Category: Podcast

During the second phase of client testimony preparation, sometimes there’s a big miscommunication between the clients and the lawyers. Lawyers ask differently in deposition than they would in any other kind of conversation. Therefore, it warrants some education so clients can go through it smoothly. 

In Phase 1, we talked about getting into the right mindset, which applies to clients and trial lawyers. Today, we look into Phase 2, which also refers to the organizing phase. This phase does not mean crafting, shaping, molding, or woodshedding any testimony. Resist the urge to craft and change your client’s words to make them sound better or to make their answer the question more clearly. Instead, make sure you organize what the client already has in their brain and what they already know so clients can see the bigger picture concerning the questions they get. 

There is power in the truth, and it is all you are doing in this phase – to help clients see that and organize it for them. 

In this episode, you will hear:

• Challenges trial lawyers have in this phase
• The 3 main purposes of a deposition
• The power of telling stories
• Why you shouldn’t be changing the client’s words

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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 really enjoyed this episode, we’ve created a PDF that has all of the key information for you from the episode. Just fill in your information below to download it.

Supporting Resources:

Larrick Law Firm

If you have a question or comment, please let me know: elizabeth@larricklawfirm.com 

Episode 014: Phase 1 of Client Testimony Preparation 

Episode 011: Focus Groups: What Do You Get?

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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Welcome back. We are in a three part series going through client testimony preparation, specifically looking at depositions, and we are going to look into the phase two, meat and potatoes, the part where we really get in and start looking at questions and looking at answers and really helping our clients with testimony.

We’ve got some fun things to talk about. So stick around. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants, ask them about connecting with clients and juries more effectively, then take strategies, tactics, and insights to increase your success? Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries [00:01:00] and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome. This is Elizabeth Larrick, and you’re listening to an episode of Trial Lawyer Prep.

This is a podcast designed and created for trial lawyers working with difficult cases, problematic clients, and providing some how to. to fight through some of those problems and come out the other side feeling better and having better cases and better outcomes. Today’s episode is going to focus on our second part of our three part series in client testimony preparation with an emphasis of looking at depositions in We’ll do a trial testimony preparation series a little bit later in this podcast, but today I want to continue our journey with client testimony and look at phase two, what I like to call organizing.

We’ve talked about in phase one, getting our mindset straight, [00:02:00] meaning not just the client’s mindset, but our mindset too, right? So there’s a big old fear monster running around that really can control our brains and can really cause some problems in deposition. So if you want to listen to that full episode, check out episode 14.

But today we are going to march forward with looking at organizing and let me make an emphasis on that because we are not going to be crafting, shaping, molding, or wood shedding any testimony here. Okay. What we’re really looking at is making sure we’re organizing what the client has already in their brain, right?

What do they already know? And this is really facing that issue of, lawyer questions versus client answers. And sometimes there’s just a big miscommunication here. A lot of times what I like to explain to clients is this is kind of the part where we just translate because lawyers talk in a different way.

We ask questions differently in a [00:03:00] deposition than we would in any other kind of conversation. So there’s a little bit of teaching that goes along to have the client see a book. bigger picture when it comes to some of these questions that they get, but also translating the lawyer asks this, but this is what they’re really looking for.

And a lot of people can have that communication breakdown and we want to make sure that it’s really smooth for clients when they get into the deposition. Now, one of the toughest parts of this phase is at times you’re going to have to accept Um, and it’s going to be hard not to want to craft what they’re saying or change a word here and there to make things sound better or, you know, to speak more clearly to liability or damages.

Because at the end of the day, the jury can spot a phony. We know lawyers are taking depositions, they’re asking questions, but ultimately they’re going to be judged by a jury. So we want to make sure that we keep it at that level. There’s no reason [00:04:00] to. Okay. And so this all trikes us back to kind of ultimately the purpose of a deposition and always explain this to clients in our first phase when we’re talking about mindset and expectations is there are three main purposes of a deposition and the first one is to gather information.

You know, it’s not all going to be cross exam and style, but a lot of times they just need information. So it’s not all going to be about doom and gloom. Okay. They want to learn what you’re going to say. They want to know what your story is and ultimately they’re going to want to score points for their case.

So that’s where we use our organizing phase to look at first and foremost, scoring points for their case. And this really kind of goes into that teaching moment where how are they doing that and what questions are they using to do that? And a lot of times I feel like, clients get lost in seeing ultimately what is the target of a question, [00:05:00] meaning like, what are they insinuating?

Sometimes if you’re in the battle, they can’t see what’s being insinuated and that’s the evil part of it. You don’t know. So it’s really backing up a lot of these questions and showing the big picture because clients expect to be asked the same question or try to get the same information, um, 20 different ways they expect that tricky kind of question, but they don’t really know how to handle it, right?

So this is really where we’re looking at. Okay, so we’ve got most time there’s several targets, right? There’s gonna be maybe some targets on liability. Maybe there’s gonna be some targets on damages and we’re gonna go through each of those individually and what we really want to do is Put that target up there, right?

Make it big picture. So let’s just take a car wreck example because sometimes that’s the easiest. It’s a car wreck. They’re gonna try and blame you for something, even if it’s just a regular rear end collision, right? You stopped too soon. You didn’t have your brake lights on. [00:06:00] You know, witness says this. So Even though it may seem so abundantly clear, your client’s not at fault, they may think it’s abundantly clear.

It doesn’t mean that it’s still not going to be a target for the opposing counsel to ask several questions on. And I always like to walk through that first target, somewhat of an easier target for them, because then they understand what we’re doing. So we’re going to teach them, Hey, okay, here’s this target.

Opposing counsel is going to try and say that you are Even just a little bit responsible for this rack and how are they going to do that? And so then I just list out all the questions how they’re gonna do that And then once I do my job of showing them how that question is gonna be asked what that question is going to be Then I hand it over to them and we just go through what are the facts that you have Right.

And let’s just write out the facts. And in this phase, we’re really making sure that we’re organizing truth and facts, avoiding [00:07:00] feelings, because at times people get wrapped up in stuff and emotionally it’s tough and you want to have answers and sometimes you just create answers in your mind. Let me give you an example that happens often or frequently.

The other person was speeding. I know it. How do you know? I just know they were speeding. Okay. The other person was on their phone. Okay. Did you see it? No, I didn’t see it. Did they tell you that? No, they didn’t tell me that. So wait, how do you know? I just know they were distracted. Okay. And that’s really important because if we let them go into the deposition with that response.

Okay. I know they were speeding, even though there’s really no way for anybody driving on the road to, you know, you’ll just see that if it comes from behind them, it opens them up for a litany of extra questions and it’s just a position that they can’t support. They don’t have the facts to support it, even though that’s the way they feel, that’s not really a fact.

And so we really want to be able to [00:08:00] organize it in that way so that when they get in there, they can see, wow, I have, Let’s say they have just four facts, but they’re four really strong facts. Those four strong facts can beat back one target, even if it comes at them 20 different ways. Truth doesn’t change.

And that’s what we really want to organize from and show them, Hey, how strong is this fact? Do I need this other feeling of, I feel like they were speeding. I feel like they were on their phone. I don’t. I got this other strong stuff. It’s way stronger. Great. And you keep doing that organization with them through the different targets.

I always go through liability. I go through damages. Even if I am preparing a client in a wrongful death case. There’s still going to be targets there because ultimately they want to minimize everything, right? Let’s minimize everything. Let’s make everything look small, insignificant. That is still going to be a target [00:09:00] because opposing counts will be doing their job if they didn’t try to score points in deposition.

That’s what we do. That’s what they’re going to do. So let’s prepare them for that. and organize their truth around those targets. When they see it, boom, it’s already organized in their mind and they know exactly where to go. A very key point here, if I haven’t already said it, make this a visual aid, make some lists, right?

Put this stuff up on a board. Let’s get a good visual on it to see all the facts and all the targets so they can see it and know, right? Make sure they memorize it with that visual aid. Another key place for organizing is that other purpose of a deposition, learning your client’s story, right? What are they going to say happened in this wreck?

What are they going to say happened when they went to the doctor? And it’s just, again, organizing their truth and their story when it comes to damages and liability. But we’re really looking at helping them be able to organize and express the [00:10:00] physical and emotional damages they have experienced. For Many a times people come to a deposition, it has been a year, maybe it’s been two years, sometimes unfortunately longer than that.

So you really have to spend some time walking through all that time to make sure you kind of gather up all the things that happened physically and mentally, emotionally during that timeframe to them, whether they’re recovering or they’re having more surgeries, whatever that may be, but also gathering in all the places where there could be a story.

for the jury to learn. So when we walk through this with the clients, I always look at, Hey, again, I’m big on visual aid. So most of the time I’ve heard something, you know, some ideas and that really kind of helps to start the conversation. But again, we have to remember the jury is the one who’s listening.

So let’s get some stories to help them understand and let’s look at work and go through that whole time period. Let’s look at your family. Let’s look at relationships. Is there any stress? Did things [00:11:00] have to change in the household? What about holidays, vacations, kind of that goes in our family block, and then also, you know, social life, outside of work, outside of family, things change, like what did you do before?

What is it after, right? So just kind of walking through to jog their memory through all those things and be able to, again, write out some stories and have some things ready for them when they get those questions, right? How has this affected you? From the top of your head to the bottom of your toe. What hurts?

What permanently can you not do? All these questions that can be a little bit stumping because again, they don’t talk about this way in normal conversation. People don’t ask a question like that. So it’s, can be a little bit jarring, but also in helping them organize their truth, you avoid kind of this large looming answer that most people want to give, which is Everything has changed, and that may be true, but it’s hard to understand from an [00:12:00] outside perspective.

It’s hard for a jury to understand everything, like everything. So very good to have stories to back up that big, broad statement. And what I normally find is once we go through this and we have this visual aid with All these different stories from different times, different pieces of their life. Then generally they can really say, wow, everything really has changed.

And wow, I have all this information, all this stuff that came from me to back it up. Right? And again, it’s just, there’s there’s. Power in the truth, and that’s all you’re doing. It’s just helping them see that and organize it for them. Also in this bucket of phase two organizing, we do some what I call nuts and bolts, which is we’ve got at some point look at just basically a medical timeline.

And I consider it a rough timeline because we’re just going through what they can remember, what they know, you know, ER, ambulance, primary care, orthopedic, surgery. It’s not super important for me [00:13:00] that they remember necessarily dates, but there may be key dates that they do remember, like their surgery, but I always find it’s really helpful for them to kind of refresh their memories again, because there’s going to have been a gap in time since they finished treatment and this deposition.

So we always just kind of like to refresh their memory, go through that. We know that’s going to be something that defense or the opposing counsel will always ask them about. And then other things that they may need help organizing would be if there’s any prior medical history. That’s going to be part of the deposition.

If there’s any large job or lost wage claims, or this is an employment case, like we know job history is going to be very important. So that is key to organize like any job history, maybe make a job timeline just to help. Again, we’re just trying to go through. Known places that they’re gonna get questions, that we just wanna help them refresh their memory, organize, and then hit any other areas that may just be helpful for them to refresh.

And again, we’re going back to that purpose of the deposition of gathering information. Wanna make sure that we refresh [00:14:00] all memory when that question comes. They may not remember, or they may, because again, we’ve worked really hard to refresh memory and and organize responses for questions. A lot of this organizing and making sure you can see what the targets are, looking at what are their damages is part of the lawyer preparation, right?

So we talk about that in episode 11, doing a memo for you to get ready. So you can see these targets, you can start kind of scoping things out, maybe making lists of questions. Also looking at stories just to be able to prompt them when you start to go through that. Damages section of organization and both of these places, right?

So looking at the targets, looking at the damages and kind of the nuts and bolts, the other things they need to know about medically, you got to remember it’s so key. One of the most important places, important things. You’ve got to use the client’s words. [00:15:00] Do not change it, like resist trying to say like, well, this is going to sound just a little bit better.

Like, let me just, let me just like, we need to just move things around or maybe just say it this way. You may need to help them simplify it. Most of the time people want to give like a two sentence long answer when one would be. Just as good, just as powerful. But a lot of times what I hear, a lot of feedback that I get, and even in my own doing the testimony prep, you’ve got to resist the urge to craft it, right?

To change it, to make it sound better, to make it answer the question more clearly. And this goes back to that, Hey, this is that tough point. We’re going to have to accept people as they are because again, it’s the juries, the backstop here, right? Not you. Not the other lawyer. Thank goodness, right? Not lawyers don’t decide.

That’s what I always say. And there’s two main reasons why. One is they’re not gonna remember it. You’re changing what’s already in their mind. They’re not gonna remember [00:16:00] your words, right? If they do remember their words, it’s gonna sound really scripted and that’s not what you want either because an authentic witness is a powerful witness.

And that is what’s going to be more important to sending a message to the people who are making the decisions. Whether it be the decision makers, the defense counsel, the insurance company, or ultimately the jury, right? Because they’re going to be able to smell a rat just like the rest of us can. And that’s not what we want, right?

This is the client’s case. You know, our job is again, organized. That’s why the title of phase two is organizing, right? That’s what we want to do. And as long as you resist the urge to write your own words or put it in your own spin on it, things will go much smoother in the deposition because you aren’t going to be frustrated when they’re not using your words.

You’re not going to be upset with them for not remembering that. It was never in their minds that way to begin with. And you may have a lot of people that come to you and say, Tell me what [00:17:00] to say. Well, a lot of times you just tell me what to say. It’s like, well, yeah, it doesn’t really work that way. And thank goodness , because we all seen those depositions, right?

Where it’s like, oh, they just, you totally told ’em what to say the whole time. And you can tell, it doesn’t take a mastermind to figure it out. So keep that in mind as you’re organizing and walking through this step that you wanna use. The client’s words, write down exactly what they say. Don’t try to shape it.

All right. Awesome. So I appreciate your tuning in today to episode 15. And if you’ll catch me next episode in 16, we will close out this series with phase three testing. All right. Thank you so much for joining me today for this episode. If you enjoyed it, please follow us on your favorite podcast app, rate, review us, and share us with somebody who thinks they need to hear this episode.

Thank you so [00:18:00] much.

Getting a client into the right headspace is key before you can jump into questions they will encounter in the deposition or trial. In this episode, let’s learn about why it’s essential to get your clients in the right headspace and the ways you can do that.

This episode is part of a series where I’ll be walking you through the preparation of a client for testimony, either for a deposition or trial, which are two very different places where clients give testimony.

The first phase of client testimony preparation is resetting the client’s mindset so they can overcome the fear, which could cripple them during deposition or trial. 

At trial, a lot of people either freeze or just start talking and never stop. They think they need to just dump everything in their brain on the table. A lot of times, they’ll concede the defense question. And some people even lie in the deposition earlier on because they just want to stop the pain and get out of the deposition as quickly as possible. 

Therefore, you need to tackle that big fear monster first before you can even look at the questions and organize their truth.

In this episode, you will hear:

• Reasons people are afraid of deposition or trial
• Fear as a huge defense tactic
• Ways to address the client’s fears
• Phase 1: Resetting the client’s mindset
• Phase 2: Organizing their truth

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 really enjoyed this episode, we’ve created a PDF that has all of the key information for you from the episode. Just fill in your information below to download it.

Supporting Resources:

Larrick Law Firm

 

Practical Intelligence: The Art and Science of Common Sense by Dr. Karl Albrecht

www.karlalbrecht.com 

If you have a question or comment, please let me know: elizabeth@larricklawfirm.com

Episode 10: How You Can Better Prepare Yourself for Client Depositions https://www.larricklawfirm.com/010 

Episode 12: Silence is Golden – Improve Your Active Listening Skills

https://www.larricklawfirm.com/012

 

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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Getting a client into the right headspace is key before you can jump into questions they will encounter in the deposition or in a trial. So let’s learn about why it’s essential to get them in the right headspace and the ways that we can do that. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants?

Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome to episode [00:01:00] 14 of Trial Lawyer Prep with me, Elizabeth Larrick.

This is a podcast dedicating to Assisting trial lawyers in connecting better with their clients and better with their juries. Today we are going to start a series to walk through preparation of a client for testimony. And testimony being depositions or trial. And hopefully we can walk through three main parts or phases of the client preparation for testimony.

Now, we will have other episodes that will dig really deep into deposition and dig really deep also into trial because those are two very different places where client give testimony. But for today, episode 14 is going to be focusing on our first phase or our first part of client testimony preparation.

This phase I like to call getting your mindset straight or getting the client’s mindset straight I’m going to talk about [00:02:00] how you can do this and why you can do this, but of course we need to tackle the why. Because we’re A lot of things I talk about on this podcast will add time. They do add time to what we already have in our lives, our busy, fast paced professions.

And so let’s talk about it because I know we want to be able to do things efficiently. And that’s what’s really important is spending time efficiently. And yes, a lot of the things that I talk about on this podcast and really in this episode as well will take more time. But what I have found in my experience and with other lawyers that are using the same kind of setup for preparation with their clients is it’s time well spent because we spend it wisely.

A lot of time now will significantly reduce. It’s the time that you need to spend on these [00:03:00] particular issues down the road. We want to do these steps. with the thought in mind that we’re increasing trust with our clients and we are reducing fear and fear is a huge defense tactic. Um, we’ll talk a little bit more about that in step one, but just as a sidebar, there’s a lot of fear going on.

We have in our line of profession is, you know, plaintiffs, personal injury lawyers is where my background comes from. And it’s a lot of eat, which kill, you know, and you have to do well on a case. And so there’s a lot of fear in you. You’ve got to do things right, and you’ve got to hope your client does things right as well along the way to line up with what needs to be proved in the case and ultimately the bottom line of the case value.

So let’s work our way back to talking about the first phase of client testimony preparation and the why. [00:04:00] So much information about client depositions and a lot about client deposition, not necessarily as much about trial. Trial really comes from TVs and movies, but if you’re out there searching for information about how to get ready for deposition as a client, most information you’re going to find is you’re going to be asked to come to this place and you’re going to answer these questions by a professional.

And what I like to call kind of a self assessment. sit and suffer mindset. Really don’t have any control. It’s a necessary part and good luck. You know, don’t say anything. Only answer the question you’ve been given and don’t share information. That’s a really confusing message for people who are not in the legal profession, and it’s just confusing.

And so when we have confusion, generally that just kind of creates fear. The other place I feel like people gather information about what may happen in deposition or trial is TVs and movies. Those don’t [00:05:00] really paint an accurate picture of what happens in the real world. So as you can imagine, most of those things are not accurate, thus inspiring more confusion and fear.

I also have clients who talk to friends, relatives, spouses about depositions and what they should do and looking for advice. It’s because A lot of people never experienced a deposition or a trial. And so what do we normally do? We ask for advice. We go look for it. I mean, we all carry around a computer in our pockets and we just open up Google and see what’s on there and you can go check out YouTube and find all kinds of depositions.

Justin Bieber, Donald Trump, a lot of depositions are up on YouTube and generally they are thoroughly entertaining to watch. But. It’s terrifying as a client to watch, and some of them are really painful as a lawyer to watch because the activity, the, what everybody’s doing on the deposition is really kind of cringeworthy.

So kind of with that backdrop in mind, like that’s what [00:06:00] people come into our offices to get ready. And there’s just this big fear of the unknown and what that kind of translates into for some people is just resistance. They don’t want to do it. They just resist it. They’d even just rather settle their claim and be done with it, so they don’t have to go through this deposition.

And sometimes you have people who do the opposite, where they over prepare. You know, they want to see every medical record. They want to read every single discovery piece of it. And, uh, That’s a good thing, but also they’re looking at it through a lens of what I just described, right, this sit and suffer lens, like you’re gonna be forced in this room, you need to have all these answers to these questions, questions that you don’t even know they’re gonna ask.

So we want to sit back and we want to really look at how can we use phase one to reduce this fear, because if we don’t remove this uncertainty, like what is this process and how do I fit into it, if we don’t remove this loss of control, how I have to [00:07:00] answer all these questions. They’re going to be questions.

I don’t even know what they are. And also this huge fear of I’m going to be judged. This could be humiliating. I’m going to go in there and a professional is going to ask me questions and probably be judging me all these kinds of fears. Right. And so. This fear of uncertainty or fear of loss of autonomy, loss of status, like all of these kind of things come from this great book by Dr.

Carl Albrecht, Practical Intelligence, the Art of Science and Common Sense. He talks about this fear. layers of fear, and what’s the worst fear, and how we really kind of create fears. Great book. If you want to just learn a little more about the levels of fear, just google Carl Albrecht, and we’ll put all that in the show notes so that you can do that if you’re, if you’re curious about it.

Of course, I was curious and learned about it in a few other books, so that’s why it really helped me. understand more about how to help a client get ready. So I pass that on to you. But all in all, we just know like [00:08:00] there’s a big fear monster that we’ve got to tackle before we can try to help them look at questions and organize their truth.

So if we don’t work through this big fear monster and this, Uncertainty and loss of control people will become overcome by it in their deposition at trial. A lot of people freeze. A lot of people just start talking and they never stop. They think they need to just dump everything in their brain on the table.

A lot of times they’ll concede the defense question. And I’ve even seen people lie to end the depo earlier. Because basically they just want to out, stop the pain, right? Get out of this deposition as quickly as possible. And that’s not what we want! Uh, that’s not what we wanted all as lawyers. I mean, one, they’re our client.

Like, they’ve hired us. They trust us to hire us and get us to this point. Really cringeworthy as far as like human to human, but [00:09:00] also as far as the case goes, like really can be detrimental to the case if they’re conceding points or just lying to get out of the deposition. And lying, of course, to get out of the deposition really is a very extreme example.

Most of the time they’re just going to concede defense points or defense questions just to get things over with earlier. And we talked about a little earlier how like fear is a huge defense tactic because it’s an emotion that can be manipulated and they know it’s there. So fear is one of the biggest places that they go when it’s a client deposition or even trial and twist it and use it against them.

There’s a big factional lawyers that don’t spend a significant amount of time preparing their clients for depositions. So this is the best place for the defense to get in there, do their job, you know, hit their targets, prove their case through your client, and manipulate that fear. If we allow them to do that, that deposition then will put a hamper [00:10:00] on ability to settle early, ability to settle at full value, and sometimes even the ability to get Fair value at trial because that deposition will get drug back into that courtroom and the client has to face it all over again.

So this is something really I try to stress that we tackle, we talk about early, frequently, and often with our clients just to make sure that we are staying ahead of this. Let’s see. mental, you know, emotional warfare that’s going to go on that they’re really not ready for. So we don’t want to skip this kind of phase one of addressing this uncertainty, loss of control, humiliation.

Nothing we say will stick if we don’t, because fear is just so powerful, right? It’s at our core. So let’s talk about, hopefully I’ve convinced you, this is going to be something that you want to do. Otherwise, you know, you’re on your own. But we live in a What I feel like a different place now from where the original [00:11:00] advice of, don’t say anything.

Don’t share it’s yes or no. We just live in a different place. Juries expect things differently. And let’s flip the script. I’m always encouraged to get clients into a different mindset and really empower them. So let’s talk about ways to address that and getting them into that right mindset. So I always frame this as, this is my first meeting, just out of the gate, getting them ready either for deposition or for trial.

And you can do this in as short as 30 minutes over Zoom. Like, it’s all dependent on kind of the nature of the case and complication, but I always make this first, right out of the gate. And before we jump into talking about what we’re going to do, or, hey, this is the problem in the case, I sit down just to find out What they do expect.

What do they know? Like how much information do they have? And you just do that by asking open ended questions. What do you think is going to happen at the deposition? Who do you think will be there? [00:12:00] How long do you think will be there? What’s my job as your lawyer? What’s the job of the other lawyer, the defense lawyer?

And why do they want to take your deposition? The key to this particular open ended question series is just to listen. Don’t interrupt, don’t try to correct them, but just listen. And if they come back at you with things like, Well, I don’t really know. I’ve never experienced this. Okay, well, you know, what have you heard?

Because we know there’s something back there. We know that they’re just not completely blind. They’ve experienced something through TV or movies or even online. So I always like to dig really deep and just listen. Tell me more about that. I’m practicing my silence and my active listening that we talked about in episode 12.

So you can go back and listen to that episode to help you kind of brush up on your active listening and your silent skills. But this is a step we really want to gather.[00:13:00]

And, most of the time we hear things like it’s gonna be horrible, they’re gonna twist my words, I don’t remember everything, a lot of the anchors of some of these uncertainty, loss of control, kind of fears that we talked a little bit earlier, just obviously related to the deposition. Once you gather all that information up, right, drain that well to find out.

What all the things they expect where that all comes from. Tell me more about that Then you can provide answers, right? And what I always say is start with giving them certainty, which would be Laying out, even down to a diagram if you need to, and where people will sit in the room as far as the deposition.

What time is it? How long is it? Who is there? What room will it be in? What’s the job of the court reporter? Who’s not there? Is there a judge there? Or is the other driver going to be there? Or is there going to be somebody from the company there listening? [00:14:00] All those things you can find out, right, if they will or if they’re not going to be there.

Everybody has different procedural roles. I’m here in Texas. They were supposed to tell you if someone else is going to be in the room. And so we can find that out here in Texas, but you may have to ask some questions to make sure you have the answer to that question about who will be in the room. One of the other fun ones I like to talk about is what my job is at the deposition.

And so I explain it to them that my job, I’m a lawyer. So my job is to listen to the lawyer. And my job is to object to questions that don’t meet the legal rule. Now, I only, I know that rule. I’m a lawyer. That’s why I listen to what the lawyer says. We’re going to prepare so well, and you’re going to be so ready to go.

I don’t need to listen to your answers. My job is listening to the lawyer. And saying objections so it gets on the record. And I always clear up occasionally, I’ve heard this a couple times recently, with people I think [00:15:00] doing some of their own research that when the lawyer objects, that’s a cue, right, to not say anything until they tell you you can answer the question, right?

They’re trying to give you some kind of secret signal. People do train witnesses to do that. That’s not what we’re going to do here today because that’s not necessarily preparing somebody. That’s. training and coaching them, right? That’s like, when I say objection, you know that I want you to say, I don’t know.

That’s basically woodshedding somebody. We’re not going to do that. But I really, I lay that out because I want them to know my job is the lawyer. I’m listening to the lawyer. I’m tracking where they’re going. I’m listening to those questions, because when it becomes my turn to ask questions, maybe there’s something I need to ask you, right?

So I’m that safety net at the end, but I, the only way I can do that is I’m listening to those questions and making those objections doing my job. We also talk about, in detail, why. Why are they taking your deposition? Learn information. [00:16:00] figure out what you’re going to say, right? What’s your side of the, of the truth, your side of the story, and then also, right, to prove their defense points, right?

What are their targets? It may be to minimize damages, maybe it’s to score points on liability, but I want the clients to know it’s not all about, Scoring points for their side because a lot of that times that inspires anger and we really want to, again, anger, fear, we want to move that out of the way because we want them to be able to supply information and talk about their truth without that fear and anger coming up and popping up.

So once we kind of give them that certainty about what they can expect in the room, what they can expect for questions, why we’re doing this, then we can really talk about, okay, so if my job is questions, your job is answers. And if this is a deposition, you have a right to speak without [00:17:00] interruption.

Without being cut off, and that court report is going to take down everything you say, right? And there is power in that transcript because people will read it, it’s your official testimony. So we’re going to try and give them back some control, right? And then ultimately talking about how to give them power, that there’s any humiliation going on or any kind of concerns about being judged, right?

We talk about how, because you have control of your answers, and they have to listen to you, we really want to work on in our next phase, organizing your truth. Looking at those defense targets, organizing your truth, getting your facts ready to go, and then organizing. and testing out. So give them a real live look at what it looks like.

And so now I’ve just given them a lot of certainty, but I’ve also given them the roadmap and why. And most of the time, I also talk about how we want to flip the script. We hear a lot about how this is a sit and suffer, but really, we [00:18:00] want this to be about this is your turn. This is the best place for you to come in and tell your truth, tell your story in your voice.

And that this is the place. This is that one chance, if we’re talking about deposition, right? If we’re at trial, they’ve already gone through a depo, but this is their place to tell their story, to do their job here. That’s their job. I always talk about what my job is as a lawyer, and what their job is. And then ultimately, who’s listening?

They’re going to be facing off with a lawyer, but ultimately a jury is the one who’s going to be listening and making decisions. And thank goodness, thank goodness it’s not lawyers and judges, right? So there’s a, there’s a good thing to be, to embrace that in the sense that other people just like you are going to be making decisions, not the person across the table trying to drill you with questions.

And then, ultimately, like I talked about, the power of the transcript, right, it cannot be ignored. So, they’re going to ask questions, that court board is going to [00:19:00] make, book your testimony, and a copy of that goes to decision makers, right? That goes to the insurance company or the company that makes decisions, and people will read it.

So, this is the place. We’ve got to lay it out there. To put it out there so that we know that they can’t ignore it. So, like I mentioned earlier, I suggest this doing as a very first meeting. And, even if, You’re getting ready to schedule the deposition and you’ve got somebody who is extremely fearful, just extremely fearful.

Maybe you do this when you’re going to start setting the deposition, right? Get on zoom with them, see them eye to eye, get them in person to have this conversation about, Hey, it’s scary and it’s unexpected and there’s a lot of uncertainty, but we’re in this together. Let’s learn all this, right? So let me take that moment to be silent with you, to be a good listener, to know I am really listening to you.

I’m really going to address all those things, but let me make sure I really understand what’s happening. But normally I do it [00:20:00] once we have the deposition set, then we kind of look at it. Schedule our preparation. But this will give you so much more cooperation. They’re going to be so much more encouraged and so much more involved in their case if we solve this big fear monster right out the gate.

They’re gonna be much more motivated to come back to look at their answers and organize their truths and role play to have as much certainty as possible. So Just to recap, we’ve talked about phase one of our client testimony prep, which is resetting the client mindset. And I say resetting because they have, they have a worldly view.

They have some worldly expectations that are sometimes backwards to what is the truth about the power that they have in their case and the power of their testimony. So we want to reset that. We want to tackle that fear monster that we know will be manipulated and tackle that first, because otherwise that fear is just going to jump right up.

They’re going to freeze or concede points. And how we do that with those big open ended [00:21:00] questions, just really learning about what they think, a lot about how they think using that active listening skill to pull it all out, patiently listen, tell me more, and then addressing it one piece at a time with our first piece being the certainty, right?

The logistics that they’re going to face in the deposition or logistics of trial. Awesome. Well, thank you so much for joining me on this episode. I would suggest if you want to learn a little bit more about what you can do before even getting to step one to go back and revisit episode 10, where we talk about how you get ready, how the lawyer gets ready and creating a memo to look at the information and anticipate those defense targets, those opposing counsel targets for the deposition and for trial as well.

Thanks again for joining us. If you enjoyed this podcast, then I ask that you follow, subscribe on your favorite podcast app and share this episode. If you thought [00:22:00] it was helpful, if you have any questions or have a topic that you would love to be addressed, please send me an email. I’m going to put my email in the show notes along with the information about Dr. Carl Albrecht and his layers, five levels of fear. So awesome. Have a great one.

In today’s episode, we’re joined by Danny Ellis who was named Tennessee Trial Lawyer of the Year for 2021. We discuss the different challenges that trial lawyers face when preparing clients in a wrongful death case. Danny also walks us through some of the things he did to help prepare a recent combative client in her specific case as well as some tips on how we can be better in particular cases like this. 

Based in Chattanooga, Tennessee, Danny practices with Truck Wreck Justice, with offices in Chattanooga, Seattle, and LA. They specialize in all commercial motor vehicles that are 10,001 pounds or more. 

Not every client is going to fit into a perfect formula for preparing them. And sometimes, you just have to be flexible. One of the best ways we can help people in these lawsuits is by giving them the ability to do the best they can do and helping them get the closure they need, which is better than any pile of money.

In this episode, you will hear:

• The difficulties jurors face in wrongful death cases
• The difficulties clients face in wrongful death cases
• How Danny helped a difficult client in a wrongful death case
• Tips in dealing with difficult clients and helping in witness prep
• The power of silence
• The importance of getting into the mindset of the opponent

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If you really enjoyed this episode, we’ve created a PDF that has all of the key information for you from the episode. Just fill in your information below to download it.

Supporting Resources:

Danny Ellis

Truck Wreck Justice PLLC

danny@truckwreckjustice.com 

1419 Market Street

Chattanooga, TN 37402

(v) 423-265-2020 

 

Larrick Law Firm

Do you have a question or comment? A topic you want to be addressed? Please email 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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] In this episode, we have a great interview with one of my dear friends, Danny Ellis, where we’re going to discuss the challenges that you face when you’re preparing your client in a wrongful death case and also talk about a specific case that Danny had recently. We had some challenges with a particular client and some tips on how we can be better in particular cases like this.

So join us. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively, then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and [00:01:00] clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome. I am super excited for this episode of trial lawyer prep.

We have a wonderful guest with us. Danny Ellis. Danny is a really good friend of mine. I’ve known him for several years. We met probably four or five, six, seven years ago at a seminar. Danny was a speaker talking about car wrecks. And I was a speaker talking about Probably witness prep. So anyhow, I’m excited to have him on this episode.

We are going to talk about preparing clients in a wrongful death case. And we’re going to use specifically one of the cases Danny has had with a challenging client to walk through some of the things that he did to help prepare the client in her specific case. So awesome. But Danny, let’s jump back for a second and introduce yourself.

Just let us know where you practice and any specialties that you have. Well, thank you, Elizabeth, and thank you for letting me. Be a part of your podcast. I have really enjoyed listening to your podcast so far [00:02:00] enjoyed listening to silence It was awesome. A lot of good reminders there on on what to do and we’ll probably Hint and touch on those today as well.

Now, you know, I live in chattanooga, tennessee I practice with the law firm truck wreck justice We have offices in Chattanooga, Seattle, and LA, and that is our specialty. We do all commercial motor vehicles. If it’s 10, 001 pounds or more, that’s what we do, be it a truck or trailer, a bus, box truck, anything with a gross motor vehicle weight of over 10, 000 pounds, we will take a look at it.

My boss is a former president and chair of the TBI section of the AAJ, and so we look at a lot of those kind of cases as well. Awesome. Well, I think you’re kind of missing a really big part of your what I’ll call your resume, which is you got a pretty big award last year. So why don’t you tell everybody what was that big award that you got?

Well, I’m very humbled. I was named the Tennessee Tribal [00:03:00] Lawyer of the Year for 2021. I have to tell you, I feel like Barry Bonds, there should be an asterisk by my award because it was in the COVID years and there wasn’t very many trials going on, but however, I was very blessed and very fortunate to help a very deserving family in a wrongful death case in Tennessee, in which we did some pretty good and ingenious ways to get a case into a venue that helped us tremendously and, and helped our client change their life and, and to hold a wrongdoer accountable.

to the full extent, not just what the Tennessee legislature said was the value of a life, but what truly was the value of a life. Well, awesome. Well, don’t man, that’s a huge deal. I mean, lawyers vote on that and talk about it. So that’s a huge deal. And I mean, you got to celebrate the wins, but sometimes we’re really hard on ourselves and you work really hard.

I know that you do. And so I’m really proud of you for that award. And sometimes you just got to toot your own horn. So thanks for talking about that. Well, you’re very kind and you and I both have a [00:04:00] mentor that would say The sorry dog that doesn’t wag his own tail from time to time. I just have a hard time doing it It just doesn’t feel right for me.

So That’s all right. Well, I’ll do it for you then we’ll do it for you. So, okay So let’s jump in appreciate the introduction. Let’s jump in and kind of talk a little bit about the difficulties When we approach wrongful death cases from a juror perspective, what is it that we hear? What is it you hear when it comes to these wrongful death cases?

It’s funny you should say that because I just got done Yesterday mediating a case in a wrongful death setting over here in Tennessee Involving parents and the very first thing and I think it goes across the board in the focus groups that we’ve run Is people will say number one the money doesn’t bring the person back.

What good does this do? You That’s always an underlying sentiment. And then in the situation with a spouse or with a parent and a child, people become offended. You’re trying to make money off of [00:05:00] the death of your kid. You weren’t gonna stay with that person. You would have adores them 10 years down the road.

You’re just trying to get rich off of an unfortunate situation. So that’s always something that we have to be leery of. And then, you know, especially in a marriage situation, people are going to start looking at that relationship with under a microscope, trying to find all the flaws. So that, that, those are the biggest ones that I’ve seen.

What, what have you found? Yeah. I mean, I think you’re kind of hitting the main ones that I had, you know, money won’t replace the person, some of a caught blood money. And I think sometimes jurors face, It’s an unimaginable situation. They just don’t want to put themselves in those shoes. And so it’s hard for them to put their arms around something.

And when you have that kind of difficulty generally just shuts them down. Right. So they just default to the no position. This was just fluke accident. This would never happen to me kind of a situation. So, I mean, I think those are really some of the main difficulties. that jurors [00:06:00] have when it comes to, you know, making decisions on wrongful death cases.

It is, and as difficult as it is from trying to overcome those obstacles with a juror, I think one of the biggest things that we as counselors In the law, and we don’t use that word much anymore, but with the victims of these heinous acts, these negligent acts, the family is left feeling very conflicted.

I know, having concluded that case yesterday with a family with a very young man that died at 21, way too early in life. You know, we we had to walk through getting ready for that and the emotions attached with that. And then with it being done, what do we do here? And very pointedly emphasizing this is not blood money.

This is, you know, we can do good things with this money and that person’s name. And I think [00:07:00] that as as attorneys, we need to look at that aspect of it as well, not just because it will help you in your witness prep. If you start thinking about those things down the road. Absolutely. And that was, I mean, that was kind of my next, like, you know, we have the difficulties with jurors, but our clients, right?

I mean, one, this is a heavily, heavily emotional burden that our clients are going through and transmitting that into testifying, but also working in this system that basically the system we have provides money. That’s the way system that we’re in and still doesn’t feel we still feels like blood money.

So let’s You know, you really hit the hammer on the nail with preparing clients for that inevitable, there will be money at the end of the day and there will be good things that come out of it. And so let’s talk about what are some of the things resistance, I guess, or difficulties that clients have in wrongful death cases, either giving testimony or just working through the process of the civil justice system.

Well, number one, I think people don’t [00:08:00] like kind of like me don’t want to talk about themselves. And that’s from the word go. People don’t want to talk about themselves, but they really don’t want to talk about the private things behind the door, the very personal things. And I’m not talking, I’m not talking the sex and I’m talking about the meaningful things that make the relationship that’s private to them.

There’s a public persona. There’s things that people are together. And then there’s also what happens behind closed doors that make that relationship even more special. It’s just your time. And people, when we’re talking to clients and trying to get into that, there’s a resistance because they feel In one sense, hey, this is mine.

I don’t want to share that. And then two, they feel like it’s a betrayal of the partner that that was their special moment, special bond. People will love to tell you, Oh yeah, Elizabeth, she was great. She was my best friend. We would do X, Y, Z. You being a [00:09:00] newlywed, I’m sure you and your husband have things that are just for y’all.

And you don’t want to say, Hey, he would rub my feet every night. And when he would do it, he would sing to me, you know, some BG song or so I don’t know. These are really good ideas. Keep putting them into this audio podcast. I’ll make him listen to it. But, but, but those are the intimate things that we don’t want to share.

They’re ours. They’re my own special. remembrance that it’s not for anybody else. You know, that’s an iconic scene in Avengers, and I am a nerd, you know that, and in Avengers the Endgame, where Captain America is sitting on the bench. He’s 70 years old. You see the ring on his finger, you know, he’s gone back in time and he’s married agent carter.

And I believe it’s the falcon says, hey, you want to tell me about that girl? And he’s like, no, these are mine. This is just for me. And so that’s the key. That’s the lock box [00:10:00] that you have to, I don’t want to say pick, but you’ve got to massage it and work it and allow them to open it up to share with you because it makes the story so much more fuller and richer as to what that relationship was.

Absolutely. I mean, there’s definitely big trust, big, big, big trust issue. You know, they really have to trust you and know that because it’s precious to them. like this is, you know, this is all they have left. It’s precious cargo that they want to keep to themselves. Absolutely. And I think a lot of it in this happens in other cases, too, is just that fear of judgment.

You know, there’s a lot of fear of judgment. If I tell you about this, you’re going to judge me and talking to a lawyer and a deposition who doesn’t know, you can really feel like they’re judging you. So judging this person, this person that you loved, and now all of a sudden their relationship is going to be judged and this person and what they did will be judged.

And we’re told a lot in movies, TVs, books, things we read and experience like that [00:11:00] last memory is like what you’re going to be stuck with. And. Sometimes that’s the terrifying phone call people get. And it’s like, we have to help them get past that. Like that is what society may say, but that doesn’t have to be what’s true for you, you know, and let’s make this lasting legacy be what you tell the jury.

That is the legacy you get to create for them. And I think helping that empowerment, that trust, there’s a purpose for this. This is not just to, make you experience grief all over again. Totally agree with that. You know, when we were talking earlier, that’s just getting them to open up to you. The last thing that they want to do is to take those precious memories and give them to the black cats, the defense, the people that are going to take those memories and try to sully them.

They’re worried that they’re going to take what, something that’s sacred and special to them and make it crass and make it a joke or a meme or, or whatever. And so, you know, you’ve got two hurdles when you handle cases like this. [00:12:00] One, getting the trust for them to open up with you. And then two, giving them the confidence to know that you’re not going to misuse it.

And by golly, you’re sure as heck not going to let the Blackhats of the world misuse it. That there’s a purpose and a mission behind putting it out there. Absolutely. And I also feel like as far as one of the other difficulties clients face with testimony like this is it’s hard to find the words.

feelings sometimes are really hard to identify. I mean, they’re sad. What more, you know what I mean? Like, what more can I say to you other than I am sad? It’s like, well, let’s, you know, we got, you know, help, ever help everybody explain that. So I think it’s one, most people who are in this experience, it’s brand new to them.

They’ve not lost somebody this close to them before. And so that grief experience is just, it’s someplace they’ve never been. And so identifying feelings and thoughts and that, like what’s going on is [00:13:00] difficult. And sometimes it’s almost a little bit like we got to help them understand their grief in order for them to be able to talk about it.

So I think that also kind of goes back to, we just think it’s going to be like what we see in movies and TVs, if we’ve never experienced a loss of somebody that close to us. So definitely a lot of extra hurdles. Uh, I would say other than cases where and, you know, I don’t want to compare atrocity to atrocity, you know, but just a few extra hurdles here, I think, mainly because we just have this.

unimaginable event that they exchanged in this money, you know, it’s wrongful death. Yeah. So well, let’s turn and talk a little bit about that specific case that I kind of had in mind. You and I actually touched base and we talked about your specific client, Victoria. You gave me a call, I guess it’s been a couple months ago, like, you know, oh gosh, I’ve got this, what I would call difficult preparation situation.

So tell us a little bit about you in mind, just give a little fact [00:14:00] backup. So we kind of understand the case and then, a little bit about Victoria. Sure. So Victoria was middle aged lady from the Midwest, lived in the Midwest. I won’t say where was married to a gentleman. We’ll call him Larry and Larry was a tough guy.

But Larry was Larry. When you say when you hear people say he was her world. That’s an understatement here. Larry was this lady’s tether and lifeline and bridge to the real world. I know your husband as well as you, Rod. I know that. Larry took it to the uptenth degree. He would drive, he would, it just, it’s amazing.

He did everything. Housework, clean, cook, get her out in public. how to intermingle with friends, but more importantly, he protected her because Victoria was a really broken individual [00:15:00] when they got married. And he was, he was the salve. He was the plaster that put her back together so that she could once again, just function in society.

And then when he died, every bad thing that ever happened before came crashing back down again and she was, she was a broken and shattered person. So I called you because you know, I’ve done this for a while. You know, I, not that you’ve asked me to do this again, folks, if you ever need somebody to witness prep, this is the woman, right?

So what you didn’t, what you didn’t tell everybody is when we first met, you’re up there looking brilliant about witness prep. And I’m up there talking about my latest loss because I screwed up an opening and didn’t focus group a case and thought I knew everything. So, you know, let’s just put everything into perspective, but I knew I needed to call you because I had a very difficult task ahead because my client who [00:16:00] was Had all these these issues.

I mean, we’re talking about getting a room in a deposition. She didn’t want to get a room with me And I know that sounds crazy because I said she’s my client But I was you know, I worked for truck wreck justice and I did not originally start with this case I got brought in because i’ve been fortunate to know you as a friend and under your tutelage with witness prep And I was asked to come in to prepare this lady For her deposition and it was all we could do to just get her in the room with me.

What kind of resistance? I mean, I think one of the things you said that when we were on our phone call originally was she was kind of combative. Tell us a little bit about kind of what that meant. What were some of the things she was doing? So this lady is about five foot one and maybe soaking wet weighed a hundred pounds.

That is not an exaggeration. That is for real. But let me tell you, I think this woman could whip my butt. She was that mean and that tough. And that was something that was extremely [00:17:00] important for down the road. We’ll put a pin in that to come back to it. But you know, when I say combative, I would say something like, Hey, let’s talk about, and she’d be like, F you.

I’m not talking to you about Jack’s butt. Or we would approach the issue with, with her about doing the prep. And it was a fight. And then once we got into the room, then I was worried about, you know, she’s going to cold cock defense counsel. I mean, I was really worried about that, but let me say this. I was also worried about a string of profanities that would make a sailor blush during questioning.

And I realized, you know, that’s who she is. If that’s what comes out and that’s her expression, she can hurt feelings. About her husband. Why am I trying to make her into something that she’s not and you helped me see that But you also gave me great tips on how to just get her to talk to me Okay. Well, let’s walk through this because I don’t remember.

I’m not [00:18:00] So one of the things that you and I talked about was don’t make your first meeting about witness prep So we went out to the home and city of Victoria and also met with her and her daughter, who was also part of the case, but we had a couple of conversations with him just sitting down. And so what I did is I sat down and said, Hey, look, you don’t know me from Adam.

You know, I’ve not been I’ve not been here. Your co counsel brought us on I know he’s talked to you about me. I don’t know why you trust him either So let’s just you and I sit down and let’s start talking and I just we’re just trying to have a conversation Just a normal everyday conversation But one of the things that I I started trying to put in there was lady.

If I don’t live up to what I’m telling you or if I’m telling you something and I’m not, my actions are speaking something different called me on. But I want you to judge me not just by my words [00:19:00] and what you’re hearing, but by me. And so, you know, I made the comment early on. I was very interested in her and what was going on.

And towards the end of the case, she’s like, I just want you to know you were that you cared about us. You cared about me. And it’s not just this case, Elizabeth, you know this. Every one of our clients, they become a part of our lives. You know, they become family. And that’s, that’s critical to do what we do in these hard, excruciating situations where we take on the problems of everybody else.

The word is empathy. You’ve got to be empathetic. And, you know, I think that’s one of those things that you can learn, but there’s just some people that it’s a natural talent. Like you, you’re like the most empathetic person I know. You know, I think I always try to back people up. It’s a skill. Thank you.

Being empathetic is a skill, just like listening well, just like [00:20:00] making good deposition questions, just like making somebody comfortable. I mean, it’s a, it’s a skill, but I mean, I will say, you know, I remember having this conversation and just knowing, like, you have a real natural gift. of making people super comfortable.

Like you put people off very quickly. And so, you know, when I remember when I was having this conversation thinking, gosh, like use your skill. I mean, you’ve got this amazing skill of putting people really at ease and not going too far because sometimes what ends up happening is we go in to have a conversation with our client, it’s not a conversation.

It’s me talking the whole time and the client maybe says yes or no, or gives a small explanation. And that’s another one of those things where it’s like, you really have to have a conversation, ask a question, get an answer. It’s really kind of, you know, really has to be a true conversation instead of what most people experience, which is I’m going to come in and tell you how bad I feel for you.

We’re [00:21:00] going to go to this deposition. You’re going to be fine. So, you know, that’s why it’s like, We got to build that trust from the very beginning. And this Victoria just didn’t trust anybody. It didn’t matter if you were Mother Teresa walking in there trying to help her get ready. She, you know, so it wouldn’t have mattered.

But that’s why I think we talk about sometimes it’s just. meeting somebody where they are and accepting them for where they are. And I think you went in there one with that attitude inside, like I’m not here to change you. I just, let’s have a conversation. I think that significantly helps people who, who are in that state of mind.

Well, it was crazy. We were out there like, I think an entire week and the deposition didn’t happen to like the very end of the week. Right. So if I remember correctly, I had the first day’s conversation with you. And I called you up and said, Okay, I think I know how this person takes a little bit more.

This is what I’m getting. This is what I heard. Tell me. [00:22:00] And you were very gracious to say, Yeah, you’re either on or you I mean, you you gave me great direction. And so I think one of the keys to helping in witness prep. Is you’ve got to step into the shoes of your client and try to get into their headspace To kind of figure out where things are going and how they are viewing things And how they’re viewing the legal process and how they’re viewing their own feelings in the legal process And how their feelings are about you so you can help them along that journey.

Yeah, absolutely. I mean, I think that’s part of the one of the things that I always like to do when i’m getting ready to prepare anybody is I just take a good long look at just What they look like on paper? How old are they? What’s their education? How long are they married? Do they have kids? Like, what job have they been in?

Like, have they been in the military? Like, just to get an idea, like, okay, where’s their experience so far? And what have we experienced with them? Do they do everything we ask? Do we have to ask a couple times? Are they having to jog? Do they struggle to make, you know what I mean? Like, just so we can go [00:23:00] in there and understand a little bit more and then have that good conversation with them to listen and be like, okay, half that battle is just listening to what they give back to you and really taking a good long look at it to know like, aha, okay, That’s what’s important to them.

Giving good testimony is not important to the client. That sounds like a lawyer thing, right? So what’s most important to them? So tell us a little bit more about what did you find to help, help Victoria in her prep that, that unlocked the box. Let me say this. It was another great piece of advice that you gave me was you need to sit down and have a long conversation with those closest to her.

So I did. I had long conversations before we started witness prep with the daughter, with her sister. I want to say there was one other person like I spent a ton of time on the phone with trying to just get this picture before I sat down with her. [00:24:00] And once I did that, and then I had my initial conversation, I had all the pieces now.

I didn’t have all the pieces. I had pieces of a puzzle that gave me a good image of who she was and where she was headed. So after that, after I felt like we had established a good rapport, day one of prep. And, you know, normally I follow a formula, you know, day one, we’re going to do this day two, we’re going to do this day three, and then we’re off and running.

No, it was day one, eight hours, just on a couple of issues. It wasn’t my normal day one. And it was fears, misconceptions, Guilt and self awareness and that actually bled over into a day too, but it was really interesting for her to I think she had this picture of herself that I thought was [00:25:00] inaccurate and we Explored it together and she realized hey, look, I’m actually acting the way people expect me to act I really am Pretty tough old bird, you know, and that way I told you earlier, I was like, I’m scared.

She’d whip my butt. She was, she, she, she was, you know, we, we went through all of their past traumas, all of her life experiences. We talked about how she overcame those and how she would use those to overcome this latest. And she just got empowered and moved forward. It was really, really awesome. One of the really cool things that you said that I think a lot of people don’t appreciate is like, not every client is going to fit into this perfect formula that we have to prepare them.

And sometimes you just have to really have that flexibility to know like, okay, I know what my goals are in getting this person prepared. It’s not going to fit this normal framework, but I’m going to be flexible with it because one, it’s working like [00:26:00] listening and it’s working. And also she’s getting empowered.

So that was, Very keen on making sure, hey, what is my end goal instead of feeling like if I don’t hit these targets, if we’re not following this framework, it’s just not going to happen. Well, you know, and you’re absolutely right. And I think one of the biggest things that we as confidants, as counselors, have to keep in mind, if our client is not 100 percent prepared, We have an obligation and a duty to protect them from walking into a situation where they’re going to get slaughtered And whether you get a motion to compel and you got to pay the fees and the thing That’s part of doing business But your sole commitment has got to be to that client to make sure they’re 100 percent prepared To go in and do battle and part of that is you can’t just say okay We’ve done this and we’ve done this and just because you follow formula doesn’t mean if you’re not if you’re not doing it Right, Doesn’t matter.

Right. True. Yeah. So, and I think one of the things that spending that time on the front end with her, [00:27:00] right, spending that one whole day, that eight hours just walking through like her fears and that, like, did that translate into making things go much easier down the road when you guys were actually working on organizing testimony and doing things like that?

So, it was a hundred percent well worth the foundation. Because once we got through that and we got her to see that, hey, this is this misconception is a misconception. There is no fear here. Hey, this issue here is a solidified. This is how I deal with this fear. Hey, myself. Not that I’m wondering, but I’m a rock.

I can handle this. You know, it’s okay for me to break down a little bit and show my feelings and it’s okay for me to have a little righteous in the nation because dad, now that you killed my, he killed my husband, he killed my life. And that made the next part where we started going into the, the truths and how to deflect the attacks and to, And to defend herself and to be empowered to say, I am, you know, it became a crusade for her.[00:28:00]

It wasn’t, um, it wasn’t a crusade of, I’m defending myself. It was, I’m giving you a crusade of how awesome my husband was. I’m giving you a crusade to tell you how crappy you people are by taking him because you didn’t care about safety. It was so just empowering. And when I first met this, nice lady, she would shrink.

She was like five foot one and when we talk, I think I told you she’d shrink down like four eleven. It was amazing to see a six foot one man, midwestern man, male attorney, go from six one to five six by this little lady just beating him down. It was phenomenal. Phenomenal. And he walked out, he was, he was shaken from the deposition.

That’s my question, what was the impact of her testimony on this case? So one of the big issues that we had, I mean, it was a horrible case. Her husband burned to death. Okay. Lived afterwards, but they really thought that they [00:29:00] were going to make a lot of hay on her because of her background. And they thought that they could solely him with some of the Elizabeth, I know you have find this hard to believe, but if anybody opened the closet door into my life, they would find skeletons that I would be ashamed of.

And they thought that they were going to really do a number on her and her husband by opening up that closet door and dragging those things out. And let me tell you, that was a huge mistake because she was ready for it. Uh, she had her major truth in, in connection with that. And she would take that question that was meant to the little.

denigrate her husband or belittle and denigrate her and she would show how they overcame that or how they Learned from that and how that made them who they are my favorite episode of the whole thing People get really nervous when they go into a deposition and they can’t remember things that are really critical.

And so she and I spent a long time together writing down [00:30:00] the things that made him special to her. I mean, we had, I’m telling you, we had three sheets of notebook paper and we told her, Hey, look, this is, you know, her truth was he was special to me because, and then she had all these bricks. And this guy’s been trying to, you know, go into drug use of her husband and stuff.

And she’s like, look, man, he, he, yeah, she’s like, she owned it. She’s like, yeah, he either smoking pot and that’s why he lost his CDL license, but he got better. He, he, he threw it aside because driving meant so much to him. He didn’t touch it again. And he had a CDL and in fact, he became so good at what he was doing.

He was teaching other people how to be safe drivers. Why couldn’t you people do that? Why couldn’t you teach this guy how to be a safe driver? It was anyway, she was great. She like turned it on him, but this guy thinks he’s going to be cute. And, and, and, you know, you see it all the time. Well, is that all is it?

And so he’s like, well, what made him so special? And I’ll never forget it. Co counsel was like, well, I have something prepared for her and he throws [00:31:00] it, he gives it to her and she just looks at co counsel like I don’t need this. And she takes the piece of paper, I kid you not, she crumples it up and she says, let me tell you, I miss the man and this is what I miss.

And she just went off. And when she crumpled up that piece of paper and look that guy in the eye and said, I missed the man. And this is what, this is about the man that I miss and just started rapid fire. She got done. He went, I am done. He stopped right there. I am done. And that was maybe 40 minutes into her deposition.

And he had a huge thick list of questions. He was like, I missed the man. Boom. And I think he realized if I stay in this too much longer, I may lose a client because she’s kicking my rear end all over this room. So, I mean, as far [00:32:00] as her basically flipping the script on, right, being the complete opposite of what they expected, did that help the case get settled quicker?

Do you feel like it helped the value of the case? It did. We went into mediation. And this is where it helps we had this attorney until this deposition happened and then Lo and behold after this deposition they went and got an expert to come in and try to Clean up the other guy’s mess. And even then, you know, that was the white flag when they brought in the other guy to help this one guy who was a local guy.

And it was because of her, it was because of her, they knew what had happened. So they, they brought in a closer to close the deal at mediation. What they did. Awesome. I think one of the biggest things that we can help people in this situation, in these lawsuits is giving them the ability to do the best they can do.

It’s a terrible situation, but they have a job. And did you feel like she felt like this is the best I I did the best I could for Larry and, and I left it all on the [00:33:00] table? She, she did. And what’s more, I, this is, this was the. Best part for me, this is very selfish, but we got done and she said, I feel like, you know, Larry, now it’s probably best compliment you could get and I was, and I did, I was, I mean, it was all I can do not to break down and cry now we cried a lot together.

Don’t get me wrong. But when she said that, that was huge. That’s, that’s, I mean, You gave her closure, which is better than any pile of money, you know, and the ability to, to stand up for herself. So that’s awesome. Any other kind of side notes or thoughts or, you know, what I was thinking, like looking at this particular prep and this particular person, what were the top three things you’d recommend for people who were kind of in the same situation where you’ve got, maybe you’ve got a combative person and it’s wrongful death case.

So number one, call Elizabeth Larrick. Um, number two, I, I really, and you, and [00:34:00] again, you helped me with this, Death, Dying, and Grief by Larry Platt. I read that, reread it, read it again, just over, over, over, over. And I think the last one I would say is Silence. Silence was extremely powerful in this prep because the client wanted to run and hide and I would just sit there.

And she would look at me, she’d be like, she would say things like, what the F are you not going to say anything? And I would just, I just look at her and I would wait and I would wait. And then the. the motion would come out and we would move on. And so there’s a lot of times that I would just use silence to make her process to make her think about what was on the table.

And she would use that after a while it became a prod for her to know that she needed to go deeper. You know, there’s a lot of cut. There was a lot of cussing at me on the front end, but I just had to endure. I had to endure [00:35:00] in silence, you know, our, our natural tendency is to rush in and fill that gap.

And I knew, you know, you and I talked about this, you know, I knew that that was going to be critical because she of who she was and where she was emotionally, that that was going to be critical. critical for her to break through to get to the feelings and to get to the truth to tell us really about her husband.

Yeah, absolutely. I mean, it’s such a hard thing to do to give someone space, silence, but it’s also one of the most powerful tools that we have with people. I mean, just in general, you know, but I think sometimes we forget as lawyers, like, oh yeah, There is so much power in being comfortable with silence, because again, one of the things that you gave her was you, even in that silence, you are giving her your attention.

And you’re saying like, I’m here, I’m here for you, there’s, I’m not going to give you any verbal pressure here, we’re just gonna, just whenever you’re ready. I’m here. So the, the last thing I would say is, you know, I spent a lot of time trying to get into the head of the other [00:36:00] side where they’re gonna come at or how they’re gonna do it.

I just got done, you know what? I’m the dean of the, the deposition college at KTI, and, and we just got done having a course yesterday, and I jumped on and I, you know, I, I want to give these students the idea, you cannot underestimate. The importance of trying to get into this the mindset of your opponent And so I spent a lot of time going into the prep of this looking at their answer looking at their discovery Sitting in my office role playing it back and forth with myself.

I set up two chairs I would ask myself a question. I would move i’d get up move to the other side of the chair answer it out loud and and ruminate on and switch sides and ruminate on that answer to see if that was true or if I felt like it was true and if that was true how do we approach that and so you know and then you put it into a memo format because you don’t want to miss it you don’t want to forget it because yeah I’m getting older I’m getting older and I forget things so there you go [00:37:00] no you can’t I mean that that’s such a helpful exercise for getting ready for depositions and for client depositions trying to be able to anticipate.

where they’re coming at. So absolutely. Well, awesome. Well, Danny, thank you so much for joining us in this episode. You have given us lots of wonderful things to think about, and I appreciate jumping on having this conversation about wrongful death cases and how to help clients do better in their testimony.

Well, thank you for letting me have this platform and just for your friendship. If people don’t know you, they need to get to know you because you are truly one of the gems out there. And you will transform their practice just getting to work with you. Very nice of you to say and I always 100 percent appreciate our friendship and I always call Danny when I’m like, I’ve got this depo.

How do I do this? So awesome, especially on my trucking cases for sure. So well, thank you again, Danny. I appreciate it. We will put your contact information in the show notes. If you have any questions for Danny, I know he’s always able and willing and wants to help people. So, all right. [00:38:00] Thanks. Until next time.

Today, we talk about polishing those listening skills, and how we can use them better with our clients. If we polish this skill and become better active listeners, we will have better trials because we’ll be able to listen better to what the jury is telling us during jury selection. We will have better cross-exams because we’re going to listen actively to what they’re saying and how they’re saying it. Your direct exam is going to go so much smoother. People get up there and get nervous and half the battle of the direct exam is being able to listen and craft that next question if you’ve got to go back in for the second time. So listen in and learn some of the best ways and some tips on how to get better at active listening and how to prepare your client for depositions.

In this episode, you will hear:

• What is active listening
• Why repeat what they’re saying, not summarize
• Why you should be actively listening
• Building trust through listening
• Getting people ready for deposition
• Examples of bad listening
• Active listening on Zoom

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Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Today we’re going to talk about silence and using silence in our jobs to yield some solid gold. So how can we polish that skill or maybe how can we start it today? Tune in.

Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process. Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth.

Hello and welcome. This is Elizabeth Larrick and you’re listening to another episode of Trial Lawyer [00:01:00] Prep. This podcast is designed and created for trial lawyers working with difficult cases, problematic clients, and taking those difficult and problematic cases to trial.

The goal is to help connect you with juries and clients in order to improve your abilities in the courtroom. In today’s episode, we are going to talk about silence and why silence is golden. I had a recent run in with some wonderful silence, and that’d be some amazing active listening. And I thought, you know, it’s a really good time to talk about polishing this skill up because it helps us in so many ways by closing our mouths, opening our ears, and all the wonderful things that can happen when we do that.

And one of the things that always I’m reminded of is, uh, Ernie, the attorney, Ernie Stevenson has a wonderful podcast. I was a guest on his podcast a couple of weeks back, but he calls attorneys, knowledge workers. And I love that phrase, knowledge [00:02:00] workers. And how do we get our knowledge? Well, we listen. So let’s talk a little bit today about polishing those skills and how we can use them better with our clients.

How do we practice this to get better? How can we use this in focus groups? Because really, if we polish this. So, um, we’re gonna talk a little bit about the direct exam. is going to go. So much smoother because people get up there and get nervous and I think half the battle of direct exam is being able to listen and craft that next question if you got to go back in for the second time, right?

So you ask a question on direct and they don’t get the whole answer out there. You need the rest of it, right? So how do you ask it again without saying hello? You missed it. And that helps with [00:03:00] active listening and also helps outside the courtroom when we’re taking depositions or talking to witnesses.

And sometimes I hear from lawyers, they’re using the silence to basically practice what they’re going to say, right? So they’re really not listening at all. So I’m encouraging not to do that. But that reminds me of a recent conversation I had with a lawyer talking about a client getting ready for a four day trial.

And this is a trial, there’s lots of details, you know, all trials have details. Some have more than others. And it just reminded me that We can all get so lost in the details, and I’ve been speaking with this client and helping them, and just lots and lots of details, so many details. And in my conversation with a lawyer, he pointed out that sometimes his client will go off on all these details, and so he just cuts her off, you know, just right in there, interrupts her.

And so I could understand why when I spoke with her and we did some work together, she had good report about the time we spent [00:04:00] together. Because even though we get lost in those details, it’s important always to stick with the silence, try not to interrupt people. And why would I want to do that? Right?

So people get, bogged down with lots of details. Our clients do too. And sometimes those details just don’t even matter. But they don’t know, right? They don’t play the game we play every day. They don’t, they’re not knowledge workers. They don’t know how this system works. And so you got to step back, realize that, and then also just keep listening and knowing that, hey, my job is to get them to the other side.

And sometimes it’s also to educate them with my knowledge about what is important, what’s not important, right? Help them keep that focus on the ball. And so today talking about silence and we’re really going to talk a lot about our clients, right? They’re the people we deal with most learning some of the best ways and some tips on how to active listen better, and then also for a client depositions and how to prepare them, right?

If we don’t listen to what they’re saying, they could say something pretty [00:05:00] detrimental to the case in their depositions. So, let’s just take a step back and what is active listening? There’s all kinds of stuff on the interwebs about active listening. And so these are some of the things that I have done collectively.

And some things that they suggest that I don’t necessarily always do, but there’s nothing wrong with some of this stuff. For me, active listening has a pretty big physical component. Straightening your body and squaring up to the person who’s speaking, keeping your eyes and your head in their direction.

You don’t stare at the person, but making good eye contact. All right. Making sure that they know that your eyes are on them. Keeping those hands still, right? We’re always attracted to grab a pen and paper and take down notes. Sometimes you just got to put it down. You just got to actively listen to what’s saying instead of taking those notes.

So keeping your hands still. Still keeping those feet still. And like I said, not writing, right? Resist the urge to take notes. A lot of times I’ll speak with lawyers about [00:06:00] how to improve their skills in deposition prep and always tell them, don’t take notes. And they normally say, how do you do all that?

How do you remember all that? I said, well, I had a couple of years practice, right? Active listing and writing everything down is not always the good thing because you’re not listening. But also the client wants to know what you’re writing down. What are you writing down over there? You know? So. Yeah. I think you’re kind of distracted.

So if you have to have notes, which I encourage, record the thing, right? We have Zoom right now, which is fantastic to record things super easy. Set up a video camera. You need to bring in an assistant to basically take notes. Do that, but your job would be actively listening. Ask some follow up questions.

Ask some clarifying questions if you need them to clarify, right? Show you’re paying attention and that maybe you want to know more. That’s a great follow up question. Just tell me more about that. Don’t respond in judgment or that doesn’t matter. That’s not what’s important. A lot of times, again, they don’t know.

They don’t live in our world, they don’t know what’s important, what’s not important. It’s hard for them to sort the details out. They [00:07:00] don’t have a system to sort, then they just think it’s all important. It is important not to be judgmental, not to immediately come out of the gate with a response. That’s not important.

Don’t focus on that. Follow up question, clarify question if you need to. Figure out where these thoughts and details are coming from. It’s always helpful. Nodding along. It’s a good way to actively listen. Very important to wait for the person to stop speaking before you start speaking. Now, having moderated several hundred focus groups, you learn how to get someone to stop talking, right?

So make that like, open your mouth like you’re gonna talk. Those are good ways to get people to stop speaking, but that’s not what we’re here to talk about. We’re not talking about focus group moderating. We’re talking about active listening with our clients. So don’t do that. We know how to make people to stop talking, right?

So don’t do that. Just wait for that person to stop speaking. Keep that blank face, right? Keep that active face facing towards them, but not making a face like you’re about to talk. Repeat things back to them. Good way to keep the conversation going to [00:08:00] make sure that they know that you’re listening.

Summarizing. I try to hesitate not to summarize. Right? Because I don’t want to craft their feelings. I don’t want to say something the wrong way. Just repeat back if you can or just ask follow up questions. So those are some of the main key points for me when I am trying to actively listen and sit down with somebody or sitting in a focus group.

So what does that do when we actively listen? One of the most basic things is showing a sign of importance. What they’re saying is important. Physically, I’m squaring up. I’m listening. What you’re saying is important. It’s a big sign of respect that you’re taking what they’re saying seriously. Shows you’ve got some patience.

You’re not interrupting. And most of the time, becomes a reciprocal agreement, right? I’m going to give you space to talk, and I’m going to listen, and then I’m going to talk, and you’re going to listen, right? So we’re kind of making this silent reciprocal agreement about listening. Now some people may be [00:09:00] thinking, all right, you clearly not ever met my client who doesn’t listen and cuts me off.

Well, think back. How did that first interaction with you go, right? Did you listen to them? Did you let them finish everything they’re going to say? Did you interrupt them at all? Some people just have a habit of interrupting. And you got to notice that, right? And again, that helps us with our active listening.

Gosh, they’re going to interrupt me. They’re probably going to interrupt the whole time. I don’t know if this is a good client to work with for me, right? It helps you pay attention to their habits as well. But starting off on the right foot is very helpful. Now, maybe you have a habit of interrupting.

That’s okay. We all have habits. I have a habit of doing that as well. I always have to work on not interrupting people. And when I go back to start actively listening and knowing, oh shoot, I’ve interrupted. Generally, I always apologize. Because I don’t want to interrupt somebody and I’ll reassure them that I’m going to actively listen, right?

I’m here to listen. Okay. But also if you got to start over, you start over. What’s the big deal here that shows that you’re [00:10:00] at least paying attention. And if we do all these things, we bring this into our client relationships, it builds trust always does. And I talk about trust over and over again because I think it’s so vital in the system that we work in.

Because it’s a foreign land for a lot of people, and they’re already in a terrible place, and they’re gonna have to reach out to you, somebody they don’t even know, maybe there’s a referral, and trust you with something huge, right, that’s out of their control. Also sets really good expectations, right, if you treat them that way.

That’s how you want to be treated as well. This all kind of forms and comes around and helps especially when we’re doing deposition prep because we’re really spending a lot more one on one time. Most of the time clients come in, they sit down, Hey, just tell me what to say, right? You tell me what to say.

And this is, to me, is one of the best times to flip the script and to listen. To learn so much more. [00:11:00] And that all comes into this context because of this pressure to get prepared. This deposition. We have a deadline. It’s not just ongoing conversation from intake. As the case goes on, I mean, there’s, there’s a pressure cooker here.

It’s vital to talk about this stuff. You got to get it out of there. They know that they’re going to be asked all kinds of questions. So this deposition pressure really helps create this place where we got to sit down and talk and listen. And in the times that I’ve done that, I’ve learned. So much more.

I’ve learned new stories, new feelings, family history, disputes. secrets, all kinds of stuff that people have kind of hidden up in there. And a lot of times, the feedback after I sit down with a client, they say, that’s the best therapy I’ve ever had. I’ve never talked to somebody that long about what happened to me or about My injuries, or I put this stuff far, far away.

I packed it away. I didn’t want to get it back out and talk about it, [00:12:00] but I’m so glad that I did because my feelings around it, my understanding around it is so much better. I have such more clarity about it. And that makes. I love that. That’s why I love getting people ready for deposition. It is one of my favorite things.

I saw that as my passion many, many years ago and have done everything I can to keep doing it. I really love it. And to me, and I’ve probably talked about it before and I’ll always talk about it again is the listening part of it. I think it’s one of the skills that has made this. Such a passion for me and made it easy for me.

This is something I love to do and it’s easy. I could do it all day. Focus groups, the same thing, right? Listen, I have that really, really trained diet and make sure that I’m active listening. And also along the way, ultimately I am genuinely interested. You know, I genuinely want to help and I want to be curious about it.

But when I think about where [00:13:00] does this come from, it’s always back to when I walk into, we walk into these people’s lives, we’re strangers. They don’t know us. It’s a legal relationship. And so to sit down and have really an intimate discussion because They’re going to have a deposition and a stranger is going to ask them questions and it’s not going to be active listening.

It’s a very, very weird proposition that we have with depositions. Question answer, question answer. How do we set the tone then? Right? We’re complete strangers. Well, that’s what I’ve done. It’s just really intently actively listen. I mean, people can come in very hostile, very defensive. They don’t want to do it.

They don’t want to be there. What’s the point of this? It’s going to be fine. And I’m going to be fine. And that all melts away when they realize, Oh, well, she’s listening. Wait a minute, she’s not taking any notes? She’s not telling me what to do? She’s not interrupting me? She’s not judging what I’m saying?

She was asking follow up questions? Wow. It really makes such a [00:14:00] big difference. Now, I’m also growing, right? I’m learning more. I’m helping the case. So that’s my urge, right? That’s my purpose of having today’s episode about silence. It’s like, ah, it’s gonna be so much better for you. And then, Once you’re practicing on your clients and that gets better and you get better referrals, that’s all just going to pour into everything else that you do, depositions, trial, jury selection, focus groups.

One of the good examples of bad listening would be I was helping a lawyer, called me up. I got a client, he says, who won’t listen to what he says. who is terrible at expressing his empathy and expressing what’s happened to him and his injuries and what’s going on in his life. He just, I don’t think people are gonna like him.

Can you come in and help? Sure, sure, sure. Happy to do it. So, go to the office, meet the gentleman, client, he’s very nice. He is very talkative, totally talkative. He’s just talking my ear off. [00:15:00] But when he’s talking, I’m learning so much. He’s got this amazing backstory and about how he came to America and he’s working and trying to support family and wants to start a family.

And the lawyer comes in and wants to sit in, hang out, listen. Sure, sure. Lawyer comes in, opens up a laptop and starts just working on something else. It’s not listening at all, totally can tell. And then all of a sudden we’ll stop while the client and I are having a conversation and interrupt and say, Nope, that’s not important.

Don’t worry about that. Don’t say it like that. That lawyer is going to blah, blah. I’m just like, Oh my gosh, whoa, whoa, what’s happening here? Not only are you, you’re the opposite of active listening and you’re disparaging spouting out these questions. It got to a point where we actually had to stop what was doing.

Gently ask the lawyer to come out in the hallway and just, again, I’m going to start active listening and figure out where’s this coming [00:16:00] from. What’s happening? And learning very quickly, there was no self awareness. He’s not aware at all what he was doing. I thought there was a problem or that that might be not very encouraging to the client.

And ultimately, I said, Hey, I’ll just finish the session and I’ll catch you up whenever we finish. So there is a good way to destroy a client relationship. And there’s a good way for the clients to stop listening to what you’re saying. If you don’t ever give them space and you don’t listen to what they’re saying.

So it can terribly injure the relationship you have with your client. If you don’t pay attention, do some active listening. Be respectful. Just be respectful to people and what they’re going through. And a lot of times, if I have a client that really, they’re pretty talkative, you know, I always say, hey, let’s, let’s have an agreement.

I really want to listen and listen to what you guys say, but can we make an agreement? I’ll 100 percent do that. And then when it’s my turn, you’ll 100 percent do it. All right, great. Let’s go. It’s okay to point it out if you need to. And [00:17:00] so what I want to do is challenge you to start some active listening, to work on your listening skills.

The easiest way to do that and how I learned to do it best was getting the physical part of it down, physically just training my body to do it. And then eventually my mind would follow even if there’s a new place, there’s a new courtroom, new people had the same routine, right? get my body squared up.

Whatever chair I’m going to sit in, but my feet firmly on the ground, not crossing the ankles, got my hands in my lap, got my eyes forward or my eyes on the person, and just a nice blank face. No, no judgy, uh, wrinkles going on over here. And as I If it did that, I saw positive responses, which is just going to reinforce me, which it did.

Then my mind followed. Right? So I had to get the physical side down before my mind would cooperate and follow along. What happened was, as [00:18:00] I’m doing that I’m getting pretty good positive responses was just reinforcing me. Right? So I just keep doing it. But the openness, the not judging clients really open up.

That’s what I would encourage you to do. Work on that physical part of it. Right? even if it’s for five minutes in a deposition or 10 minutes listening to the client. And you can still do this on Zoom, right? We can still see each other, make sure nothing’s distracting. Maybe for your next deposition prep is working on, maybe you’re not, didn’t start out well with this client, or maybe that’s your worry is the client won’t listen to you, right?

Start out like that, ask a question. Get all lined up and see what happens and then just keep practicing. It’s always helpful to remove all distractions, right? Get your phone out of there, ask them to remove all the distractions as well, right? That quid pro quo will significantly help. And just to reinforce this practice of active listening and why it’s so important to do it at initial client interviews.

And [00:19:00] even if that maybe didn’t go so smoothly, you can still do it for deposition prep. Start over on that new page in focus groups. So it’s totally a group of strangers, right? And people can say some crazy stuff in focus groups. Totally true. But what I have found is if you interrupt that one person. If you stop that person from talking, it really creates a discouraged environment.

And maybe not everybody’s discouraged from volunteering, but if you’re going to discourage a couple people, it’s really hard to recover that environment. If you have stopped somebody from sharing, or you’ve interrupted somebody, or you are maybe a little judgy, even if it’s, even if it’s positive, Oh, that’s a great comment.

Oh, I love that. Somebody else may be discouraged. Because you’ve judged the comment, right? You’ve judged whatever it may be. And again, we’re talking about focus groups here, which is where we want everyone to share, but it’s a group of [00:20:00] strangers. A piece of feedback that I get very often with my focus groups is you do a good job because You ask everyone to contribute, you make sure everybody is engaged, and it’s welcome.

Everybody is welcome. And you do that by making sure everybody has a chance to talk. You don’t let people talk over each other. You don’t let people interrupt each other. And that’s work. You know, that’s, that’s really hard. But I always start my focus groups by making sure everybody understands this is our environment.

And I will start off by not saying anything. I will give respect first, and hopefully everybody will follow. Occasionally, we have people who don’t. Most of the time, I try to give ample space and time before we do have to step up and ask people, Hey, don’t interrupt people, you know, let’s, everybody’s welcome.

And occasionally, it doesn’t happen every time, but it’s definitely happened. If you’ve had that experience, moderating a focus group can be a little bit uncomfortable. But, it’s also kind of your job as a [00:21:00] moderator to make sure everybody has that open sharing environment. So awesome. Well, I hope that you found this episode.

full of some knowledge and something that you can take back to your job, but it’s also great to use at home. Although sometimes I find that my lawyer ears turn off when I leave the building, but I promise I will keep working on my active listening as well. So if you found this episode helpful, please rate it, share it with somebody else.

And if you have any comments or questions, please don’t hesitate to email me and I will put my email in the show notes. So Thanks again. And until next time, thank you.

What do you get from jury research focus groups? Maybe you haven’t had a chance to use focus groups yet yourself. Or maybe you have run a mock trial on a case, but maybe haven’t looked at other ways to use focus groups. In this episode, we dive into some other ways you can use focus groups and why. I’m also sharing a couple of tips on ways to “double-dip” and how you can take and use all the data for an extra squeeze of information.

One of the most common things you get from using focus groups is to learn the result of the case – who wins and who loses? But it’s not just results-oriented because you can learn so much more. There’s witness credibility, evaluating the evidence, looking at case theory, looking at the knowledge base, testing out the defense theory, and just honing your skills as a trial lawyer. You can get a lot more than just trying to have this one target of determining the case value. 

Now, if you don’t have a lot of experience doing focus groups, moderating, looking at it, analyzing the data, I just want to caution you that there are so many other great ways to use it. Whether you spend six hours, three hours, an hour, or even just 30 minutes, the amount of time you want to spend depends on the depth with which you are willing to go into the material and the depth of the feedback.

 

In this episode, you will hear:

• Mock trial vs. qualitative study
• Evaluating the evidence
• Testing your case theory and the credibility of people
• Using focus groups to file or not file
• Testing the knowledge base
• The double-dipping phase: how you can make the most of the data you get

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Episode Transcript:

Elizabeth Larrick: [00:00:00] One of the biggest questions that I always get about focus groups is what do you get? You spend a lot of time, spend a lot of effort, a lot of money, but really what do you get from a jury research focus group? Stay tuned and we’ll talk about it. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants?

Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now here’s Elizabeth. Hello, and welcome to another episode of Trial Lawyer [00:01:00] Prep with me your host, Elizabeth Larrick.

This is a podcast designed and creative for trial lawyers working with difficult cases. Problematic clients and taking those difficult and problematic cases to trial. The goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. In today’s episode, we are going to look at focus groups and answer one of the biggest questions that I get.

What do you get from a focus group? You more likely than not heard people talk about using focus groups in different CLEs that you’ve gone to. More likely than not, you’ve definitely read about it. If you’ve read any kind of trial book or case approach or case strategy book, and maybe you haven’t had a chance to use focus groups yet yourself.

Or possibly, maybe you fall in a category of somebody who has run a mock trial on a case, but maybe hasn’t looked at other ways to use focus groups. And so we want to tackle in this episode, what have we heard about [00:02:00] focus groups? And what are other ways to use focus groups? And why on earth would we do that?

Finally, a couple of tips on ways to double dip, use that data that you get for an extra squeeze of information, and then plant the seed for future episodes on how to, how are we going to do this? Because this is a podcast where I want to give you the how to, I want to show you, let’s talk about it, but then let’s give you the opportunity to do it for yourself.

Because that’s where I started. Focus groups. I had done a fellowship and I learned. Um, so I’m going to talk a little bit about how to use focus groups, how to use them. I did a ton of focus groups. We went to trial on the cases where we’d done the focus groups, and then I came home and had my own law firm and thought, I want to do focus groups.

How do I do it? So we did, I started and here we are now, but I started off in the same place. I had done maybe a few focus groups, not very many before I [00:03:00] jumped into a fellowship and we did tons of focus groups. So I started off doing focus groups in a kind of a piecemeal fashion. Instead of this large mock trial fashion, nothing wrong with that, but that’s kind of a starting place about what have we heard?

We’ve heard about these really large mock trial situations where there’s a really large production. We’re going to hire a judge to come play or have somebody come play a judge. We’ll have lawyers playing opposite sides and then basically put on a mock trial for a set of jurors, right? Mock jurors. A lot of times people set this up in a pretty large hotel where you can have two to three groups going at the same time, everything’s recorded, we’re watching, and we’re learning the ultimate result, right?

Who wins and who loses. And that’s what you get. Another form of focus group is a qualitative study where you have a [00:04:00] scenario in you, a fact scenario that you run by thousands of people online. So you would just gather this giant bank of data again on the results. Who wins? Who loses? What are the, what are the statistics?

How many times is Susie going to lose this case? Those are really what you get when we talk about doing a mock trial or a qualitative study. Now, I don’t want to limit qualitative studies. There’s lots of other things you can do with those, but you get the idea. It’s qualitative. You want thousands of results on that.

So let’s talk a little bit about Excel. So we talked first about results. We can figure out the ultimate question, who wins and who loses, plaintiff or defendant. But we can also look at pieces of the case. So we break our case down to people. Right? We can look at the people in our case and test their credibility.

Super easy one where [00:05:00] we just record people and put it up there and see what they say. But a lot of times we just want to learn, is our witness believable on a scale of one to 10? How credible are they? But you can also test other people in the case, right? Defense witnesses, experts, eyewitnesses. Um, and I think it’s really, really helpful when we’ve got a dispute about how events happen, right?

Dispute on liability. I recently conducted a focus group on a car wreck case where two extremely different stories, right? One story is, The truck’s going straight and somebody pulls out in front or the truck comes from the side and then runs into somebody. So it has to be A or B. There’s no gray area here.

And naturally, there’s lots of witnesses, but maybe they’re hard to find. We had to, took some years to get all these people. So gathered all this up and just showed videos of [00:06:00] these folks describing what happened and then just. Ask the focus group, are these people credible? And then actually like, what happened here?

Right, so this is everybody’s he said, she said, what really happened here? A great way to test our people in our case. Another thing to look at is just evaluating the evidence. Look at what you have. So most of the time in our case, we’ve got lots of deposition transcript, right? So we just talked about that, testing those people.

Maybe we’ve got a bunch of documents, a bunch of medical records. A lot of times people think, Oh, we got this hot doc. This is the one document that’s going to win the whole case. Well, put it in front of them. See if they reach the same conclusion. But another way to evaluate the evidence is throwing together a timeline.

Include key documents to see if that’s reinforcing your timeline. Do you have enough on your timeline? Maybe it’s super confusing. Maybe it needs to be visually a little more appealing. It’s a great test. Looking at photographs and videos. Nowadays, there’s a camera everywhere. And so. [00:07:00] Most things get caught on camera somehow, car wrecks or stores and everywhere else.

So that’s a really great way of just playing that video to see what they say. And again, is it clear? I mean, that’s one of the biggest reasons why I talk about putting it in front of a focus group is if it’s just fuzzy, if it’s just blurry, if it’s just confusing, it may not be this winning piece of evidence that you believe it to be.

or conversely that the defense believes it to be. So super helpful on those elements and with photographs. Sometimes people come to me, Hey, these are the photographs I want to use. And I’m just like, ah, I kind of have a visceral reaction to some of these photographs because I don’t think people are going to like that.

They look like maybe you’re looking for sympathy or maybe they’re Just too grotesque. I don’t know. Let’s not take my opinion for it. Let’s just see what the focus group says. So testing our, evaluating our pieces of evidence, right? Timelines, demonstratives, photographs, records, if we’ve got those, good [00:08:00] way to test those out.

Another way is just, you know, Testing your case theory. Is it good? Is it bad? And I hate to use those words good and bad, but it’s more in the sense of, do they follow it? Does it make sense? Is it too far of a stretch? Is it not a stretch enough? You know, they will help you with that. Also, I like to look at using focus groups to file or not file, right?

So we looked at, okay, so we got results. We got pieces of the case, but ultimately. File or not file. A lot of times people will say, well, I think this is a good case, but it’s a really unusual claim or it’s a really unusual set of facts. And I just want to see what people think about it. Like, should I file this case or not?

And I do quite a few of those. And I think that that’s one. a really good use of information, right? Half of our job as lawyers is to provide evaluations. What’s my case value? And do you think that they’re going to settle or will this have to go to a trial? And do you feel like this is strong enough? We are constantly evaluating and [00:09:00] that’s what people ask us for.

And if you’re having to make a decision about filing or not filing, maybe it’s an unusual case or premises liability cases, a lot of times when they come in my door, I always run it through a focus group to see, should I invest? The question is, is there a way we can invest in this case? I believe it a hundred percent, but we could invest in this case and just realize like, wow, there’s just, the jury’s just never going to go with us.

I kind of want to know that on the outside. And I would think that a client does too. And most of the time when I work with clients and I run through focus group and I just let him know, like the law is really, really thin it’s really, really hard. And also a focus group just was not favorable. Let me tell you things that they pointed out and it’s helpful for me in to explain it to them, but also say, Hey, I want to go the extra mile.

I, you know, I want to make sure and check all the boxes before I tell you, gosh, I just, I just don’t think there’s a case here. So super helpful there. Another place where you can, you know, what do you get would be kind of a knowledge base [00:10:00] asking, what do you know? Maybe finding out the experience level that people have.

Maybe it’s common sense and you don’t need to explain something, or maybe it’s really professional grade and you’re going to have to spend some time explaining things. And that could be medically. Maybe you’ve got some unusual medical situations or unusual, I would say, situations. Maybe there’s scientifically or technically things get kind of complicated.

How much do they know? What’s their blink reaction to some of these things? And that really helps to know how much do you need to have your, Experts explain. How much should you explain an opening? A really good how to on a focus group like this is we ran a focus group recently where there was a lawyer disagreeing a little bit with the client.

Client disagreed with the lawyer about, of course, the facts of the case. And it was an employment case and it all came down to employee, So if you type in oh, let’s, let’s test people on independent contractor. What do you think about it? [00:11:00] So let’s test people on independent contractor. What do you think about it?

So we just, let’s test people on independent contractor. We just selected, selected independent contractor. And then we showed up on the board and people just rattled off. What do you think? And we had people write it down. We talked about it out loud just to get kind of their blink reaction to it and what they thought and ultimately what their experience was.

Had anybody worked as independent contractors? Anybody worked as an employee? And what does that mean? And what do you expect? But we ultimately also put the jury charge, the jury instructions, if you will, in front of them. And ask them, does this make sense? Is this what you thought? Was there anything that surprised you?

What would be confusing or need to be explained? And I love doing that with lots of other jury charges, just to make sure you’re covering all those bases. Because you don’t want to put all effort into every other piece of it, and they get down to that jury charge, and they just get confused. Because they’re confused, they go the wrong way.

And focus group net will tell you what they’re confused [00:12:00] about. Another good way to use a focus group is to hone your skills, to practice, right? To get your craft down and talking about doing jury selection to groups of people or practicing doing opening statement with your demonstratives at the same time.

It’s a really good place to. Practice your inflection, your speaking, your clarity, and also a jury section, like, what are people going to say? What are their responses? Is that question falling flat? Okay, if it does, how do you, how do you backpedal? How do you get out of that place? You know, maybe you get a response that you don’t want or a response that goes off, you

I can tell you from my personal experience, using focus groups has significantly helped me be a better speaker, be a better communicator, and definitely been a better listener. And listening, such a key skill [00:13:00] that we use as a lawyer. And it’s one of the best skills, I think if you want to try to improve anything, Improve your listening skill.

It’s going to help you not only being a lawyer, but being a person as well. But we have to listen so keenly in a deposition, right? We have to listen so keenly when it comes to jury selection and what they’re saying and when to talk and we not to talk, how to process all that information. So listening super helpful folks groups, what do you get Better listening skills for sure.

All right, let me just take a small pause to give a note of caution. One of the biggest things people come to me and ask, I want a focus group, Elizabeth, to find out the case value. I want them to tell me what my verdict is going to be. And I always throw up a really big red flag and I’m trying to tell them like, that’s, that’s really difficult.

It’s not something I would rely on and it’s just going to give [00:14:00] you a very broad brush at it because again, this is a focus group. These people know that they’re not the jury. They know that they’re there for three hours and they’re going to leave after I use the PayPal and pay them. They’re going to leave, forget all about this.

There’s no pressure or oath that they take. So at the end of the day, that money thing can be just like Monopoly money. I try to persuade people away from that and more into kind of things we just talked about. Witness credibility, evaluating the evidence, looking at case theory, looking at the knowledge base, testing out defense theory.

That may get you a lot more than just trying to have this one target of give me the case value. So, big note of caution there. Really lots of other great ways to use focus groups. I would put that way down the bottom and I would caution if you don’t have a lot of experience doing focus groups, moderating, looking at it, analyzing the data, I just caution you just against it.

There’s so many other great ways to use it. Just. Come back [00:15:00] over here. Come over here. And we can talk about later on in a different episode kind of this caution and where this comes from and what my experience is and what I would suggest you do if you are absolutely set on finding out some numbers. We can talk about that.

So let’s just take a moment to recap a little bit about what do you get. We talked about getting results, the yes or the no, who wins, who loses, getting information on witness credibility, testing case theory, getting some clarity on witnesses, getting clarity on pieces of evidence, timelines, photographs, learning whether we should file or not file.

Is this a case? Is this not a case? And then also practicing, honing those skills and becoming much more clear on what the case is about, because that’s one of the biggest things in any of these. that I’ve talked about other than I think knowledge based might be a little bit harder, but you’re gonna get [00:16:00] summaries.

They’re just going to regurgitate information back to you. It may be like, oh man, that’s a lot clearer way of saying things. That would be one thing that you get. And that’s kind of where that moves me into my double dipping phase. This is where you can really work. nerd out on the information. That’s what I like to do.

I think that’s what you should do. If you’re going to run a focus group, great. In that moment, you’re going to get all kinds of feedback, but your brain can’t process all of it at the same time. So get it transcribed. Transcribe that video. and read that transcript again. You would be so amazed at all the things that maybe you didn’t catch because, again, you’re trying to focus on what one person is saying, or maybe you’re just trying to gather on yes no’s, or high points, and just writing things down that you hear.

You will learn so much more if you take that, transcribe it, and read it. And really helpful tip, use an online transcriber. Upload that video. They’ll [00:17:00] transcribe it. Don’t burden somebody in your office with it. Please don’t burden yourself with that. They’ll get it done fast, quickly, efficient, and cost effective as well.

So reading it, you’re going to get a whole other level of analysis. You’re also going to look at it and reading and seeing the language they use. One of the things I mentioned earlier, which was summaries. How are they summarizing this? you. What are they saying? What are they not saying? And a lot of times we get in there, we listened to it live and we don’t hear something at all.

Or we completely mishear it. You know, in our little ears, we hear something like, Oh, and then you read the transcript and like, oh, that’s not what they said. I totally missed that point. So it can also help correct some of your excitement if you hear something wrong. Another way to double dip is to kind of take all this information.

So let’s say you run. It’s a lot of data information. Let’s gather all that into one place. And I’m talking about the people information, that demographics, their age, [00:18:00] education, married, not married, kids, no kids. Are you seeing any patterns or any trends? Are people who are for you, people who are against you, people who are neutral, right?

Can you see anything? If you see anything at all, how come? Like, was there something specific about that focus group? Was there something specific about a piece of evidence that they got there? Right, this is just kind of getting into those weeds and is there anything else I can see here one more time if I’m looking at the demographics?

That’s going to help you if you’ve got to go pick a jury. It’s going to be kind of an outlier. I don’t want you to think like, Oh, let’s be saying like, this is it. I can perfectly craft this. Well, no, but it’s definitely going to help you along. If you’ve got six or seven or 13 focus groups and you can look at all the demographics and also keeping in mind focus group styles and all that, you’re going to be able to see some trends and patterns.

And that’s going to really help you when you get into doing jury selection, right? Versus going cold and blank and not even knowing at [00:19:00] all, What? So, we can use this information, this feedback to the full extent by getting it transcribed, reading it, then also gathering it all up and putting it in front of you to see if there are any trends or any patterns.

If you see something, dig again. Like, what’s the cause there? Was it something that this personally, this person, like experienced, uh, that made them super hot to try, like totally your best juror ever? Okay. Great. But maybe that was that person’s personal experience. Nothing that you said would have convinced them of that.

And that’s kind of where it’s like, okay, if we see a trend, let’s dig a little deeper and make sure like where maybe it have come from on a deep level. Let’s circle back to our original topic, which is focus groups. What do I get? We talked about results. ways to clarify, remove confusion from pieces of evidence, witness credibility, confidence, right?

[00:20:00] Practicing those skills, gaining that comfort, that speaking, listening, receiving responses. How do we manage that when we’re up in front of people? Do I file? Do I not file? Is this anything? Is this a lawsuit? And ultimately, what do they know? What’s this knowledge base on this topic, this subject, maybe this process?

Basically, you can get a lot from focus groups, and that’s what I would totally encourage you to wrap your mind around. It’s not just results oriented. You can learn so much more. You can spend three hours, you can spend one hour, you can spend 30 minutes, you can spend six hours. All of it is going to be about the depth with which you are willing to go into the material and the depth of the feedback.

So, we’ve gathered all this up, now we’re going to talk about in future episodes how, how to get it using focus groups, and we’ll probably break that down into different segments so that we can make it into [00:21:00] bite size information and also with some forms and some templates to help you guys along the way.

Well, thank you so much for joining me today. If you enjoyed this episode, I would love if you could share it with somebody you know. Also, you can subscribe, follow on your favorite podcast app, review, rate it, share it with a friend. And until next time, thanks so much.

Have you ever wondered whether there’s something you could do to prepare before you meet with your client for deposition prep? You bet there is! Tune in as we talk about how to look at the file for a deeper analysis and answer three really important questions.

We’re going to talk about helping you scope a plan to prepare you before that client testimony preparation meeting. In my experience and most people’s experiences, trial happens, but it’s pretty few and far between. Most of our legwork and our day-to-day stuff is dealing with depositions.

Hopefully, this will help you create a plan for having a deeper analysis of your client’s case, and the testimony they need to provide in your case. That way, you can have smoother preparation meetings and your clients will be impressed and appreciative that you took the time to go back through and get the events down. Ultimately, this creates a lot of trust between you and the client whenever you can repeat events back to them or refresh their own memory. It also helps uncover damages when you’re working through that part of the preparation meeting.  

In this episode, you will hear:

• Reasons to prepare for client deposition
• When to start your review
• What to review and 3 questions to keep in mind
  • What is the target? 
  • What areas can be improved and what are things that are maybe a weakness in the case? 
  • What’s missing? 
• How to gather up depositions
• Doing a double background check

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If you really enjoyed this episode, we’ve created a PDF that has all of the key information for you from the episode. Just fill in your information below to download it.

Supporting Resources:

Larrick Law Firm

 

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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Have you ever wondered, man, is there something I could do to prepare before I meet with my client for deposition prep? You bet there is. Tune in as we talk about how to look at the file for a deeper analysis and answer three really important questions.

Welcome to trial lawyer prep. What if you could hang out with trial lawyers and jury consultants, ask them about connecting with clients and juries more effectively? Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process. Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth.

Hello and welcome back to another episode of [00:01:00] Trial Lawyer Prep with me, Elizabeth Larrick. Today in this episode, we are going to continue our mini series on planning and preparation.

We’ve had kind of a three episode series. The first one talked about year end review and how to look forward and prepare for the next year. Our last episode talked about focus groups and designing a plan, either a big overall plan for your office. We’re going to focus group three times for every case, or maybe you’ve got one really big case in your office and you want to scheme out how best to plan, or maybe you’ve got a case that’s going to trial.

It’s going and you got to get ready for trial. So we talked about that. If you missed it, go ahead and catch that last episode. And then today’s episode, we’re going to talk about helping you plan. Scope a plan to prepare you before that client testimony preparation meeting. The focus of today’s episode is really going to be about depositions.

In my [00:02:00] experience, and in most people’s experience, trial happens, but it’s pretty few and far between. So most of our legwork, most of our day to day stuff is dealing in deposition. So today we’re going to talk about deposition preparation, but there’s nothing to say you couldn’t apply this for trial. And I promise we will do a trial one as well.

To walk through how to get you ready to prepare your client for trial. But today let’s take a step back and focus on deposition. I kind of want to break this into three main parts and that is what I suggest you review for yourself when I suggest doing that and why. Let’s start with the why because this is something that’s going to add more time.

You’re going to have to take some time to do this. And my experience. When I first started to do it, it did take a lot of time, but as I started to do it over and over again, things got quicker, it doesn’t take me as long, I know what I’m looking [00:03:00] for, and bigger cases, it’s just going to take longer, shorter cases, shorter time.

Let’s jump into why take extra time. What is that prep? How to make that plan? First why it would be anticipating deposition targets, right? We know that our client is target number one. They’re walking around with that bullseye on their back because it’s easy. And so we know that this deposition is basically Open season, right?

They’re going to be able to ask any question. So want to make sure we can anticipate that and be able to prepare our client. The other thing is you want to really have a clear memory on events because you are going to have to refresh your client on those events. A lot of times deposition takes a little bit of time to get there.

Maybe it’s a year, maybe it’s two years. Sometimes it’s even three years. Clients have packed away those painful memories and put it up in a closet and And now you’re going to ask them to drag it right back out, and I guarantee you they’re not going to drag it out until you ask them to do that. So it’s [00:04:00] helpful for you to have a really good, clear idea on the events and what you’re going to ask them about.

And doing this review is going to help you refresh your memory so you can help refresh the client’s memory. The other why would be seeing areas the client needs help. We spend so much time with our clients that sometimes we become a little bit blind to their weaknesses or maybe some things that would be problematic for testimony.

These are not bad people. They’re our clients. But that doesn’t mean that they may be perfect at giving testimony. Rarely find people who are perfect at testimony. So having that analysis, time, helps you, right? You’d be able to spot those areas where maybe they need help. And what I mean by is describing injuries.

Maybe there’s some background issues that you need to talk to them about. And it’s so helpful when you talk to them about it and you have all those details. They really appreciate and it makes them feel so important because you’ve taken that time to go back in and refresh yourself and see those areas that they may need help with at the time.

Another [00:05:00] big why is doing all this work really makes your preparation meetings run so much smoother. You have much more effective use of time and it really helps because instead of having to stop and go look for something, right? So let’s say, oh, we need to remember the date of that injection or the date of that surgery.

You don’t have to stop in the middle and go look for it because that stops your mo, you know, you want to keep. The Moe. And it also makes it look like, hey, you’re the one who’s been dealing with my case for two years and you don’t even know this date. It makes things just go smoother. And ultimately, the client will be much better prepared for the deposition.

Right? You’re going to be in a better place. That’s going to put them in a better place. So those are a couple of big whys, why you’d want to go ahead and spend some extra time doing this. So let’s talk about when. When am I talking about starting some of this review? I like to start three, five, seven days before the deposition prep meetings.

Sometimes it’s flexible based on kind of what’s going on in my schedule, [00:06:00] but the nice thing is when I’m going through and doing this review, I create a memo. So let’s say I have to start it out a week ahead of time. I’m going to make a bunch of notes in there because I know a lot of things are going to happen before I get to pick back up doing my review.

It also gives me time to gather more facts. Maybe I’m missing something. Maybe I need a medical record. Maybe I need to email colleagues and ask them questions. Maybe I need to find extra depositions. It’s going to give me extra time if I start earlier. I also really like to marinate on things and kind of turn it over and make sure I’m catching all the point of views.

Am I catching the defense lawyer’s point of view, the jury’s point of view, the judge’s point of view? And also use this information and kind of refresh the day before and maybe sometimes even the morning before just to look at it again just to make sure I’m going to be super sharp on those details with the client.

Okay, let’s get to the nitty gritty. What am I talking about? What am I suggesting that you review? Let’s start with the thing that you got, which would be your file. We’re talking about [00:07:00] getting some clarity, you know, walking down memory lane here. I like to even go back to the start. Let’s look at our intake notes.

Let’s look at those emails exchanged with the client. Of course, I’m going to also be looking at pleadings. I’m going to be looking at medical records, maybe looking at even call notes that I’ve had with the adjuster, emails with the opposing counsel, refresh on focus group memos, and I really want to pull any questions that maybe are in the focus group memos that the participants had about the case the client needs to answer.

And that’s super helpful. Any other documents that may be in the file? Investigative documents? Photographs? Maybe we’re missing photographs? I always like to make a note. What am I missing? As I’m going through the file and I’m thinking about it and I’m walking through stuff, I always want to keep three questions in my mind.

What is the target? What is the target of the opposing counsel for this deposition? What I mean by that is maybe there’s a [00:08:00] gap in treatment. Well, you know it’s going to be a target. Maybe it’s that they didn’t go to the emergency room right away. Well, that’s going to be a target. Maybe they didn’t tell their doctor about their symptoms, right?

That’s going to be a target. And I like to kind of write those out. But I always want to keep that question, okay, what is the target? I always want to also question where are areas that can be improved and what are things that are maybe a weakness in the case? Just want to write it out. Even if the client’s going to take care of it or not, meaning they’re going to be asked questions about it or not.

I want to make sure that I’m keeping an eye towards, hey, what am I running across and whereas this need to be improved. And then ultimately, like I mentioned earlier, what’s missing. Am I missing pictures? Am I missing medical records? I’m missing information. Or maybe it’s, Stuff about the client. These may be questions that I need to answer before I get to the client preparation meeting.

And maybe there are questions I just ask the client when we get in there. Either way, I always want to keep those three things in my mind as I’m going through the file. One of the things I like to do as well is research the deposition [00:09:00] style of the opposing counsel. And actually reading those depositions, trying to figure out style, tone, and questions.

I find it really helpful to be able to pull actual questions and use those in role play with the client. How do I gather up those depositions? Well, a lot of what I do is with the same players. So I have a lot of those depositions built up in my own personal bank. But I also use lawyer listservs locally and in my jurisdiction to ask, Hey!

Anybody have a deposition taken by this opposing counsel? I’ve got a plaintiff lawyer. I mean, I’ve got a plaintiff deposition coming up. And most people are 100 percent willing to share when it comes to that because it’s just deposition of their client. And that really helps as far as getting your mind set and again, thinking about what is the target?

What do they see as weaknesses? The other thing I like to do is do a double check on background, and that means doing a Google search, doing a social media search of my client, even going so far as doing family members, spouses. I have definitely had [00:10:00] that experience where I’m sitting in a deposition and the defense pulls out pictures from social media that supposed to be private and all of a sudden it’s not.

And turns out they found a loophole. They went through a family member and got into the client’s social media through a family member. So yeah, I hate that surprise. I know the client did too. So let me help you by avoiding that surprise and the pain of that, having that happen to you as well. So do all that extra search.

And that’s an easy thing. If you want to assign that task to administrative person or paralegal, I found sometimes they’re fantastic at that work, finding all the loopholes and stuff like that when it comes to social media and Google searching. So. That’s a good task to give someone, you know, ultimately want to make sure you’re gathering up the full timeline when things happen, the event that happened all the way up to where you are now.

So you want to make sure that you’re not missing anything in your document analysis. It’s your background search to gather all that information up. And so I say that because I like to create a little timeline. [00:11:00] Maybe it’s medical timeline that really helps me get through medical records quickly. And I always want to again, make sure when I’m going through these medical records, is there anything in there that is going to be a target missing information or check the wrong box or sign the consent form.

All those things. And I even like to pull out documents that I know this is going to be a big one. So I pull those documents out already having them ready for when I’m going to role play with the client later on in the prep meeting. That really helps as well, because you don’t have to go back and find that later.

So, we’ve talked about when to start doing it, we’ve talked about why we need to do this, we’ve talked about what to do, and creating this memo, these notes, in order for you to be able to answer those three questions. What is the target here? What is the point of view of the opposing counsel? Where is there room for improvement?

Any weaknesses? And what’s missing? Thank you. Are there holes missing that we need to fill information or things that I need to find out? I hope that this will help you create a [00:12:00] plan for having a deeper analysis of your client’s case and the testimony they need to provide in your case. That way you can have smooth preparation meetings.

Your client will be impressed, but also just appreciative that you took the time to go back through that you’ve got the events down creates a lot of trust between you and the client whenever you can repeat events back to them or refresh their own memory. That also really helps to uncover damages when you’re working through that part of the preparation meeting.

So if you have any questions, please feel free to post them. I’m going to post the three questions in the show notes. And again, thanks for listening. If you found this helpful, please subscribe this podcast on your favorite podcast app, share it, rate it, review it. And I appreciate it. Thanks so [00:13:00] much.

Are you planning on running some focus groups in 2022? Are you wondering how to navigate the planning process? Or maybe you’ve been doing focus groups, and you’re thinking about how to do a bigger blueprint for a series of cases or get ready for trial? If you already have a case in mind, and you think it’s a great case for a focus group to figure out this problem or this issue, one of the biggest questions is when to do a focus group. In this episode, we are going to dive right in to answer these questions.

Whether you’re doing just one case or you’re planning on building a series of focus groups, it’s helpful to set out a blueprint for focus groups. 

Having a blueprint helps you get things systematized so your process gets easier over time. You also get to compare data from different groups. The more data you have, the more information you have to analyze the trial. A trial can be tricky since you don’t always get to go to trial as much as you want. And so, doing focus groups will help you prepare, and ultimately, build better cases. You’re not only preparing your clients better, but you’re also preparing yourself better for depositions and crafting better questions.

 

In this episode, you will hear:

• When to do a focus group
• The benefits of focus groups
• How to create a focus group blueprint
• The power of doing multiple focus groups for one case
• Creating a blueprint for types of cases
• Building a series of three focus groups

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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 really enjoyed this episode, we’ve created a PDF that has all of the key information for you from the episode. Just fill in your information below to download it.

Supporting Resources:

Larrick Law Firm

You can learn more about when to have a focus group in this blog post: https://larricklawfirm.com/focus-group-faq-at-what-point-in-my-case-do-i-run-a-focus-group-larrick-law-firm/

 

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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] Are you going to do some focus groups in 2022? Are you wondering how to navigate planning those out? Or maybe you’ve been doing focus groups and you want to think about how to do a bigger blueprint for a series of cases or getting ready for trial. This episode, we are going to dive right in to answer those questions.

So stay tuned. Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. [00:01:00] Now, here’s Elizabeth. Hello and welcome. This is your host, Elizabeth Laird, and you’re listening to another episode of Trial Lawyer Prep.

This is a podcast designed and created for trial lawyers working with difficult cases, problematic clients, and taking those difficult and problematic cases to trial. Our goal here is to help you connect with juries and clients in order to improve your abilities in the courtroom. I am excited to welcome you into 2022.

We had a fantastic episode in my opinion, of course, about planning for the year. And we’re just going to continue that with this next two episodes with planning for focus groups and then planning for witness prep. So I’m excited to lay out a focus group blueprint today to talk about really looking at how do we create a focus group plan, right?

So maybe we’re going to start doing focus groups this year in your law office and you decide, Hey, we’re going to run three. Maybe you’re starting [00:02:00] out and you want to get a little more information about how do we plan this out? Think about it. Well, maybe we’re talking about one case. Maybe we’re talking about a series of cases that you have, or maybe you’ve been doing focus groups for a while in your office, and you’re wondering, huh, I wonder if, can we systemize this?

Can we make an approach so that we can just keep repeating this for maybe our bigger cases, or maybe a case that’s got some difficult facts for liability? Or maybe it’s just challenging all around. So that’s what we want to tackle today is thinking about how to set out a blueprint for your focus group.

And what I like to do is we’re going to kind of break this down into, okay, if we’re approaching this with just one case, and then also if we’re going to approach this with a type of case, like maybe the type being car wreck cases or the type being. The case that is going to trial, if there’s no chance of settlement.

So we’re going to take that in two parts. And again, we’re going to look at this in two ways. Let’s scheme out how to schedule this. When do it? What types of focus groups we’re talking about? And [00:03:00] maybe doing a series of those. So let’s talk about if you have one case. And maybe you’re starting out or maybe you already have a case in mind like, Oh man, this would be a great case to focus group and figure out this problem or this issue.

And one of the biggest questions I get asked is when, when should I do a focus group? And what I always like to ask people as well, we kind of look at what is it that you want to accomplish? But also sometimes you may be in the middle of a case and decide to do a focus group. Maybe you are about to file and you’ve wanted to run a focus group.

So there’s lots of different timing. It really kind of depends on your focus group purpose. So I’m going to kind of take two different approaches and the first one would be maybe you’ve never run a focus group and you have a case in your office that you’re thinking about doing it and let’s say it’s already filed in litigation.

What I always like to ask is, okay, so the case is in litigation. What I always kind of look at now is in the scheduling, do you have a trial? Have you already had mediation? Oh, do you still have ongoing discovery? [00:04:00] If you’re really just going to run this one focus group, it’s always good to make sure you have all of your facts in order.

Maybe there’s some outstanding discovery requests. Maybe there’s a deposition that’s outstanding. So you might want to get all that information in. before you run this one focus group to figure out more information about the case that you have. Other times, if you just got this one focus group that you’re going to run, you’re really looking at, okay, I really want to run it right for mediation.

It’s a great time to look at how you’re laying out the case, you know, show it to a group of people and figure out, are they going to adopt what you got? Are they going to give you something different back? So that’s always when looking at scheduling, like when, like, well, what is happening in the case? And really, what is it that we’re, what’s our purpose here?

If you’ve just got this one case and it’s in litigation, there’s really all kinds of focus group types that you can run, right? So you can run opening, maybe you’re not done with discovery, but maybe you want to figure out what is missing. So focus group can help you decide what discovery you want to [00:05:00] continue to do.

Witness credibility also is a great one where let’s say you’ve just got a bunch of people and you have all the depositions done, you’ve got the videos, just make some clips and put the story together through the witnesses and see what happens with the focus group. You can just do jury selection and practice and get ready.

And again, that’s kind of if you’re getting ready for a trial or if you’re just need to practice. Focus groups are a great case laboratory. I mean, you can learn a lot from them. But it’s also just a really great place to practice your skills presenting, talking with people. I mean, I can’t tell you my experience has been so helpful in speaking to people and patience and listening and having active listening skills.

And also kind of knowing like when almost. to stop talking with a person. That helps really with jury selection, but listening and nodding, it’s helped me tremendously. So I totally believe that focus groups are really helpful, just helping generally with speaking and trial practice and presenting. [00:06:00] So I want to talk a little bit about a case that we had here with one focus group, a friend of mine came to me and she had some pretty solid facts that were constructing a oil change.

building, right? So the building was still going up. It was pretty much well done. And there was a crew that was in there working and the woman was working and fell into the pit. And so, and it will change location. You have these pits, giant underground, 10 feet deep, persons underneath there draining the oil and everything.

So she falls in there and severely severe injury. I mean, paralyzed. And so they’re wondering, okay, well, who all would be responsible here? And the purpose for them was to figure out, do we file this case or do we not? Pretty heavy decision because, you know, you’re thinking about your resources, your time, your energy, case expenses, and yeah.

Okay. So maybe legally you can get through the hoops, but ultimately, if you get to a jury, would you [00:07:00] make it? You know, would they file it? find the person you need to be held responsible. So that’s why she came to me. So we put together this one focus group before filing litigation and found that there wasn’t going to be enough responsibility on the party with the insurance.

Yes, it’s disappointing, but also good to know and learn that don’t waste your time and energy. Because it’s just something that the jury just can’t get over. They’re not going to place enough responsibility on this other party that had the insurance policy. And so one case, one shot at it. Why just do one focus group?

And again, that might be a budget issue. Maybe you just want to do one and try it out. Maybe you’re learning to do focus groups. So it’s very low risk to do one of those things. Also kind of like we just talked about, maybe you are trying to decide whether to file a case or not. Maybe there’s some tenuous facts on fact issues or even legal issues.

You want to make sure you can get there before you file a case and put a lot of time and energy in it. So that’s always super helpful as [00:08:00] well. You can just run one and learn a ton of information if you’re getting ready for a trial, mediation, witness credibility. So let’s walk back through. If we just have one case.

Right? We want to get the most bang for our buck with this focus group. Really want to figure out one, what’s our purpose? Are we just going to issue spot? Are we going to get ready for mediation? Are we going to get ready for trial? Are we trying to do some discovery work? We’re trying to do some theme work, some trial theme work.

Once you kind of tackle that down. Then that really helps you work backwards. When do I need to do this? Do I have enough information right now? And then ultimately, knowing what my purpose is, that’s going to help me scope what kind of type of focus group that I want. If you’re running one, you can easily do a one hour.

Right? Just a one hour. One hour you can do three hours. Right? That also depends on the depth of information you want to get into. Case spotting or some really in depth themes and you want to get some good feedback based on a full three hours they’re going to [00:09:00] go through, which is helpful. In thinking about one case instead of just one focus group, let’s talk about just having one case and you maybe want to run it through and you want to make this blueprint and you’re thinking, okay, Elizabeth, I want to run this case.

Let’s blueprint this out if we had a perfect focus group blueprint in my mind and what I have done for my cases here is I always do a pre lit just a really quick issue spotting. What do they see? What are they going to give back to me on this fact pattern? Right? Snapshot really quick one. I always like to do discovery.

a little bit, but I always like to also do a discovery focus group to make sure what else would they want to know? What am I missing? If I’m going after a commercial vehicle, truck, and a company, what is it they want to know about the company? Do I have all that discovery done? And that also helps too, because most of the time I’ve done Some initial deposition.

So we know what actors are going to say. So you put that in front of them too. And then ask what their discovery to do. I’m always like to run [00:10:00] a focus group before mediation and before mediation. I’m really kind of talking about 60 days, 30 days before mediation, because I want to get a good idea in my mind about the presentation that I want.

I want to give that, put that together for them. But really leave some time to tweak it so that I can tweak my presentation for mediation and maybe if I found some good clips I can clip some things and put that also in my mediation presentation. And then if we’re taking this one case all the way through, we’re going to do an opening statement and maybe run that opening once, twice, maybe three times.

And again, when I talk about running opening statement, I’m generally just talking about doing just that opening statement, getting that feedback and getting out of there, right? Nothing else further about that case. So those are kind of a little bit smaller chunks. And then if we roll into trial, opening, jury selection, opening versus opening, mini planets opening versus defense opening, that would be a full blueprint.

Right? And that is [00:11:00] going to give you maybe six, seven focus groups. Some of these are one hour, some of these are three hours, maybe some are even six hours if we’re doing a full adversarial focus group, but we have all this data. I mean, I love having more than one focus group because we really can sit down and look at the data that we have, like how people were leaning and what worked and what didn’t work.

And it’s so helpful. The one focus group is helpful. Don’t get me wrong. It’s going to really help. Even just a little. Sometimes I hear from lawyers and I’m a true believer in this as well. If you just learn one thing, sometime that one thing can really save your case. For example, I’ve got a good friend out in Houston, his name is Nick, and they had a focus group that they put together before trial.

You know, they did kind of a full presentation, almost a mock trial set up and everything was coming along. Themes are good, but they learned that they needed to put in this one particular fact. So it was an explosion case that they had. There was some [00:12:00] gas leak in the house. I mean, the focus group was really, really honed in on, were they smokers?

Were the people who live in that house smokers? Were they smoking? And they weren’t, but that fact wasn’t in there. And so this one really, really small thing was super important to them. And it changed the case. I mean, they went to trial, of course, put that in there and it had a very good result, but I mean, they felt very, very strongly that focus group gave them that data.

And that one very, very crucial fact they needed to put in there and new focus groups will do that and you’ll see those patterns as well. Like alright cases, we always talk about making sure people wear their seat belts and other things that those are just crucial facts. Like they just need to know, for our lawyer brains, it may seem like, well of course it’s a soon, but sometimes it’s that one crucial fact that we get out of that one focus group that really can turn things around.

And those are really helpful. Um, for you. examples of doing that one case and really fine tuning on the analysis and the data. But if you have multiple focus groups for this one [00:13:00] case, man, such good data comparison, right? You can put all those people together and which way were they leaning and like, look at all that stuff.

And that’s really going to help you with jury selection, having all that data comparison as well. So let’s turn our focus now and look at creating a blueprint for types of cases. And what I mean by that is, let’s say you’ve got a docket where maybe 50 percent of what you do is car wrecks and nothing wrong with that.

Maybe 50 percent of what you do is commercial carrier cases or employment, and you want to set up a system, right? A blueprint for all of your cases to run through. Maybe you’re going to do three focus groups for every case on this docket, right? So I know that not every case maybe needs a focus group, but in this kind of, you know, Series or blueprint in my mind, I’m thinking, okay, 50 percent of my docket, I’m doing these three focus groups.

Maybe they progressively get longer. Maybe it’s, I do a one hour, then it’s two hours, then it’s [00:14:00] three hours, right? And you’re working that schedule in along the way. So again, let’s go back to our car wreck example. And you’re just going to run three focus groups for every car wreck case. So, let’s look at that.

Let’s do a pre lit. Before you file, let’s run it through. Make sure we’re getting any issues, any case holes that we’re not seeing right. Do that pre lit. Maybe for the next one we’re going to do, after discovery is all done, we’re going to run a focus group that’s much more detailed, giving a lot more information, a presentation.

Maybe we’re gearing up for mediation. Having that presentation for that and then our last focus group being before trial, right? So you’re going to scheme it out. You’re going to have those three focus groups and maybe you don’t ever make it to trial because It does end up settling. Well, okay. Then you’re not going to use that last one.

Just kind of having that system already set, like, okay, we’re going to do this before we file and then get our discovery in. And did we match up with all the problems that they [00:15:00] spotted in that one? Okay. Did they or did they not? Did it work? I don’t know. Well, let’s run a focus group, right? Let’s take all that information and run a focus group again.

See how we’re doing on that. If it doesn’t settle, then you’ve got that last focus group for trial where it’s jury selection. It’s opening. It’s. Witness credibility, just make sure everything is honing in and you’re getting ready for trial. The other way to look at it is if you know the case is going to trial.

You can set up kind of a trial focus group system, Blueprint. And one of the ones we’ve done recently was virtually we did three focus groups, all opening statements. So plaintiff opening versus defense opening and the way that they structured it is, again, this is a case that folks that came to me, they knew we’re going to trial.

This is not settling, not a chance and strong conviction in it, which is great because ultimately what they did is we had a focus group. All the focus groups were about six months. Maybe three months apart. And again, that’s because they had a [00:16:00] trial date, but you know, things got continued. They had some discovery pending, but they had a pretty good grasp on it.

And each time they ran the opening, they just tweaked things as they learned them, right? So we had first one. Okay, great. We need to find information about this. We need to tweak this in the opening. We need to create a visual aid. Great. So we came back in six months. They did all those things and okay, great, we’re hitting all the good stuff.

We’re still missing some stuff and we need to work on that visual aid. And then that last opening, right? Really close to trial where they know this is going to work and here’s our visual aid and testing all that. And they had all these three, they had this data comparison, right? So they had a really good rich pool of people to compare the data to say, what are jurors that just did not lean our way?

They just didn’t lean our way. And was it personal experience? Was it experiences that they had? Can we craft questions around that? And, Maybe just these are red flags. We just need to make red flag and talk to [00:17:00] those people in jury selection. And with the information they had and having worked so hard on that opening statement, I mean, they nailed it.

They ended up going to trial and had a fantastic result. Called me up, said, oh my gosh, yeah, this is the way to go because we were able to really Keep testing our theme. Were we hitting this theme and did we have the evidence to back it up? So they had a really good result. I’m a big proponent of doing those opening statements early because that makes you get in gear and start fashioning things and making sure you have the evidence to say at an opening and also knowing what’s not going to come in at opening but do you need to come in later?

So that’s also a super helpful blueprint is just three opening statements spread out six months in between. Another way to do it is first for jury selection that I’ve definitely done it before is three even to five focus groups at about an hour a piece, sometimes a little bit less where you’re just doing jury selection.

And you’re testing questions, [00:18:00] you’re learning the responses from people, you’re practicing that pivot. When you’re finished talking to somebody, you need to pivot to another case, you need to pivot to another question, and then also really practicing to that skill of getting people up for cause, building in those questions to make sure it feels so natural.

When you hear somebody who. Can go out for a cause and you can nail it down. Right? You got those questions. It’s not a belief that you’ve had for a while. You walked in the courthouse with that belief and you’re going to walk out of the courthouse with that same belief. Oh yeah. I mean, that’s an experience that was ingrained with you.

Oh yeah, for sure. Right? So those questions that you know, you’ve got to do them in order to secure that. Practicing those questions with focus group is very helpful, super helpful. And like I said, Dune 3. To five of those, and again, accumulating that data. I mean, one, you’re going to practice. You’re going to be so ready for the responses that you get.

You’re going to feel very comfortable. They’re going to know you’re comfortable with it. [00:19:00] It’s just going to flow more naturally when you have practice with those questions and those responses. And knowing that there’s probably that response out there, how do I get it? The response that you want to hear.

So that’s a really good one too, when you know that case is going to trial and you feel strongly that picking a jury is really going to hone in and be crucial for you. Another kind of blueprint for trial would be another three focus groups set up. Maybe just that first focus group is going to be about the jury charge.

A lot of times we have difficult jury charges. And when I say jury charge, I will call them jury questions, right? What are the questions the jury is going to answer? Put that up, put that in front of them to figure out like, what’s their initial reaction to that. Does that match up with your facts? And how do you build your case around their thoughts and expectations about those words on that page?

We did this pretty recently for an independent contractor case, an employment case, and learned all kinds of wonderful things about what people think and know about independent contractors. And even put the [00:20:00] test, you know, there’s a test in one of the jury charges that they looked at to see. Does the test make sense?

What’s confusing about this, you know, and that was so helpful for the lawyers to be like, oh, okay. So, maybe I can’t change those words on the page, maybe you go up with the judge and they’re not changing anything. That’s okay, because you still have that time in closing argument to speak to them in the way that makes sense, right?

You’ve heard it in a focus group, now you can go speak to them in your closing argument. And then follow that focus group up with, maybe it’s an opening. statement with those jury questions, right? So let’s test out your opening. Let’s test those jury questions. And then again, leading into that last focus group being an opening versus an opening with those jury questions, right?

Who’s doing better on those opening statements? As you can tell, I’m a huge proponent of doing an opening statement focus group. I just think it does so much for us. So let’s talk about why would we have Kind of these blueprints for a series of [00:21:00] cases, whether it’s that, those trial cases, maybe it’s that docket that you’ve got a car wreck cases that you just, you’ve got them sitting there.

Okay, so why are we doing a blueprint? Why are we doing more than one? And again, one things we’ve already talked about, which is data. We want to be able to compare data, different groups, more data, more information for you to analyze. A trial, You know, trial is tricky and we don’t always get to go to trial as much as we want and so doing focus groups will help you prepare.

Maybe ultimately you just want to build better cases, right? So let’s talk about, you’re going to do these series on your car wreck cases. You just want to build better cases. You want to be able to be prepared for what you know that they’re going to say. Prepare your clients better, right? Prepare yourself better for depositions and craft better questions.

That building better cases is going to get your cases more value. All right. So we’ve talked about having that one case. And [00:22:00] running through six or seven focus groups, we’ve talked about having that one focus group. And what do you want to do to get the most bang for the buck? We’ve talked about types of cases and building a series, right?

Building a series of three focus groups. Whether it be for, okay, is my car at cases? They’re going to go through this. Three focus group phase, maybe it’s for trial. Maybe you’re looking at developing a trial skill, jury selection, and those questions. Maybe you’re looking at, all right, we just got to get this case ready.

We’re just going to do a bunch of openings, make sure we’re hitting it all cylinders or doing a combination of all those things. And ultimately knowing, okay, this is what I want to do. I want to have this blueprint for these focus groups. When do I need to set that up? You know, what is the structure for that?

Is it six months apart? Is it just going to be at a triggering date when discovery ends? Or is it just, hey, this is where this case is and I just want to learn what I can [00:23:00] learn right now. And you can totally do all those things. But this episode is much more about planning that blueprint. Looking out at the landscape of what you got and deciding, okay, once we finish Discovery, we’ll want to do that.

Or, okay, once we, once we don’t make it through Medi we don’t settle the case in Mediation, Let’s move into that three focus groups for trial, or maybe it’s, Hey, I want to try this out. Let’s test it out. Let’s pick one case and do one focus group. How do we do that for the most bang for our buck? Awesome.

Well, I hope that this helped in looking at creating a focus group for trial. I do want you to know that we are definitely going to tackle how to plan for a focus group if we’re looking at, okay, Elizabeth, I’ve got my one case. How do I plan this thing? How do I presentation wise, question wise, we are totally going to do that in this podcast.

But again, we’re just starting [00:24:00] 2022. So I want to take this at like our big 30, 000 foot view. And when we come back next episode, we are going to look at planning for you for witness prep. What does the lawyer do to prepare? Right? So before we jump into working with our client, how do we get in the best mindset, best place to be able to help them do our research to make that prep go easier tune in next week for that on that episode.

But in the meantime, I would love it And I appreciate it so much if you would share this podcast with a friend, rate it, review it on your favorite podcast app, and tune in next week where we’re going to talk about planning for witness preparation. Thanks so much.

Ready to hit that refresh button for 2022? In this episode, we talk about improving yourself as a trial lawyer by doing this year-end review to refresh and get better for 2022. Planning can be super exciting because it serves as a fresh start. You get to have a whole new fresh calendar and fill it up with fun things, make plans, and set intentions. 

 

As you’re preparing for the new year, use this time to look at the trial schedule and case projections. Look at where cases will be in 2022 – how many will be ready for mediation and how many are ready for filing. Calculate the estimated expenses and schedule out those expenses. 

 

Even if you took just a few minutes to look at what happened in 2021, this would still put you in a better position to get ready for 2022 to hit that refresh button. Go through your calendar, your memory bank, and your photographs to get more details as you’re setting new intentions for 2022. One fun thing about 2022 is that, in Chinese astrology, it’s the Year of the Tiger  – and so, you either go big or go home.

 

In this episode, you will hear:

• The benefits of year-end review and planning
• A guide to doing your own year-end review
• Strategies for setting intentions and goals for 2022
• How to develop the not-so-easy habits

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Supporting Resources:

Larrick Law Firm

If you want to download a free habit tracker you can go here: https://jensincero.com/downloads/

Jen Sincero has a book on creating habits called Badass Habits – I highly recommend it! 

https://www.amazon.com/Badass-Habits-Cultivate-Awareness-Boundaries/dp/B085VD2JKD

If you want to learn more about Lexlee Overton check out her website: www.MindOverLaw.co

 

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 business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: [00:00:00] As we are about to jump into 2022, I want to take a quick departure from our usual content to talk about a great internal review you can do before starting a brand new year. So let’s look at it and get started.

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

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas.

Hello, hello and welcome. This is Elizabeth Larrick and you’re listening [00:01:00] to an episode of Trial Lawyer Prep. This podcast is designed and created to help trial lawyers. And today we are going to depart from our usual content of connecting with juries and clients. To talk about improving you as a trial lawyer in our businesses and as people.

So why the departure? Well, this episode is going to drop right before 2022 and I love year end planning. I mean, I really enjoy it. So I just thought, let’s do a little episode really quickly to pass along some of the things that I do as a year end review to refresh and get better for 2022. So here in planning for me, super exciting because it’s like a fresh start.

We get to have a whole new fresh calendar and fill it up with fun things, make plans, set intentions, looking at the trial schedule, what it’s going to be for trial, looking at case projections, where will cases be in 2022? How many will be ready for mediation? How [00:02:00] many will be ready to be filed?

Calculating, okay, well how much are those estimated expenses? And Looking at, all right, well, when will these things settle? All those things are really, really helpful for year end review and beginning planning so that you can look at those things and schedule out those expenses. But before we jump to making those amazing plans for 2022, we need to stop and do a year end review.

Now, this is not my idea. I was taught this idea by a mastermind that I was in with Lexlee Overton. Shout out to her. And it’s great. It’s fantastic. And so what we do is just look at, Hey, what happened in the past 12 months? So I take out my calendar, look through my phone and scroll through pictures, look through social media just to see, hey, what happened in the past 12 months?

And was it good? Was it positive? Was it bad? Was it negative? How did I handle it? Um, and I’m going to talk a little bit about what could be improved. What do we need to do? Just a big high five and a big party [00:03:00] about, because things turned out really, really well. One of those things that was a negative, but really not under anyone’s control was the snowmageddon that we had here in central Texas in February.

Truly a astronomical event. Never experienced anything like that here in central Texas. And definitely for me personally going a week without water or power and just thinking about for this coming week. Winter season, how can I prepare better for that for business wise? How do we operate if we don’t have any power and how do we put things in place to get ready if that happens, but also personally, how do you plan better?

Have water, have power, do those small things just to make sure you have a little bit of comfort while you’re surviving those things. Fantastic way to look at your struggles from this past year. And that’s something you need to work on. Or is it something you keep repeating? Sometimes we have struggles, or we have difficult moments, and they don’t repeat.

They’re [00:04:00] just one offs. Maybe you can look at, with the comfort of time, no, that’s an event that happened, it was really kind of stinky, but this is how I handled it, is that going to come up again for me? Or is that something that, okay, that’s just a one off, we can just move on? Or does it keep repeating and maybe I need to look at that and figure out how to improve handling that situation or working through it or whatever the issue may be.

For example, for me, bookkeeping, this is definitely going to be an intention for me for 2022, which is finding someone to help me with this piece of my business. It’s been something that’s been on my mind. It’s been on my plate. I’ve handled it, set time aside for it. And kind of did it along the way, but I really want to find someone who I can trust to do that for me and sit down and they can teach me more about what’s happening because I feel like if I have more information, I can make better decisions about case planning and case expenses.

Also, part of the year end review would be where was their success? [00:05:00] How can we get that to repeat? Maybe you had a lot of cases come in the door and maybe you’ve got a really great referral source that you need to high five and send them a gift. Or maybe you need to look at, was there a trial success and a verdict?

And how can you repeat that in your next trial setting? For me personally, it was doing trial work this past year with a couple of folks up in Tennessee and having a fun time, it being challenging and using all of my brain. How can I repeat that? Another area to look at for your review, which would be the general categories, finance, thinking about business wise, how can you do better?

What did you spend your money on? Really, not questions that we always look at as trial lawyers, but even if you don’t have your own business and you’re still associated or working up to your partner, it’s still really important to have that conscious thought about how much money is being spent on cases and how to do a [00:06:00] better job or how to save a little bit of money here and there.

It’s really important just to have that consciousness, to know what’s going on in the budget, to keep tracking. And there’s always ways that we can do things better without spending more money. Okay. Or, what I like to think of too is, okay, how can we rearrange things and spend money on stuff that would really help us improve?

And like I said, for example, mine is bookkeeping. I’m going to find someone to help me. I’ve got to make sure that I’ve got all that availability in my budget. Another area is just looking overall at the business. How did your business do? Did it grow? And maybe if you didn’t grow, but did you improve on something?

How your office executed something? Maybe it was customer service was Much better. Maybe you guys were able to draw more detail to the client journey and how they’re gonna travel through a case maybe you worked on getting reviews. All those things that you can look at to see how do we do and how we can set goals for next year.

The other categories that I like to look at are just personal. [00:07:00] Were there any personal changes? And then health. How was health overall? I know that being through a pandemic, health has come so much into the forefront of our conversations about how we view things because it is so fragile. And even though we are here, it’s December 2021, there’s still so much unknown and uncertainty, and we have to take it careful.

And if, if we don’t, People still have to quarantine and take time away and do testing. So that has really become something that I’m super grateful for. And also much more aware of, especially as we move into 2022. And again, if you don’t have practices or policies about what to do. For working remotely, highly suggest that you do that.

There are tons of resources online if you’re not really sure or hit up your local trial lawyers association, because I know there are people who have created processes and policies for how to help lawyers get through that time. Meaning if you have an employee that’s sick, or if you get sick and you have to work remotely for a period of time.[00:08:00]

All right. So after you’ve done your fantastic year in review, and again, you could spend 10 minutes doing this, just going through your calendar. You could spend an hour doing this, going through your calendar and your memory bank and your photographs. The more detail that you get into it, the better you may be for setting your new intentions for 2022, but that’s totally up to you.

I just encourage, even if you took just a few minutes to look at what happened in 2021, you’re still going to be in a. better position to get ready for 2022 to hit that refresh button. So let’s turn then for setting some intentions, setting maybe some goals and working backwards. If you’re here in December of 2021, how can we um, plan now backwards to get to where we want to be for 2022 December.

For me, one of my biggest intentions is going to be this podcast. Making sure that I give y’all the best content that I can to focus [00:09:00] on bringing in fantastic people for interviews and figuring out how to improve how to get the podcast out to more people, how to grow an email list, just really making sure that I’m doing the right thing.

The best job I can with this podcast, one fun thing about 2022, it is the year of the tiger in Chinese astrology. And so the year of the tiger is really go big or go home. And I love that. I always love having a little bit of a theme. And I think that’s so helpful because if you felt like maybe 2021, wasn’t really getting started and we had setbacks health wise and Delta variant that maybe 2022 is the time now is when it’s going to happen.

Well, Chinese astrology is here to support you. Might as well go big or go home. So whatever you decide to do, I always find that tracking helps us hit our intentions to hit our goals. You can use a weekly journal. Even if it’s a paper journal, there’s tons of apps that really help [00:10:00] you set reminders. I would also say that making your goal link to a habit that you already do.

For example, one of the things that I wanted to start doing a few years ago was, uh, I It’s a gratitude journal. So one of the things I was doing in the mornings was meditating. So now you know what, I’ll just meditate and then boom, gratitude journal right after that just already set the side, the time and good to go.

And it obviously has helped and worked because I’ve been doing it for several years now and don’t really have to think about it. It’s already second nature. Now, what about some other habits that are not so easy, like for me, bookkeeping. I have to set that on the calendar. I have to really make sure that I block time, uh, set time, set day, and I will sit down at Outlook and program the whole year.

Make sure that no matter what happens, that time is blocked out on my week and I’m definitely going to take care of that task. Because again, that’s not something that’s supernatural for me. I have to do it, otherwise I will ignore it. So I do encourage using Outlook or Calendar [00:11:00] Reminders, I should say, whatever calendar app that you use.

And one of the things too, with setting up extra time for depo prep, deposition prep could be when you’re preparing your client or when you are preparing to take a deposition. Every time I set a deposition, I make sure that when I put that on the calendar, I also set aside however much time I think I may need to get ready for that, even if it’s setting a time prep for the client, but also my prep time in there.

It’s an automatic. When I set my calendar up, I do that. When my assistant sets it up, it’s also the same thing. If you set this calendar, then you got to set another calendar date for preparation for that time. And that’s really going to help just get everybody in the process of spending a little more time to do our jobs a little bit better.

How can we improve on that time? Another great thing as far as looking at 2022 and business wise, talked a little earlier about looking at that trial schedule, looking at case projections, how many cases are going to be filed, how many are going to roll into needing a [00:12:00] mediation, and Going to the calendar and setting a deadline to do a focus group for opening, setting a deadline to focus group for jury selection to practice, or for those mediations, setting a deadline to do a focus group for the mediation presentation.

All those things that can be kind of set on the calendar to remind you to do it. Because once we get started with 2022, all the best laid plans, things can kind of shuffle out of order. And as long as it’s marked on the calendar for me, that means nothing else will go in that spot. So I’m a huge proponent of blocking time to make sure that I have time to do things.

Hopefully you have. Set some great intentions for 2022. I know that that’s what I’ll be doing during this week as we March into January 1st. I hope that you enjoyed it. Thank you again for listening. If you found this helpful, please share with a friend. Be sure to subscribe. Subscribe on your podcast app.

And when we be back in 2022, we’ll be jumping into some content to help you start off with the best [00:13:00] foot. We’ll be looking at what you should do as a trial lawyer to prepare for deposition preparation. And then also setting up a focus group plan, meaning, all right, if you’ve got a pretty large case, how do we set up two, three, maybe four focus groups and setting goals, but also what type should you do?

What are we leading up to? Maybe it’s trial, maybe it’s mediation, but tackling those two topics right off the bat in January, and then moving into some awesome interviews as well. So take care and happy new year.

In this episode, I’m sharing an interview with my good friend Jim Lyons in which we talk about his recent post-COVID trial and the things that he did to connect his client to the jury. We talked about several different ways to do that.

For the past 20 years, Jim’s practice has been in the litigation arena, concentrating on personal injury cases. He also does business litigation and just about any other type of litigation of significant size. 

As lawyers, one of the biggest things we forget is that, while our clients hire us, we really should be thanking them for opening up. Therefore, it’s essential to gain their trust so they also gain confidence in us. 

 

When people hire a lawyer, they’re most likely going through a life-changing event, especially in a significant injury or death case. These types of events are extremely tough on them. You have to trust them to be able to tell their stories and tell them well. 

 

Jim highlights the importance of understanding how people express love in a relationship, especially in wrongful death cases where we’re talking to juries. You have to trust that your clients are going to get there and be themselves. Even if the way they get to be themselves isn’t perfect, as long as people are being authentic, jurors will respect them. 

 

In this episode, you will hear:

• An overview of Jim’s case
• How to facilitate a relationship with your clients
• Changes and challenges in the courtroom after the pandemic
• How Jim prepared his client (a deceased husband’s wife) for trial
• How to do witness prep
• What Jim brought out of his client’s testimony and used for his closing
• The results of the case and what Jim could have done differently

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Episode Transcript:

Hello, my fellow podcast listeners. I’m excited to share this interview with my very good friend, Jim Lyons, where we talk about his recent trial post COVID and the things that he did to connect his client to the jury. We talk about several different ways to do that. So let’s jump right in.

All right. Well, I am very excited to introduce everyone to my dear friend and fabulous attorney, Mr. Jim Lyons. Jim practices up in Arkansas and it’s been doing that for a little while. I’d say I made a little bit 40 years or more. So Jim, if you wouldn’t mind, just tell us a little bit about yourself and what you practice.

Sure. I practice primarily in the litigation arena, concentrating on personal injury cases, but I also do business litigation, just about any type of [00:01:00] litigation of significant size I do. I have been doing that primarily for the past 15, 20 years. I used to do more transactional work in business, but I’ve gotten away from that.

I’ve got a partner that handles most of that now. Primarily personal injury, but I still do a good bit of business litigation because we handle a lot of business litigation So awesome, and you know you and I met probably Been about five or six years ago through doing some continuing legal education classes together with At the time it was called the reptile now.

It’s the keen and edge I think did we was it a I want to say it was a seminar maybe we met at for the first time. I think that that’s correct, but I wouldn’t swear to that. Might have been, might have been a course, but I think it was probably a seminar. Sure. A lot of things we’ve done together along the road, so I’m really excited to have you join us here today because you have.

Absolutely. You have gotten [00:02:00] to actually go back into the courtroom after COVID. And I know a lot of us are super curious about your experience and you know, maybe things that you did a little differently or maybe the courtroom was positioned differently. So I’d like to us to talk a little about that, but I also want us to know, get everybody, you know, what we’re going to talk about also today is really the.

direct exam that you did of your client and the things that you used to have her and her story connect with the jury. But before we jump into that, let’s talk a little bit about, give us a quick synopsis of the case that went to jury so we can follow along with the story. Okay. Well, I’ve had two cases, but the PI case that I had, it was a case involving a trucking company where a trucking company ran Through a railroad crossing.

And it was in a railroad yard, [00:03:00] so they were shoving cars backwards. And my client was riding on the back of the train, and caused, the truck caused the car to derail, and it fell on top of him. And literally landed on his head. Alright, and you have, I mean, this is a case, I remember when we kind of talked about it before, you’ve had this case for a while.

Yeah. Yeah, yeah. We started, it occurred in 2017. We started the litigation late 17, early 18. Uh, got postponed for over a year because of COVID. And just recently in Arkansas, they’ve started jury trials. My first one was in May, and then this one was in October. Okay. And, uh, you know, as far as, kind of, You know, introducing who your client was, tell us a little bit about who your client was in this particular case.

My client was a [00:04:00] personal representative of the estate. Her name is Marla Melton. She and her husband had been married for over 40 years and, uh, salt of the earth people. Just a wonderful, wonderful family. And that made the case that much more enjoyable. Awesome. And I know, uh, along the way you guys became fairly, uh, uh, tight knit, good relationship.

What are some of the things that you did to help facilitate that relationship with your client? Well, the main thing that you have to do in order to do that is do two things. One, you have to spend a lot of time with your client and I don’t mean like a few hours. I mean, hours and hours and hours, and you have to spend it on their turf, not coming into your office and just sitting.

I’ve been to their home, I’ve been to their kids home, I’ve [00:05:00] met them at places to go out to eat. They’re from near Little Rock, and I’m in Jonesboro, which is about an hour and a half away. And so, there’s no telling how many times I drove down there and met with them. But a lot of times, and spend a lot of time with them.

And that’s essential to gaining their trust and them gaining confidence in you. And that’s what you gotta have, to try a case and try it well. Gotcha. And when this case came in the door, did you kind of already know when you’re meeting with them, when you’re learning about this, this is going to be a case that’s, that’s going to trial?

Or did you think that there was a possibility of settlement? No, I really thought that there was a possibility of settlement. But they did have a decent defense to the case because my client was partially at fault. And so that’s what they were banking on. They thought they could prove that he was equally or [00:06:00] more at fault.

And therefore, it was a case that Originally, I didn’t think was going to trial, but the more I learned about their defense, the more I understood why that they thought it should go to trial and why we had to go to trial. So there was, uh, no offer case until just a week or two before trial. And then during trial, trial did not go as well for them as they wanted.

And so they made one significant move, but it wasn’t nearly enough. And so my clients, main point was to prove that he was not the one who was primarily at fault. And so that’s what we accomplished. Gotcha. Okay. And just to kind of unravel the story just a little bit so that our fellow podcasters listening understand you had in this case, the, the truck driver, the truck driver company, and also the employer, the railroad [00:07:00] company of the deceased husband, right?

Right. They were all defendants. There were actually two trucking companies involved. Then the Little Rock Port Authority and the driver were the four defendants in the case. Okay. So you’re juggling kind of a lot of preparation on top of kind of weaving the story and liability all at the same time. Yes.

Yes. And the Little Rock Port Authority was not a primary defendant because that’s a FILA claim for those of you who are familiar with that and your damages are severely limited in under FILA and so from the outset we knew that and our intent was to put as much fault as possible on the trucking company and the driver as possible and to minimize the fault of the uh, Little Rock Port Authority.

Okay. And at the same time, you said the [00:08:00] defendants had a really good kind of hold on liability or kind of a defense, which would be blaming the deceased husband, right? Yes. My client was riding on the back of the train, which he, where he was supposed to be riding, but he also, he was the foreman of the railroad crew.

And under the Federal Railroad Administration rules and regulations, as well as under the rules of the Little Rock Port Authority, the crossing was supposed to be covered, as they call it. And there was no traffic for a while, and so the crossing was not covered, because they didn’t see any traffic until the last few seconds, but there’s no excuse for that under the Federal Railroad Administration regulations.

Okay, so you got four defendants in the case. They’re all blaming your deceased husband and you got your, your client is the, the widow. [00:09:00] Let’s talk a little bit about before we jump into kind of her and, and helping her get ready and what actually happened at trial. Tell me a little bit about, you know, going into this courtroom, like you said, it’s your second trial after the pandemic, you know, Were there any modifications to the courtroom, to, you know, masks, and I know a lot of people are super curious about your experience in going back in the courtroom after the pandemic.

Can you talk a little about that? Sure. In both of the cases that I’ve tried, it was done fairly similarly. In the first one I tried, we actually chose, uh, voir dire in a gymnasium. And so that was an experience. That was the first time I’d done that. And then, in this case, we, they didn’t have a place nearby.

And so we had to do them in groups. And we did groups of 18 in the courtroom. Everybody had to be masked. But, when you were speaking, [00:10:00] You did not have to be masked. And so we would have jurors stand up, take off their masks, and then answer questions. And same thing for me. When I was questioning, I could take off my mask.

When defense attorneys were questioning, they could take off their masks. And so the witnesses on the stand also, if they’re on the stand and answering questions, they could take them out. Okay. After Gwadir, when we got into the trial, the witnesses were allowed to take off their masks. And that was true in both of the cases that I’ve tried.

Did you have any kind of concerns about You know, missing any body language from the jurors after they were seated in the box? Oh, absolutely. Because all you can see is essentially from here up, because they were required to wear their masks throughout the trial. And so it’s much tougher to read them when you can’t see their entire face.

So that was one of the things that’s a challenge. in Arkansas right [00:11:00] now in regard to COVID. So, it’s something that, that you have to work at. Uh, but it’s hard, it’s something that becomes much harder because I’m used to been trying cases for 40 plus years and have read body language for a long time, have studied it, feel like I’m decent at it, I’m not great by any means, but it makes it much tougher to do that when you can’t see the person’s entire face.

And were they spread out six feet or were they still sitting in the box together? No, they were spread out. They actually had them, and we had, in this case, we had half of the jurors directly in front of you were, as, The podium was already set up and it was not one that you could move because it was a good size.

And but then I had half of the jurors sitting to my right and so I would have to turn to them [00:12:00] to talk to them for a while. Then I would have to turn back to the jurors who are in the box. And then we also had alternates who were sitting to My left and what would be the right side of the box if you’re sitting in the box.

So we had jurors on both sides of the box and you had to try and be sure you were addressing everybody. And so that’s a challenge. It’s fairly easy to make eye contact with people if they’re all right in front of you. It’s hard to do that when you’ve got to turn this way. And then you’ve got to turn this way and then you’ve got to turn this way.

So did you practice that at all? As far as knowing where they were going to be seated, did you, you know, if you’re practicing opening or questioning, did you kind of do that body movement to get used to it? No, because unfortunately, uh, we did not know we were going to trial in this case until the Friday before.

The judge was not as good as he should have been in my estimation [00:13:00] in regard to telling us whether we were going or not. And uh, We could not even get into the courtroom to know what the setup was going to be. And we didn’t know literally until we walked down that morning to see what the setup was in my other case, everybody was seated in front of me.

They just added a row in front of the box. And so I. I could face everybody straight on, which was much more normal. I was just farther away. But in this case, we had them spread essentially on three areas of the courtroom. And so it was tough for, in this case, to do it and to communicate with them and much tougher to talk to people over here and here and here, as opposed to just those in front of you.

Absolutely. And, you know, we talked about finding out late at, you know, it’s really kind of a common problem that we have with most people that are, [00:14:00] you know, judges aren’t letting people know until, you know, two or three days ahead. But I know from having talked to you about this case before you guys had done a lot of preparation, you know, as far as focus groups and having, you know, the pieces opening those kinds of things done in leading up to October.

So you guys had actually really tried to be prepared In the event of trial, right? Yeah, and unfortunately another thing that this judge did was to postpone the pretrial hearings until the very end. And so we were focus grouping it one way, and then we found out the judge was going to keep out.

Significant amount of evidence because he would not let us pursue a direct negligence claim against the trucking companies and we had 45 minutes of video clips and of those 45 minutes of video clips from one of the owners of one of the [00:15:00] trucking companies, I was only able to use 20 minutes and 22 seconds because he Prevented me from using the rest of that, which that, that was the thing that substantially reduced the value in the case because the personal responsibility of my client.

Became a non factor when you got in all the evidence against the trucking company because the trucking company was so bad but when you kept out the trucking company information trucking company evidence and trucking company admissions from the One of the owners of the trucking company then it became a much much closer case Because now you’re just comparing the driver To the guy who’s on the back of the train, and they both essentially had close to equal duties, although trains do have the right of way.

So that substantially changed the case, how we had to try [00:16:00] it, and the value of the case. Gotcha. Yeah, and I remember we, uh, when we did that focus group together, we definitely had in mind that those things would be able to come into the jury, and that made quite a bit of difference in our, in our adversarial focus group.

Right. Right. Gotcha. Gotcha. And that’s actually one of the things, you know, as far as in Texas, that’s one of the newest things that we have going for us as there’s a big change in the law, you know, no, we can’t have direct actions against a trucking company. So, you know, that’s something that we’re going to be facing here, you know, in the next few months, how to pursue those and waiting for one of those to go to trial, uh, to see what happens.

So, well, let’s talk a little bit about your client, Marla. Let’s talk a little bit about getting her ready, but really I’m curious about what were things that you saw in her story that connected her to, to jurors? Well, she, I mean, the people who are old enough to remember Ozzie and Harriet. [00:17:00] If you don’t, it was a story of raising kids, but it was a perfect marriage.

And You know, even though my parents were very much like that, I was very lucky. There’s wasn’t perfect, but it was near perfect. But I mean, this, if there was ever a perfect marriage, perfect marriage between Marla and Donald Melt, they’d been married, they were high school sweethearts, got married when she was 17 and he was 18, married for 40 plus years.

He’d worked two jobs in his entire life. He worked at, uh, General Electric until that plant closed and then worked, uh, went to work for the Little Rock Port Authority and worked for them for the rest of his life until he was killed. And so what were some things you wanted to bring out on direct exam for her to talk about?

Well, we brought out the [00:18:00] length of their marriage. They did literally everything together as a family, including their two adult children, uh, and grandkids. Donald was a huge hunter. Uh, his son went, grandkids went, The whole family went plus friends. That was something that was the highlight of his life separate from Marla.

That was really about the only thing that he ever did separate from her besides go to work. Uh, so, and the rest of the time they spent. everything together. Growing up in the Bible Belt, they were religious, and so they did everything at the church, essentially, that you could possibly do. And so, as a result of that, they literally I mean, she was absolutely, positively one of the best clients I’ve ever had as far as the [00:19:00] defense not being able to even touch her.

In fact, they did not even cross examine her at trial. They didn’t even cross examine any of the kids at trial. Because There was absolutely nothing that could be said about Marla Melton that was bad. Nothing that could be said about either of the children that were bad. So, that part made it extremely easy for me.

Okay, and that was actually one of my questions. Were you ever worried about cross exam questions when it came to Marla? I was never worried about that. Uh, we’d spend a good deal of time with him. Uh, knew she was fully prepared. I also knew the defense attorney for the Leroy Port Authority. And I were more or less on the same side, even though technically we weren’t, because I had told him from the very beginning, I’m not after your client, because Anything I get from y’all is going to be so substantially reduced [00:20:00] that I don’t want any fault on you And he saw enough that he believed me and he knew that I was going to be truthful about that and I wasn’t pulling the wool over his eyes and so He said after we met with them.

He said he and the other defense attorney talked and they were like, oh We can’t Touch these people and we’re not going to touch these people. So I knew that the likelihood of anything, unless there was some surprise at trial, uh, that they weren’t going to be able to do anything with them. So it made, it made it easy.

Usually you don’t have it that easy with, uh, Sure. Sure. What were some of the things I know, you know, wrongful death cases can present unique challenges when it comes to damages and having people talk about the damages because you’re kind of riding that line between, you know, sympathy and empathy. What were some of the things that you [00:21:00] had her either talk about or give examples or stories about when it came to, you know, the grief she experienced in the loss.

Yeah, the main thing we did to her so she didn’t come across as boo hoo, woe is me, because that generally doesn’t sit too well with jurors, uh, was to simply tell her, Story and their, I had them tell their story through a lot of pictures, and they took pictures at everything Donald attended every birth of every child and every grandchild and their family, and so it was very easy to do that.

Because they had taken pictures for years and years and years. I mean, back when all you had was a Polaroid camera. Uh, and so that made it very easy for us to tell their story. And [00:22:00] then we were able to tell his story through his work records, his commendations at work. He had joined the military just because he felt like he needed to.

And he joined when he was 34, and which was light. He was in the National Guard. He was not actually in active duty, although he was selected to be in active duty and was actually getting ready to go, uh, overseas to the Middle East. And a day or two before that happened, he ended up, they ended up canceling those orders and stuff.

But it was interesting because he competed against, uh, 18, 19, 20 year olds and everything and virtually every medal that you could possibly get he got it. Gotcha. So you guys really used photographs to [00:23:00] tell stories and then you know was there anything in that you used from after he was gone to help kind of contrast that?

Well, we used before and after witnesses. Uh, we used people who were witnesses who knew them beforehand and then knew them afterwards. They objected to a couple of them. The judge overruled them and allowed those witnesses to testify. But we didn’t call 20. We had about five or six of our best ones. And Uh, that worked well as far as I was concerned because they, they were not able to do much cross examination of, of, uh, before and after witnesses.

And they had some excellent before and after witnesses for us that, that Marla was able to get. So, that part made it easy too. Okay. And was there any particular stories that stick out to you that the before and afters could tell that maybe your family [00:24:00] clients couldn’t talk about? Yeah. I mean, it was the loss that we didn’t want Marla talking about and how it’s affected her.

And how she’s become depressed, and how she used to be always happy, always talkative to these people. And now she just kind of makes her way through. Now, certainly, she’s still trying to get on with her life, and we wanted to portray that as best as possible. But, with the, through the before and after witnesses, you could tell that there was a significant loss to her.

And when you lose a partner, and I mean truly a partner for 40 years, it’s a significant loss. Absolutely. And did you, um, we talked a little bit about demonstratives as far as using pictures. Were there any other demonstratives that you used with, you know, either Marla or the other family members? [00:25:00] Yeah, the two main things that were used with Marla besides pictures and Donald’s medals were.

We had his lunchbox and we had a chain. He was, uh, past retirement age, actually. But he had agreed to stay on at the railroad through the end of the month of June, and he was down to eight days, and somebody in their group had made a chain with a circle for every day, and they were connected. And when he would get home every day, he would cut.

One circle off. And so he was literally counting down the days until he was fully retired because I had plans for travel. We threw their financial planner, who also was in their church, were able to tell about their, their plans for travel. And we let him tell about [00:26:00] that. The other thing that we used that I thought was powerful, certainly hit home with Marla and hit home with several of the jurors was his lunchbox.

And when I say lunchbox, I mean, the true lunchbox that most of the kids had growing up. He took a lunchbox to school. It’s the true lunchbox. It was black lunchbox, had a thermostat, thermos in it. And she had packed that for him every single day that he went to work throughout their entire marriage, which was 40 plus years.

She knew that we had that. She didn’t know for sure we were going to use it. Don’t prepare them for that sort of thing because you want the true emotion coming out. And that was actually what a lot of times when I talk to lawyers and, you know, in, in, we’re teaching witness prep, we get excited. Sometimes as lawyers, we have this really cool, you know, [00:27:00] demonstrative.

And we want to just, you know, slap it out there to really have a shock factor and any of this emotional, you know, impact to the client while they’re on the stand. But I appreciate you kind of pointing out that the client knew that you had it, that she knew that it was a possibility, but that you guys kind of reserved whether or not to actually put it out there, but she had the knowledge that it was going to, that it could come.

Yeah, that was correct. And of course when she pulled it out, or when we pulled it out, then what happened was of course she immediately laughed and then just started crying. And there were several of the jurors who were crying too. And that, you know, that’s kind of the, it’s one of the things we always want to do is make sure it’s authentic.

And so did you really feel like you guys had gotten true authentic reaction to her instead of, you know, trying to pull heartstrings and being sympathetic? Oh, absolutely. I mean, she did an excellent job of [00:28:00] testifying strong testimony because there were parts of it that were lighthearted. where she would be laughing about things that she remembered, but then there were parts of it where she would be crying.

And so you try to balance that because you don’t want her sitting up there, live, just crying all of the time. Uh, I think that the juror thinks, Oh, well, they’re doing this for purposes of sympathy, and these are crocodile tears. With her, You could tell they were real. Is that something, you know, like you said, you’ve really studied body language and people, and I know we’ve talked a lot about, you know, psychology of all, you know, people and clients and that kind of thing.

Did you know pretty early on like, The Marla that you were talking to was, you know, the true Marla, you know, there wasn’t any putting on any airs and she was, she was just kind of a really authentic person. Yeah, I mean, it didn’t [00:29:00] take long to figure that out, you know, because first time I met him, I spent a long time with him and then try to spend a good length of time with him every time I’m with him.

You know, go out to eat, do things on their home turf where they’re comfortable, and then you get to know a person. If they’re coming in, sitting in your office, and that’s all they ever do, you don’t get to know them that way. And so you, you have to spend some time. You’ve done that for me in the Med Mal case, and spent two days with one of my clients.

And that’s actually learned on I knew that but I saw it through you and so it’s something that you do extremely well. Well, I appreciate you saying that that’s one of my one of my favorite times spending time with her was such a wonderful. Like eye opening experience. Um, so I appreciate you let me [00:30:00] spend some time with her and of course, you know one of the biggest things I think we forget is You know, they hire us But we should really thank them for opening up because it you know People are going through a life changing event when they have to hire a lawyer, you know Sure, and and especially when it’s a significant injury or death case So when you have that occur, that’s extremely tough on them And you have to gain their trust.

And then you have to trust them to be able to tell the story and to tell it well. Right. Absolutely. And that’s one of the things that I always try to convey to other lawyers is, you know, do you trust them? Do you trust they’re going to get there and be themselves? And just because maybe the way that they get to be themselves isn’t what you, it’s not perfect, you know, but as long as people are being authentic, juror will totally, you know, jurors will respect that a hundred percent.

Sure. Absolutely. Yeah. [00:31:00] So was there anything else that you, you know, we talked about the lunchbox, you know, were there any other things that you felt or stories that while Marla was on the stand, you could kind of see the jury connecting with her? Yeah. The, the, the one thing that, that I think I connected with was his entry into the military.

You know, because he felt a calling to do that and so he felt it was his obligation and so I think that that helped connect one of the things I’ve also done here is, you know, what did you choose and what did you kind of bring back to the jury from Marla’s testimony and using closing? Well, primarily it was about their relationship and.

You could tell that through a lot of the pictures, and you could also tell that I used the lunchbox. We kept the lunchbox after, uh, [00:32:00] we used it, it stayed on council table, so it was there for the jury to see every time they came in, and then I carried it with me to the podium and kept it on the floor, and then put it up on the podium.

When I got to that point in my closing where I wanted them to see it and to recall, because it did bring back so many memories to her because it epitomized 40 plus years. Right. You know, one of the things that I always talk about with, especially in, you know, wrongful death cases is when we’re talking to the juries, it’s really helpful for people to understand how.

You know, in a relationship, how people express love and so many times it comes down to service and making someone’s lunch every day for 40 years, you know, wow, 40 years and oh man, that’s love, you know, that’s service because there’s got to be days you don’t want to do that. Oh, absolutely. There’d be days where [00:33:00] I wouldn’t do it.

And I’d say, honey, you’re going to make your own lunch today. Sorry. Exactly, exactly. Well, awesome. Well, I really want you to tell everybody what ultimately what the results were with with the case. The results were that we had, there were four questions that jurors had to ask or answer. The first question was whether, and the trucking companies were not on there from the standpoint of the trucking company’s fault for failure to monitor, failure to train, failure to supervise, failure to qualify, et cetera, which we had a ton of information on, which.

Totally inflamed the jurors and made archives work for them. If that evidence had come in without that, then we’re left with simply showing, uh, what the trucker [00:34:00] did wrong, and we couldn’t explain that so much of this. He became the bad guy rather than the trucking company. And if you make the trucking company the bad guy, as well as the trucker, but it’s not the trucker’s fault, then they’re going to be a hell of a lot madder at the trucking company than they’re going to be at an elderly gentleman who’s driving a truck and still trying to make a living at his age.

And so that. reduced to from the focus groups and I went back and checked just to see in all the focus groups we did, and I probably did between 15 and 20 focus groups for this case, in all the focus groups we did, we averaged about 1. 7 percent fault on my client. Um, in this case, they answered 12 0. That it was the fault of the [00:35:00] truck driver.

Uh, then I answered 11 to 1 that Donald Milton had some fault in it. They then Answered out of order the damage question, and then they sent a question out to us in writing, as they’re allowed to do under Arkansas law, where the bailiff brings out a question that jury asks, and I said, they wanted to know what the effect of Posting fault or putting fault on Donald Melton would be on their verdict.

Arkansas is one of those states, unfortunately, where you don’t get to tell them. I know in Florida, you get to tell them because it’s in the jury instructions and tell them exactly what happened. Uh, they had already determined the amount of damages that they wanted to award, which was 4 million. But then, because they didn’t get the answer to that question, [00:36:00] unfortunately, they put 40 percent of fault on Donald.

And so in Arkansas, that reduces it by 40%. And so we ended up with a verdict of 2. 4 million. And the defense attorneys knew that they had skated. In fact, one of the defense attorneys said, Well, I guess we’ll get to try this case again. Because he knew the judge was wrong, because there’s strong Arkansas law showing that it’s wrong, because he did allow punitive damages to go to the jury.

But he didn’t let me put any of that evidence in on punitives. And so, had that come in on punitives even, then we would have, got a large punitive award, I anticipate. But because he kept all those things out, it really hurt our case from a damages standpoint. And at one point in time, the defense attorney had actually opened the door to The training issue and so the first question that I got up after her [00:37:00] direct was I asked about training and the judge says counsel approach.

He had us approach the bench and he said I thought we weren’t getting into this and I said judge I agree. We weren’t supposed to but she’s the one who opened the door and She said I did not and he said ma’am you did I heard you and she turned to her Cohort and he said well, I don’t I didn’t hear her say that and he said young man I’m not talking to you.

You shut up. And so this was judge that did not put up with anything but he said I’m not gonna spend four or five more days now trying this on punitive damages and get all this evidence in. And so he said, we’re gonna finish this case and, but I’m going to tell you. Talking to the defense attorney, if you [00:38:00] mention another word that opens the door at all, it’s all coming in and we’ll stay here as long as it takes and she had enough sense to be extremely careful to not even go close to that.

And so that was something that really, really, really hurt us in this case, because I mean, there was just no fault placed on Donald Melton. I mean, I say none, I mean, less than 2 percent fault placed on Donald Melton, unless you just compared the truck driver with Donald Melton. But when you compare the trucking company and the truck driver to Donald Melton, then Donald Melton’s failure to cover the crossing paled in comparison because we had tons of admissions from the trucking company, one of the owners of the trucking company, and that just completely covered over Donald Melton’s.

personal responsibility or negligence in the [00:39:00] case essentially compared to all. Yeah, absolutely. Well, you kind of in wrapping up and I appreciate your your time and I just want to ask, you know, as far as looking at a post pandemic trial and wrongful death, a pretty big employer a little rockport authority And trekking company.

Was there anything different that you did in approaching? The trial knowing it was a post pandemic journey Yeah, I did. I mean one of the questions that I asked in wadir Was to ask about how COVID had affected them because I knew that many of them would say, I haven’t been able to see somebody in their family or somebody that they’re close to, but either because they’re susceptible to.

They have some sort of [00:40:00] complications that are going to cause them. They’ve had been treated for cancer. They have something that if they got COVID, it could really, it could very likely kill them. And so there were several jurors who said something to that effect. And I think that that’s a good thing. An excellent question to ask or something like that.

It doesn’t have to be worded just like that but has covid affected your family because There’s still a lot of people who are affected by it and my family’s affected by it because my sister Has had cancer and said treatment for it. And so she’s just super super super cautious, even though she’s vaccinated To assure that she’s not around people who might give it to her Gotcha.

Um, awesome. Well, is there anything you want to add as far as getting Marla prepared or her direct exam, you know, as far as helping other lawyers kind of preparing their clients for trial? Well, and [00:41:00] you haven’t asked me to say this, but, but, um, what are you going to say? I’m going to say that if you want to learn how to focus group something, use you.

You, one, I’ve seen you prepare witnesses, you do an excellent job at that. I’ve seen you conduct an adversarial focus group all day, you did an excellent job at that. I’d say, I’d be texting you, hey, what about this? And you say, well, we can’t ask that. And there’s always a tendency, even if you’re trained, and I am trained, not to do that.

But sometimes you just can’t help yourself. And that’s why it’s good to have somebody that’s removed at least one or two of your focus groups for a case to make sure you’re not putting your finger on the scale at all. Absolutely. And that’s [00:42:00] sometimes one of the hardest things when you, you know, it’s easy where you’ve got a real big vested interest in making sure that we win.

And sometimes it’s hard to take off our advocate hat and, and put on our researcher hat and ask research questions. So, right, right. Absolutely. I actually, that leads me to a kind of a different question. Did you focus group Marla or any of the family members or before and after witnesses at I really did not, you know, Certainly, if you’ve got, and I would strongly suggest it and recommend it, if you’ve got a client that you’ve got any questions about.

You’ve got questions that you’re going to ask them that you don’t, not really sure whether that answer connects, but I mean, this was one of those cases where you had, the family was so near perfect that. I knew that they were never going to ask [00:43:00] them a question. And the before and after witnesses, they did ask maybe one or two questions and did object and try and prevent us from using some of them, but the judge allowed those in.

And so they really didn’t lay a glove on anybody on that. So, uh, knowing that going in, because I was kind of befriended. And I was befriending to one of the defense attorneys. I learned a little bit about their side, and I knew that they weren’t going there. And, or if they were, they were going to make things a whole lot worse for themselves.

And they at least had enough sense. I don’t give defense lawyers a lot of credit, but they, they had enough sense to know. We’re making a big mistake if we’re trying to attack anybody who’s on the stand talking about this family. Gotcha. Absolutely. Well, awesome. Well, Jim, I really appreciate your time and [00:44:00] jumping on, uh, this podcast to talk about your trial and getting ready, you know, post COVID and then also talking a lot about getting Marla ready and how you helped her tell the story with demonstratives and connecting the jury to her.

Well, thanks. I appreciate you having me and I always enjoy it. Absolutely. Awesome. Thanks so much.

Thank you so much for joining us on this episode of Trial Lawyer Prep. We had a great interview with my dear friend, Jim Lyons. We talked about different ways that he used tangible demonstratives to connect his client to the jury. And also made, you know, having testimony be just a little bit more fun and interactive.

Talked about using the lunchbox, photographs, and even medals from the husband’s prior time in the army. I hope everybody enjoyed this episode. If you did, [00:45:00] please subscribe. Or hit a like on whichever podcast app that you’re choosing to listen to on Apple, Google, Stitcher, Spotify, whichever one is your favorite.

Also, if you like the episode, please leave us a great review or just share it with somebody who you feel like might enjoy it. Thanks a bunch.

Do you feel stuck in a case? Would you like a quick way to get moving? In this episode, I’m giving you two quick, efficient focus groups setups that will get you moving on your case today. 

One of the biggest questions that I get when talking to other lawyers about focus groups is what focus groups they should do right now. Now, there are lots of different ways to answer that question. 

But first, what is the problem that you’re trying to solve right now? And if it feels like you’ve got too many problems you’re trying to solve, that’s okay. Today, let’s jump into two great focus groups setups that you can use right now that can have a major impact on your case.

These are focus groups that are going to give you new ideas and a new perspective. You’re probably going to get some answers that you like and that you don’t like. But all in all, it’s going to give you some feedback. 

Then you can move the case forward, whether that’s in the form of getting some ideas and new avenues for discovery or some ideas for deposition questions, or maybe there’s a mediation coming up. 

Overall, these things are going to help you sleep better at night because you’re working on it and you’re preparing this case. You’re going to get many pieces of information that are really going to impact what you’re doing right now with the case.

In this episode, you will hear:

• What is a snapshot focus group setup
• How to put together a snapshot presentation and the best time to do it
• What is an opening statement focus group setup
• Gathering information from an opening statement setup
• The benefits of these two setup groups

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Supporting Resources:

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Episode Transcript:

Do you ever feel stuck in a case? Would you like a quick way to get moving? Well, great to hear because this is an episode to give you two quick, efficient focus group setups that will get you moving on your case today. So let’s get started. Hello and welcome. This is Elizabeth Larrick and you’re listening to an episode of Trial Lawyer Prep.

This podcast is designed and created for trial lawyers working with difficult cases, problematic clients, and taking those difficult and problematic cases seriously. to trial. The goal is to help you connect with juries and clients in order to improve your abilities in the courtroom.

Today’s episode, we’re going to move straight into two impactful focus groups you can use right now.

Now, as one of the biggest [00:01:00] questions that I get when talking to other lawyers about focus groups, it is what focus group should I do right now? And there’s lots of different ways to answer that question, but I like to look at, you know, one by one, what is the problem that you’re trying to solve right now?

And if it feels like you’ve got too many problems to try to solve, that’s okay. Um, And instead of trying to maybe prioritize it, I always like to jump into two great focus group setups that you can use right now that you will get major impact from. What do I mean by major impact? Well, I mean, these are focus groups that are going to give you new ideas.

It’s going to give you a new perspective. You’re probably going to get some answers that you’ll like. They’re going to get some answers that you don’t like, but all in all, it’s going to give you some feedback so you can move the case forward. Either, maybe you’re going to get [00:02:00] some ideas for new avenues for discovery, or some ideas for questions for a deposition you have coming up, maybe there’s a mediation coming up.

All in all, these are things that are going to help you sleep better at night. Because you’re working on it, you’re preparing it, meaning you’re preparing this case, but you’re going to get some good piece of information, many pieces of information that are really going to impact what you’re doing right now with the case.

So, let’s jump in and talk about these two impactful focus groups to do now. The first one is one I like to call a snapshot, which is really a very, very simple setup. And when I say snapshot, I just mean like a snapshot glimpse of the facts of the case because you know, as lawyers, we can get super wrapped up in all the details.

You know, we, we get a case in the door and we’ve got. Two [00:03:00] sentences, maybe. There’s a rear end collision and it happened, you know, November 6th. And, you know, somebody ran a red light. Okay. There we go from there. So then we investigate, we find all these extra details, we get what all the witnesses say, we talk to the police officer, we get, you know, maybe we have cameras, we can get pictures, and there’s so much detail that we get, which is so important, but in all of that, we can get kind of lost, and so Snapshot is really designed at just looking at Just the facts.

And really kind of even paring those facts down because you want to use your snapshot to find the holes. And, you know, maybe you know there are some glaring holes or some glaring problems in the case, and maybe there are some hidden ones that you haven’t seen. But this particular focus group setup will help you find those very quickly.

And, Generally, you’re going to find some solutions on how to fix it. So let’s talk about the presentation, [00:04:00] what you’re going to present to this focus group. It’s going to be very, very fact based. These are kind of like you’re thinking about putting together like a paragraph about the facts. You’re thinking if you give one side, give the other side.

And you really kind of want to give enough facts to eliminate some very basic questions that somebody might have, they asked you about the case. And again, you want to pare this down. And so you don’t want to give them every single detail, right? Just kind of give very, very clear shot about what’s going on in the case.

A good example for us to talk about is using a car wreck case. So say you have a car wreck case, you’ve got a rear end collision. And how do you put together this presentation? Well, you want to be thinking about, you know, pictures of the car. You want to be able to think about giving a picture of the intersection, talking about the day it happened, the time, the weather.

Did [00:05:00] the police show up? What is each driver saying happened? Are there any witnesses? Did the witnesses give any statements? And you’re really kind of confining all the information that you have to that day, unless something Another major fact happens after the crash that you would want to look at. And again, this kind of snapshot and, you know, the facts that we’re talking about here at CARAC, we’re really kind of looking at responsibility.

When we’re thinking about finding holes and in the responsibility, the liability part of the case. And so once you do this kind of, you know, snapshot presentation, and we’re talking about maybe 15 minutes max. And because, again, you really want to keep them engaged by showing them pictures of the cars, pictures of the location, you know, what each person is saying.

And just to get them up to speed, you know, please, if there are any tickets, typically I leave out tickets when it comes to this particular setup. And really the questions that you’re asking in debrief are [00:06:00] super simple. It’s just, once you give them all the information, you know, you just ask them what happened.

Very broad, open ended question. What do you think’s going on? And just listen. You know, one of the things that we can do really quickly in focus groups is if we hear one problem, We really hone in on that one problem, and we, we stick with that one person, and we ask them, you know, a bunch of questions about that one problem, and then we forget to turn to the rest of the group and gather up any other problems that they may see.

So what I like to do is just kind of give that real broad open ended question, and then as a moderator, make sure I’m checking in with each person to gather up. All the things that they’re seeing and then coming back, right, to ask somebody to go deeper on, on what it is that they said. And that’s pretty much what you do.

You maybe you hear a question about, somebody is saying, well, you know, rear end automatically, somebody gets [00:07:00] rear-ended. Then it’s, you know, the other person’s fault. Let’s dig a little deeper into that and maybe somebody has a different perspective on it, right? So I wanna take those people one at a time.

After I gathered everybody’s general impression and follow back up and dig a little deeper on that. And then after you finish digging deep, you can come back again to the group and just ask, you know, what would you advise these two people? You know, look like we got a situation here, right? There’s some property damage going on.

What would you advise for them to do? And you’re going to get, you know, some solutions or, you know, the other great question is to what other information If any, what do you want to get? What else would you want to understand about this situation if you had to make a decision? And again, these are super simple setup, super simple questions.

And in, as long as you remember in this particular setup, we are truly just gathering. We are gathering, gathering, gathering. We’re not advocating one way or the [00:08:00] other, but just truly spending a lot of time gathering information about what they see, what else. They would need to know or want to know if they had to make a decision.

And sometimes that’s so important with our questions. And, you know, later on in this podcast, we’re definitely going to spend some episodes on moderating and crafting questions and making sure that we’re using the best question we can, because questions are so important to get good answers. And that’s, you know, one of the questions that we’ve been talking about here is what other information, if any.

Don’t make an assumption that they need more information, they may not, you know, so I always like to make sure that I’m giving that out, if any, that option if they don’t need any more information. So we’ve talked a little bit about, okay, use this snapshot, we’ve learned about some real basic problems, maybe that they’re seeing and some ideas on how to fix it or what other information they would want to get.

Again, that’s a huge impact for a case and you can use a snapshot [00:09:00] picture, I mean a snapshot, you know, kind of focus group set up. really any time in the case. I love for people to do it before they file a lawsuit. You know, I love when people put it together and do it after they finish discovery. Those are great times because no matter what happens, you always want to make sure you’re tracking about any issues that you’re not seeing, right?

So issue spotting. So let’s talk about the second impactful focus group that you can do now. And that would be an opening statement. And you may be thinking, Elizabeth, whoa, whoa, like I’m not going to trial for another two years or another year, six months, and even then it’s going to be reset. Totally hear ya, but check it out.

If you sit down and write the opening statement, you are doing so much preparation work and kind of big picture work on your case, and it really is going to help you know, one, where are you at in this case? [00:10:00] What are you missing? If you’re going to put together the case in such a way, do you have all the evidence that you need?

And how does it need to come together? In order for you to get the verdict. So I love opening statement because it really forces you as a lawyer to pony up, spend some time, put it all together. And that’s fantastic. That’s really going to get you down the road. That’s a huge impact there. But once you give it to the focus group, that particular setup, super easy again, you’re just going to give the opening statement and again, ask a really broad question, you know, What’s going on here?

What’s happening? You know, you can ask them to do a vote if you want, who’s responsible. And typically opening statements at this particular time, meaning if you’re just putting it together before you have a trial setting near, is you could always just focus the opening on just the liability portion or put both liability and damages in there too.

You know, [00:11:00] I encourage you to do both because again, you want to get the most impact, then do the best preparation that you can. So put those opening statements together on both sides. But really you’re going to be Testing your theory. And again, these big, broad questions are going to give you great feedback.

You’re going to be able to ask, what was confusing? Is there a better way to say this? Is there a visual aid that would help? What is the one thing you remember from this entire opening statement? Like, that’s a huge question, you know, because that’s really going to What is it that you said that really made them listen?

That’s really what you want to know. And then of course you can ask questions about, Hey, is it believable? Is it, do you have everything that you would need to make a decision? And again, these are just kind of big, broad questions and you’re going to kind of do the same kind of moderation here, which is just scooping up all this information, just scoop it up.

Just because again, they’re just hearing one [00:12:00] side of it. So you really want to know what is the. The initial impact that they see. So you’re scooping all that stuff up. You don’t need to ask necessarily questions about the other side. Although I would encourage you, it would be great to ask them a question.

It’s like, what do you think the other side is going to get up and say, that’s a good way to get their perspective on the opposite side of the case, uh, and really test what their theory is. But either way, you know, you are going to get some great feedback on opening statement setups. And the really fantastic thing about both of these focus groups is they can be done in an hour.

That is super efficient. We’re talking about setting up a three hour or a four hour focus group and you can do a lot of heavy lifting in one hour. That’s fantastic. That’s super efficient. And both of these are going to give you information maybe you didn’t [00:13:00] know, hidden problems you didn’t see. Always you’re going to get a new perspective, which is what you want when you’re talking to folks in the community, getting a new perspective.

And then also some ideas on how to fix it, meaning what other information would help them. Make a better decision. Maybe it’s questions you need to be go finding answers to in discovery. Maybe it’s questions that you need to be asking about in depositions. And maybe it’s just information that’s out there.

You just need to go gather it that you can get on your own. And this would be two fantastic things you could do right now in your case. So we’re talking about really time efficient focus groups. You can do these virtually. You can do them in person. Super simple setup. with the information that you have right now.

You don’t necessarily need more information. You can do both of these right now and be able to move that case forward. So I hope that, uh, you found this podcast episode helpful. And if you try it out, please let me know. I’d love to get some feedback. If you have [00:14:00] any questions, also let me know. Again, thanks so much for listening here today.

As you know, we’ve got a bright new shiny podcast. So if you could subscribe to this podcast on your favorite app, whether it be Apple, Google, Stitcher, whichever you prefer, if you enjoyed this episode, please give us a five star rating or leave us a great review. And of course, share this episode with somebody, you know, that could use this help for focus groups to use today.

Thanks again.