve got my experts.
Everything’s done. I have 24 things that I have to finish before I file suit. And if you’re disciplined and do that without, even though you don’t want to do it, I mean, you don’t want to do your case selection criteria memo. Just do it. Just get it done. If you’re disciplined and you don’t want to do your hit lists.
Where’s my hit list? But if you’re disciplined enough to do it, it will absolutely, a little stress now will save you a ton of stress in the future. I’ve gone from 30 cases down to about 8 to 10. And cases that I thought would, well, the first case I had with Misha Keenan’s firm, I thought it would be maybe valued at 3 million bucks.
That’d be great. It’d be a great resolution. We settled for 8. And that happens just because of the way I work the case up. 100%. [00:23:00] So you’ll spend more time, but it is per case. It is more valuable to do that. We have a whole process we go through. It’s maybe more relaxed. I’m not stressed out. I’m not putting out 35 fires all the time.
I’m more selective with my clients. I have a tighter relationship with them. Even kind of the weird guys I hang out with, I know their families really well. And, uh, yeah, so it’s been career changing, cutting down. Less is absolutely more. You make more money. You can learn to say no. One of the things I’ve done is this.
I say no so much now that I actually, I have a guide for people. So if the case is worth under a hundred thousand bucks, I literally tell folks, you don’t need a lawyer. The carrier is not going to treat you any differently. So if you’re going to get a lawyer, I mean, seriously here, just there, you can figure a lot of this stuff out yourself.
Here’s a guide. I’m going to send you a guide, figure this out yourself. You don’t need me charging a third of that. And I get more people that comment and are thankful for that, that you can imagine. So they’ll maybe get a 50, 000 car [00:24:00] crash settlement and they didn’t have to pay anybody anything.
Elizabeth Larrick: So, because.
Lucas Faust: It’s laid out in the guide. So
Elizabeth Larrick: I appreciate you pointing that out too, that like, there are people who the business model is just set up differently. And, but I think most of the people that are in the audience are like you and I solos or have a medium sized firm with just a few lawyers. But one thing that you said that just want to repeat, which is that there’s maybe more time on each case, but the value it’s valuable time.
It’s not just busy work. And I think sometimes as lawyers, we can get caught up in the busy work, especially if you’re a solo or have one partner, because we have so much to do in the business and on the business. So it’s easy to get caught up with that, but having that valuable work that you’re doing.
And sometimes, like you said, you just get it done and it’s done. You don’t have to do it again. You just get to go back and look at it and be like, Oh, that’s right. Okay. Now write the
Lucas Faust: memo. If you don’t want to sit down for an extra 30 minutes, but write the stupid [00:25:00] memo, it stays in your file. You will forget it.
I guarantee you, you will forget it. The other thing I’ve done is this too. I work with people who are smarter than me and better organized, which is a really low bar for me, but the people that are smarter at, I have an appellate counsel that I go to. And that gets the case out of the left side of my brain completely.
So if there’s an appellate issue on a substantial claim, I just send Jonathan in, Jonathan, here you go. This is what the deal is. Answer this, reducing my caseload and then getting help in that area has been a tremendous, I mean, I could do it. I was a law clerk. I think the judge, I mean, I was a law clerk at the state Supreme court.
So I know, I know how to pellet stuff goes. I just don’t like it and I’m just not, when you don’t like it, you’re just not as good at it. Yeah. And that’s been me. So fine. I understand. Well, you will always excel at what you like to do. It makes it so much easier. And that’s what I’ve learned over the last five, six years really has been changed things for me.
So.
Elizabeth Larrick: Yeah, absolutely. And we talked a little bit about this earlier [00:26:00] about why you set up and that was the, your own focus group coming just to keep things separate. Right. Absolutely. And that’s taken off. I mean, that has, it’s made its own world now. So tell us a little about that. And I just want to make a little comment here to put a little pressure here on Heather.
We’re going to have her on the podcast so she can come talk to us about it.
Lucas Faust: She’ll be voluntold that she’s going to be on the podcast. There we go. So the business, you’ll all get to hear an opportunity to hear about Heather’s business from her, what she does, kind of the nuts and bolts of it. And I would encourage you to have your paralegal or whoever your support person is to, to come Manage this and listen, Heather set up the business and she actually is hired all the time by other law firms.
And when I say all the time, it hardly a month goes by where we don’t have a two or three law firms. And this is in Montana with a very small population, just in Montana that are asking Heather to run a focus group. And I’ve learned to let them go and do their thing because it is what it is. It’s very bizarre sometimes what they think they need to get, but let them [00:27:00] go, but you have different processes for it.
So she’ll either set the group up, let you do it. She’ll set it up, run it herself. She’ll set it up and then have me handle the focus group. There’s different packages that she has. But that alone has been a business model for Heather. It’s not a tremendous amount, but it’s worthwhile. It’s worth doing. And it’s been extra income for her and she hasn’t, you know, She can just tell me, um, she reminded me, maybe she does better than me in a month.
There you go.
Elizabeth Larrick: Well, and I think half the battle is the system and the system takes time to set up and work the kinks out. And I think that’s where a lot of times, cause we talk about on the podcast, like I have lots of DIY stuff, but sometimes it’s like. That is a whole like other thing to set up and I’m sure as you’ve experienced, you can do it a different way.
You can group it together. If you have bad participants or you have a group that is just full of people who aren’t from the U S which has been [00:28:00] happening or people who they just got off their last focus group and they’re just going to tell you whatever the next person said. Oh yeah, I agree with that.
Like, oh yeah, people don’t actually tell you anything. They just are there to collect the dollars. It is so helpful to have that system to kind of avoid those pitfalls. The
Lucas Faust: nice thing for when you’ve built a bank that Heather has, Heather has, I think, a seven or 800 percent bank when you have in different communities, I don’t care where the focus group members come from personally, I mean, I just don’t there as an occasion, if there’s an issue in.
I’m bringing a claim against the Yellowstone Club. So I’d like to know what folks in Gallatin County think about the Yellowstone Club folks. If it’s that specific, yeah, maybe I want to get some, but otherwise it doesn’t matter where they come from. I don’t care so much, but I’m more concerned about demographics, like ages and work, how they’re going to interpret the information they take in.
On a construction site case, but Heather keeps track of those folks. And she has somebody that becomes a crummy focus group. And there’s no good call back. Just takes them off the list.
Elizabeth Larrick: Yeah.
Lucas Faust: And they don’t, they don’t come back.
Elizabeth Larrick: We call it the no list,
Lucas Faust: [00:29:00] no list. And what’s interesting, we still save our, it’s kind of falling out of fashion with the Keenan law firm, but.
We still save our shit happens, superstars, the people who you never can convince it. We have a repository of them. And at the end of the case, if I get to where I can convince those folks, then we’re going somewhere. So we know people are really good, tough focus group members. And that’s so, so we keep track of it.
Oh yeah, that’s hurt. He’s going to be terrible. We know that from the get go.
Elizabeth Larrick: I mean,
Lucas Faust: not on my case, somebody else’s, Oh, he’s going to be bad. This’ll be good. Cause he’ll be bad. Yes.
Elizabeth Larrick: Awesome. Well, is there any, we’ve kind of covered the gamut. Is there anything recently when I mean recently past year where you were in a focus group and you’re just like, wow, that really helps me do this in the case or this really.
So do you have an example that maybe we could walk through?
Lucas Faust: Well, we have an example. I have a client who sustained a traumatic brain injury and he and his wife, they didn’t just, you know, whoops, have a baby. They [00:30:00] actually went ahead and did in vitro fertilization after the brain injury to get her pregnant.
So she’d get pregnant. And so they went through this whole gamut of I mean, IVF and all this other stuff, which If your family’s been through it, my family’s been through, it’s tough, it’s challenging by itself. After that, we were concerned that folks would hold it against him. And my gut was, they’re going to hold it against this client of mine for he and his wife going out and having IVF.
Well, that was part of a focus group that we ran that part of one of four focus groups we ran that day, but just the facts alone to a person again, they surprised us to a person. They were like, no, that’s great. That is part of being a human being. He should not lose that aspect. And then he may have challenges, but this will probably help him.
It’ll probably be good for him, which blew me away. I thought they would say, how stupid are they? How reckless are they? I mean, he’s not going to be able to take care of them. [00:31:00] It was the opposite. They absolutely should be able to have a child and they’re not going to hold it against them. So that actually made me relax about that development.
I never said a cross word about that to my client. You have to know your lane sometimes. I mean, really on that deal, Hey, that’s a life decision that they had to make. And they took it. Congratulations. They have a baby now. And we, one of the things that happens when you have fewer clients, you get a closer relationship with them.
I mean, we Heather babysits the baby. Now you get a lot tighter with people and that’s been a positive thing for us, but that didn’t save us. That definitely eased my mind. As far as a specific question is concerned.
Elizabeth Larrick: Yeah. What I also love about when you kind of go in with the like, ah, you know, I think this is not going to turn out well.
And then it does the opposite. What I also love is like, they’re giving you all the language and the ways to talk about it later on down the road when it’s like, cause you know, an adjuster is going to be like, Yeah. Yeah. Yeah. We’re going to throw that all over the place. And you’re like, well, just parent [00:32:00] back what those focus groupers are saying, because, Hey, they say it best.
You’re just repeating it.
Lucas Faust: Absolutely. And my best, I mean, As lawyers, we speak our own language. It’s really important that you ground yourself in what regular people, how they communicate.
Elizabeth Larrick: Yeah. And I just had that yesterday where we ran one and it wasn’t like total shocking, but it was just the way they talked about it was like, Oh, this is how we talk about it because it was just kind of like, how do we say this?
It’s very difficult, touchy topic. They nailed it. And it was just like, okay. So sometimes that’s why I would say like with focus groups, I’m like, Listen and go back and read through. I mean, I love getting the transcripts because then you can really say like, how did they really talk about that? I know they were on my side, but how did they describe it?
It was just like, aha, here’s the words they use. Here are the phrases that were so helpful.
Lucas Faust: And I really encourage people to, we use Rev. com.
Elizabeth Larrick: Me
Lucas Faust: too. Buck a minute [00:33:00] and you can do an hour long. I mean, can you imagine, I can’t imagine transcribing that for any amount of money, let alone 60 for a full hour of transcript time.
And you can do your focus group for 60 bucks an hour. It’s hugely helpful. There’s a process when I do the focus group, then I’ll read the transcript and then I’ll watch the focus group. Eventually, I kind of pounded into my head what is important for these people, for your audience. And if I skipped any of those steps, I’m doing myself a disservice.
If I’ve already invested the time to do the focus group, just go ahead and read the transcript. Watch it again after you’ve done it. And don’t just think you have to figure it out the first time because they’re almost always, almost every single time I will get stuff either reading the transcript. We’re watching the group every time.
So it’s a three part process for sure. And being disciplined, I don’t feel like watching that, but just go ahead and do it. That’s worth doing.
Elizabeth Larrick: I appreciate you saying that because every time we’ll do it and then you’re there and you get that first impression. And then when I go back underneath, I’m like, [00:34:00] wow, I totally missed that person said that like, wow, or you can’t gather it all in.
And then it’s going to marinate. And you’re gonna be like, oh yeah. So I love that you said that. So many times people. We’ll do it and the thing we did it, we did it. And I’m like, well, but you could squeeze that orange so much more. And then that value level goes up a couple more notches for you. So it’s not just one and done.
You can get more info. And I got to cheat when I watch focus groups again, I’ll speed it up one and a half times or slow it down, but it’s just getting that back in there and then sometimes you don’t have to ever do it again. You’ve got that memo or just the high points.
Lucas Faust: One of the things when you’ve done a lot of focus groups, a lot of them, I’m reading an interesting book by a fellow by the name of Trevor Moad.
He’s developed a thinking, he calls it neutral thinking, not positive thinking, not negative thinking, but neutral thinking. You take in the information and you don’t let it rock you. It’s like, okay, that’s fine. What I do find from, there’s almost this, the problem when you’re so wedded to your [00:35:00] case, you will just look at it and you so badly, cause you’ve worked your tail off on everything, want it to go the right way.
And then. The problem with getting negative from what the feedback you’re getting is you’re not listening to everything. Because it is so tough on you. The closer you can get to being neutral and just sit there, take it in, you’re less likely to skew your focus groups. Number one, that’s very interesting.
That’s got to be, that’s your mantra. That’s very interesting. So it’s okay that an adult film star lost money and you think she should recoup it. That’s very interesting. The best advice I can give is don’t be wedded to your preconceived notions. If you said the better, more, you can set those aside and do, that’s very interesting.
It just takes a lot of being proven wrong. And if you’ve been married, you have a spouse, maybe tells you how wrong you are. Sometimes you kind of learn over a while that that’s very interesting. You’ll learn that it’s okay to be wrong because you’re just going to be. And that’s the fun part. That’s where the fun stuff is.
Um, sooner you [00:36:00] prove, figure stuff out that maybe you’re wrong earlier on in your case. You can recover from it. The longer you wait, the less chance there is to recover, but you got to do the process first, or you don’t know what you don’t know. That’s the biggest
Elizabeth Larrick: takeaway. I think that’s the hardest part when people want to come to me and they want to do their own focus group, which I of course encourage, but I also say like, are you too close because you got to go in there and you got to get everybody and you just say, okay, gotcha.
but sometimes you don’t w person because you want t get the
Lucas Faust: people that call some focus group clips fo you’re like if you don’t don’t need to manufacture already in pocket, then t because they’ll always se they naturally flow and i does surprise you, it wil you. It’ll surprise the o probably to understand this.
The people on the [00:37:00] other side of the case, they have an interest, but they’re not stupid. They’ve thought their way. And maybe the only way to kind of sort out where folks really will think is this process. And if defense counsel is convinced it’s the other way, well, maybe just take a step back and ask some regular folks.
And if they’re right, they’re right. If they’re wrong, then they’re wrong. And then you feel confident then it’s that level of confidence you get after you run four or five focus groups and they’re consistent, sometimes they fall out, you’ll run number three and it’d be like, wow, that was weird. What happened there?
You run a back again, it’s back on track. Or there’s almost always a, when there’s a wrinkle, you kind of know what to do, but you have to do multiple to get there. So if you make it efficient, get in, get out, you can do three or four at a time. It doesn’t cost. As much money as you might think.
Elizabeth Larrick: Yeah. And that’s, I was going to say, I think one of the things that I would repeat about what you’ve said and what I’ve said in past ones, which is you can do some of these things in 20, 30 minutes, which means if you’re running three hours or even two hours [00:38:00] virtually, because again, Like Lucas, you’ve said it’s way more convenient.
It’s also going to be much more inexpensive than having to host people in person. You can do so many cases. And then that just cuts that glass and that pie up to get more cases done. So I don’t think either one of us are advocating, okay, you need to spend three hours on the same case, just to learn the narrative, you know,
Lucas Faust: cut it up and then compare the previous focus groups with one another.
Cause you’ll eventually find a, a, a. There was that case in Seattle you work with Mr. Keenan on, you broke down, as I recall, you broke down the type of demographic that you wanted to see, and if that took, and not see, and not see. You did not want to see the bookworm. You wanted to see the active outdoors person.
I mean, so you found the demographic that fit and it repeated itself, but you only get there by running multiple focus groups.
Elizabeth Larrick: Oh my gosh. That
Lucas Faust: happens.
Elizabeth Larrick: They had 13. Yeah. I mean, it was, it was, it was a lot, but
Lucas Faust: it probably took at least 10 to get it right and figure it out. Oh my gosh. There you go.
Elizabeth Larrick: When I think the [00:39:00] other thing too, which we face here in Texas, and I know lots of the people listening and you probably the same thing where it’s just like cases take so much longer.
So, it’s not like we’re running 10 focus groups in a year because we know. It may take some time. And what I find is if I’ve set something down for a while, for whatever reason, and I go and pick it back up, like sometimes just running a focus groups just gets me back in there. Cause I get back in there. I, you get back in it, you get excited about it again.
So those were in that particular file. I’m in that head case gone on for several years. Those were not done. Boom, boom, boom, boom, 13. They were along the way and just keeping it going with the new information or retesting that opening again. And so focus groups. Really? And at some point I do also agree, like some point there’s a cutoff.
We don’t need
Lucas Faust: to return at some point, but as long as you’ve kind of planned out where you’re heading with it, they make sense. So I mean, you go from your narrative all the way [00:40:00] down to your adversarial at the tail end of this. And your adversarial focus group, if you’ve gotten to a point where your adversarial focus group is ready to go and you’re winning your adversarial focus groups, you can go into trial, feel pretty doggone competent.
That’s going to show in your presentation. And it’s going to, it’s almost like a self fulfilling prophecy. You feel a lot better about it. And everybody knows you feel more, you’re more confident, understand your weak points too, but no, this is the, the focus group process has dramatically changed my practice.
It’s something we’ve done for about seven years now. And I really appreciate having Heather run these because it, again, it takes a team to get one of these things up and going, and I think the biggest thing is, is you get so wedded to your case. That’s just the toughest thing. You want it to turn out so badly that.
You’ll put blinders on.
Elizabeth Larrick: That’s totally natural. It’s like you’ve got three kids and someone’s your favorite. Well, yeah. Someone is your favorite.
Lucas Faust: There’s always, that’s just the way it is.
Elizabeth Larrick: Natural phenomenon. Yes, exactly. So Lucas, thank you so much for taking some time to [00:41:00] share your knowledge and information, the wealth of it about focus groups with our audience.
Lucas Faust: Absolutely. And Elizabeth, I just, I’ll put this plug in as well. I’ve worked with Elizabeth getting clients ready for testimony, and I can say, without hesitation. That is something that you must do as well. It is something I do in every substantial case and every substantial claim. And we take the time to do that if for no other reason, because I’m too close to it as well.
That’s another important thing to consider.
Elizabeth Larrick: Yeah. Awesome. Well, thank you so much, Lucas. And just for everybody else listening, we will have all of his information in the show notes. If you have a question and I look forward to having Heather on our podcast too, to talk about seventh amendment productions.
I love it.
Lucas Faust: All right. Thank you so much.
Elizabeth Larrick: All right. Thank you so much. And again, thank you for everybody for listening. If you could leave a review or rating on your favorite podcast platform, and also with the new OS opening a new update, if you could do the plus follow sign for me on your Apple [00:42:00] device, that would be really helpful.
Many successful attorneys learned to be successful by being louder and stronger. And for women, being louder and stronger doesn’t necessarily mean success. Sometimes louder and stronger means aggressive and shrill.
In today’s episode, Rena Cook joins us to talk about how she helps women attorneys command a great deal of authority and strength without being shrill, and how you, too, can improve your voice as a trial lawyer.
Rena Cook is a TEDx speaker, author, trainer, coach, and the founder of Vocal Authority, a training consultancy serving corporate clients – attorneys, politicians, teachers, sales teams, and CEOs – who want to use their voices in more commanding and authentic ways.
Rena is the author of Empower Your Voice: For Women in Business, Politics, and Life; Her Voice in Law published by the ABA; and Voice and the Young Actor, used in drama programs throughout the US and the UK. She co-edited Breath in Action: The Art of Breath in Vocal and Holistic Practice. Rena taught high school drama for 16 years before she graduated to higher education.
For the next two decades, she taught professionally bound actors, many of whom can be seen on Broadway, film, and television. Through Vocal Authority, Rena adapts actor training techniques to help individuals and groups be more confident and dynamic communicators.
In this episode, you will hear:
Breathing deeply to keep the brain engaged
The importance of the last word of sentences
Techniques using breath and space to improve your voice
The power of change and variety
Common mistakes people make with their voice
How to plan out your movement on transitions
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hello and welcome back to the podcast trial lawyer prep with me, your host, Elizabeth Larrick. And today’s episode, we have a lovely guest with us. Who’s going to talk about something that we all possess. Always work more on Rena Cook is going to come and talk to us about how to improve our [00:01:00] voices.
So Rena, welcome to the podcast.
Rena Cook: Hey, thank you. Thank you for having me, Elizabeth. I’m really excited.
Elizabeth Larrick: Well, good. Well, I had no idea this was even an option. When we first met, we met through Lori Kohler, who our fellow listeners will know. She’s been on our podcast and a good friend of mine at Oklahoma, practicing out of Tulsa though.
And you had worked with Lori specifically, and we met kind of at a little bit of a women’s trial wear collective. So how, how did you and Lori
meet
up?
Rena Cook: Well, Lori, of course, is, what do I want to say, a self improvement hound, right? She’s always looking for the next thing that’s going to make her a better attorney.
And one of her mentors, David Ball, who is a major name in personal injury trial law, he told all of his students, his mentees, that they needed to have voice coaches that the people who use their voice in the most compelling ways are going to be [00:02:00] the best trial attorneys. So she sought me out. She found my information.
Oh, I think another attorney. Ah, it’s all coming back to me. Another attorney recommended me to her. I was teaching at the university of Oklahoma. She was living in Tulsa. So she drove to Oklahoma City once a month to work with me and we worked for almost four years together. And then she decided to pull me into some retreats for attorneys that she was having.
And then that’s how you and I met on one of her retreats. Absolutely.
Elizabeth Larrick: And so, you know, again, for four years, it seems like a long time. So did you guys work on anything specific? Something we’ll know about that.
Rena Cook: Well, she was usually prepping for trial, and I would deal with her opening and closing statements, and I would coach them in the way that I coach actors.
You know, I come from an [00:03:00] acting training background, and I would coach the opening on, Where to get slower, where to get faster, where to get louder, where to get softer, how to get the jury on her side, how to get the jury to feel what she wants them to feel. And so we worked on that half of the time. And the other half of the time we worked on voice technique.
Many women come to me. Many successful attorneys who have learned to be successful by being louder and stronger. And for women, louder and stronger doesn’t necessarily mean success. Sometimes louder and stronger means aggressive and shrill. And, and I help women attorneys command a great deal of authority and strength without being shrill.
And so we [00:04:00] worked on voice quality. We worked on the importance of breath for keeping the voice warm, compelling, not high in light. You know, I’m not about making women sound like I am like women. We want women to sound number one, like themselves. But the best version of themselves and so we worked on those kind of exercises and then of course, as I said, coaching openings and closings and if you’re an active trial attorney once a month for four years is really not that long, you have work ongoing and there’s always something new to work on.
Yeah. And one of the things that
Elizabeth Larrick: you, you said, you know, kind of triggered for me when we got to do the retreat together was the, the power without press. And I know that you have a really cool Ted talk on that as well. So tell us a little bit about the power without press.
Rena Cook: Ah, well, the way I found or discovered power without [00:05:00] press was analyzing people who come on too strong.
And we see them in both genders. And I looked at where their energy is, where they carry the energy in the body. And most of the time, it’s chin up, shoulders pulled back. Now, you can’t see me right now, but what I’m doing is pulling my shoulders back, lifting my chin, and assuming my armored stance. What that does to my voice is hardens my voice.
I have released the effort in my shoulders. I brought my chin down parallel to the floor and I’m breathing in my center and I’m feeling my energy low in my body, not high. In my throat, in my chin, you can hear the difference. When I move the energy down lower, I find power [00:06:00] without press. And it’s the pressing of the chin and the upper chest and the shoulders that makes us sound shrill, aggressive.
Lori calls it the Mr. Lawyer suit sound. I’ve put on my Mr. Lawyer suit. And we want to find that power, the authority, the competency, the trustworthiness by bringing our sense of our own energy lower into our center around the navel area, around the stomach as being the source of our power. And that also keeps us breathing deeply, which keeps the brain engaged.
Oftentimes women attorneys will say, I get nervous and my brain shuts down. I’m prepped. I know what I want to say, but my brain shuts down by breathing deeply and keeping the power low. [00:07:00] It keeps your brain online as well.
Elizabeth Larrick: Yeah. And I think for me, like, When you were explaining it, like breasts, I mean, it’s literally just to get your breath out, you’re just pressing it out so you can really project and then you’re literally not breathing.
Exactly. Exactly. And just, just being able to keep breathing, you know, keeping that the brain flowing and, you know, is sometimes half the battle. When you were talking and I think one of the things too in the retreat was about like when you’re able to keep The the breath low you’re keeping it regulated.
You’re keeping air in there and it’s easier to keep the thoughts going, but you also helped with like when to breathe, like literally. Yeah, that’s,
Rena Cook: that’s hugely important when to breathe. I recommend that a speaker breathe at every punctuation. semicolons, periods, commas. The only place that you wouldn’t breathe with [00:08:00] commas is if you have a list and you’re saying oranges, comma, kiwi, comma, lemons.
You wouldn’t breathe after each one of those. In that instance, it’s a list. You just keep the list going. Other than that, breathing at every punctuation is really important. And we often write differently than we speak. So if you’re an attorney who is used to writing it out, you then need to read it out loud and breathe at punctuation to see if you’ve given yourself enough punctuation.
An audience can only take in, and this is audience a jury, can only take in seven to nine words that they need the speaker to breathe. That’s how they process information. And if too many words are linked together on one breath, the audience doesn’t take in the content. So the first run through when you’re [00:09:00] practicing an opening or a closing, the first run through is always do I have the punctuation in the right place to allow me to breathe often enough to power my words.
And you want to power your words with breath. If I say too many words on one breath and I start to rush because I think I’m going to run out of breath and the words that I’m rushing there, the audience will not understand. They need me to breathe. They need me to take my time and they need me to empower the important words with breath.
Elizabeth Larrick: I mean, even if you just think about this from like a very simplistic standpoint, because one, we always want to have simple sentences like, right, that’s good. One point, but then also thinking about like, okay, I want to have more. So I will slow down and breathe at every punctuation, like, We’re doing so many [00:10:00] things.
We’re helping ourselves, but like you said, helping our jury or even our judge, because I know sometimes when I’m getting up to do a motion and I know, like, you’ve got to get your stuff out there. You’ve got to get it out there quickly, you know, and she, you know, whoever’s up on the bench could be rushing you.
It’s, it’s almost like, okay, it’s okay. Take your time, ride it out, you know, because again, Most of the time they’re having to learn at the same time. They haven’t read anything beforehand. There’s like a jury,
Rena Cook: right? And if you rush it, they are going to miss it. And also if you rush, you can’t give the words there.
Do let me just give you an example. Let’s just say, hypothetically, you are saying to a jury, this young man was raised in a ghetto. All right. We’re setting up the background information on the defendants. All right, so if I just say this young man was raised in a ghetto, they may intellectually understand it, but they don’t get in their [00:11:00] heart what that was like.
So you say, this young man was raised in a ghetto. So I have enough breath to power what I think a ghetto feels like, looks like. And I infuse the word with my feeling and my breath. And then the jury is much more likely to get that image than if I just say, this young man was raised in a ghetto. Yeah, they’re going to miss it.
Exactly. At least they’re going to miss it in their heart. They may get it in their brain. Well, but that’s what we want
Elizabeth Larrick: them, right? It’s the emotional places where we make these decisions. We want them, yes. They think.
Rena Cook: You know, a jury thinks they’re making their decision with their brain, their intellect and their rationale.
But we know that we make decisions based on emotional response. And then we find the facts that fill in the blank for our brain to think, oh, yes, we’ve done this based on facts.
Elizabeth Larrick: Yeah, we [00:12:00] find
Rena Cook: the facts to
Elizabeth Larrick: support our
Rena Cook: feelings.
Elizabeth Larrick: And I know I’ve seen you do this as well, where we basically, you know, you take an opening statement with these principles.
I’m going to breathe at every punctuation. I want simple sentences that you have make a point, but then also go in and realize word placement, word choice, that emotional illusionary get them into that understanding things deeper.
Rena Cook: Exactly. And, and because of training actors, as I have, I know how actors use language to make the audience feel what we want them to feel.
And there are specific techniques. It is talent, partly. The other half, fully, is technique. So I will have an attorney look at the text of the opening and circle all the nouns. so that you know what the important words are. And the nouns are always [00:13:00] your most important words. And you want to give the nouns Time.
In other words, you don’t say a noun quickly. If I want to say, for example, look at that house. If I say, look at that house. It’s like, okay, what? Look at that house. I take more time and infuse the word with what I feel about it. Look at that house. You know, you know what I feel about it or look at that house.
We communicate how we feel by how we use the words. So we have to acknowledge these are the nouns and these are the important words that I want them to see and I want them to feel something about. The second most important word are the verbs, the action verbs, like action. He stormed into the room.
Stormed being our verb. If I just say he stormed into the room, well, we kind of understand, but we don’t get it until we hear he stormed [00:14:00] into the room. We make the words sound like what it means, and then the audience feels it in their bodies, not just in their brain, they feel it in their bodies. Now, let me just, let
Elizabeth Larrick: me just take a, take a pause here because we could have some folks listening and definitely I will say sometimes I feel this way too.
I am a very low traumatic person. Like, I’m just not. And so, are we saying every sentence needs to have this powerful expression
Rena Cook: or? Well, we clearly
Elizabeth Larrick: can.
Rena Cook: Clearly no. And I am, and you know, actors like me tend to be very, very expressive. And most of the attorneys I work with fall more into the, I’m a little bit more relaxed than you are Rena.
I’m not quite that expressive. And so we find a way to help the individual be true to their authentic self. And also empower their voice and their language [00:15:00] within the range of what’s comfortable for them. Right. So if you are typically low key and there’s very little affect, you’re just giving information.
If you’re breathing and you know what words you want to bring out, you’re not going to throw those words away. Many, many people throw the last word of a sentence away. Particularly if they’re reading from a script that they’ve written. And so our usual thing is we read, read, read, come to the last word.
Come to the last word, right? And it drops away. Well, we need to, they come to the last word. It’s like lift the last word and it’s not like punch it or throw it. It’s just Let it go forward into the ears of the jury and not on the floor in front of you. So there are techniques to help us [00:16:00] break that habit of how you get the last word of every sentence, and know that the last word you say of a sentence is always the most important word in that sentence.
We do that. And if we make it as we deliver it, the least important word, then the jury, the audience has missed. a major bit of information. So it really is about some principles of presentation, and there really aren’t that many, and they’re pretty easy to practice. It doesn’t happen automatically in performance.
When you’re under pressure, you will go back to the old way of doing things. But if you practice intentionally, like I said, practice the breath, read the speech, just breathing at punctuation to see if that feels right. if it feels appropriate. And then we add another [00:17:00] layer. Maybe it’s let me circle the nouns and let me just give each noun its importance.
And then maybe it’s reading it again for verbs. Then it’s reading it again to make sure you’re not falling off at the ends of your sentences. So that there’s a focus for each run through and that helps it move forward. It helps it get better. If you practice it in the same way every time without thinking about what’s going to be the focus of my practice this time, you will just be reinforcing old patterns.
You won’t be learning anything new or moving the speech forward. Because by the time you present, you want it to sound like it’s totally authentic, that it’s off the top of your head, that you haven’t written out every word, and that you’re just speaking from your heart. Right. And most, most attorneys can’t do that.
There has to [00:18:00] be some preparation.
Elizabeth Larrick: Oh, I would say anyone that, you know, when I think to say, Oh no, I just, I’ll just go off the cuff. I’m like, you’re going to miss something. I mean, I talk about a lot here in, in right about, it’s like, there’s so much to be said about just writing it out. And I love that idea of like, okay, let me write it out now.
Let me go back and write for, for speaking, right. With the sentences and the punctuation and then like every single run through you’re doing something different. But for us, like, we are memorizing, like, the concept that we write so that when it comes out, like, We may try a different word, or, but we’re still going to have that breath with us and know how to get the message out.
Rena Cook: For people who don’t open their mouths enough, I mean, that’s a huge habit. For example, if I don’t open my mouth very much, Right. This is how I sound. I’m just not opening. I’m not making space. And so I have to help some [00:19:00] clients break the habit of speaking with a very tiny mouth and making more space because space is your megaphone, right?
Breath and space is your volume knob. Breath and space. And I will have someone do a whole run through just making space in the mouth. And I have some tricks to help you do that. Like I’ll cut a little inch of a soda straw and have an inch and put the, the soda straw between your upper and lower teeth and tell you ha ha and the where , right?
But then you take the spacer out, but keep the sense of the space. And automatically there’s more, more easy sound because your mouth has kind of gotten used to making more space. So we have little tricks that we can practice with. [00:20:00] Tricks that release our tongue. Tricks that release our jaw. And the tongue and the jaw are million dollar tension points.
For any speaker and how we relax the tongue, how we relax the jaw to get ourselves ready to speak in our best voice. So part of the practicing is also practicing good vocal usage, because when we’re presenting, we don’t want to think about breath. We don’t want to think about space. We don’t want to think about the nouns and the verbs.
We want to think about our message and is our message landing on who it needs to land on. So I take care of all of those details through my rehearsal. And the more times I rehearse, The more of it is going to stay with me when I’m in front of the jury.
Elizabeth Larrick: And so that leads me to my question. How many times should people be doing rehearsal?
But let’s take opening statement. Let’s take opening statement.
Rena Cook: Okay. Well, let’s, [00:21:00] let’s not include the writing portion and the research portion and all of that. You’re going to do that anyway. Once you have it in a form that you can practice, you need to practice it on several different times. In other words, the night before you present is not enough practice, right?
If you have it done a week, or two weeks even before you’re going to present. And then you spend 15 20 minutes a day with it, practicing breath, practicing space, using nouns, using verbs, not letting it fall off at the end, maybe finding a place where you’re going to get louder, maybe notating a place where you’re going to get slower, right?
Or big pause, big dramatic pause. You practice those things. And they will be there when you perform. 10, 20 minutes? I’d say 10, 20 minutes a day would be [00:22:00] optimal. Every other day would do the trick, but you can’t do it the night before and expect all of the bits to be there. I also encourage where it’s possible to go into the space you’re going to into the the courtroom into the space The night before if you can the morning of get in the space and try your voice in the space You know, this is where the jury’s going to be.
This is where the jet. Oh my goodness Look how far back that wall is. This is a big room Am I going to have to breathe a little deeper? Am I going to have to make a bit more space to be heard in this room? And then try some words. as you are going to give them so that the space is your friend and not your enemy.
When you start every space is different. Sure. And it feeds back voice in a different way.
Elizabeth Larrick: Whenever I was going to law school, I was an intern at a courthouse and it had, um, [00:23:00] very beautiful courthouse, but the very center had this like dome and the judge told us, and of course, work. You know, he knows where I said, there’s something special about this room.
He says, because I can sit where I’m at and the sound swirls in the dome and comes right back to me. So I can hear what you’re whispering at the council table because it gets up and I’m just like, Oh my gosh.
Rena Cook: Yeah. Yeah, and that’s a perfect example how every room is different and handles sound in a different way.
Some rooms are very live and you have to, in a live room, you have to slow down a little bit or your words bump into each other. If the walls are absorbing, then you have to breathe a little, a little more. You know, to make the sound a little louder. And if you have a partner, you know, a paralegal or a co counsel, go in and try the room together and give each other [00:24:00] feedback.
You know, go stand in the farthest part of the room. This is the level I’m comfortable projecting. Are you hearing it? And so you, you get that information before, and that’s really valuable information. So
Elizabeth Larrick: as far as like, let’s just, you know, you work with lots and lots of people, what, what’s a pretty common mistake people make with their voice?
Rena Cook: Well, the most common is not breathing, you know, it really is because untrained people don’t realize the importance of breath and they just breathe whenever they feel they need to. The other thing is not making enough space in the mouth. and not dealing with words, not making words matter. I mean, when we write, we will agonize over this word or that word, right?
But when we speak it, we just take it for granted. We just say the word. [00:25:00] So if we’ve chosen it that carefully as we’re writing, we need to speak it as carefully as we chose it because we chose it for a reason and we want the word to land. And the power of change, the power of variety. Most people have a rate variety that they always speak at.
They have a volume level that they always use. And they have a limited pitch range. Couple three notes of pitch variety over the course of a sentence. Those are very common issues that come to me. And I help them in each case, find a way to, maybe it’s find more vocal variety. Vocal variety in inflection.
Vocal variety in rate of delivery. In volume, some things can be louder, some things can be softer. Thank you. When we get to major points, we want to slow down, right? Another [00:26:00] thing is that movement trumps word. So if I have a big notion, a big statement that I want to make sure everybody hears, if I move while I’m saying that statement, the audience will not get it.
They will watch me move. So, you know, that’s a pretty big one because I know most of us love to walk around Well exactly walking must be deliberate When I move from point a to point b, it’s for a reason It may be a focus. I want to talk to someone specifically. I want the the jury to look at something specifically.
I move for intention. If I’m randomly moving, the audience quits, listening to what I say, they start watching me randomly move. And if I am moving on my key [00:27:00] sentence, the audience will not get it. So I help attorneys kind of choreograph their movement, you know, stand still for this, and then you can move here, you can move to here, and we’ll map out, you know, what we think the courtroom is going to look like in my studio.
We’ll put things out and we’ll walk through You know, in the end, the attorney will say, well, this is what I, what feels natural to me. Ah, great. Let’s keep that. But you’ve got to stop moving on this word or on this sentence or they’re not going to hear you.
Elizabeth Larrick: Yeah. One of my mentors would say, we would want to choreograph the room.
So if you’re going to talk about one particular subject, you go stand in that spot. Right. And it’s, and that helps you get a little bit choreographed too, because then you’re, some people won’t move at all. Right. They’re like trees. Right. A ton. And so like having that, like, okay, if you’re going to talk about that [00:28:00] thing, you need to go over that spot.
Right. Are you talking about the thing? Or like you said, a lot of times people will talk while they move, if they’re trying to get to an exhibit or get over to a board. No one’s they’re just watching you move. They’re not listening to what you’re saying.
Rena Cook: Exactly. So you plan your movement on transitions.
transitions from one subject to another. It’s like, I’m going to finish this paragraph or this point, and I’m going to focus completely on this person in the jury, and I’m going to stay there until the end. And now, new subject, I can move somewhere else. Or, and I usually do eye contact leads movement. So I’m standing, say, center, center.
Right. And I have just said something to the judge. So I have made eye contact with the judge and now I am going to walk toward the jury. I look at them first and the look leads me in that direction [00:29:00] because it gets what they do. They’re going to look,
Elizabeth Larrick: they’re going to look where you’re looking.
Rena Cook: Exactly.
Elizabeth Larrick: The other thing that I’m hearing me say is like, we have permission to stop talking if we’re going to be walking because you don’t want to walk and talk because they, they’re not, they’re not listening
Rena Cook: to you at all. Yeah. Unless you’re making a transition, right? So you’re saying something like, and now in the meantime, or we’re going to turn our focus to.
So as I’m giving signposting information, right, you’ve moved your, you’ve moved and now you’re going to, like you said, walk. Walk to it, and I walk to it on the transition pieces, the signposting, meanwhile back at the ranch kind of things, you know, that aren’t crucial, that can cover my cross to another side of the room or to an exhibit or something.
Just be aware not to make your important points [00:30:00] when you’re walking or moving. Get where you gotta go and then make it. Yeah, yeah, exactly. And I will even deal with gesture. You know, what would be a strong gesture at this point? And I can usually see, you know, when your hands kind of move, you know, you, you get that, the typical movement, hand movement.
And I will say your hands are kind of moving. Your body is telling you, you need to gesture. What would be a strong gesture in that moment? And then we will brainstorm and try out various gestures that amplify the point and not distract from the point.
Elizabeth Larrick: And I want to say almost all this stuff, because I have Empower Your Voice, right, is one of your books that you have.
That’s a lot of it’s in the book that you have.
Rena Cook: It’s all in empower your voice and then Laurie and I wrote a book for attorneys together and it’s called her voice in law. It [00:31:00] was published by the America Bar Association and we wrote it together. At her suggestion, after we had worked together a number of years, she said, Rita, we ought to write a book about this.
And I thought, hmm, that’s a great idea. And so what Lori did is to contextualize the work. In the legal environment, right? I come from a theater environment, and then I started working in the corporate world with vocal development, but the legal world is a whole beast of its own. And Laurie would say. Say, no, we don’t call it that.
We call it this, or this is where I would use this kind of voice and this is the situation where I would need this kind of thing. Mm-Hmm. . And so that’s what she provided as we worked together on the book. She was invaluable as I translated this work into the legal environment. [00:32:00] Mm-Hmm. . That’s awesome.
Someone could pick up that book and just follow the book. And I have video component that shows the exercises and demonstrates and so on. So that someone could, without the presence of a coach, do the work on their own. I would hope they’d want to work with a coach because it’s better that way. But, but the book is for in the absence of a coach, you can do this work yourself.
Yeah. And although as we talk about it, it sounds complicated, just breaking it down step by step and then putting it all together, the work is done and you’ve had a good time doing it.
Elizabeth Larrick: Well, and I love that you, that you have a book because I love. Reading books. And I love to, to do all that. But I also know like working with somebody, working with the coach, it’s like leaps and bounds.
And the progress is so much faster than just reading, [00:33:00] reading the book. So, but I know you do, I know you do several other things, right? So tell us a little bit more about, you know, when I got the book out and you have a podcast as well. So tell us a little bit more about, uh, podcasts and other speaking that you’re doing.
Rena Cook: Okay, my podcast is called Let’s Get Vocal with Reena and it grew out of the pandemic like so much did at that time. It was like, how can I keep working? How can I keep getting my message out when I can’t be out and about? And so I started the podcast and I wanted to talk to a variety of people. It turned out to be all women.
And, but that wasn’t my initial thing was I wanted to talk to people. who got me excited about things. Often it was voice trainers. I studied voice in London, and so several of the people that I interviewed on the podcast are voice trainers in London, and we talk about dialect. We talk about a range of [00:34:00] topics.
I’ve interviewed some attorneys, some therapists, just things that interest me that I wanted to talk about. Thus, let’s get vocal with Rina and, and I hope that I put out some information that people want to hear that, you know, and I kept it to about 30 minutes, kind of the length of a workout. Cause that’s when I do my podcast listening is when I’m working out.
I also speak to various organizations, not just legal organizations, although I love to do that. I did a speech for women. They were called women in equipment distribution. They sell tractors. And they were the most amazing group of women, clearly in a male dominated profession. And we talked about how a woman holds her ground Holds her voice, carries authority and [00:35:00] competency, again, without pressing.
And, and so I travel the country speaking primarily to women’s groups, women who want to use their voice to further their mission. And, you know, as women in the last, what is it, five, six, seven years now, things have changed culturally for women, not as much as we want it to change, but it is changing. And we have new hearts, new imagination, new inspiration for sharing who we are and what we have to offer.
But if we are using the same voice, that we have used through all of those years of either subjugating ourselves, making ourselves smaller, or making ourselves more puffed up than we need to be. So finding the grounded and centered and confident voice that can communicate our truth in any situation seems [00:36:00] to be where the energy of my work is going.
And you like that work. I do. I do now. I’ve gone back to teaching actors again. Two days a week. I go to Oklahoma City University. I found that I missed mixing it up with actors. And the reason is when you’re Training professionally bound actors, you go into the nitty gritty, you get into the depth, right?
And, and I was missing that kind of depth. So I’ve taken that job two days a week. And then I work my consulting business the other days of the week. And it seems to be a really happy balance for me right now.
Elizabeth Larrick: Awesome. Awesome. And are you still doing like helping people, you know, one on one?
Rena Cook: Oh, yeah, that’s pretty much the bread and butter of my business is the one on one coaching.
I have a studio in my home or I go to their office if that’s more convenient. So I work both places, either their office, my [00:37:00] studio, and I have packages, you know, like some people say, Oh, I think I just need three sessions or I need 10. And 10 is really the number that I recommend for lasting change. You need to practice with the coach at least 10 times until you get it in your body and then you can carry the work forward by yourself.
Without a coach.
Elizabeth Larrick: Yeah. And you do it virtually too as well.
Rena Cook: Oh yeah. Yeah. Of course I discovered that during the pandemic. It’s not my favorite thing because when you’re working on a voice, you need to see the body 360. What’s happening with the feet? What’s happening with the knees? What’s happening with the breath in the center?
So I found ways to now turn your camera so I can see your feet, right? And then I’ve gotten to where I’m, my intuition is better. It’s like, it sounds. to me like your knees are locked. Is that true? Oh, yeah. Yeah, they were. [00:38:00] So I’ve gotten better at kind of trusting my intuition on the screen, but I’m an extrovert.
I want to be in the same room with people. Yeah. Right. Technology drains me. Human beings refresh me.
Elizabeth Larrick: Yeah.
Rena Cook: Yeah.
Elizabeth Larrick: Well, I, I love that, you know, the pandemic and again, same here for sure. Definitely made me become much more flexible and I enjoy doing a lot of virtual stuff now, virtual focus groups, helping people virtually.
It is nice to be in person, but it also, you know, I love the flexibility as well. So I’m glad to hear that. But if somebody wanted to connect with you, what’s, what’s the best way Platform or where should they go if they wanna, and just not anybody who’s listening, we’ll have, uh, rena’s email in the show notes, but tell us what the best place that they wanna just come follow.
Rena Cook: Well, my website is my vocal authority.com and, uh, there’s a contact route on the website, [00:39:00] but I, I love for people just to reach out to me at email, renaCook@cox.net. Pops being cox. net. And that’s really the most direct route to me. Okay. Well, I know you’ve got Facebook page. I know you’ve
Elizabeth Larrick: got some other things.
I just want to make sure. But
Rena Cook: yeah, yeah, I do. I do Facebook and LinkedIn. LinkedIn because my speaking agent, Says I need to have you active on LinkedIn. So I am, and I just use Facebook or this is fun. Look what I did.
Elizabeth Larrick: Well, there, I know there’s just so people know there are lots of really great resources on your website, videos and stuff to watch if you people are curious, but Rhea, before we wrap up, is there anything that I missed, but I didn’t, I didn’t ask you about that you think our audience or this audience would, would
Rena Cook: really appreciate.
Actually, there is one thing that we didn’t talk about that I want to just take a couple of minutes. A way to memorize a speech, because memorizing the speech is like the big old bugaboo. [00:40:00] And if you memorize word for word, you will get lost. A word will slip away and you’ll go, Oh my God, I have no idea where I am.
I was doing a focus group with an attorney. And he wanted me to, to hear this very complicated opening and he broke down three times, broke down meaning forgot what was next. It’s like, Oh my God, I am totally lost. I have no idea where I am. So we went back to his office and I realized that what he was saying was very, very visual.
He was wanting the jury to see a whole scenario. And so it’s like, okay, look at your first paragraph. What is it you want the audience, the jury to see? Draw that picture. And he said, well, I, I, I’m not, I don’t care. Just draw it, stick figures if you need to. And then we put it on, on the wall with a piece of tape.
And so we storyboarded essentially [00:41:00] every image that he wanted the jury to see and put them on the wall in order. And then I had him, because we can all talk about a picture, right? I want you to see this. And in this picture, this is happening. So he did his whole opening just by looking at pictures. It’s easier for us to memorize images than it is to memorize pictures.
this word, this word, this word. So he was able to recall the main details by recalling what is the picture I want the jury to see right now. And so that was an alternative way of memorizing and corralling all that information without getting tripped up and memorizing word for word.
Elizabeth Larrick: I think that also helps too with order because sometimes we get Uh, we, we may memorize and then we just, we go to the next thing and we’ve skipped a whole paragraph.
But if we have, we have [00:42:00] this, the visual story, we may not have it perfect, but we’re not going to skip over that visual. Exactly. Let me ask you one question too, because this is, uh, I’m just curious. So I have heard some people talk about, as far as opening statements, doing a large portion of it, silent, just showing visuals.
What would you, and again, what would you, what would be your maybe comments? Well,
Rena Cook: you know, I don’t know because I haven’t seen that to know if that’s effective. If you have really strong visuals, I can’t help but think you’re going to need some narration to tie the visuals together. And so, you know, I would love to coach that challenge.
Someone says, no, I do my opening with all visuals. What else do I need? And then to work through that in a creative way to see if voice helps to tie all of the visuals together. [00:43:00] Because the jury is going to find their way to link all of that, and it may not be the way you want them to link it. So you may need to use the voice and words to say now this is why this is here.
Now we’re going to go to here, and this is why this is the next step.
Elizabeth Larrick: I think there’s also for me a factor of wanting to be a little bit of the teacher. And the leader and not having that you’re taking a very much a very passive role. Like you’re saying, like you would have to, in my mind, you would have to really focus group it to make sure people aren’t making the wrong assumption, like creating their own story, you know, that everything is so clear, you know, the visual.
Rena Cook: And another thing occurs to me, Elizabeth, is that if I don’t talk, the jury is not forming a relationship with me. I help the jury attach to me by talking to them by [00:44:00] making contact with them. I need them to like me to go into the jury room to fight for me and my client. They have to believe in me. They have to feel good about me.
They have to trust me to take me in their brains and in their hearts into that jury room and maybe battle for me. You know, and the way I form that relationship is by talking to them. That’s just a thought.
Elizabeth Larrick: Yeah, well, I just think, you know, communication is what we say, but, you know, how we say it and you can say less.
You totally can. I think they would all, we all said less, but how we’re saying it and with that short amount of time that we have with jurors, how can we use that as best as possible? And maybe a portion of it is being silent, you know, big space. But maybe the portion of it is, like you said, growing that relationship and being that leader, if you will, and teacher.
So well, thank you so much. I appreciate you. Let me pick your brain on [00:45:00] that. Thank you so much for making some time to join the podcast today. Super helpful. I know that thinking about our voices. It’s our main tool when it comes to depositions and motions. Mm-Hmm. . And even talking to clients and getting people to sign up.
Mm-Hmm. . So I think it’s all like very helpful things to help prepare better, uh, be better lawyers. So thank you so much for joining us.
Rena Cook: Oh, it was so my pleasure. Thank you so much for having me, Elizabeth. I really enjoyed myself.
Elizabeth Larrick: Good. Well if anyone wants to reach out, Torina, like I said, I’ll put all the contact in the show notes.
For email and website and then also a link to the book if you’re interested in buying the book that she has her voice in law. So, all right, well, until next time, thank you so much.
One of the most effective ways lawyers and other businesses can reach their audience is through podcasting. But without the right tools, the right people, and a clear purpose as to why you’re doing this, it can be so easy to get overwhelmed and lose focus on why you started the podcast in the first place.
Joining us today is podcast producer Danny Ozment and he talks all about podcasting – the benefits of having a podcast, how you can maximize your content, and some strategies to make sure you’re able to produce content consistently.
As a business owner himself, Danny is aware that he can’t do everything on his own, otherwise his business is never going to grow. And so, he has been advocating for people to do the same, regardless of the industry they’re in.
In this episode, you will hear:
Reasons many podcasts don’t make it past 15 episodes
How to deal with a creativity block
What is ordinary to you is magic to someone else.
The value of repurposing content and how it works
Tools you can use to help you with repurposing content
How podcasting can help you with the trust factor
The power of niching down your podcast to a specific audience
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.
Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hello and welcome back. Thank you all so much for joining us today for the trial lawyer podcast.
I’m your host, Elizabeth Larrick, and I have a very special guest, my podcast producer, Danny Osmond is joining us today and he is going to talk to us a little bit about lawyers and [00:01:00] podcasting and some normal things that he sees and frequently asked questions. So Danny, thanks for joining the show.
Danny Osmond: Thank you.
I’m really happy to be here. And I am really impressed that this is episode we’re in the seventies now. I think you said it was 71. That’s a really great thing for me to be here and see you have gotten that far because a lot of podcasters don’t even make it that far. So I’m happy to be here.
Elizabeth Larrick: Well, I will tell you, I could not do this on my own.
When I first thought, Hey, I’m going to podcast. Like I can tell you like. I have so many other things on my plate as a solo that having your team, I didn’t have to learn how to do that. I mean, you guys make it so easy to do the stuff and I just do the content and send it over to you guys.
Danny Osmond: Yeah. Yeah.
That’s what we’re here for. And I learned pretty early on as a business owner myself that I’m like, I can’t do everything myself or my business is never going to grow. My agency is never going to grow. So it’s from experience that I teach these things.
Elizabeth Larrick: Well, I probably can still take a few more lessons, but I am glad that I [00:02:00] offloaded this because it makes it easy.
But I will say one of the challenges for sure is. Especially this year, I’m coming around episode 70, 71, like creating content has been somewhat of a stumper. And so we’re talking to folks in my audience, which would be other lawyers who are thinking about creating content for their social media websites, or maybe even podcasts.
Like, what are you, what are you seeing, what are you hearing as far as like busting through that creativity block?
Danny Osmond: Oh yeah, Creativity Block is a challenge for a lot of people. I alluded to it early on, that It’s impressive that you’ve gotten to episode 71 because a lot of podcasters, a lot of content creators in general, don’t make it past episode 10, episode 15, because they’re a lot of them are trying to do it themselves.
They think I’ve got a lot to talk about and I’m going to do this and maybe they don’t have guidance and they put out four or five [00:03:00] episodes that are an hour long each and they’ve said all they have to say. And they don’t hold anything back or they don’t have guidance on how to think about the branding of the podcast early on and who your ideal listener is and who you’re talking to and what the goal is of your podcast.
So often when I start out a podcast, whether I’m helping someone or it’s a new one for me, I’m thinking about those things early on as, you know, Okay, who do I really want to talk to? What goals do I have for them? What do I want to teach them? What do I want to accomplish? And we hear about the why of the podcast a lot of the why of your content or the why of your book or the why of whatever you’re creating, starting a community, whatever.
So you have to do that early on because that will often guide you for a while. If you’re a lawyer, if you’re in Certain types of law, like we work with a bunch of different law firms. If you’re in immigration law, things are always changing. If you’re in family law, things are changing. There’s a new family every week that needs something, a state law, things are always [00:04:00] changing in every Congress.
Like they, they decide something new. The IRS has something new that people need to pay attention to. Employment law, all those types of things, they’re always changing, so there’s always stuff you can talk about. But the best way to move through, like, once you’ve gotten 20 episodes in, 30 episodes in, 40 episodes in, is to talk to your audience.
Okay, I often early on encouraged podcasters to even talk to their audience from episode two or three on, ask them. Hey, what questions do you have? What problems are you dealing with? Because you already know you’ve probably got three or four problems that you solve all the time for people. You’ve got questions that you answer all the time for clients.
So you got something to start out with. But There’s always something else that someone needs to know. And chances are, if one person writes a review and asks a question or review, or calls your digital voicemail and leaves a recording for the podcast that you can play and ask [00:05:00] the question, chances are, there’s at least 10 other people that had that question that haven’t asked it.
And so you can start to go down that line and I’ve found. That I’ve had podcasters who started out, had a great idea for a podcast, even came in with a title like they knew this is what I want to call my podcast and six episodes in, they’re already starting to change course like, Oh, wait, I’m finding that people want to know a lot more about this.
And yeah, I talk about this and yeah, I’m an expert in this, but I didn’t think anybody would be interested in it. And lo and behold, some people started asking about it because maybe in their first interview, they, the guest mentioned something and they had a five minute conversation about it. And then they got three emails from listeners.
They’re like, Oh, could you do another episode on that? Could you talk about that in more depth? I have this question about it. I have this question about it. And the more you can do that, the more content. That gets created. The more that you can log, every time you get a question from someone in a client session, anytime you get a question from someone, let’s say [00:06:00] you’re speaking at a chamber or something like that.
And keep track of that. You keep a folder of those things and it gets really easy over time to create new content. You and I were talking earlier about like my podcast, for instance, where. I’m literally going to ideal clients and saying, Hey, I think this person, this law firm, this accounting firm, this healthcare practice would be really helped by having a podcast, but I just want to get my foot in the door.
So on my podcast for a long time, I would interview people that I would see as ideal clients, people I wanted to work with just as a way to start a conversation. And often that would lead to a connection. So you can create content that way just by going to interesting people. That you want to talk to and having a conversation podcast can be so many different things that once you have a really good guiding principle or a guiding topic for what you want your podcast to be, it’s pretty easy to start thinking about, Oh, where can I go from here?
[00:07:00] What tangent could I go on? How could I explore this? What expert could I bring in that knows even more about this little part of the topic that I’m focused on that could do two or three episodes with me over six months? And it, if you. Explore that way you get through those creative blocks pretty easily.
Elizabeth Larrick: Yeah. And there’s lots of ideas. Things always do change with the law, but also I always am super amazed when I work with somebody. For example, I worked with a family law attorney here recently, and she’s dealing with real estate and she’s dealing with business entities and she’s dealing with, and so the vast amount of.
Knowledge and experience that we have, sometimes we just forget like, Oh, it’s just the same thing over and over again. It’s like, well, actually a lot of the things that we do intersect with so many other areas of the law that we do just a little bit just to let people know what they can expect and also hate.
All these things are really interconnected and I can help you with that. Like I may not be the number one person, but I’ll at [00:08:00] least be able to spot it and then go find the help if we need it.
Danny Osmond: Yeah, there’s a quote that I like along those lines of for most professions, what is ordinary to you is magic to somebody else.
The stuff that you do all the time that you know every bit of is crazy amazing to somebody else because they’ve never even thought about studying or learning that topic.
Elizabeth Larrick: Right. Or it’s just like, Oh, I would not have thought you have this one car wreck. And now. Yeah. All of these things are involved or I have to go through and people like, Oh, well, it’s a divorce or a family issue.
Of course it’s going to, well, not, Oh, I mean, people don’t always think like, Oh, well, that’s going to involve all these other areas. And so I’m always like, Oh yeah, I forget about that. Because like I said, for me personally, sometimes I love having people on, because I think that that’s really helpful. Like having you on to spur a content and ideas.
And I think that’s really sometimes the easiest way to create new content. But like we were talking before we started. Recording, like [00:09:00] what I really love about like having a podcast and this content is like reusing it on my website, because that’s one thing that I have seen recently is just like an uptick in that searching for focus groups and then giving me a call.
So, I mean, I really love that part of the podcast. So to talk a little bit more about repurposing and like all the stuff with the content, with podcasting.
Danny Osmond: Yeah. I was having a conversation through email with a client. Earlier today, who she was frustrated because she’s worked now, they’ve had a podcast for a year.
We didn’t help them start, but they found us because they were needing some help with the production and keeping things moving. And she’d been through two or three marketing people because she was like, I just want to find one marketing person that can do all of the things that I need. And she was like, look at our social media.
Like, it’s so boring. It’s just, All about the podcast. And so I pointed out, I said, well, have you done anything to create [00:10:00] social media content other than the podcast? Have you done your own videos? Have you put stuff out there? Have you posted things about what you like and what’s going on in your life and things that are happening in the world?
Cause this is more of a current events type podcast. So, so there’s an element of. You have to, when marketing anything, whether it’s trying to grow a podcast, whether it’s using a podcast to grow your business, you have to do some things. You have to participate. But one of the things that we’ve had a lot of success with is like you said, repurposing content where a podcast.
Is such long form content, like you and I are probably going to talk for half an hour or something like that. Some people go longer than that, they go every week. Like you said earlier on, it’s easy for lawyers to talk and that’s why podcasting makes so much sense. For lawyers is, lawyers are used to being quick on their feet.
They can speak, they can teach something, they can share something. They can create an argument, they can convince people [00:11:00] of something, they can persuade. And that makes it easy for a lawyer to, to think about that. When you create that content, you’ve got a lot of words there. Okay. You’ve got a lot of time.
You’ve got a lot of a recording like you and I are on zoom. You might also have a lot of video. Okay. So when we work with a client, we take. That video, we take that long form video that we have and we strip the audio. Okay. So we can turn the audio, we can edit it. We can clean it up. We can make people sound more intelligent.
Like they didn’t use as many filler words as they actually did. And turn that into a podcast episode. But at the same time, we have video and maybe that client has even broadcast that video live. Maybe they used a tool like StreamYard or Ecamm or something like that to broadcast their recording, interview or whatever, to Facebook Live or LinkedIn Live or YouTube Live or Instagram.
And so there’s two big pieces of content right at the beginning. [00:12:00] But then we’ve got that audio recording, we’ve got the video, and we can Cut out some quotes from it, and we can have quote cards and social media posts that come from it. We, for instance, with us, we take the podcast episode and our copywriters rewrite the content in the episode into a blog post.
So you have your show notes that you normally would see with a podcast, but then we have the. A 700 word blog post that is for people that want to read the content and they read it and then they realize at the end, cause there’s a link, Oh, this was a podcast episode two, I might want to listen to it because maybe there was some more stuff, but most of it is there.
Um, you can send out an email. Like I said, you have social media posts, you’ve got the video. So now tick tock, we’ll see for how long, but Instagram reels, YouTube shorts are roughly the same thing. You can cut out minute long, minute and a half long videos. From the podcast episode that are really interesting.
And then you reach those [00:13:00] audiences and those channels from the same content. You can create graphics for social media that highlight parts of the episode and you can post about it to promote your episode. We also take it in other ways. You can. You think YouTube, I’d like to, I’d like to have a YouTube channel.
I need to do this video, but like, I don’t want to get all the makeup and have to worry about a script and a teleprompter and not screw up so that I don’t have to make all these cuts and things like that. Well, you can take a podcast episode. Which if you threw a 30 minute, 45 minute full episode up on YouTube, they don’t perform that well.
YouTube audience, they like 10 minutes or less generally, even on a 10 minute video, they watch two minutes of it, three minutes of it. So what we often do is take like this 30 minute long recording that you and I are doing, and we cut out. The two or three, four, maybe best clips. And we cut that down and we have a seven minute video, or we have an eight minute video.
And then we put a thumbnail at the beginning that [00:14:00] shows the title of the episode and has a nice transition with some music. And then for the next segment that, or the next clip that comes in, there’s a card that tells people what that clip is about. And so people can watch a seven minute video. Get the gist of the podcast, maybe move on from there or say, Oh wait, this was a podcast.
I’m going to go listen to the podcast. We even take it further. You and I were talking about an idea earlier where you can combine all of this copy that you’ve written for these multiple episodes, maybe on the same topic, and you can put them together into a bigger page that is a really bigger S big SEO boost for your site.
We take. Episodes as well and create like downloadable PDFs, lead magnets that are executive summaries of the podcast so that say someone from your audience is listening in the car right now commuting in Austin traffic, like I know what that’s like, they’re listening to the whole episode, but They wanted to take the [00:15:00] information with them.
The information really isn’t in the show notes. That’s more about getting people interested in listening to the show. And maybe there’s some resources, but now they have an executive summary that they can download. And Oh, by the way, when they do that, you get their email address. So you’re growing an email list.
So there’s all of these ways that you can take. A huge piece of content and turn it into everything else that you have to do, sort of your baseline marketing, social media, content, video, et cetera, email, and then supplement it so that you have time to post occasionally about, hey, I went to dinner at this place recently and it was really great, or did you see this new thing that came out last week from the House of Representatives or something?
Let me explain it to you, that type of thing. You then have the flexibility to jump in and make your social media feed more interesting than just promotion about the podcast, but even if you don’t, you have your social media feed, promoting your podcast and other things that you’re doing.
Elizabeth Larrick: So I have a [00:16:00] question on that because a lot of people I see.
Multiple podcasts. I mean, there are lots of examples of this, but they’ll have the episode and show notes, but then they just have the transcript on the, like on their website. So what are your thoughts about that? I mean, is that helpful?
Danny Osmond: Transcripts are really easy to do. Google recognizes transcripts. So where.
Three or four years ago, a transcript may have helped you in terms of SEO. It doesn’t so much anymore because now Google just sort of logs. Oh, that’s a transcript. It’s great for accessibility. Like it’s one of those things where if you can get the transcript on your site, it’s an accessibility thing for hearing impaired and things like that.
But it doesn’t help you as much as If you turn the episode into a blog post for people who are still looking to read blogs, that that’s the thing with all of these different channels is they have different audiences. The people that like to listen to podcasts are likely people who are commuting and they aren’t [00:17:00] watching as many YouTube videos and they aren’t reading as many blogs.
The people that like to read are reading sub stack newsletters and want to look at blogs and things like that. So they find those things and they read those things, especially younger audiences. They’re on YouTube, also listening to podcasts on Spotify, but they’re on YouTube looking for videos that are shorter, that get them information quicker.
So that’s why you want to be in all the places because likely you have audience that is interested in knowing what you’re teaching. Or sharing and they need a way to find you and it’s easy through repurposing to be in all of those places without a lot of extra effort or by outsourcing and having someone like an agency like ours or even a virtual assistant that can do those things and get you in those channels.
Elizabeth Larrick: Gotcha. Because I’ve seen that and I mean there’s so many new like transcription services that make it Mm-Hmm. so easy. I mean, auto AI and like you just, it does it. And so I’m curious.
Danny Osmond: Our [00:18:00] editing platform that we use is called DS Script. It actually transcribes so we can edit from a transcript as well.
Like we can automatically detect filler words and things like that. And you have to be careful when like deleting ones that are. Because, you know, some people slur them together and things like that. So you don’t want to be heavy handed. There’s a lot of tools like that that make it easier. There’s all sorts of, we won’t go into AI, but just tools out there where you can drop now a 20 minute video of you speaking, like doing a TED talk or doing a session at a conference, drop a 20 minute video into it.
And it cuts it up into minute long clips. That makes sense. It captions them automatically, and then also gives you some type of templatized look to them so that you can easily use these things. And it does it through AI. It can understand, Oh, this is a thought I’m going to cut here. Here’s another thought that made sense after a minute, and it will cut it up for you.
It sort of, again, can be heavy handed and you have to tweak it and you have to do the work, but there [00:19:00] are tools that can help you do a lot of these things these days where we as an agency are always exploring that. Cause like, if we can save time, it saves me money. And it’s a higher profit margin and things like that.
Elizabeth Larrick: Yeah. I will say lawyers are a little bit low tech. Now there are lawyers out there who are super high tech and I generally know how to do the stuff that I do and feel really confident in a lot of the stuff that I do, but I know that it’s just the tip of the iceberg when it comes to like all the amazing things that are out there that could be used.
I mean, it’s just, it’s really endless.
Danny Osmond: Definitely. To
Elizabeth Larrick: help systematize things. So well, awesome. So we talked about content and we talked about how to bust through creativity for any kind of content that we’re creating. As far as lawyers podcasting, I know that you’ve done several, I mean, I listened to some of the ones that you do as well.
I know some people like. Especially people that I work with, like sometimes like, well, who’s really listening to a podcast? And do I really, like, is this just going to be another white noise situation? Like, is this really [00:20:00] fruitful for a lawyer to have a podcast?
Danny Osmond: Yeah, I think for most lawyers, it is for most.
We, we have made a living as a business working with professional service providers, and I say the business is successful because it works for those types of businesses. There is an element to podcasting that we’ve alluded to, and that is trust. What the podcast provides is a chance for people to get to know you in some way, and I’ll give you an example Not a law firm because luckily I’m only working with one law firm now to do some special needs trust things And they don’t have a podcast.
Maybe I’ll talk to them, but I live in Central, Florida and Everybody has solar panels, and we wanted to add solar panels to our house So what did I do? The first thing I did was go to Google and look at Google, my business. And I was like, okay, who are out of the thousands of contractors that do solar panels in central Florida, who can I trust?
Who are the ones [00:21:00] that I should talk to first? And so it was who was rated highest, who had the best reviews. What did the people say? So I found a handful of those and I was like, okay, I’m going to talk to these four or five. I went to their websites. So how do I talk to them? And I would look on their websites and they were all pretty good.
And I’m like, okay, cool. They got some information, set up some calls. Had the calls or had the meetings. And at the end, there was one that I obviously trusted more than the other. So I was like, okay, this person was knowledgeable. They were really good about, I felt like they were being honest with me. They weren’t trying to sell me on things.
And I got to the end of that meeting and I said, Hey, I want to give you some free advice as a marketing person. If you’d had some form of content on your site, if it was a blog, if you had even just a handful of podcast episodes, I could have heard you, I could have hear you say things. Have you explained some things to me and I automatically would have trusted you more than the other Contractors that didn’t have those things because I got a chance to know you and [00:22:00] that’s what it comes down to is that even just In a few episodes you get to know the host of a podcast you trust them.
You feel like they’re your friend I mean, the people that are listening to this podcast right now, if they listen to other podcasts, they know that effect. They know that they feel like they’re hanging out with someone as they commute to their office and, and things like that. So that’s really why it’s fruitful still for any professional service provider, including law firms to do it.
Now, what you talk about again, goes back to that. Well, who’s your ideal listener? Who do you want to talk to? Are you trying to get new clients? Are you trying to generate leads? Are you trying to just educate people? Are you B2B? Are you trying to reach other firms? So you think about things like that, and I’ll give examples of, we have one firm that’s an immigration law firm.
That specifically works in the tech sector. And so she is talking about. Immigration law topics that solely affect that sector, the countries that [00:23:00] they specifically are getting engineers and developers from and coders. What has changed how to get those things? So she’s really current, like what is going on, how to.
Access it, what you need to do, how to help people when there were layoffs that started to happen in that sector. Okay. What do you need to know about your visa that got you here for this job? And how soon do you need to get a new job and all those types of things. And, but then there are lawyers that maybe their specific area is business law.
Okay. But they’re only certified to operate in Maine. And so their podcast may be for businesses in Maine. Okay. About things that they need to know about how the law affects their business. Or, uh, use an example from one of our mutual acquaintances, Ernie. He had a client that was in his groups that was from a small town and he had a specific area of law that he practiced, but he was really only one of like two or three lawyers in the town.
And he [00:24:00] decided to do a podcast about the town. Where he was like the digital tourism board for the town, where he would tell people about the town he’d grown up there. He’d talk to people, he’d interview people, he’d recommend restaurants. Cause really it was, he was trying to let people know in this sort of bedroom community of other major cities, what was going on for these new people that had just moved in and the town was growing and what that Led to was him being the lawyer that everyone knew, but also the referral source for all the other lawyers.
Okay. That were there because people knew him, they would go to him. He would get referrals. He’d also get all the business for his practice area. So there’s all sorts of things. There’s a special needs attorney. I know of that does a podcast for parents of special needs children. And she talks about all sorts of things about parenting, special needs, children, and things that are going on and things you need to know about healthcare and this and that and the other thing, but then she’s the.
[00:25:00] Special needs lawyer that all of those parents know nationwide. And so they go to her. So there’s all sorts of ways that you can use it, but it comes down to that. This is your opportunity to build trust with people who are only coming to you when something big is happening, something scary is happening, something that they know is going to be expensive is happening and they have to trust you immediately while.
If they’ve already listened to a few episodes or they’re on your site or they know you because you talk about the town all the time or the city that you’re in, then you have that door open already.
Elizabeth Larrick: Absolutely. And I like that you kind of pointed out, especially like when I got started and in just your example right there, like having a niche is so helpful for people picking podcasts because.
Yeah. If they won’t listen to marketing podcasts and like me, I’m a law firm. And I started listening to a marketing podcast and then I realized like, Oh, this is not general stuff. Like this is really specific just for real estate. Well, God, I just wasted my time. So niching down is totally okay. [00:26:00] And it’s totally good.
And that does not mean you can’t have an episode that’s like, Oh, Hey, by the way, like this weird thing happened to me. And I’m getting this person on the podcast because it doesn’t have to be 100 percent always related to your niche, but it really helps people find you. It
Danny Osmond: does. And, and that’s the thing with podcasting.
I mean, we’re now, we’re coming up on almost, I think next year is 20 years of podcasts existing. We go back way back to like Adam Curry. Remember the guy from MTV? He was like literally the first podcaster and Libsyn, who’s your media host, the one that we use a lot, just celebrated its 18th birthday last year.
It’s legal. It can vote now. And so it’s been around a long time, but even in the last four or five years, there’s been this shift where I think you’ve probably heard me mention before that there’s really only around 300, 000 to 400, 000 active podcasts at any one time. [00:27:00] And that number hasn’t changed for four or five years.
And by active, I mean like they’ve released an episode in the last 30 days, because you’ll see numbers. Yeah. There’s 4 million podcasts listed in the podcast index, but only about 400, 000 of those are still active and actually releasing episodes. The audience has gone up, but what has happened over the last four to five years, and you mentioned like with marketing, there’s a lot of marketing podcasts, there’s a lot of business management podcasts, there’s a lot of.
Sports podcasts, but the ones that have stuck around. They’ve already scooped up all the general audience people. They’ve already scoot like the, the Amy Porter fields of the world that talk about online and digital courses, things like that. She’s scooped up all the digital course people that want to learn generally, like how do I create an online course?
So if you’re going to go into that space now, you really have to focus in on, okay, I’m going to do a podcast on how to create digital courses for food bloggers, [00:28:00] how to create digital courses for. a law firm or for a personal injury, like what, like, if you’re talking to other lawyers and you want to give people some coaching and things like that, you’d have to start a podcast that is really specific now to reach new audiences because those podcast listeners.
Yeah, we’re getting new ones all the time, but most of the podcast listeners that have been around, the 60 some percent that now listen to podcasts weekly, they’ve got their three or four podcasts that they like, that they stick with. So if you’re going to get in there and be a new one, you’ve got to, like I said, like a little lawyer, you might have to be that podcast that’s about their local area.
Or that podcast for business owners that is specific to their state that really could help them learn some things or deal with, like I mentioned to you, an example of an employment lawyer who’s here in Florida that is getting started. And I’m like, okay, that’s your podcast because they’re especially like Florida’s crazy right now.
But like, there’s things that are going on in Florida [00:29:00] that aren’t happening in other States. And so you need to know those things and you need to know how that’s going to affect you. And when you do that, you get in front of that audience much more easily, because just like everything else, finding a podcast is all about search engine optimization and making sure that the title of your podcast lets people know what is it about, like, if I’m going to recommend this podcast to somebody else, I don’t want their first question to me to be, Oh, what’s that about?
Like if I say, Hey. This podcast, you’re a trial lawyer, you should go listen to this podcast, it’s called Trial Lawyer Prep. They’re gonna know what that’s about. It’s like, oh, okay, that’s something that’s preparing me as a trial lawyer for all the things that I’m doing in my profession. Okay, cool, I’ll go there.
That’s what makes sense.
Elizabeth Larrick: Right, yeah. Well, and it’s just, I think that sometimes it’s, I know a lot of lawyers that will start a podcast, and I’m always just like, well, what, what’s happening with it? They’re like, Oh, nothing. Now I’m like, well, wait. And I just think we have so many things that we do. [00:30:00] And for me, it was a lot easier than to sit down and write a blog or use AI to write a blog or go find a copywriter to write a blog.
I’ve done all of that. Like just talking into this microphone for whatever reason is a little bit easier. And I also appreciate like, as far as like your guidance and. There’s zero pressure that this has to be 30 minutes long. I mean, there are plenty of my episodes that are 10 minutes. Yeah, that’s it.
That’s all I got for today. And some of them are 40 minutes, you know, but most of the time they’re pretty short sweetened to the point.
Danny Osmond: Yeah. Yeah. They don’t have to be long as long as they provide value to the listener.
Elizabeth Larrick: Right. Absolutely. Well, awesome. Well, is there anything else? We’ve gone through quite a few different things, trust and repurposing content.
Is there anything else as far as thinking about my audience and those folks that you’d want to convey to them?
Danny Osmond: Yeah, no, I think we covered the main topics that are important for lawyers, especially thinking about the content that they know they need to [00:31:00] create and how to make it easy on them while also getting the benefits of, most of the benefits of creating that content.
Elizabeth Larrick: Yeah. And I will just say from my point of view, like if anybody listening to the podcast is interested, I would love for you to come be a guest, because that was one thing that I did a few times and then I was hooked, like, Oh, I really enjoy this so much more than trying to sit down and hammer out a blog.
It came so much easier. So if anybody’s interested, I’m happy to have you come on, come on the podcast. I think that’s a good way to get started. And that’s one thing too, I would say for people who are. Thinking about it is just get out there on a podcast and just try it out to see if you like Talking into a microphone.
Danny Osmond: That’s a good way to get your feet wet. It’s also a good way It’s a strategy that I tell our clients all the time to continue with because Like I said, you have all these different channels with different audiences. Well, if you have a podcast and you want [00:32:00] to grow that podcast, actually, one of the best ways to grow the podcast is to go and be on other podcasts and borrow people from larger platforms and bring them back because likely like with you, you’re talking to trial lawyers, you could go on other podcasts for lawyers.
Talk specifically about your expertise and say, Hey, come back and listen to episode 71 of trial lawyer prep. Cause we went way deeper into this topic than we could on this answering this one question. It’s one of the better strategies for growing an audience of a podcast is to leverage all the other podcast listeners.
Podcast listeners are always looking for new podcasts. Even though the average podcast listener already subscribes to six shows, they’re always looking for something new or something’s always changing. I mean. I look at myself as an example of the number of shows that have been in my podcast app for more than four years is probably two or three and all the rest, the other six or seven that are in there have changed.
I listened to this show for a year and [00:33:00] then I’m like, okay, that gave me what I needed and then I move on. But during that time, I might’ve bought a course. I might’ve signed up for a coaching session. I might’ve done something else, bought someone’s book or bought a resource that they mentioned or subscribe or, or listen to an ad that they shared and been like, Oh, I think I heard something for like low carb ramen.
A month ago and I ordered it and I’m like, Oh, this is great. You know, this cause it’s like, tastes like ramen, but it’s not all the carbs. And so all that stuff happens all the time with podcasting.
Elizabeth Larrick: Yes, absolutely. Well, awesome. I really appreciate coming in. And of course I appreciate all the work that you and your team do to make me sound professional and get this podcast out to the world.
Danny Osmond: Oh, you’re welcome. I appreciate you having me here.
Elizabeth Larrick: Awesome. Thanks so much. Thank you all for joining us today. If you enjoyed the podcast, please follow us, like us, review us on your favorite podcast platform. And like I said, invitation is open. My email is in the show notes. If you are interested in starting a podcast, please contact me and we’ll get you on [00:34:00] and be a guest and see if you like it.
As trial lawyers, we can’t be stagnant. People change, cultures change, our jurors change, and how they process information changes. And so, as trial lawyers, our profession is one where we have to keep working on it until we decide we’re done.
Joining today’s episode are Patricia Kuendig and Tanya Ortega to talk all about cross-exam – the importance of sequencing your cross-examination chapters, the basic structure of a cross-exam, and how to deal with objectors. They also share the value of a game plan with your cross-exam, which allows you to be much more organized and quicker.
They also talk about women empowerment and how they’re creating a collaborative community of women trial lawyers, because there’s so much comfort in knowing that you’re not alone. Hopefully, these women can tap into the magic that they can create in the courtroom, which is also very different from their male counterparts. As women lawyers, there’s something that we can bring to trials and to our practice, that men cannot. And so, we need to harness that, live the truth, and be the future of the practice.
Patricia has a diverse practice in almost every field, helping a lot of folks all over the country. Whereas Tanya does a lot of Personal Injury cases and Trust Litigation. She also handles Personal Injury, with a specialty in brain injuries.
In this episode, you will hear:
The importance of sequencing your cross-examination chapters
How to keep your tone
Advice on how to deal with super objectors
Collaborating with other women attorneys
How to put together a cross-examination
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
If you are interested in attending the September 28 – Oct 1, 2023 cross-exam workshop “She Crosses” please email Patricia or Tanya directly.
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hi there. Welcome to the podcast. It’s Elizabeth here. I want to do a really quick introduction before we jump into this episode.
I’m honored to have two wonderful trial lawyers join us today to talk about cross exam, Tanya Ortega, along with Patricia Kundig. Ms. Ortega practices out in California, but she’s a native Texan and her [00:01:00] specialty is brain injury and has worked closely with Dorothy Clay Sims and mostly does personal injury, as you will hear.
Her contact information website will be in the show notes. And again, joining her will be Patricia Kundig. And together, these two ladies are putting together a cross exam workshop. specifically for women travelers. So that’s what we’re having them on today together. We may have them back individually to talk more about their specialties, but again, Tricia is joining us.
She has practiced at a Park City, Utah, but both of these women practice across the U. S. in co counsel roles and consulting roles and personal injury. Tricia’s background is in family law, complex family law, and she works with Roger Dodd and has for several years, and he has written a book about cross exam and they teach other lawyers about cross exam, but they both have a passion obviously for cross examination.
So without further ado, again, the contact information for these [00:02:00] trial lawyers will be in the show notes. If you’d like to reach out to both of them, they encourage you to email them and they’re happy to respond with you directly. All right. Thanks so much. I hope you enjoy this episode. Hello and welcome.
To the new episode of trial lawyer prep. I am excited to have our two wonderful guests to join us for this episode about cross exam. I’ve got Tanya Ortega and Trisha Kundig here joining us. So say hello ladies.
Tanya Ortega: Hey,
Elizabeth Larrick: awesome. Well, as y’all have been listening, we’ve been talking a lot about different sections about trial.
So I am thrilled that they’re going to come talk to us about cross exam. It’s a hot topic. There are lots of ways to do it. And so I’m excited to get to their perspective and thoughts on it. Ladies, let me know, how do you feel about cross exam?
Tanya Ortega: Well, there’s a before and after I would have to say, right? So for me, there’s a before how I felt about it.
And then I attended Roger Dodd’s [00:03:00] cross examination clinic with Tricia and Roger. It changed everything for me. That was such a game changer. So, yeah, we can talk about how I felt about it before and then how I feel about it now. And it’s tell us about your markedly different.
Elizabeth Larrick: Yeah,
Tanya Ortega: go
Elizabeth Larrick: through
Tanya Ortega: your journey.
Sure. Super fast. Because I know Trisha’s got some thoughts on this as well. But my before was nervous. I knew the information about the case, but couldn’t get it to translate and across, right? And then if we were to go to trial. My male colleagues would come in and they would do the crosses. Oh, no, no. I’ve got the cross of the expert.
I’ve got the cross of this important witness. And that is so there just does something to your confidence, not only at that moment, but truly through the case. And to the next case as well. So I made it a goal of mine one particular year that that’s not going to happen to me anymore. I am not going to be the person that preps this case, but then [00:04:00] gives it off to someone because they can cross and I cannot in my mind.
So I took Roger and Trisha’s class. And within two days, 48 hours of working with them, completely different person. I have now a game plan. I’ve got a template that works every time. I am the one now that people go to, to cross exam experts, witnesses. It’s just such. A better feeling it’s freeing. Once you have that game plan, you can then get creative too.
Okay. How am I going to sequence this? What am I going to do with my chapters? How far down the rabbit hole can we go? Cause this is now going to get really exciting. It just gave me the freedom to be the trial lawyer that I know I can be. It was the foundation and now I’ve got the confidence to move into other parts of it, like openings, jury selections.
It’s [00:05:00] just. That’s that’s my journey. I feel like I’m going on and on, but I really wish there could be a snapshot of me before. And me after that clinic, just even my entire being, my energy is completely different. Patricia, go ahead.
Elizabeth Larrick: Well, Trisha, now you can add that in you guys take before and after pictures so that we can see the glow.
So the cross exam glow. Yes, exactly. Trisha, take it away.
Patricia Kundig: So for me, cross is the center of. How I prepare my case from the time I get the case in until the time I settle it or go to mediation or go to trial. I use cross as a way of organizing the information and organizing myself. So I’m always thinking about how can I get my narrative out of the opposing witnesses when an opposing witness admits facts that support your narrative, it means [00:06:00] more.
It also takes a lot of the responsibility off of our clients and our clients need that. Especially in personal injury, a lot of our clients are injured and maybe have brain injuries, and it’s a lot to put on their shoulders. And so I really always think about what can I prove through the other witnesses?
And how do I package the information? And then when I can do that, I’m now I’ve got sort of my chunks of information, how I’m going to teach in my opening. I’ve got my chunks of information on what I’m gonna say in closing and now I can put the bows on it. But every document I get in in a case, the first thing I’m thinking of is How can I use this through an opposing expert, through an opposing witness?
It’s just how my brain works because I’ve been trained by Roger and have worked with him for so long, but it makes me more organized. It makes my presentation more organized and for judges, and this is what I think really helps. It makes me [00:07:00] more efficient. And judges, I mean, who doesn’t want when a judge says, how much time do you need Ms.
Kundig? And if I underbid it because I know I’m going to be efficient, they’re all smiles. They’re all happy. So the cross for me is just the center of how I’m looking at the case from start to finish.
Elizabeth Larrick: Gotcha. And tell us your journey with CROSS. Like you said, you’ve been working with Roger for so long, it kind of ingrained, but did you have any kind of aha moments or anything kind of like Tanya was talking about as far as like CROSS?
Patricia Kundig: I did early on before I ever even met Roger. So I started out my career doing all complex domestic relations litigation. And I tried a lot of cases early on, and I think my first aha moment was in one of my first trials my first few years, and I realized that cross didn’t have to be. A fight that I could teach a judge in a family law case.
They’ve heard a million [00:08:00] of them. You’re trying to differentiate. You’re trying to make your case stand out from the others. And when I realized that I could do sort of the more constructive type of cross, which I didn’t even know That term existed at the time and tell my story through an opposing witness.
That was my aha moment and I just stumbled onto it. My few years of my career were all trial and error, but once I did that and it were, I realized that for my own way of approaching a trial, that I could score more points on cross than I had previously thought I could.
Elizabeth Larrick: Yeah, that’s awesome. And I think most people like the way that I was brought up and mentored was when somebody gets up to cross, we’ve been trained, like the jury gets on the edge of their seat because this is what they see in the movies where like the magic’s about to happen, like the pressure’s on.
And so it becomes for you as the lawyer in the driver’s seat, it’s a little bit terrifying because are you going to [00:09:00] perform to their expectation? And as a female, it was never like, I never felt like I could come in and be like, you know, the Cola chainsaw, you know, tear people up. Like, because I feel like when I would laugh, like, I know that that’s terrible, but when I get nervous, like the comedy comes out as far as like going through those.
Yeah. Feelings for you guys, like getting up when you’re doing this, trying this out, you’ve got your game plan. Like how did those kinds of feelings, I think, Tonya, you kind of tapped into it, kind of transformed for you and same for you too, Tricia. Walk us through that feeling transformation.
Tanya Ortega: Sure. So for me, that’s a lot of pressure.
That you can’t handle the truth moment. That’s a lot. So I like to reframe it the way that Tricia and Roger taught me, which is we’re not getting that you can’t handle the truth moment, but instead we’re teaching bit by bit trying spoon feeding, I guess, and then [00:10:00] creating block by block your wall. And so that for me takes the pressure off.
I know I have a goal. I’m very in these moments. I need a game plan and a goal. I’m your girl. I got it right. I also know, based on the depositions and what have you, what they’re going to say. So each chapter is a goal. And as those goals get accomplished, your confidence is just building building. And then you can have fun with it.
1 chapter per page. Sometimes I color code those things. Pages are on different colors. So yeah, the jury’s watching me throw down that one. That one’s good. You know, on the table, let’s go to the next goal. And so it’s a feeling of a connection with the jury because they’re following me through this learning journey.
And we’re doing it together as opposed to, I’m just going to eviscerate this Yahoo on the stand. A [00:11:00] lot of times that does happen, but it happens later on in a very different way. So it makes me more comfortable. I’m feeling like we’re all going to hold hands and walk this road together as opposed to really putting the witness in such an adversarial position to me that I could lose control over it.
And then what would happen. So. Yeah, I like to reframe it in that way, but go ahead.
Patricia Kundig: So Elizabeth, I, you, you said something that strikes kind of a chord with me that the jury’s expecting television, right? When I am the opposite of what you see on television, that’s not my personality. That’s not, I wouldn’t be authentic if I did that.
And so I get super nervous because I, I know I can’t be what they’re expecting. I’m not putting, I don’t have it in me to put on a show. And so I do get up there very nervous. every single cross, every single deposition. I am a ball of nerves, no matter how well prepared that does not go away. But I [00:12:00] will say this, I’m very cautious.
And I really think through my sequencing of my cross examinations. I make sure that my first few chapters are chapters that the witness is less likely to run on me. I want to make sure that I get through those nerves before I get into the riskier stuff. And then by the time you get into the risky stuff, you have your sea legs under you a little bit.
Not to say that a witness never scores points because there’s no such thing as a perfect cross examination. I can tell you that for sure, but at least my sea legs are under me. And now I can banter and I can spontaneous loop and I can. Work through the risky chapters. Yeah. For me, the crucial thing is making sure those first few chapters I have well thought out to just build up my own confidence.
It’s less even about the witness. It’s more about building my confidence.
Tanya Ortega: Uh, so true because sometimes too, when you’re using those first few chapters, [00:13:00] you know, what strategies you’re going to use to control the witness. And they work because you’ve thought this out and the witness now knows you’re in control too.
So you’re absolutely right. Sequencing those other riskier chapters kind of in the middle. It’s a really beautiful way to do it. One thing I also really love to talk about with women is when we’re doing the cross, our tone. And I just personally, this is me as my personality. I default to somewhat more of an aggressive tone.
That’s just who I am. And in trial, I really tried to back off of that. And man, I would love a conversation with us and our female community of when is it okay if it ever is okay to just really go after someone in an aggressive way as a, as a woman in [00:14:00] trial, and then is it necessary? What about on those riskier chapters?
We tone it down a little bit. Right? Like, how does that play? So there’s a lot of cool psychology you can do with it, too, that just fascinates me. And I would love to hear y’all’s viewpoint on that, too. Like, what kind of tone do y’all use?
Patricia Kundig: Yeah, so I guess before I get into my tone, what I want to say is I do teach a lot of lawyers.
And I’m always amazed at the women that say that they’re too aggressive. And I think as women, we make that assumption because we’re told and people interpret us or assume we’re going to be a certain way. And then I teach and I see them perform and I’m like, no, you’re actually not overly aggressive.
Stop listening to what everybody’s telling you. But my tone and part of this is my voice. So, you know, of course I sound like an eight year old girl and it’s, I. I do, and I have to live with that, and I have to own it. I tend to get softer at the hard moments, but I use the inflection in my [00:15:00] voice. It’s funny, Roger always calls it little girl lost.
When, when I’m gonna ramp up, I actually get softer, and the tone of my voice suggests to the witness that I am calling them out on being ridiculous, or a jerk, or evasive. And so that’s how I’ve used my voice and my tone to my benefit. Cause I can’t be, I can’t do that overly aggressive tone. I don’t have it in me, but I love seeing female lawyers have that aggressive tone.
I think it can be really effective. Yeah. What about you,
Tanya Ortega: Elizabeth? What’s the tone that you are most comfortable with or your
Elizabeth Larrick: default? Well, I would say that when I started to do trial work, I get, I get softer. Get a little nervous. But. What I have learned and really practiced in doing focus groups is.
What tone can I play with and what tone works and it’s very easy for [00:16:00] me to be pretty flat, like it’s not very easy for me if I, like, I generally keep the same tone but I just keep it a little bit louder like. Oh, maybe you didn’t hear me the first time. I know that that’s like, that’s me getting like, like, dude, you just like, or like answer my question here.
So that’s pretty much what I’ve always practiced with in focus groups. And then. What that always reminds me of is when I’m in the courtroom is like you’re teaching, you’re just asking questions and you’re staying curious. And that always keeps me to like bring back down the like this word because it feel like if I get ramped up, you’re going to see.
I’m either going to get flushed or, you know what I mean? Like, or there’ll be a tell that I can’t, you know, that I just, something’s happening and they can tell. So I always just try to remember that, like, okay. And doing so many focus groups has really helped me with my tone and just being okay, well, just tell me about that.
And that has always worked in, and I’ve done a lot more deposition work probably than trial work when. [00:17:00] They get super snippy with me. It’s very easy for me just to go back and just be like, but maybe the jury doesn’t understand. You know what I mean? Like always helps me to go back and think like, okay, well, this dude’s being, or this person is being snippy with me, or they’re trying to poke me and make fun of me because I can’t pronounce the word right.
Normally just, you know, I’m like. All right. You’re trying to get me upset. Where can I go? And generally it’s just like, cause I’m thinking like the jury’s going to have the same question. Like, why are you doing that? Why can’t you do this? So that’s generally my, what I try to do is just take it down a notch and generally just be like, cause I don’t think I’ve ever been described as aggressive
ever, but you know, I’m sure there’ve been times where I’ve been aggressive and, but that’s definitely not a word I’ve been told that I can ramp up. That’d be a little bit more aggressive. So
Tanya Ortega: it’s so interesting too, because I have found now my aggression, if there is to be a moment in the cross to do it, [00:18:00] I know when that might be.
Obviously I’m reading the room. Before, and it’s going to be natural. I also, though, know if I get aggressive or something starts to get me where my heart rate starts to elevate the bloods rushing to my head, it might take me off a little bit of my game. Now the blood’s going somewhere where, you know what I mean, to my head and my cheeks and my heart rate is elevated.
And I need to think clearly. So that’s also a technique I’ve been really wanting to work on and have been working on is because it is my default. I took some neuropsych test just to see what and Tricia did too, just to see what our clients I
Elizabeth Larrick: mean,
Tanya Ortega: it was fun. Let’s be fair. It was a wild ride. And one of my scales on the MMPI was my aggression scale was like through the [00:19:00] roof, like through the roof.
So that’s why I’m like, no, no, they say that that’s my default. But anyway, yeah, that’s another component of it is. Learning this like the military breathing, so I bring my heart rate back down because we need to think clearly we got a chapter to do. We’ve got a goal to accomplish. So it’s just so much happening.
I love the conversation about it though, and allowing each other to. You’ve got to be yourself in these moments, whether you’re crossing at depth, whether you’re crossing at trial, love to follow up with you a little more too on what you do when defense counsels and when they get snarky. And obviously now the blood’s rushing to their head and they’re getting off their game.
How do you handle that? And I pose that question to both of y’all.
Elizabeth Larrick: Well, most of the time there’s a team of us, right? So the only time I’ve been to trial and I was solo, it was like my very, I didn’t know it. Well, not, no, it wasn’t my very [00:20:00] first trial, but I will tell you it was the weirdest situation. So the council tables were right behind each other.
So he and his client are seated behind me. So it’s very weird. Yes. And I just kind of put it aside. Like I, I just knew like, he’s trying to distract me and that’s always like, okay, you’re trying to distract me. And, and one of the things that I also taught for my mentor as it. Got to more bigger trials and bigger teams and bigger things was like, listen, your number one job is to your client and to your case, and you cannot spend any time with them.
So if it is done, you get out of the room. Unless your job is to stay back and negotiate, you’ve got to go because you cannot let that get into your brain. And I’ve definitely been in situations where me and the defense counsel are getting like reamed out by the judge. And I just like inside I was giggling because he looked terrified and I was just thinking like, well, if this happens at half, you know what I mean?
Like, I was just like, this, it was a kind of a crazy trial, but [00:21:00] what I have always defaulted to is just kind of diffusing that, like, I’m not going to play into that. Like. Okay, if I need to ask a question or talk to this person, then I will, because I found that if I get down that road, boy, howdy, I am often in it.
It’s hard for me to come back. So that’s what I have tried to do. Tricia, what about you?
Patricia Kundig: So, for me, I guess it depends on if it’s a deposition or a trial. If it’s a deposition, I always think about, because we all deal with those super objectors that object all the time. Are they being effective? Yes. So are they actually like coaching the witness?
Is the witness getting it? Does it matter? If I don’t feel like it’s making a difference, then I just let them do it for the record. And I, I just keep on doing my thing. If they’re instructing a witness not to answer, which we we’ve all dealt with that too, that one, I will Put an admonition on the record.
I even have some law available that I will cite onto the record. [00:22:00] And if they keep doing it, I will suspend and try to get the judge on the phone, depending on the jurisdiction. But for the most part, I really don’t take the, I don’t take the objections personally, and I really just keep trying to do my job and let them do it.
And it’s funny because they’re trying to rattle us, but if you really pay attention when they can’t. They start getting more rattled and I’m good with that. I’ll take that all day long in trial. I’m not going to lie. I tend to get more nervous when I’m dealing with objections. I’ll start to second guess myself on, am I right?
Am I wrong? Did I phrase that wrong? But I really, lately what I’ve been doing is I just default to rephrasing my question and I don’t even respond. And I just say, your honor, I’ll rephrase. And I rephrase and, and usually when I get the objection, it’s because I’ve jumped too far ahead to a conclusion. And so I just go backwards and I break it down and afterwards, you almost want to thank your opposing counsel.
Like, thank [00:23:00] you. Had you not objected, I don’t know that the jury would have gotten what I was trying to get to. So thank you for helping me take a step back, but that’s taken a while for me to get to that point where I feel comfortable just ignoring the objection during trial. But yeah, my best advice for people is when in doubt, just rephrase.
Tanya Ortega: Yeah, absolutely. And this conversation I love because for CROSS, when you have the game plan and the goal, you know, the conclusion you’re trying to get at the end of the chapter, like Trisha’s saying, Then now we can get creative. Sure. I’ll rephrase because, you know, there’s one fact per question that you need to get to that conclusion.
Maybe you got ahead of yourself or whatever. This is the creativity that I love. This is where the magic happens in depth and in trial because you can choose now not to engage. You can choose to engage maybe in a somewhat [00:24:00] passive aggressive way, like with deposition objections, perhaps. Oh, wow, sir, it looks like you’re getting red in the face.
Should we take a minute? And so obviously my voice isn’t increasing or getting wild, but instead I’m being a little bit passive aggressive and pointing out their business, but it doesn’t take me off my game because I have a game plan. And I’ve got exactly, I know exactly what I need to get in and to get out.
It just makes the practice. It’s like without it, you’re practicing in black and white and with it, you’re now practicing in color. It’s just the most fun.
Elizabeth Larrick: And I mean, I’m sure it’s probably got what I was always had was a, B, C, D. Like if any direction they go and that’s the, that’s, I think that’s the fun thing too, about cross exam and you guys talking about like the chapters, it’s like, Each chapter could be different.
Like that witness could keep trying to do something different every single chapter, even though you’re like, come on. So like having all those options. Okay. Well, if they, what if they go this way? What if they go that way? What if they go, what if [00:25:00] they tell you something you’ve never heard before? Whatever it may be.
I mean, that’s having a plan and then having the six backup plans. And then, and then like you said, just knowing at some point, like you’re going to get creative. But it’s gonna come from a place of like, Oh, like I know where we’re going. No worries. I got the map. Like
Tanya Ortega: exactly. And that I think what you’re evoking and projecting is an energy of everybody’s safe jury safe with me.
I know exactly where we’re going. Everybody take a deep breath. They’re going to try to put in some obstacles in our way, but no problem. We got this. We’re just gonna walk right around it. Right. So it’s just a much cooler feeling. So I think that is what Trisha and I are wanting to collaborate and create this moment where we can help and teach other women attorney at trial attorneys, the [00:26:00] game plan as, as Roger has taught us.
And then do exactly what we’re doing right now, which is let’s round table tone round table objections round table. These just sometimes obstinate defense attorneys. What do you do when a defense a male defense attorney now refuses to look you in the eye, but wants to look your male co counsel in the eye refuses to address you, but now wants to address only your male counterpart.
These are all things we go through. And so anyway, that’s that I think is If we can just all create a community and a conversation about that and have this foundation of the game plan that Roger’s taught us, man, we could do some beautiful things.
Elizabeth Larrick: Right. And, and really not inspire as a word, but I mean, I just think sometimes more tools you have in your tool belt because what may work so great for you, Tanya may not work for me.
But Tricia may have a great suggestion. That’s like, Oh, sweet. Oh, and that’s kind of like, when we [00:27:00] all get our little brains together and start brainstorming, like, it’s like, Oh yeah, like that would work for me. That wouldn’t work. But that’s the nice thing about it is like, and now I’ve got all of your experience together instead of having to build experience by yourself, which is very time consuming.
And it’s a long road when you’re by yourself. I know a lot of women that go out. Solo when it’s just kind of like I was one of those people and I’m just like, okay. And I really underestimated the experience that you get just absorption when you work with other people. So I love having groups to go to and, and listservs and that kind of stuff like that.
So tell me a little bit about what you guys are, what you guys are creating. Like, I would love to hear more about that.
Patricia Kundig: So we have put together a program. We have one coming up in September and then another one end of January, early February of 2024. And the title of the program is she crosses, but it’s, it’s, I would say half [00:28:00] like on your feet learning cross examination.
And have a collective, a community. We, we are going to stay together. We’re going to eat together. We are going to do some activities together. We’re going to talk. We’re going to share ideas. We’re going to round table. I really, we talk a lot about kind of the collective and sharing from our experiences and, and frankly, Yeah.
We learn the most from our losses, don’t we? From our errors. And so let’s, let’s talk about our errors. Let’s, let’s share with each other so that Tanya doesn’t go through something I went through and maybe she’ll think of some new ideas or Elizabeth you’ll share with us. And so we have about 16 hours of CLE built into a two and a half day program or retreat.
Our first one’s going to be where I live actually in Park City. And then our second one is going to be in Arizona. But Tanya, please jump in and add.
Tanya Ortega: Yeah, it’s, it’s, oh man, [00:29:00] everything that Trisha said, it’s women empowerment, it’s creating a collaborative group, community, so creating our own listservs. We all have each other’s cell phones.
This is happening. I need some ideas. And it’s, there’s so much comfort in knowing that you’re not alone. And I, I’m been where, where you’ve been to Elizabeth. I opened up my own firm and at times it can be so lonely. And no matter how good you are, we are all better collaborating. I’m going to trial in June.
And this case I’ve lived with. a long time. You can’t tell me that someone coming in and putting fresh eyes on that won’t up my game, won’t make this trial better, make me better. And that’s all for the benefit of our clients. So, and that’s really why Tricia and I share this. Mission and this [00:30:00] goal of helping as many people as we can through teaching attorneys.
So helping as many clients, as many injured folks all over the nation, as much as we can by making sure that their attorneys are prepared. And feel a part of the group. So it is going to be a very kind of a small group, intimate, very personal. Um, we’re going to get an Airbnb and everyone’s, you know, gonna, we’re all going to stay together.
And, and I do think that there’s a lot of. Great learning and sharing that can happen over dinners that we make together. And so you’re getting the same number of hours and the same program as you would with the Dodd cross examination clinic. And we’re adding this component that I think our female trial lawyers group needs.
Which is community. [00:31:00]
Elizabeth Larrick: Gotcha. One of the things, sometimes I get a little pushback on, so let me give you a little pushback here. And you, you guys tell me, which would be why, why does it need to be separate? What, what is, and what, why, why does there need to be separation if this is cross exam and it’s a tool you guys are teaching the same tool?
So I’m already getting, I’m already getting, you guys can’t see it, but I’m getting, hold on here. Trisha, go for it.
Patricia Kundig: All right. Yeah. I definitely want to launch into that one. So first of all, it doesn’t need to be separate. However, the gender divide absolutely exists. It does. It exists in the courtroom. It exists in the profession.
And through cross examination and through the community, we can all help each other to cross that divide, to bridge that divide. And frankly, there are so many programs where it’s all men and maybe one woman or maybe no women.[00:32:00]
But reactions to us can be different and are different, and our shared experience is different. And so I’m not saying that every program needs to be separate, but there’s value in it. I really believe that.
Tanya Ortega: I couldn’t agree more. I mean, as soon as my male counterparts don’t get called Woke in a deposition as soon as my male counterparts aren’t told, maybe you shouldn’t wear heels because it makes you look off balance.
And then the perception is, you might be dishonest. Those are all things that we have to think about and deal with. So, as soon as those questions are no longer questions, then sure, we don’t need a separate community, but I don’t think that’s the world that we live in right now. So, and as soon as I can be in a trial.
Where, you [00:33:00] know, I’m not the only woman or most of the courtroom, the folks in the participating in the trial are women time after time and day after day until that happens, then I think we do need a separate. community and group to just make sure, Hey, Trisha, I was, this just happened in my depth. Is that normal?
Does that happen to you? And then there’s the other things that we’ve not really touched on, but I would love to is the personal obligations. And how to balance that family, friends, all of these other responsibilities that we share and we carry on top of being trial lawyers, which is very time consuming.
So that’s, that, that would be, I guess, my, my response to anyone asking, why is it different? And I
Elizabeth Larrick: think that you just, you, you both nailed it. It’s. [00:34:00] It’s different. We’re not separate. It’s different. It’s different experience. It is. And it, it, it, it’s a different experience. And we, this is the reality that we are in.
And there are many things that are out of our control and many things that fight against all of us as trial lawyers. And what’s like, we talked about what’s in the movies, what’s in the TV. What are we, what are, we’re all, every legislature’s trying to like say we’re the worst things going on. So it’s like, sometimes it’s like, okay, well.
If we can serve in this way, if we can serve others and serve each other in a way that helps somebody else’s experience and in the way we are totally serving our profession as well by helping people be better lawyers, but also being a better person is a good thing too. Right. And
Tanya Ortega: I’ll tell you what, I think it’s different, but also [00:35:00] Um, this community in this group will help me and I hope others who join it tap into the magic that we can create in the courtroom.
That is also very different. Then our male counterparts, there’s something that we can bring to trials and to our practice that they cannot. And, I mean, I think we need to harness that. And really just live in that truth and and be the future of the practice because I think that’s where it’s going
Elizabeth Larrick: well the courtroom is changing whether anyone likes it or not we’re going to have a lot more female judges out there we’re going to have a lot of different laws out there created by lots of different people now and that’s just going to keep that’s just going to keep happening and it’s The people who are the learners, the people who are trying to constantly learn, I mean, those people who are gonna stick with it.
And if [00:36:00] you’re Not trying to learn or take in more. You’re just gonna, gonna kind of get left behind. And that ain’t new. That is totally not new. That has been around forever. But that’s just kind of one of those things where I worry about some of our trial lawyer institutions that are not moving forward with some kind of change and learning and adapting.
And I think the pandemic has significantly Shown that light onto our profession of like us trying to do zoom like that’s it’s just it’s it’s been entertaining but it’s also just like whoa like we our profession has not been doing this and and others others with us too the medical profession is also behind but it’s kind of like wow we got to jump we got to jump ahead like Very quickly.
So
Patricia Kundig: not only do we need to jump ahead and adapt what you said it, we have to do that our whole profession. We can’t be stagnant. People change cultures, change our jurors change. How would they process information changes? And [00:37:00] so as trial lawyers put the sort of just. All female aside, our profession is one where we have to keep working on it until we decide we’re done.
Elizabeth Larrick: Yeah. And I think one of the things you said very early on was like this, doing this method with cross exam allows you to be much more organized, much more game plan, and it’s quicker. And that’s one of the things that I get from. Anyone I’ve been talking to in the podcast, anybody out in the, in the trial lawyer communities, jurors want it done.
They want it done fast. Do not waste their time. They will tell you in their body language. They, they want that fast. They want it done quickly. Don’t go in there and think you’re going to spend all day with somebody like they’re going to be really, really mad at you. So anything to get our efficiency down is what we need to be looking for.
So, well, so I want to, I know we’re, I want to talk a little bit more about the workshop and also kind of about the, the, the framework in and of itself, because I [00:38:00] know that doctor depositions, like defense experts, like that kind of stuff. So tell me a little bit about like, is this just you have one framework for everybody and it just, it just molds and adapts or there’s special things for different kind of.
So
Patricia Kundig: my personal way of approaching it is you have your basic sort of structure. For how you’re going to put together a cross examination, and that doesn’t change. What actually changes more, depending on the type of witness, is the sequencing of it, and the words that you use. So especially with experts, word selection, I think, Is so crucial because they want to fight us on words.
They want us to be in their sandbox to use their words to feel comfortable. So, figuring out your word selection ahead of time and how you are going to bring that witness back to your word and and that strategy is is really important. But I don’t know for me personally, my [00:39:00] overall. Organization and how I cross does not change from witness to witness
Tanya Ortega: agreed also the general framework, the 3 rules those translate.
Yes. To every witness expert lay witness controlling the witness those strategies. Translate no matter who the witness, it’s really fun to do experts now, because what was a defense neuropsych answer that took two pages long is now you don’t have that opportunity. They don’t have that opportunity. And so to see that frustration is like, one of the greatest joys of my life, but also,
but we’re also getting somewhere. Transcribed And so I’m able to teach the fraud that they generally have committed. I’m able to expose it and show it and it’s not [00:40:00] lost in this page after page of their nonsensical answer. That is really crucial. That’s a big benefit. And it’s not just defense experts, but it’s every expert.
And so in doing that, you’re a lot, you’re teaching, you’re able to teach. So I hope we, I hope he answered your question. It is. A framework that is used every time you can get creative with the words and the sequencing and how much you want to break down the chapters. But otherwise it is, I guess, transferable and get you the great results every time.
I wouldn’t change it.
Elizabeth Larrick: Yeah. And it sounds just to kind of understand a little about the workshop too. So will people like bring, bring a case with them? Let’s say you’re going to have, I don’t know how many people are going to have there, but someone’s going to bring one about a depo, someone’s going to bring one for, for, for a trial.
Are you guys going to work, workshop some of that stuff or just so they can [00:41:00] see it or tell me a little bit about that.
Tanya Ortega: Absolutely. In the, in the cross examination clinic that Roger and Tricia put on, you get two days. of on your feet cross exam. This will be that. Plus, we do want you to bring cases. We want you to bring instances, experiences that you want to talk to us about, that you want us to break down, that you would like to get a group opinion on and a discussion on.
But so it’s both. It is what you would get normally, plus this added conversation with your case in particular and your experiences in particular.
Elizabeth Larrick: Gotcha. Awesome. Because I know sometimes, I know different states have different rules. Like for example, I think, and I’m, if I’m making this up, somebody emailed me, let me know.
Like in Washington, they don’t really take depositions. Like experts just show up and you just got to go versus like here we have, you can depo people to death and bring them to trial again. So [00:42:00] that as far as the, the workshop, it didn’t matter where, what, what road we’re on. We’re using it. Yes. Yes. Sorry.
Tanya Ortega: Yeah, absolutely. And what’s so fascinating is it’s not also going to be limited with practice. Like only PI lawyers, only criminal defense lawyers. These skills are transferable to any field. If you’re deposing, if you’re examining someone. You’re going to need, you’re going to want this game plan. So yes, any state, any practice, any type of examination, we’re ready.
Let’s talk about it, bring it. And we can talk about the nuances of your state. We can talk about the nuances of your practice, but the game plan is frankly, not going to change too much.
Elizabeth Larrick: Cause luckily we’re all humans. So we generally always works on humans, robots, maybe not so much. So, okay. So tell me a little bit for people who are listening.
What’s the best way if they have more [00:43:00] interest or they want to learn more about the workshop? Is it, what’s the best way to learn more about it or to contact you? Tell me a little about that.
Patricia Kundig: So I would say right now we’re working on getting our website up and running. So right now the best way is to just email myself or Tanya.
My email is Patricia at Cundig law. com minus Tanya at the Ortega firm.
Elizabeth Larrick: com. And I’ll put both of those in the show notes for anybody listening. So if you’re driving and listening, which is when I listen to my podcast. Then we’ll put everything in the show notes so you all can reach out to them and get on, learn more about it.
And maybe when the website launches that you guys can circulate email to those folks.
Patricia Kundig: Yeah, absolutely. And we’ll, we’ll share information. Each of our workshops is limited to eight. Participants just because of the nature of the format and wanting to make sure that everyone has enough time on their feet.
And we want a small enough group that we can really have those deep dives and those deep conversations. But Tony, do you have our dates for September?
Tanya Ortega: Yes. It’s Thursday, September [00:44:00] 28th through October 1st, Thursday through Sunday. So, if you’ll notice, I mean, it’s multiple days, not just the 2 day cross examination period, but we’re adding days so that we can round table workshop and have more time to spend with each other.
So that’s the 1st 1. and then, like, Tricia said earlier, the 2nd is January, February of 2024 in Arizona.
Elizabeth Larrick: Gotcha. Well, awesome. Well, let me ask another question because I know you guys are very, very active speakers. There’s lots. So where else, you know, somebody wants to listen to, where else can they go to learn more about you guys or to catch you out and maybe at a seminar?
Patricia Kundig: So for me, obviously I do teach a lot with Roger. So I teach about half of his trial skills clinics. Both Tanya and I have done trial lawyers university in the past, including some of the online format that I think you can still access. Yes. But. Honestly, for me, email me. I love when people reach out with things.
And [00:45:00] frankly, here’s what I always say to people reach out to me. And now you’re on my list and I’m going to reach out to you when I need advice and let’s be community. I love that.
Tanya Ortega: Absolutely. And, and, and Tricia also practices in almost every field. I mean, she’s got a very diverse. Awesome, awesome practice helps a lot of folks all over the country.
So while she lives in park city, she’s, she’s in cases associated in with as co counsel and all kinds of areas all across the country. And then for me, I do a lot of. Personal injury and trust litigation. I have cases across the country. My specialty is brain injuries, and I work very closely with Dorothy Clay Sim and her husband, Dr.
Organ Hunter. And so we talk about. Deposing defense experts, uh, defense neuropsychologists, brain anatomy is my lecture on that [00:46:00] and some other things too. So imaging just there’s that, that, that type of injury is a lot of components, a lot of parts to it. So you can catch a lecture here and there on, on different.
On the different parts. But yeah, that’s, that’s my, that seems to be my passion as of late.
Elizabeth Larrick: Well, that’s great. Well, I hope you guys, maybe we’ll consider Austin to come down and have a workshop and we’d love to host you down here. Lots of fun things too. Of course, need to plan that around the weather, but you guys are more than welcome to come down here, bring your workshop down here, maybe in 2024, maybe 2025.
I love it. You know, I’m from Texas.
Tanya Ortega: I’m from, I’m from near, near Austin. So yes, I would love, I’d love to come back to the old stomping grounds and, and see you and, and collaborate. This has been so fun. Thank you.
Patricia Kundig: Thank you. We have
Tanya Ortega: had just the best conversation, the best time. It’s really, it’s an honor to connect with you and we appreciate you giving us this opportunity to talk and.[00:47:00]
And well, I appreciate
Elizabeth Larrick: you guys jumping on. I know that schedules can get a little hairy, so I just am so glad I know that everybody listening is really appreciative to learn more about cross. And I will be happy to circulate as soon as you guys get that website up. We’ll circulate it out to everybody.
So if they’re curious, but we’re going to put all the information on contact in the show notes. If you want to reach out to them, it sounds like they would love to hear from you. Yeah. So again, thank you both so much for joining the podcast. And like I said, all the contact information will be in the show notes.
If you have enjoyed this episode, please be sure to like, and follow it on your favorite podcast platform. But until next time, thank you.
Creating opening statements is one of the common problems we see as trial lawyers. Opening statements are the first look that the jurors have at the case. Naturally, you would talk to them about principles, circumstances, and maybe some rules in jury selection. But a lot of times, once we get to the opening statement, it can get long and drawn out.
In this episode, I will talk about some questions you can ask yourself as you’re fine-tuning your opening statement to ensure you get your message across to the jurors without leaving them confused and frustrated.
In this episode, you will hear:
The “mousetrap” opening statement
Understanding the depth of information, knowledge, or experience of the jurors with the facts and circumstances of the case
Checking how many times you’re repeating things
The importance of identifying your strongest points
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
For a more detailed analysis of the Mouse Trap opening Statement check out this blog.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we are going to be talking all things trial preparation on this podcast.
I wanted to spend just a little bit of time talking about a common problem that we have or that I see, I’ve also fallen [00:01:00] into when it comes to creating opening statements. Now, opening statements are the first look that we have or the jurors have at the case. Now, naturally you’ll have talked about principles and circumstances and maybe some rules and jury selection.
But a lot of times when we get the opening statement, it can become long, drawn out and So, I’m not going to go into that right now. I’m going to confusing. And I like to call this the mousetrap opening statement. Now, I don’t know if you remember the game mousetrap. Apparently it’s been around for a very long time.
I say very long time, right back in the seventies. And it’s been re released multiple times. And as a kid, when I saw this game on TV commercials, I just was absolutely amazed. I have to have this. It looks super cool. You play this game. It’s got all these moving parts. And of course I never got the game, but I did eventually get to play at a friend’s house.
And it was quite the endeavor. You have to spend all this time putting together the board [00:02:00] and the little plastic contraptions just right. And then once you get that set up, you have to then roll the dice and take your little mouse around the whole board until finally somebody can set off the mouse trap and trap somebody.
The ball rolls, that goes in the basket, lowers the trap and boom, game over. Now that is the best part of the whole game, but it takes you. A whole lot of playing to get there. And that’s why when I, long, boring, drawn out opening statements can do the same thing. And I’ve written a blog, much more detailed blog than I’ll get into today on the episode, but just to give an overview.
And sometimes we don’t realize that we’re doing, we’re creating this really long, elaborate setup that can lose people, it can be confusing. And then we don’t put the gotcha. The good stuff really up front, we’d save it for BASTA because we’ve got to set all this stuff up and they have to understand all these things.
And sometimes we actually take it for granted. And so it ends up being this kind of long, [00:03:00] frustrating dialogue that you’re having in the opening statement. And I find that most of the time, it ends up frustrating our jurors and leading them to ignore us, especially when you contrast that with when the defense gets up behind you and gives this like super simplistic view of everything and includes more context that they really wanted, then it looks really bad on your part.
So a couple of things that I’ve just got laid out, which would be when we’re setting up what we need in our opening statement, what background do they really need? What’s the context that they need? I always try to ask myself, what? depth of information or knowledge or experience are people going to have, are jurors going to have with my facts and circumstances of the case.
Now, for example, if you got a car wreck case, lots of people have that experience, right? Riding in cars, driving cars. Do you really need a lot of setup on that? No, you don’t. But you might have other things that are trademark or [00:04:00] patents that could be a little bit more confusing or need a setup. Or sometimes I find even lawyers take for granted that people They don’t know the rules necessarily about commercial drivers or the companies or the things that the companies are required to do.
Now that does need a little bit of setup. Now people may have a little bit of information on it, but they need to have more concrete, Hey, this is the law. This is the rule that’s in place. And of course you can understand and test what people have, their knowledge and experience through focus groups. You can also just walk around and ask people just generally about that.
but the The other question that I always ask about context and setup is the knowledge and the experience of normal folks. Is that going to be strong enough to find the defendant responsible? So in the contrast here would be medical malpractice, right? People have experience going to doctors, but is it the type of experience that you [00:05:00] need Do you need to add more information to that, which most of the time you do, because as we know, medical malpractice cases are extremely difficult, and so you may have to add more context, more setup, in order to help them find the defendant responsible.
And sometimes, like I said, sometimes lawyers don’t give any setup. But most of the time we’re known for giving way too much background and background that doesn’t necessarily help jurors either or they don’t know where to put it. And sometimes that happens too where we think we have all this juicy details, but we don’t give them the frame of reference to understand why it’s juicy.
And in keeping with my mouse trap opening is making the jurors play the whole game. Which can be frustrating, right? So you’re listening to lots of information. You’re waiting for the okay. What’s the point here? And so the questions that I have to help look at your opening statement would number one Are you repeating things and how often are you repeating them?
So occasionally people will again you think you got a juicy fact [00:06:00] you repeat it several times And that doesn’t necessarily amplify it for jurors. It just You’re just hitting them over the head with it. Like, okay, great. How does this fit in? Or why are you repeating this? Or I don’t think that’s as strong as you think it is.
Just delete that. We want to use brevity. We want to be clear. That’s one of the easiest way to edit is to go through and say, okay, how many times am I repeating this? And is there any way to either Put it in there once strongly, or if it needs to be repeated, where? And then of course, there are always times where we look at our opening statement and say, Are these details that can be saved for trial?
Is this necessary for the jury to know in this moment right now? Is there anything that can wait? And then of course, is there any way to simplify and clear up the story in the opening statement? And that’s just to get to the point as quickly as you can, so they know where you’re going. There’s no confusion.
They’re not waiting for anything. You get right to it. And the other part of the other questions, which would be getting to it. What’s the juice? Where is it [00:07:00] at? How can we get the excitement front and center and early and often? And we have heard this many times. And I say we as the collective plaintiff’s bar, and it comes from many, many places, but focusing on the.
So, the background, the timeline on the defendant and the defendant’s conduct really puts things first, right? We’re getting right to the point and we’re pointing it out very quickly in our opening statement and how they messed up, right? So those are our mousetraps. So how do we put those early, often, and often.
Also, what’s my strongest? What are my strongest points? Cause sometimes we have so many strong points or so many problems or issues or bad behavior. It’s hard to know which is the strongest thing. What’s that rocket fuel that the jury is going to use against the defendants. And of course using again, focus groups really helps you understand what [00:08:00] Is the strongest one.
And what is not? And my example for that is I was working many years ago on a case when we were in Mr. Keenan’s office, and there were several mistakes that the company had made in hiring a driver. They, one of the things that they had wrong was the application. They were using the wrong application and other things they were doing wrong were training.
And I think there was supervision. And. So, all of these things were included, everything was included in what, what went wrong here. And they finally did a focus group to figure out which of the parts were, and it was, nobody mentioned anything about the application, like that, that’s not the thing that was really the biggest problem.
It was the training, the supervision, when this guy messed up, they were there to catch it and correct the behavior, or trained him correctly in the first place. So, we removed that. Right? We don’t want to have too many things for the jury to [00:09:00] focus on. We really want the strongest. information first. We want the strongest thing on the front of their minds and we don’t really want to muddy it up or gum it up with extra stuff.
It could be distracting or again, it doesn’t directly connect up with what happened in the case of the wrongdoing. It just is just general wrongdoing. There is a bigger blog, longer blog about how to clear up or ask some questions about your opening statement. You may have to try to help get some clarity, simplicity, make sure that you are going for the strongest points right from the start in your opening statement.
I will put a link to that blog in the show notes and thank you so much for listening. I hope that you enjoy this podcast. If you do, please follow. on your favorite podcast app, tell others, and of course, rate and review. And that also helps other people find this podcast as well. Thank you so [00:10:00] much.
In today’s episode, we talk about focus groups to do for trial, whether that’s 30 days or 60 days before your trial date. You may also choose to do this earlier. But most of the time, there are pending motions that need to be rolled on, such as mediations that people need to get through to get to the point and for them to really speak their minds.
Listen in to know more about the different focus groups that are geared towards trial and what each focus group entails. The whole purpose of this focus group is because you’re going to trial. Therefore, you have to put in the commitment and the legwork needed for you to get the information you need.
In this episode, you will hear:
What a mock trial looks like and its purpose
A modified approach to a mock trial or an adversarial group
Opening statements of the two parties and discussions based on them
Examples of ways to prepare for trial
The value of demonstrative evidence
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hello and welcome back to the podcast. I appreciate you joining me, and I hope that you’ve been enjoying our series of guests that we’ve had to talk about.
Getting ready for trial. If you haven’t tuned in, got a little catch up to do. We’ve had some awesome people come and talk to us about direct exam, [00:01:00] about preparing before and after witnesses, and also how to deal with this trial continuance fatigue, and a few things you can do to get around that. I want to take today’s episode and talk about focus groups to do for trial.
And We’re talking about the 30 days, the 60 days before your trial date. Now, you can do this earlier, but most of the time there are pending motions that need to be rolled on. There are mediations that people need to get through to be able to get to the point to really say in their minds, all right, this is going to trial.
We need now to move into the next steps. So that’s really what we’re talking about. That may happen earlier in your mind than 30 to 60 days. And of course there may be continuances that happen as well. But we’re really talking about specific kind of focus groups that people will do that I have done that really geared towards trial, not necessarily [00:02:00] a concept or a narrative, but really we’re down the road.
We know what the other side’s going to say. So we’re really talking about focus groups like mock trials, adversarial focus groups, a modified blend of adversarial or mock trial, and then also doing opening statement versus opening statement. So let’s just talk a little bit loosely about what each of these focus groups may entail.
So with mock trials and adversarial groups as well, these kind of go hand in hand. I think people sometimes there’s a distinction, maybe there’s not a distinction, but let’s just talk about from a very general sense. This is where you’re lining up a presentation of both sides. You may line up mock witnesses to come in.
You may have a mock judge that sits in and I think sometimes the distinction, maybe when you’re taking the vote, what really matters is that you’re actually putting the mock participants, the mock jurors through what they would see, right? The witnesses, the actual [00:03:00] testimony, maybe actual videos. Some folks wait until the very end to do a vote and have them deliberate.
Some people do votes along the way to see what is swaying them. It’s all about the points of what you’re looking at, when you’re taking these votes, what you’re voting on. Most of the time, the way that I run them is that we are going to take a vote after each piece of evidence or opening statements.
We’re just gauging people, if things are making a difference at all, and also kind of getting them used to making a decision, make a decision, make a decision, right? Get information from them and move on. And we’re not talking, and we’re really in adversarial, right? We’re talking about like passing the paper vote and picking back up from them.
Not allowing them to talk to each other to kind of poison it. The way That I’ve seen mock trials where there’ll be panels that watch the full presentation and then they’ll break out into their own room and have deliberation over the questions or the jury charge of the vote, if you will. Adversarial style generally just has [00:04:00] one group that is watching doing the voting along the way.
You could obviously have more panels of people, but I think a lot of what decision making goes into the style of focus group is directly related to the budget that you have to spend when it comes to that, obviously more people that you’re going to have different panels, locations. There’s a lot of logistics that go into setting up large panels of folks, breakout rooms, all that kind of stuff.
Now, That’s going to give you a lot of information in one day, right? So time wise, you are really making good use of time because you’re doing all your panels in one day with 40 different people versus sometimes folks will do an adversarial here and maybe they’ll wait and we’ll do another adversarial, right?
So then you have two panels of people and not necessarily have three to four different panels. And I think it’s just a matter of gathering the information of when you’re doing it. Let’s talk a little bit of a modified [00:05:00] approach to a mock trial or an adversarial group, and that would be where you’re going to show evidence, but it’s not going to be live witnesses or even long periods of witness testimony.
So the way that we’ve done is we’ve had abbreviated opening statements. And then basically have presentation of evidence. Now you could have it be general presentation of evidence. And what I mean by that is you could just compile a presentation that has witnesses for both sides, documents for both sides, basically the evidence that would come in, but it’s not necessarily going to be 100 percent slanted with a direct and a cross like you would see in a mock.
So you’re just going to give them the information, they’re going to vote again, and you could do a mini closing. As well with that, I’ve also seen it done where we’ve done opening statements and then we do just testimony that would be clips of the main witnesses voting on witness credibility as they’re going through that and then doing a closing statement.[00:06:00]
It makes it a little easier versus doing a full mock trial or adversarial because we’re compiling that middle part into a pretty clean presentation with a lot less people involved, not necessarily direct across like I talked about. And also you can’t put in all your witnesses. It’s just, that’s just what can happen overall.
So that’s kind of a modified mock trial or adversarial setup where we’re giving them more than opening statement, but we’re still not giving them the full. full thing and there’s not as much advocacy obviously involved when we’re just playing in the evidence and video statements. And of course, the other one to do for a trial would be opening statement versus opening statement, the plaintiff’s opening statement followed by a defendant’s opening statement, and then discussion just based on opening statements.
I obviously think that that one is super easy and it can be replicated, done it multiple times. I think one of the Folks, we’ve had on the podcast was Ryan Squires and we have done that for his trial preparation. We just did three of those, [00:07:00] of course, strung along different timeframes. Each one was a little different because of the time they’d got a little further down the road.
Some motions had been heard, things were decided. And so they were able to really lock in and. Get that opening statement done. So it was very helpful for them in that case. I think that trial ended up a 40 million dollar verdict and they were very at ease because the opening statement was pretty much done.
They had really locked it in and done a lot of legwork on getting that done. So I always support that as a good, if you are budget conscious, you can even do that one virtually, which makes it really convenient and really budget friendly to do that opening statement versus opening statement. If you got to get super creative, right, you can record those and then play them.
So there are lots of ways to prepare for trial. And I think what ends up stumping people sometimes is one, the amount of preparation that goes into these types of focus groups is a lot. It’s a lot for the lawyer [00:08:00] and their staff because you’re really getting ready, which makes it great for you because you’re You’re putting your mindset there.
You’re organizing materials. You’re actually putting to pen to paper for opening statements. So it’s very, very helpful. It is very, very labor intensive though. And then of course, these mock trials, the adversarials, these are all day, even modified ones. Those are, these are, we’re talking about six, seven, eight hours.
These are all day time commitments as well. So they’re very time intensive. They’re very budget intensive. I would say opening statement versus opening statement can be pretty quickly. We can, you can get it done in two, three hours. And again, that really depends on how much discussion time you’re going to have with them.
Folks, and the depth of information you’re going to give them in those opening statements. The purpose is you’re going to trial. So yeah, you really want to make sure you’re really committed. You’re doing the legwork to do it. And then also you’re putting a lot of thought into the style of focus group that you’re going to have and the information that you need.
One of the other stumpers that comes to some of these focus groups is when you have [00:09:00] pending motions and you don’t know which way the judge is going to go with information, right? This information coming in, or is it not? Is this witness excluded, or are they not? Generally, the safe bet is to go with whatever the opposite is, right?
So if it’s your motion to exclude something, just go and act like your motion’s going to fail. If it’s their motion, just go and act like it’s going to be successful, right? So you want to focus group the worst case scenario, because That’s really what you want to know. Worst case scenario, how do we fare out?
So that’s also, I think, a helpful thing when we’re, that can sometimes roadblock people in their minds. Well, I don’t know what this, the outcome of this motion is. So I don’t want to run a focus group. And I think that that kind of can hedge you off from doing the focus group, which is quality and getting you ready, but also getting that feedback.
And that very small thing could be maybe blocking your mind. Well, I can’t run one if I don’t have, X information. Sure, [00:10:00] absolutely you can. You don’t have to necessarily put that information in or you can just do a different style of focus group that you feel comfortable with. Another one where people are getting ready, doing demonstratives, I mean that’s one that can be done just based on the demonstratives, how helpful are they, do they need to be changed, anything before a trial.
I think those are really great because we can spend a lot of money on demonstrative evidence visuals. And so you definitely want to make sure that they make sense to the jury before you get there. Of course, you got to do that legwork to get it in, right, make it admissible. But then you don’t want to bring something to court that is just as confusing as it is expensive.
Alright, so this was a super quick episode, but I just wanted to kind of cap off. We’re going to probably have a few more folks and a few more guests come in to talk about some other topics, cross exam, doctors, probably have some folks come in and talk about visuals again because I think they’re really important.
But this was supposed to be a short episode just to kind of recap focus groups specifically for trial. Talking about mock [00:11:00] trials, adversarial focus groups, doing kind of a modified version of those to get that information out and then opening, same for opening statement. All of this, of course, kind of hinges on how big is the case, what are the issues in the case, what is my budget, costs, and what are my concerns that I’m trying to allay.
If it is presentation concerns, then we’re going to really look at probably just doing presentation style, meaning let’s just do jury selection, opening statement, paired up together, right? Just getting on your feet versus content and then full risk assessment, I would say, for the mock trial and adversarial focus groups.
All right, well, I hope that you found this episode helpful. If you did, please rate and review it. Also, if you could, there’s a little plus sign up in the corner. If you could push that and follow the podcast, that would greatly help the podcast and other people find it. Until next time. Thank [00:12:00] you.
Having before and after witnesses is very useful to help tell your client’s story. These witnesses can talk about damages in a way that your client just can’t. Jurors can heavily criticize a client’s testimony and label them a “whiner” or “complainer.” A well-prepared witness is able to talk about the changes in your client’s life in an authentic way.
As trial lawyers, it’s important that we’re able to build a level of trust and comfort with our clients and witnesses. But building that relationship just doesn’t happen overnight.
In today’s conversation, Courtney Wilson takes a deep dive into the three-step process for building trust with your before and after witnesses. Courtney currently practices personal injury law and medical malpractice law in Mississippi.
In this episode, you will hear:
Finding two to three people talking about the client’s experience
How to build trust with your before and after witnesses
The importance of explaining why testimony is needed for the case
Assignments for your witnesses to get more information
Why stories are more compelling than an expert talking about the injury
Managing the fears and concerns of before and after witnesses
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.
He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.
Elizabeth Larrick: Hello and welcome back to the podcast. I wanna jump in here real quick to introduce my guest, who is a returning friend to the podcast, Courtney Parker Wilson, who joined us prior to talk about adversarial focus groups.
And she is joining in the trial series that we have [00:01:00] been conducting here on the podcast. And she’s going to talk about before and after witnesses, but just a quick reminder that she practices personal injury law, med mal in Mississippi. If you have a question for her, you can obviously find her information in the show notes, but let’s get right to it and join the interview.
Hello, Courtney. Thank you so much. And welcome back to the podcast. Hi, thank you. We had you here before talking about focus groups, and today we’re talking about something pretty different, but I remember the excitement. You gave me a call and said, Oh my gosh, we’re having a trial. And I came up with this fantastic before and after preparation template before and after witnesses.
That is so, uh, I was excited to have you back. So you can come and talk to us about the template, but before we get to that, let’s just talk in general about using before and after witnesses at trial. So tell me a little bit about your thoughts on that and how you Approach it. So
Courtney Parker Wilson: I’m not entirely sure I told you that I had come up with this [00:02:00] totally new, fabulous template, but
Elizabeth Larrick: we’re going to give it to you.
So how about that?
Courtney Parker Wilson: Before and after witnesses, I think are really very useful to help you tell your client’s story without having your client tell their story. their story. So I see them as able to talk about damages in a way that your client just can’t because when you have the plaintiff themselves sitting up there talking about how hard this has been or how terrible The experience is that can come across as whining and complaining.
And I feel like the before and afters do a really good job at being able to talk about the changes in your client’s life in a way that’s authentic, but doesn’t carry the stigma that your client does when they try to talk about it. So they do the heavy lifting in my mind of telling the story of the damages, if that makes sense.
Elizabeth Larrick: [00:03:00] Yeah, absolutely. So they’re getting up and they’re given examples, things they’ve seen, but from a very uninvested place versus clients are extremely invested. And it’s easy for jurors to basically say, you know what, they could totally just make this whole thing up because that’s what we’re here for, right.
Is them to get money for feeling pain or mental anguish or what not. So yeah, absolutely. So
Courtney Parker Wilson: ideally, right. You would want to have a few of these people.
Elizabeth Larrick: That’s going to say, how many do you like to have and how do you kind of gauge thinking about the range of cases? People may know a car wreck case. And again, we’re really kind of thinking more about like maybe the injuries.
So how do you gauge how many before and after witnesses you’d like to have?
Courtney Parker Wilson: Well, before and after witnesses can come in a couple of varieties, right? Like, sometimes you have people who are also fact witnesses that are before and after witnesses, so they may be doing some different work for you in addition to their before and after [00:04:00] work.
Anytime you can, use witness for two purposes, I like that because I like efficiency and all things, but ideally I would want to have two or three people to talk about the client’s experience. And very often, it takes some work to get to those two or three people. And I don’t have any particular problem with using family members as one witness.
But I feel like getting a little farther outside of the client is better. Do we have a co worker that can come talk about changes? Do we have somebody, you know, that like you go to spend class with? Is there somebody who is a little farther away from you who can talk about the change they’ve seen in you?
Because I think they get more credibility that way. They’re not invested in your client [00:05:00] personally. Or concerned about the outcome for your client, maybe in a sort of tangential way, but it’s not affecting their lives personally. So I feel like they get more credibility that way. Now, I can tell you from my personal experience, it’s really hard to get to those people.
It’s really hard to get your clients to identify somebody that can talk about them that they are not close to.
Elizabeth Larrick: Right. So I was going to say, do you normally cast a really wide net? So we, sometimes you got to start with a list of people. Like 15 to 20 people sometimes where it’s just like, give me people you just run into in life, right?
Like, and then, you know, we’ve got to figure out a way then to kind of who then has the better experience or has the availability and who is willing to come that really kind of skinnies it down
Courtney Parker Wilson: pretty quickly. And I feel like with my clients, it’s this exercise in getting them to believe me. Right? Like I know you have friends.
I know you have [00:06:00] family members who have seen what you went through, but I need other people. It’s like, they almost don’t believe you at first. that anybody else would have anything to say that’s useful or relevant. So I feel like you’ve got to do some convincing of your client first to even get to give you the list of people before you can go anywhere.
Once we actually get our grouping of people that we’re going to start talking to, right? And we kind of narrow that list down and we’ve decided who we really want to focus on as our before and afters. Then you get to sort of move on to the next level. If that makes sense.
Elizabeth Larrick: Yeah. Yeah. So what kind of problems are you, since we’re talking about casting a wide net, like what are some problems that we as lawyers run into when we’re trying to find before and after witnesses other than the client giving us lots of people.
So let’s imagine we’ve got our list of 15, 20 people. What kind of problems do you run into after that point? [00:07:00]
Courtney Parker Wilson: They are myriad. I have run into the problem of calling up people who say, well, I don’t think she should be in this lawsuit. I don’t think she should be doing this, right? So we can cross them off the list because their opinions about what’s going on are overshadowing anything else, right?
That they might have to say. So we want to not bring anybody who’s really certain that our client just has no business bringing a lawsuit. We get rid of them. And then you talk to some people who are either so wrapped up in themselves that they can’t talk about somebody else. We run into people who are not very educated and then therefore not able to express in words the kinds of things we’re asking for, right?
They want to tell you that yes, their friend or their acquaintance is different, but they can’t articulate what that is or how they even know [00:08:00] that, what it is they’re noticing. So that person’s not going to be a particularly good witness either. So I want to cross them off the list. And then I talked to people who just have these incredibly strong personalities.
And on the one hand, that might be great, but on the other hand, might not be so good. So I think you, you’ve got to make a judgment call. How do you react? To this person, when you meet them, if you’re automatically turned off, like probably don’t want to use them either. So there’s a lot of, I guess, betting that goes on.
Like there’s a lot of phone calls. There’s a lot of meetings. There’s a lot of talking to different people, just trying to get to somebody that seems like they can articulate the change they have recognized and seen the change. and they’re comfortable talking [00:09:00] about it.
Elizabeth Larrick: Right. And they have a desire to help.
I think that that right. Having that innate desire to help always significantly makes your job easier versus people who just right on the front end, just have kind of like, ah, I don’t know if I want to get involved or right. Just this hesitation just from the, from the jump. Well, yeah, but. I just don’t even know if I want to go down that road because there’s a whole lot of uncertainty.
So I know we’re going to, we’re going to jump to our, our template super shortly, but really quickly, fun example. So it’s helping someone get ready for trial and they had made some videos of their before and after witnesses. And most of these were all family, which again, like we said, sometimes that’s just.
Kind of the nature of the game. And this was an, uh, an older client who didn’t have as friends that were around kind of a sad deal, but had this spitfire of a sister. I mean, just, I mean, she was saying all kinds of stuff. And there was a big hesitation of like, Oh [00:10:00] my gosh, she’s like really putting the client in a whole different light in the sense of she’s not doing enough to get better.
And so we was just kind of like, wow, what do you do with this person? And. The focus group loved her. I mean, they just thought she was the bee’s knees. And I said, you know, what if we thought differently about this person? And instead of feeling like, Hey, oh gosh, this is going to be bad. I said, you know what?
We should just compare to your client and say, you know what? That’s what our client should be. Like, should be the spitfire and going out and doing all this stuff. And she’s just not, but that is a perfect example of look, These sisters, they were a year and a half apart, right? 70 in their seventies. And so it was just kind of like, as we do with older clients, Hey, they’re going to live a lot longer.
Look at the family tree, all these people live into their eighties. And so it was just kind of like, Oh. Well, it’s not canner, [00:11:00] right? Like you said, how can we use this person as much as possible? But I think sometimes it’s kind of like, okay, if this is what we’ve got tested out, but also can we look at this in a different view and still she’s authentic.
They loved her. She’s not a hundred percent saying stuff about the client. That’s great. But she makes a really good comparison for somebody in the same age, if you didn’t know. Right. Like as far as family comparison. So there’s always kind of a, like, okay, if this is what we’ve got, how do we really try to think hard about ways to look at the testimony and sometimes see it in different light so we can use it, what we’ve got.
Courtney Parker Wilson: Yeah, no, I think that’s a great point. I feel like so much of lawyering is. Being able to step back sometimes and say, okay, that’s not what I wanted, but what have I got? And can I use it?
Elizabeth Larrick: Cause that was what we were testing was okay. I’m not keen on what she’s saying, but maybe they will be. And that was just one of the things I was like, you know, [00:12:00] let’s just take it at face value.
Look at these two women, they’re a year and a half apart. That’s what the life she should be living. And we know because they’re sisters, right? They come from the same, same background, same genes. So, okay. Let’s talk about this template here. Tell me a little bit about, you talked about a couple of phone calls.
So walk us through kind of what you have put together.
Courtney Parker Wilson: Well, yeah. So I think we have to start with the idea that people do not want to talk to a lawyer, even if you’re the lawyer for their sister or friend or daughter, or what they don’t want to talk to you. Lawyers are not well liked. No. When you call this person up for the first time, they are not going to be real warm and fuzzy with you because they don’t trust you.
And I think that’s the first thing you have to recognize when you’re dealing with this before and after witnesses. And because of that, you have to build some trust with them. [00:13:00] And that is not a process that occurs Over the course of a five minute phone call. So I’ve done several trials where I tried to do before and after witnesses in a day, and it just doesn’t work well because If you’re an intuitive person who can tell when someone else is comfortable and when they’re not right and you spend an hour with this person and now they are really nervous because you have talked to them about the kinds of things you want them to say and how we need to talk about the client and now they realize they don’t know what to do so yeah yeah nothing but make it worse so to avoid that right what I like to do is try to create a level of comfort and a level of trust with the before and after witnesses.
So I look at this as like a process. So I start [00:14:00] out with a phone call, and this is probably a couple of weeks before the trial. And I call this person up and I say, Hey, I’m the lawyer for your friend or for your family member. And we’ve got this trial coming up. And this is how we want you to be involved.
This is what we need from you. And then I try to explain to them why their contribution is going to be valuable. Because I think for a lot of people, if you can tell them the why of something, they are much more likely to invest and trust you. So I try to explain to my before and after witnesses that what I’m going to ask them to do is tell us some stories about their person.
But this is a hard thing for someone to do. If I were to walk up to you and say, Elizabeth, tell me some stories about me. Tell me some [00:15:00] stories about good times we’ve had. Like that would be a hard thing for you to
Elizabeth Larrick: come up with on the spot. Yeah. So you’d be, you’d really feel on the spot. Yeah.
Courtney Parker Wilson: So what I do is I call these witnesses and I tell them like, this is who I am.
This is what we’re going to try to do. We’re going to try to tell the story and let you help tell the story. And the way we’re going to do that is have you tell some vignettes. Have you tell some individual stories about what your friend was like? Maybe there was a crazy party you guys went to, like, tell us a silly story about that.
And then after the injury, tell us a story about your friend now. Right. But that is just not something that people are prepared to do off camp. So you got to give them an assignment, right? Yeah. So this is what I want you to do. [00:16:00] And if you would take some time over the next week and sit down and think about it for a few minutes, maybe just make yourself some notes, maybe some stories that you think you would like to tell me, or that a jury might like to hear about this person.
And we’ll talk again. Right. So this first phone call is like 10 or 15 minutes. And I do a lot of talking in the first phone call. It is the Courtney show in the first phone call. And then we set up a time to have another call. Right. Or a zoom meeting, or if they’re local, I try to get them to come into the office.
That’s a big ask of your before and after witnesses often to get them to like take time off from work or something and come to your office. But if they’re local and we can do it early in the morning or in the afternoon or something, like I try to get them to come, but. I do a lot of this. Right. So when we [00:17:00] set up our second meeting, their assignment is to have come up with some stories that they can tell me.
And then when we do the second meeting. That one’s usually much longer because what normally happens is they get this assignment for me and then they go call their person, right? And they say, friend, what have you gotten me into?
And then they talk to them about the case and they talk to them about me and they talk to them about what, what we’re trying to do and why, why are we doing all this? And They have this, what I think of as like a permission granting conversation with the client. And once they have that conversation with the client, they feel at liberty to expose some things.
And when I talked to them the second time, they’ve given it some thought. [00:18:00] They’ve talked to the client. Now they’re actually ready to talk to me. And usually what happens in that second phone call is. We start talking just about the client and they tell me things
Elizabeth Larrick: and
Courtney Parker Wilson: I take notes. So the second meeting is usually a lot of the before and after with this talking because now they feel like they can tell me.
And so they, they do. They tell me all kinds of stuff, right? Like about before the incident, about what happened during the incident, about how their friend changed, about things they can’t do anymore, about all kinds of stuff like that. And then they have a lot of questions for me. Oh yeah. What can they talk about?
What should they say? What shouldn’t they say? Is this going to be helpful? Is it going to hurt? And then a lot of really practical questions too. [00:19:00] Where are they supposed to be? What time? How will they know where to go? How do they need to dress? Stuff like that. So I feel like that second conversation is enormous, right?
And very often we don’t actually get to their assignment. in that second call because it’s like the floodgates have been opened and they have something to say now all of a sudden. So I take notes through this whole meeting and I kind of outline in my notes like little groupings of topics or stories or things.
And so at the end of the second meeting I say to them, well, okay, let’s talk again. And we talked about this story, or you kind of mentioned that you guys used to go kayaking, or you kind of talked about this thing. I want you to think about those events and come up with a story that you can tell me about that, like a [00:20:00] specific time that you went and did this thing, and then I want you to fill in all those details.
So now they have second assignment, right? Think about it, Ruthvine. Get me to a real story that we can talk about. And then on our third meeting, right? And I try to get them to come to the office for this one. Like I said, that doesn’t always work. But the third time I talked to them, I feel like it’s when the real, we get to the real thing, which is, Tell me about that kayak trip that you and your friend always did.
And her dad would come as a matter of fact, he’s the one who always set it up. It was a father’s day thing and we would bring the cooler, but we would try to bring wine coolers because her dad was there and we would try to like sneak drinks out of the wine coolers. And like, it becomes this really endearing, charming story because it’s [00:21:00] now real.
about, well, yeah, she is not as outdoorsy as she used to be.
Elizabeth Larrick: Right, right. Yeah. You’re telling the story, you’re bringing all the details out to the juries, like with them in that story, looking at that cooler, there’s so many, much more real life moments versus like you’re saying a big category. Well, yeah, she just doesn’t do that anymore.
Courtney Parker Wilson: So I think that. What you’ve got to do is allow this before and after witness, right? To become comfortable with you, the lawyer, as a person. And that takes some interaction. It’s not going to happen with one phone call. And they need to trust you. And they need to believe that, first of all, you’re going to be respectful to them.
And by that, I mean that you’re going to listen. About to say.
Elizabeth Larrick: Yeah. Yeah, exactly. That means you’re gonna give one, you’re devoting time, but you’re also [00:22:00] listening. Yeah.
Courtney Parker Wilson: Right. You’re not gonna interrupt them, you’re not gonna rush them. You’re not gonna tell them that what they’re saying is wrong, and then once they get that comfort level with you.
Now they believe that you’re really trying to help and that you will be kind and respectful with them. So now they can talk to you, they can open up, they can tell you the story, but I really do believe it takes that commitment, a lead up to a workup to a level of comfort that will allow somebody’s friend to tell you something that exposes their real life.
Mm
Elizabeth Larrick: hmm. Well, I think also to sometimes what I have seen is lawyers will assign this for a paralegal or another person or even an investigator to do this work and it works for them, they’ll do the follow up, they’ll get the trust and then it doesn’t [00:23:00] translate because when you go into the courtroom.
They’re faced with a lawyer with, just like you said, the very first call they get is what you’re a lawyer. And I, and so there’s a really big disconnect. So I love that in your template, it’s you doing the one on one because then when you guys walk in the courtroom, it’s like, There’s trust, there’s comfort.
And also you have had so much time and experience, you know, how they speak, you know, the questions that they appreciate more. And you know, if I gave them this question, it would stump them. And then when you stump somebody on the stand, Oh boy, you better have a real quick way to get back in, get them back on.
Because if they’re stumped, they’re just, I mean, they’re frozen. I’ve seen them. They freeze. And it’s just like, Oh, I just stumped them. How do we get back? So this, the trust, the kindness is really go such a long way when you finally have to step in that courtroom. And so I love the template in the sense of giving them space.
[00:24:00] And also I absolutely love, I talked about this before when this happens in our client deposition prep, which is basically when you give somebody an assignment. Like, Hey, take this with you, go back, think about it. Even if they’re not thinking about it, their subconscious will continue to try and find the memories and the details.
And so even if they don’t sit down and do it, their brain will work on it and come up with stuff. And so giving that time, even if it’s a week or two weeks in between, still significantly helps people come up with more information. Their brain will continue to try and work on that because you’ve asked them.
I mean, that’s, that’s what a question does to our brains. We want to find that answer. So I think that is super helpful to use that neuroscience, use our brains, trick them into thinking and finding more information. Not really tricking them, but you know what I mean?
Courtney Parker Wilson: Yeah. So you asked me to be ready to give an example.
Yeah.
Elizabeth Larrick: [00:25:00] Yeah. Tell, tell us about, and Heather was the example. If you can talk about Heather, it’d be great.
Courtney Parker Wilson: Is Heather supposed to be the client or the witness? That’s the witness. That’s okay.
Elizabeth Larrick: That’s the friend. The friend. Yeah. The friend.
Courtney Parker Wilson: So we had big trial coming up and I had a client who was young when she was injured and she was the mother of two small children.
And so after she had these two children, she moved back home and lived with her dad and kind of left all of her friends. And she suddenly became the stay at her mom. So she was very isolated and trying to get before and after witnesses out of her was a real challenge. But I did get one who was her friend.
And I did a lot of work with the friend, Heather. The first time I called Heather, she was super standoffish. [00:26:00] She did not want to talk to me, was not sure at all that she even remembered anything that would help because she and the client hadn’t been close in a few years. And she also has, she also had a baby who was just turning one and she was very concerned about her baby and the first birthday party that was coming up and things like that.
So I gave her the introduction, the homework assignment, what the plan was, why she was going to be valuable. And then I gave her like a week or so. And in that week, she called and talked to my client. And it was actually the first time she had talked to my client in a few years. They had this great conversation about what’s been going on in each other’s lives and why they haven’t talked in so long and just catching up as old friends [00:27:00] do.
They eventually got around to this case, right? And my client had already heard from me why the before and after witnesses were going to be important. My client then reinforced it for me and told her friend, look, we really need you to come and help tell my story. So she got permission right from my client to talk about their private interactions.
Because I, at least for me, I’m a private person and I would not feel comfortable telling you things about one of my close friends. Unless my friend had indeed said, yes, you can tell people about that. So Heather talked to the client and got that permission. And then we did our second phone call and she had lots of questions for me in the second phone.
What kind of thing I wanted from her. And she had lots of questions [00:28:00] about the case and the trial. Because she was suddenly very invested. Oh, yeah. And she wanted to know what was going to be good for her friend? What was going to be bad for her friend? How could she help? What could she contribute? So we talked about all of that.
And this is the point at which I told her, I need you to come up with some stories. And she and I talked about very generally the change in the client, like what they had done as friends before the injury happened, how their relationship was and what they depended on each other for. They lived together, like when my client was in undergrad and they went to festivals and like down to the beach and all this kind of stuff.
And then that all changes. And we talked about generally. And so I told Heather, like, okay, think about it like this. I want you to come up with a story from [00:29:00] before the injury, when you guys lived together to tell me a story about my client for men, and then tell me a story about my client afterwards. So she says, okay.
And all she goes, we set up the third phone call. When I called her for the third phone call, I could not get a word in edgewise. Okay. She was absolutely gushing. She had sat down and thought about her friend and about what their relationship used to be like, how close they used to be. And by the end of our third phone call, she is thanking me for helping her to understand her friend’s pain and why her friend changed the way that she did.
And it ended up being just this beautiful thing because my client and her friend. had this sort of like [00:30:00] reawakening of their friendship. And the friend, Heather, comes to the trial, which was not, the trial was in Jackson. It wasn’t local on the coast where I am. So we all had to travel three hours up, but she decided this before and after witness to come to the trial, like for the whole thing.
Oh my gosh. Wow. She booked a hotel room, stayed. For the whole time she was with my client, the whole time they went to breakfast together, lunch together, dinner together. She was this incredible support system and she was a fierce advocate. for her friend because she had spent the time thinking about it.
She came and told this great story about after the injury and [00:31:00] she talked about how she asked her friend to come help with her baby’s first birthday party because she needed help and I don’t know how many of your listeners are initiated into the like deep south baby birthday party culture.
Elizabeth Larrick: I don’t know.
But
Courtney Parker Wilson: it’s a thing.
Elizabeth Larrick: It’s a thing. Okay. It’s a big thing.
Courtney Parker Wilson: There are smash cakes, there are party favors, there are decorations. I mean, it’s a whole thing. So she wanted her friend to come and help. And so she told this story about how she was so frustrated with my client because she did come to help, but she wasn’t any help.
She wasn’t able to lift anything. She wasn’t able to help move anything. She wouldn’t get up in the morning and get going because she was in pain. She wasn’t able to help move all the stuff. To the venue for the [00:32:00] birthday party. She wasn’t able to help put the decorations up and the friend was so frustrated and so mad with my client about coming to help, but then not actually helping just really being more of a pain in the butt than anything.
And she told this story from the position of, I never put it together before. I never realized that it wasn’t that she was being lazy or not wanting to help me, but she was hurting and she couldn’t climb up on the ladder and hang stringers. And she couldn’t do these things and I never thought about it like that before.
And now I feel terrible because I was so hard on her and I was telling her, just get up, just do it, just push through. And she told this beautiful story about how she had discounted her friend’s [00:33:00] pain and her friend’s experience until she really looked at why her friend wasn’t able to be the friend she thought she was supposed to be.
So it was a really beautiful story in the end. And I don’t think we ever would have gotten there. I’m not spent so much time sort of convincing her to open up and convincing her to think about it, convincing her to look at this and get there.
Elizabeth Larrick: Along with that, like the permission with the client, right?
Them having that conversation and getting that permission, like you said, absolutely. And the details, right? I mean, the devil’s in the details, especially and her thoughts and her feelings. So in the courtroom in this moment, could you tell how the jury was receiving the story? Think her story. came
Courtney Parker Wilson: off well.
Unfortunately, this is federal court we were in and you’re nailed to the podium in federal court. So that put me in the middle of the courtroom, right? Trying to ask questions to my [00:34:00] right and also look at the jury to the left. Gotcha. Gotcha. Okay. That
Elizabeth Larrick: helps us understand then. Cause I know sometimes the courtroom, it’s like the witness and then like one foot is then then there’s the jury, right?
So you got opposite sides.
Courtney Parker Wilson: Yeah. For the, in our federal courthouses. Yes. So it’s really hard to like watch the jury at the same time that you’re talking to this witness over here, but Those kinds of stories are so much more compelling than listening to your expert neurologist. Talk about the injury to T five.
T four, right, right.
Elizabeth Larrick: Or your client’s point of view on that story. You know, I went to go my friend’s baby shower and I just couldn’t help. It’s like, because the friend told the point of view that the jury would have too, which is like, get up, just come on. Just push through. I, I need your help right now.
Why can’t you just do it? So I love that. That’s because. I mean, that is totally exactly people who haven’t experienced that. That’s the perception that you would have. So I think as far as nailing what the jury would be thinking, and she said it, you couldn’t ask [00:35:00] for anything better than that.
Courtney Parker Wilson: Well, yeah.
And I loved this testimony because I felt like it wasn’t what you would exactly expect from a before and after witness. When she told me the story about how frustrated and angry she was with my client about this birthday party, I thought that is gold. Because it’s so authentic, right? And I can just imagine the frustration that you would feel if you like brought your friend to help you and they weren’t doing that and you’re so stressed out about this thing you’re trying to get ready for.
It just, it had such a ring of truth to it. And I thought it was so relatable. Like, I thought, this is gonna be compelling. This is gonna be something that is accessible to other people. They are gonna understand what she’s talking about. And it illustrates that Sort of [00:36:00] in a backwards way, right? My client is going through, which is the guilt and shame of not being able to be the right kind of friend in that moment.
Elizabeth Larrick: And I’m sure that’s probably why she isolated herself because she just feels like no one’s going to believe me. So let’s talk, how long did that story take up there? I mean, how long was she on stand? Oh, five minutes, something, maybe it’s short, right? Short and sweet. And to the point it’s, we’re not talking about a long time on the stand.
Courtney Parker Wilson: No, no. I think I had her tell one before story and one after story. And she answered, she was also a joint fact witness. So she had been around when the injury first happened. So she had seen some things early on that she testified to. But yeah, I think in total, her testimony was maybe 10 minutes, something like that.
Elizabeth Larrick: Right. Does she have any questions from opposing [00:37:00] counsel?
Courtney Parker Wilson: The only question that she really got from opposing counsel was about my client’s Facebook page. Oh, okay. So it was weird. I don’t think it really landed, but
Elizabeth Larrick: yeah, I’m shocked they even asked anything. Cause I mean, when you have that powerful of a story, you realize, wow, these people, this person is invested.
I mean, that that’s an investment. To come up there, but also to be that vulnerable and tell that story. Cause she’s got to be vulnerable. I mean, the witness has to be vulnerable up in the stand and then really trust that what you’re asking them lawyer, who I don’t know that this is going to actually be helpful because they don’t know.
I mean, that’s the, that’s their fears is that they’re going to get up there and make it worse, which is what they don’t want to do.
Courtney Parker Wilson: Well, and nobody wants to look stupid.
Elizabeth Larrick: Oh, absolutely.
Courtney Parker Wilson: They don’t want to feel like they’re overstepping or they’re saying something that sounds ridiculous. So you’ve got to manage the before and after [00:38:00] witnesses, fears and concerns.
Elizabeth Larrick: As well as their confidence. Yeah. Build their confidence up. Absolutely. Absolutely. Awesome. Well, this has been so helpful. So what I’m hearing from you just to recap is we’ve got like a three step process for building trust, but also comfort and getting the goods, getting the details in the story, right?
So three process, three different calls, looks like time spread out in between those to make sure you’re getting the goods. And then do you do a little brush up? Like right before trial, as far as a check in and like that kind of stuff.
Courtney Parker Wilson: So once you build a relationship with a witness, they’re not going to leave you alone.
You end up talking to them a lot, actually. Right before trial, leading up to trial. They’re sending you text messages, they’re sending you emails. In my mind, it becomes this real relationship you have with another person who now feels like they’re part of the team
Elizabeth Larrick: and [00:39:00]
Courtney Parker Wilson: they want to talk to you about stuff, right?
They want to tell you, Oh, Hey, we got this hotel and we’re going to go get a margarita and like, so yes. I do talk to them quite a lot actually leading up to trial, but I have encouraged all of them to be really clear on which stories it is that I want to pull from them so that they feel like they know what’s expected of them.
They know what questions are going to be asked and they know the answers. So that creates a comfort level and a confidence in them. We talk about what are your two stories? What are your three stories? Like things like that, just to keep it fresh in their mind.
Elizabeth Larrick: Awesome. Yeah. And I think that always is super helpful, especially when, and then also it really helps because at the end of the day, sometimes with trial, it changes so quickly and it’s like, Oh, sorry, you’re not going to be today.
You’re tomorrow. And they’re totally okay with it. They’re like, Oh, you know what? They’re flexible [00:40:00] because they’re, the investment is there. They trust what you’re telling them. And they still know that they’re ready and willing to come and help. So. Because that happens so often where the judge says, we’ll just move that witness.
And you’re like, Hmm, they don’t, when it comes to your experts or somebody else, like the judge is like, well, they give it more deference, but when it’s a before and after a fact witness, they’re like, we’ll just move up. I’m like, so I think that helps also when you’ve got to like, ask for that favor. Like, can you, can you change your schedule?
Can you come tomorrow afternoon? Yeah, definitely.
Courtney Parker Wilson: Definitely. I need you to be flexible, please. Don’t be me.
Elizabeth Larrick: Right. Yeah, absolutely. Awesome. Well, is there anything else that you would add or as far as helping lawyers get there before and afters? And again, like I said, some people defer this to staff, which I think can totally be done for that initial wide cast, getting those, that big list of 20, 30 people and maybe narrowing it down.
Is there anything else that you would suggest or add?
Courtney Parker Wilson: Well, I mean. [00:41:00] In that way, I’m a complete control freak. Like I think most trial lawyers are. And
Elizabeth Larrick: yeah, most lawyers. Yes.
Courtney Parker Wilson: I need to, I need to talk to them. I need to hear them. I need to make a judgment call about what kind of witness this is going to be.
And I might not agree with my paralegal, you know, about that. So I think it’s important for the attorney to do this because you’re the only person who really knows what kind of story you’re trying to tell and if this person is going to help or hurt. So it’s, I feel like it’s hard to delegate that particular task because ultimately you are the conductor, right, of this whole trial.
And you’ve got to know what the moving parts are because you are building it. And if you don’t know what this witness is going to say or how they’re going to come off, You’re not conducting properly, right? [00:42:00] So I think that’s something that you as the attorney really have to be.
Elizabeth Larrick: Yeah, absolutely. And again, because anything you build directly translates into that courtroom and it’s so worth it.
I mean, the quality you put in ahead of time turns into the quality you get in the courtroom. So it definitely makes a huge difference when you are doing it and it pays off. It’s not like it’s going to be a gamble. I’m glad you agree. Awesome. Well, Courtney, thank you so much for joining the podcast again.
I really appreciate it. Thanks. It was so much fun. Good. Awesome. I’m glad that you had a good time. So, all right. Well, thank everybody else for tuning in. If you want to get ahold of Courtney and talk to more about her before and after, but her content information will be in the show notes. And until next time, thank you so [00:43:00] much.
There are a ton of reasons that a trial could be delayed and reset, whether that’s continuances due to scheduling conflicts, the witnesses being on vacation, or whatever. At a certain point, after the second continuance, you start to get a little fatigued, almost burnt out on the case, and you begin to lose motivation. Burnout is real, and so is trial continuance fatigue. And so, how do we prevent this from happening as trial lawyers and keep the momentum of the case?
In this episode, we’re going to tackle trial continuance fatigue with our guest, Bijan Darvish, who practices employment law in Orange County, California. Prior to lawyering, Bijan was previously a police officer who was unfortunately wrongfully accused and had to go through the process that an employee would have to go through to clear his name. He went through the criminal process where he got fully acquitted, then he had to go through suing his employer, for which he also was successful in doing. All that experience and process that opened his eyes led him to go into law school.
In this episode, you will hear:
What is continuance fatigue?
The benefits of creating a schedule
Switching things up for the focus groups
The benefits of focus groups
How to shorten the opening statement
The value of having a transcript
Subscribe and Review
Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet.
We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.
Supporting Resources:
If you have questions or would like to speak with Bijan Darvish, you can reach him:
Or if you’d like to learn more about his employment law practice visit: www.darvishlaw.net
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hello, and welcome back to the podcast. I’m going to jump in real quickly here to do an introduction of our guest, Bijan Darvish.
Bijan practices employment law in Orange County, California. Bijan and I met several years back at an employment law seminar, [00:01:00] and struck up a conversation and have been friends ever since. He has a very interesting and Applicable background to becoming a lawyer. He was first a police officer. I was working as an officer and was unfortunately wrongfully accused and had to go through the process that an employee would have to go through to basically clear his name.
He had to go through the criminal process, which he got fully acquitted. Then he had to go through suing his employer, which he did. Which he also was successful in doing, but that process and that experience really opened his eyes to what happens and led him to go into law school, which I think is amazing.
And so he has a very unique perspective than that. He is a hundred percent gone through what his clients have gone through. And so without further ado, let’s jump into this interview. Bijan, thank you so much for joining the podcast.
Bijan Darvish.: Thanks for having me, Elizabeth.
Elizabeth Larrick: Awesome. Well, you are going to tackle a, what [00:02:00] I think is a pretty popular topic because with the pandemic and a few other natural disasters that have been going on across the country, continuances are happening at a high rate and for pretty much Any reason.
So this episode, we’re going to tackle trial continuance fatigue. And I really wanted you to come talk to us because in helping you with a particular file that you had, you have faced quite a few continuances. So tell me about this fatigue and how you kind of experienced it.
Bijan Darvish.: So we had in our case, it was a retaliation case.
We had four or five different continuances. There were for various things. It started out with the other side asking for a continuance for trial, the defense, which they always go and do that at least a couple of times. And then COVID happened. Then we got continuances for COVID. Then we got continuances because defense witnesses were going on vacation.
And then we had continuances because of scheduling conflicts. [00:03:00] So at a certain point, after the second continuance, you start to get a little fatigued, almost burnt out on the case. You lose a little motivation of keep having to delay, delay. Your adrenaline goes up. You’re getting ready for trial. And then it’s a big crash that we’re not going and over and over again, it keeps happening.
That’s what I think of when I, when I talk about trial fatigue or continuance fatigue.
Elizabeth Larrick: Right. And I would say, I mean, specifically with the experience in this case, you guys got almost literally what you went to the courthouse and it was like, no. And you went to the courthouse. No. And so it was like, you guys really had to gear up and get a hundred percent ready just to hear.
Oh. Somebody’s got COVID we’re going to have to get reset or someone’s not available. But you also had a pretty unique circumstance in that you guys opened it up or your judge opened it up to any judge who would try the case and no judge wanted to try that case. [00:04:00] And again, because of a particular party.
So that also created another challenge for you guys just to get somebody to hear the file.
Bijan Darvish.: Yeah. So that was the most difficult part of the continuances. It was, For three weeks, almost we were on call Monday through Thursday from 830 in the morning until four in the afternoon. And the way that works is if a judge has an opening, any judge in the courthouse or in the county, in any of the three courthouses that are doing the civil trials, If they have room to take on the case, they’ll take the case.
So you can’t plan anything. You can’t plan depositions. You got to stay in the office. You got to have your witnesses available. And it’s a stressful time. Every day you’re waiting to see if they’re going to call you. And we had one time after two weeks, They finally called us and they called us on a Friday and said, we’re going on Monday.
This [00:05:00] is your judge. And Monday early morning, they called us and said, well, the other side used the peremptory challenge on the judge that just took your case. So then we’re back to the drawing board again. That’s a long process. I mean, that’s what really fatigued us. That’s what really gets emotions going up.
And then you’re coming down really hard on it. It’s a difficult time to go through.
Elizabeth Larrick: Yeah. And did you take a break? I know you had at least two or three really, really close calls. Did you take a break after, after those close calls?
Bijan Darvish.: On when, when we had our first continuance, it was a long one. It was about six months.
So we did take a break for a little bit and then we started gearing up again a couple of months before. And then when it happened again and again, what we started to do was we came up with a plan. We said, Hey, there’s going to be these continuances. But co counsel and I, Jason Ehrlich, we set up a plan, we calendared it out, and we [00:06:00] said we’re going to meet once a week, and we’re going to talk about the case, whether it be practice, or cross examinations, or direct examinations.
We did a lot, a lot of role play. We continuously did that. So it kept the case, on the front burners for us without completely getting burnt out on it. So for us, for me, that was a great way to do it because it was just enough that we’re staying sharp on the case, on the facts. And every time we did this role play, a new issue would come up that didn’t come up the first time.
So, I mean, we could have still done it over and over again, and always a new issue comes up. And we switched off. One time he would play the witness, and I would be the lawyer, and then vice versa. We’d switch up with the same witness. So that was the key thing that we did, and that was very helpful for us.
Elizabeth Larrick: How many weeks did you guys end up doing this plan before you finally got to go to trial?
Bijan Darvish.: On the time before a lot, because we did the part where we’re on call for a couple of weeks. [00:07:00] And then after we were on call, I think it was two or three weeks, the judge called us and said, Hey, there’s going to be a hearing on zoom.
So we had this hearing and he said, look, I think there’s a lot of reasons why judges don’t want to take your case. There’s some high profile people, witnesses, and all the judges know them. That could be one of the reasons, but I’ll take your case and we’re going to do it on this day. So that was still about a month away.
So then we started doing it about twice a week, meeting like that about twice a week, but on the other continuances that were longer, we’d spread it out a little more. We’d throw in focus groups, we’d revise our openings, we’d read our openings to each other out loud, then make changes, and then we’d do another focus group on it, or we’d focus in on specific exhibits.
And then do another focus group on it. So we tried to stay fairly active in the case, which was a new thing. I mean, for me, because they’re the first couple of times we had the continuances, we didn’t really do that. [00:08:00] We just put the case off on the back burner, but it really, really, it’s very beneficial to create a schedule, whether it be every two weeks, once a week, you know, however time you have to at least do something on the case.
And if it’s on the calendar, then you’ll always go and do it.
Elizabeth Larrick: And I think having that accountability person with you right to hey, we’re gonna do something different or role play a different witness or do the opening again. So you guys tried to keep it at least somewhat entertaining and change it up.
Bijan Darvish.: Yeah, we did. We kind of made this promise to ourselves that, hey, we’ve got to do this to keep the momentum going to not lose interest in the case. And it made it fun. I mean, each time there was new arguments, each time we learned something new. So it was very beneficial for both of us.
Elizabeth Larrick: And just so for people listening, were you guys getting together for like an hour at a time or two hours at a time?
Did you kind of map out, Hey, this week, let’s do this witness next week, let’s do opening. [00:09:00] Or did you just set the time aside and said, Hey, we’re going to get together and then we’ll make a plan for the time when we finally get on the zoom.
Bijan Darvish.: Yeah, so the day that the, we got the continuance, we said, okay, we got on the phone ’cause we said our calendars were clear for today anyway, so we got on the phone or on a Zoom and we said, these are the days we’re gonna do it.
And then about a week before we’d email and say, Hey, let’s do this topic. Let’s do cross examination on this witness. So let’s do opening statements, or let’s do defense opening or defense closing, things like that. So we talk about it, prepare for it. And then when we had our scheduled meeting, we’d do that.
And sometimes I would bring up something and I’d say, Hey, I really have an issue with this because I was reading about this. Can we change topics and do this? So it made us prepare. It wasn’t just that day because we had to take out time from the week to prepare for the role play, to prepare for the focus group.
So this is extremely beneficial.
Elizabeth Larrick: Yeah. Awesome. Well, tell me a little bit about, and I, it sounds like [00:10:00] that really helped you guys regain momentum and excitement about working up the file.
Bijan Darvish.: Yeah. I mean, I don’t know how excited we actually get to work up the file again, but it did. That’s what really kept us going because we had to keep up with the schedule and make the promise to ourselves, to each other that, Hey, we have to do this.
And that’s really what kept the momentum going. Otherwise, I know the first time we had to continue, we said, Hey, let’s work on the case every now and then we didn’t calendar it. And it didn’t work out the same way. Busy schedules, always things come up. So it’s difficult to get a 1 or 2 hour meeting in the last minute.
Elizabeth Larrick: Right. Absolutely. How did you feel like in doing that schedule? Do you feel like how did that really benefit or, you know, could you tell as far as that, how that benefited the trial when you finally got there?
Bijan Darvish.: The role playing was extremely beneficial for us because we only deposed one [00:11:00] person and the other people, we didn’t take their depositions.
So every time we role played, we think of a new argument or a new excuse that they would make. And there was not a single response that they gave at trial that we weren’t ready for. And it was the best feeling because I’ve been on the other side of it where they say something. And I didn’t know how to respond.
I don’t have the great cross examination skills of like a 40 year Don Keenan or somebody, but knowing that, having that confidence of, okay, we’ve really come up with everything they could possibly, every excuse they can possibly come up with, and we have a roadmap of where to go for every excuse they come up with.
And then it just flowed. I mean, it felt good.
Elizabeth Larrick: That’s awesome. And what an easy thing to do, right? You don’t really need to have any skills other than, like you said, set aside time to do the role play, but also prepare a [00:12:00] little bit and try to give, if you play the witness, give a new face or give a new look to something.
So that’s awesome that that was like, Made you super confident when you go in and then it falls into place.
Bijan Darvish.: Yeah, and it’s really helpful switching roles. If I’m going to do the examination, it’s really helpful for me to be the witness because I know the questions. I’ve already written them out and I can come up with different excuses that I haven’t come up with before, or even get other people that don’t know anything about the case and have them be the lawyer or have them be the witness.
I can’t speak enough about doing these role plays.
Elizabeth Larrick: That’s awesome. Well, tell me a little bit about how did you guys, cause I know doing repeated focus groups can also get really mundane. So how did you guys switch things up for the focus group and keep trying to learn and squeeze more out of them?
Bijan Darvish.: We, we never did the same type of focus group back to back.
So we did an opening focus group one week, then in three weeks or a [00:13:00] month later, we didn’t do another opening. Um, we tried to change it up and do exhibits or really focus in on Vore Dyer, things like that. And we tried to both do it. I was going to do Vore Dyer in the case, but it’s beneficial for me to sit there and watch someone else do it.
I watch my co counsel who knows all the issues, who knows how we’re going to do it. Structure of or die or what questions we’re going to ask the conversations we’re going to have so it’s so beneficial to just sit back and watch him do it and then I’ll get up there and do it. So we tried to do different types of focus groups, different things, and it was very beneficial.
Elizabeth Larrick: I know that ultimately November is when you. You guys went to trial, but did you ever take some time in October or even before that to take all the information? So you guys had several sort of focus groups and try to synthesize it down to main takeaways or problematic demographics or anything like that.
Bijan Darvish.: Yeah, we did that beforehand. Jason took on that task and he did a really great job with it. He [00:14:00] made a final report that broke down the demographics and broke down different comments to issues by the focus groups so we can use the same verbiage in trial. It broke down everything and we each had it in a binder in a notebook and Every single day we’re flipping to it to say, Hey, what, what are the highlights on what I’m supposed to say?
What’s going on here? What does this mean? So, yeah, it’s definitely, it’s very important to do that final analysis report because a trial, we’re not going to have the time to go and swift through 10 focus groups, whatever it is, even 5 focus groups to see what they said and the results were. If you just have it in a table, you just have it in the final charts.
It’s a great way to do it. And then you could always refer back to the longer reports if needed.
Elizabeth Larrick: Gotcha. Gotcha. Awesome. Well, what do you think were things that with all this extra time to prepare, did you guys basically try to shorten things up and simplify things?
Bijan Darvish.: We did. So we tried to, definitely we [00:15:00] shortened up our opening.
Our opening was a little long. We tried to cut out things that we didn’t think were as important, and then we tested it again with the focus groups, and we were getting similar results. So we ended up taking that out. We shortened up the Vore Dyer because We just didn’t know how long the judge was going to give us.
We were lucky enough that he didn’t really limit our time on it, but we just didn’t know at the start how long he was going to give us. His rules didn’t say. So we tried to actually, we tried to shorten up everything, our examinations too, because you know, you’re always thinking that the jurors want to get out of there.
And if we can be the ones that are efficient, that just get to the point, ask the questions and sit down, that hopefully they’ll appreciate that. So we did, we tried to shorten up everything from opening Vordaer and our examinations.
Elizabeth Larrick: Yeah. And as far as, like, give us a little example is the originally your opening was about how long and what did it end up being at trial?
Bijan Darvish.: Originally, our opening was about almost a little less than 30 [00:16:00] minutes. It was about like 28, 27 minutes. And by the time we got to trial, it was still a little long, but I think it was about 20 minutes. But that included time that we allowed to go and put up the exhibits, put up a board, walk back and forth, and try to break it up for the jury a little bit.
You know, if it was just reading without doing anything else, I think we’d probably shave off. Three, four minutes, something like that, but it takes time to put up the boards, walk back and forth, and we wanted to do that a little bit of trial to break it up for the jurors to take the time to walk up there, actually write something or show them a demonstrative.
So it’s a little longer than we wanted, but we, they just had so many different excuses. And because we didn’t depose them, we didn’t know which ones were their main ones. We knew which ones the focus groups thought were the main ones, and we harped in on [00:17:00] those. So
Elizabeth Larrick: yeah, and I think that’s a really good point just to make just generally is when we talk about shortening up our opening, we still need to remember the time it takes to go, like you said, To walk across the room and write something on a board or go get a demonstrator and put it up.
But that time is so helpful because you’re giving them a lot of information. 20 minutes is still a lot of information to digest and breaking it up and giving your brain, their brains a little bit of a rest or delivering the content through a visual really does help them learn and retain it. So much better than just delivering basically a 20 minute speech for sure.
So was there anything else that you can think of that really in this time of reworking and dedicating some time to keep working on the case that you’re like, wow, this was something that was different from other trials that you’ve done and it definitely other than the role playing stood out as a benefit.
Bijan Darvish.: The focus groups were a huge benefit for us, and I know I’ve said her already in this, [00:18:00] but the role playing, I just, I can’t say enough about it. One of the witnesses we had was the public defender for the county, who’s got a hundred something trials under her belt, not to mention how many trials she’s supervised and managed and all that stuff.
So for me to cross examine her, I mean, I would, I was intimidated. beforehand. I go, she’s a lawyer and she’s going to be a sneaky lawyer. She’s already got all the answers and everything. So I, I was very nervous about it, but as we got farther along with the role plays, The more we did it, I played her a bunch of times.
I just, I sat down one of the days and I go, she just doesn’t have a way out. There, there’s not a way out. And that role play, that just built my confidence for me. And I knew exactly where to go. So that was, The main takeaway for me is all these continuances, all the fatigue that happens is the [00:19:00] role play was just invaluable.
I mean, especially with a witness that for me, a lot of lawyers might not get intimidated, but for me, she was a 30 year lawyer. A hundred trials is a lot. She’s been in the jury a long time and she knows what she’s doing. She rose to the top from the very bottom. So it was intimidating for me, but I tell you, once we were going, it was just the best feeling when you’re guiding the dog on the leash, you know, they’re going where you tell them to go.
Elizabeth Larrick: Yeah. And did you, I know at some point you guys kind of with extra time and probably this extra preparation, you guys kind of switched up some things between you and Jason and Jason was on our podcast already. He’s episode a couple more earlier than this, I think 61 to catch Jason talking about direct exam.
But did you guys in becoming so much more familiarized with you? I mean, I know you guys have teamed up on [00:20:00] cases before and you guys kind of switched some things at trial and with witnesses. Right.
Bijan Darvish.: We did. We did. We switched the direct exam or the plaintiff. So Jason took that and I was hesitant on doing that, but you know, he’s got some magic voice that he does calming and soothing.
And I don’t know how he does it. I mean, I tried to do it, but I just couldn’t, at least I felt I couldn’t replicate it, but it was just the perfect tone, the perfect volume, the way he did it. And it was a good choice. I mean, I think it’s important for us to know. Lawyers have egos, right? And it’s important to know.
Wait, we
Elizabeth Larrick: have egos? No.
Bijan Darvish.: Exactly. So, I mean, it’s important to know when you’re working with another attorney that, hey, what’s that attorney’s strong points? Are those better than mine? And I thought his direct exam skills were just phenomenal.
Elizabeth Larrick: [00:21:00] Yeah. And sometimes it’s just, I mean, it’s such a, once you, again, you guys spent so much time together, but you guys spent a lot of time also with your client and knowing that who has the better flow or energy sometimes is just a better choice because getting in trial, it gets so squirrelly.
And if you could at least rely on that, that those folks have an easier, like flow of conversation, sometimes it’s just a better choice.
Bijan Darvish.: Yeah, and I hope when he came on, he said a lot of nice things about me too. I’m going to go back and look for it
Elizabeth Larrick: again. Well He didn’t even
Bijan Darvish.: mention me, did he? No,
Elizabeth Larrick: he did.
No, he did. No, we didn’t talk. We actually talked a little bit about this trial that you guys had in November. But again, another trial that you guys had together that was a very challenging direct exam. And that was another You kind of right up your alley, right? With the police officer and police force. I know that’s in your background.
So we talked about that trial as well. And that one also was a [00:22:00] case that kind of lingered for a while.
Bijan Darvish.: It did. That one lingered for a long time as well. Did you
Elizabeth Larrick: guys have the same plan of trying to get together or was this plan that you made for most recently? Was that kind of a new invention? We
Bijan Darvish.: did it for the other trial, but.
Not as regularly. We did the standard role play as we scheduled it ahead of time. Not as much, not a schedule from between continuances and stuff, but it was a completely different case of different facts and whatnot.
Elizabeth Larrick: Definitely. Definitely. Awesome. Well, I know that you guys did eventually try the case and you tried it.
How long did it take to try the case?
Bijan Darvish.: I think it took, well, this was another issue for us was in Orange County. They don’t do trials every day. The judges only do trials three days a week. And the other days, they hear motions. And our judge, we were, he did trials, I think it was, Monday, or [00:23:00] Tuesday, Thursday, and Friday, if I’m not mistaken.
Tuesday, Thursday, and Friday. So they weren’t even consecutive days. But it ended up going, that way it went well over a month. I think we were at, 11 days of trial, something like that.
Elizabeth Larrick: Yeah.
Bijan Darvish.: But which
Elizabeth Larrick: is also a fatigue in and out to keep going.
Bijan Darvish.: It is, but you know what, looking back at it, there was a lot of benefits to it because if there was a witness that we needed to hold over or something for whatever reason you could, and then you can get the transcript and prepare better.
You can have a day between. At least between Tuesday and Thursday, we had a day to go over what happened on Tuesday. So it drags on, but there’s also benefits to what you make of it. So if you have those time openings, you use them by all means.
Elizabeth Larrick: Yeah. I think that obviously people listening are from all over and I’m here in Austin and we generally try things.[00:24:00]
Every day you start trial Monday or Tuesday, you’ve got to do pre trial and just work all the way through. But there’s a lot of places that don’t do that. They have the same kind of challenge where the judges want to hear motions or hear other dockets. So they don’t get behind it in that kind of stuff.
So that’s a very good suggestion and use, which would be get the transcript. Let’s get the dailies from that court reporter, even if they’re rough to be able to go back. And that’s definitely one of the things that in doing larger trials, not necessarily smaller kind of car wreck trials that I did, but larger trials, we always go back and get the defense opening, get some big witnesses or main people and read back through that pinpoint those defense points and make sure you can knock them out.
And I’m sure that’s what you guys did in your trial.
Bijan Darvish.: Yeah, no, it was a great benefit to get those dailies because I mean, there was times where we’re like, they said, what, how did I miss that? Or wrote that down differently, but it was beneficial. And then we had them for a closing, but we took snippets of it and cut it and paste it and put it in our PowerPoint.
And so [00:25:00] they said this, I mean, can you believe that? It was very beneficial.
Elizabeth Larrick: It’s also makes it a little bit like, I’m not going to say magic, but I think jurors love that crap. I mean, it’s almost like CSI stuff, like, Whoa, wait, you’re going to bring that, like roll the tape. I think they really appreciate that one because it’s a long, I mean, especially if it goes over a month, that’s a long time to remember stuff.
And if all you get are the highlights and that’s all you really want anyhow, so.
Bijan Darvish.: It was a great tool. And I think you’re right. It did break it up for them instead of just sitting there saying, remember, so and so said this and so and so said this. And I’m sure some of them are going, I don’t remember, maybe it’s a lawyer putting a spin on it or whatever, but it’s much different when it’s out there written and writing for them and it’s from a transcript and it has much more of an effect.
Elizabeth Larrick: Yeah, absolutely. Totally. And you guys had a successful outcome, right?
Bijan Darvish.: We did, we did, we got a unanimous jury. They found that there was the harassment and the [00:26:00] retaliation. And it was a total of a little over 1. 2.
Elizabeth Larrick: Fantastic result.
Bijan Darvish.: Yeah. Thank you.
Elizabeth Larrick: And she, long journey to get there. I mean, I think when it happened to the trial date, eight years or more.
Bijan Darvish.: No, it was four years, almost five years from when it happened. The trial, and I was with her from the very beginning was about a two, three months after it happened, I started talking with her. So it was a long road for her. She did amazing going through all these continuances and. Three
Elizabeth Larrick: depositions, four depositions.
Hey, that’s a lot of depositions and they were not short ones. You guys, the employment cases, you guys squeeze the juice as much as you can.
Bijan Darvish.: But you know what? She stayed true to herself. We had an economist come in, not to get off topic, but we had an economist come in, and our economic loss was high. It was over two million dollars just for the economic loss.
And then she kept trying [00:27:00] to find a job at being an investigator again, and she found one. And it cut our Economic losses from 2 million to 200, 000, but more credit to her. I mean, you have to respect a person like that that says, Oh, you know what? I’m not going to delay it just because I got a trial coming up.
I want a good job.
Elizabeth Larrick: Yeah. I mean, it was her passion, man. She, it was her calling and she was going whatever it took. That was definitely a lot of perseverance because some people definitely would have just given up and said, you know what, just forget it. I’ll find something else. But she kept going, so is there a possibility of a new trial or appeal or is that still up in the air?
Bijan Darvish.: I’m fairly certain they’re going to appeal it, but we had our hearing for a JNOV and a motion for a new trial last week and the judge denied them both. Okay,
Elizabeth Larrick: that’s exciting. That’s great news.
Bijan Darvish.: We’re filing our, he actually, one of the reasons they wanted a new trial was they said the damages were too high and the judge said on the record that the jury could [00:28:00] have easily awarded more.
Elizabeth Larrick: Nice.
Bijan Darvish.: So we thought that was a good statement by the judge.
Elizabeth Larrick: Yeah.
Bijan Darvish.: And the appeal when they file it, but we’re getting ready to file our motion for our attorney’s fees. And then I’m sure they’re going to be filing their notice of appeal here in the next couple of weeks.
Elizabeth Larrick: Well, maybe they won’t. There’s a good chance that you guys made a very good record.
There’s not going to be anything there, but I know that you all’s appeals court is almost as bad as ours, which means it takes months and months and months, and sometimes even years to get a response. So I hope that you guys, that doesn’t happen. You guys can go ahead and keep celebrating as always. A win is a win and definitely for that particular file.
And that client was quite, quite a long battle, I would say to get to the end.
Bijan Darvish.: It was a long battle and everybody, I mean, you helped out a lot with the witness prep. That was very beneficial, but luckily it worked out good for us. [00:29:00] Well,
Elizabeth Larrick: I mean, I think, like you said, because you didn’t have a lot, you didn’t have positions to go after having that big uncertainty of how, which way are they going to go?
And how do we Bob and weave with the witnesses? That role play is really. So beneficial. And I’m really glad that you shared that with us and it’s an easy thing to do. So,
Bijan Darvish.: yeah, one of the easiest things. And I mean, I’ll, I’ll do it even myself. Sometimes I’ll get up from my chair and go sit in the other chair, ask a question and move.
And my wife looks at me like, what is wrong with you? Why is it’s up if you don’t have anybody?
Elizabeth Larrick: Yeah, he’s lost it. And I think the zoom has made it so much easier. Cause I know you and Jason do not live near each other. Right. You guys, there’s 400 miles between you guys.
Bijan Darvish.: Yeah. Yeah. We don’t live close, but we do everything through zoom and it helps out.
Elizabeth Larrick: Yeah. I mean, I think that having zoom and the ease of using it is so helpful for any kind of practice, but I think especially when you guys work so well together and then being [00:30:00] able to do that makes it so helpful. Just jump on the zoom, do what you need to do. You guys could record it if you need to record it, transcribe it if you needed to, but you know, otherwise just makes it easy.
Bijan Darvish.: And you know what? You’d be surprised at how many lawyers are willing to help if you say, Hey, I got a cross examination. Can you help me just do this role play? And most of them get excited about it. They’re like, Oh yeah, that’d be cool. I got to practice my cross examination and really come after you.
That’d be great.
Elizabeth Larrick: Yeah. And that’s what I love is like, it really, and I’m sure you guys probably experienced it. You don’t need to go for very long. I mean, you could do 20, 30 minutes and you’re still going to get a lot of benefits and then you get to stop and say, Whoa, let’s unpack all that just happened.
So
Bijan Darvish.: yeah,
Elizabeth Larrick: always helpful. Is there anything else about people out there trying to tackle trial fatigue that you would offer or suggest?
Bijan Darvish.: The schedule, get the schedule. As soon as, the same day you get the continuance, you have time because you had court probably scheduled that day. Take the time, [00:31:00] calendar it out every week, every other week, whatever it may be, even if it’s just for an hour or half an hour and you can do it.
You can find people to do it with you. I had a friend that his wife worked in HR and I used her. Cause we had an HR person and ran these questions by her, but there’s always people out there to find, but if we, if it’s scheduled, that’s on our calendar, we’re, we’ll, we’re more likely to do it than if we just say, Hey, I’ll call you and we’ll schedule something.
Elizabeth Larrick: And I’m sure you probably, you guys had the folks groups to set out to like, okay, if we go for a couple of weeks, we got to check in and see where we’re at.
Bijan Darvish.: Absolutely. Yep. Continuously good though.
Elizabeth Larrick: And those are all virtual, right?
Bijan Darvish.: We’re doing them all virtual.
Elizabeth Larrick: Awesome. Well, Bijan, it is so helpful to come and share your experience and let us know about this, uh, Great way to keep engaged with the file and also with your co counsel to keep going.
So thank you so much for joining the podcast.
Bijan Darvish.: Thanks for having me. Appreciate it.
Elizabeth Larrick: All right. Well, thank you everybody for tuning in to this episode. [00:32:00] If you like this podcast, please follow it on your favorite platform, leave a review so other lawyers can find it until next time. Thank you.
