Category: Podcast

If you haven’t ever tried running an adversarial focus group, or any focus group for that matter, then you better start considering doing it to get the most out of deposition or trial.

We’ve pretty much covered a lot of topics on focus groups in our previous episodes. Today, we specifically delve into Adversarial Focus Groups. They are similar to mock trials. The difference is that an adversarial focus group requires continual constant voting. That way, you have the ability to watch the needle move in between different pieces of evidence and in different witnesses.  

An adversarial focus group is probably the most in-depth thing that you could possibly do to get feedback. You’re giving the participants the best of everything – from the plaintiff and defense, to everything you need to fine tune your case.

Joining us today is Courtney Wilson who runs a practice on the Gulf Coast in Mississippi, doing plaintiff’s personal injury lawsuits exclusively. In the last couple of years, their practice has narrowed down to doing mostly medical malpractice and products liability. Courtney works extremely hard with motions and briefing. She first came across focus groups back in 2016, and seeing the benefits of running them, she has been doing it since. 

In this episode, you will hear:

• Adversarial focus groups vs. mock trials
• What you get out of an adversarial focus group
• How to mesh all the information together
• An example of running a focus group and taking the case through trial

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Supporting Resources:

Courtney Wilson

Courtney@tyneslawfirm.com 

Tynes Law Firm

Pascagoula, Mississippi

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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: Hello and welcome to a new episode of Trial Lawyer Prep with me, Elizabeth Larrick, your host.

This is a podcast dedicated to trial lawyers who are wanting to get better at their craft tips. How to strategies for improving your cases and your client relationships [00:01:00] today. And for this episode, I am very excited to have my very good friend, Courtney Wilson, join us as a guest. Courtney practices out of Mississippi.

So Courtney, for those folks in our audience that don’t know you, tell us a little about yourself. 

Courtney Wilson: Yeah. So I practice on the Gulf Coast in Mississippi, and we do plaintiffs, personal injury lawsuits exclusively. Our practice has narrowed in the last couple of years. We do mostly Med Mal and products liability now.

So that’s very low stress, as you might imagine. 

Elizabeth Larrick: Of course, of course, no worries with caps or export ports or anything like that over in Mississippi. I’m sure you guys got a clean slate over there, right? 

Courtney Wilson: No, actually, we have caps on just about everything. And we have this wonderful products liability act that is a monstrosity to grapple with.

So no common law claims for products. 

Elizabeth Larrick: Gotcha. Well, no worries. Just so that everyone is risk assured. Courtney has a very [00:02:00] big brain in her head. She is one of the smartest people that I know and works extremely hard with motions and briefings. So if you have questions, like I launched them at Courtney and she always helps me with them.

So we are super happy to have you on the podcast because we are going to talk about adversarial focus groups, a new topic for the podcast, but first let’s just do a little groundwork. Tell me, when did you, in your kind of lawyer career, start doing focus groups? 

Courtney Wilson: So actually I had never heard of focus groups until about 2016 when I came to work for the Tynes Law Firm.

And that’s when I was introduced to focus groups. And my boss at the time did focus groups and he was like, you’re going to work here, you’re going to do focus groups. And so I was like, okay, I want a job. So I started doing focus groups almost immediately. And we did them in the conference room in the back here.

And I remember the first time we did one, I was really shocked at how [00:03:00] awkward it feels at one time and totally comfortable in like the other instance, you bring all these random people into your conference room and you give them some food and give them some drinks. And then they spill stuff on the carpet and you ask them, what do you think about this case?

And I remember from like the very first time we did one, I was like, this is genius. We get to tell people actually about a case and then they tell us what they think about it. Like, what could be more valuable information for getting ready to try a case? I suppose I was hooked from the beginning, so that’s when I started using them.

Elizabeth Larrick: Oh, yeah. No, that’s great. As far as, do you guys use them for every case or only do you use significant ones or ones you think are going to go to trial? So ideally, 

Courtney Wilson: right, you would do a narrative on every case that comes in and I would tell you, I think that’s sort of aspirational for us. I can’t tell you that we really [00:04:00] do that, but.

Certainly we’re focus grouping anything that we think is headed towards trial. And we try to start that process fairly early on so that we can do narratives and we can test witnesses, particularly like our clients and things like that. And then working on experts and trying to roll through this process of what evidence is really working for us.

And what evidence do people not care about that the lawyer might be hung up on? And what is it that the focus group keeps telling us is the important thing, right? Or specifically not the important thing. So it really helps you shape what target are you moving at with some actual data from focus group members, like what’s important and what’s not important and where do you need to be focusing your efforts?

Elizabeth Larrick: Yeah, absolutely. And I [00:05:00] think for our folks out there, Courtney’s talking about a narrative focus group. Sometimes I’ve called it a snapshot and some people also call it a concept focus group, but it’s just basically where you get folks in a room and you just give them really a very neutral statement.

We’re not, you’re not giving sides of a story. It’s a very neutral presentation of facts in a very simple opening questions. What do you see? What’s going on? Yeah. Absolutely. Absolutely. What’s happening. And that’s important talks about. We would love to do one for every case. And I think that is mostly aspirational for folks, but I know some folks just talked about who liked to do them when it looks like it’s a case that we’re going to have to sink some substantial amount of money into MedMal is a good example of that, like expert reports from the front end or products liability.

So I know some folks who I really want to make sure, hey, before I take this leap of faith, this risk, I’m going to go ahead and jump into one of these narratives just to make sure, Hey, am I looking at the right thing? Is this really going to be a [00:06:00] positive, fruitful case for us? So awesome. Let me ask you really quickly too, because everybody who we’re talking to getting back into the practice of law post pandemic, did you guys do any virtual focus groups?

Courtney Wilson: Oh yeah. Yeah. Awesome. We did a lot of virtual focus groups and I would tell you we’re having a hard time going back to in person now because the process is so easy virtually. So yeah, it’s really very streamlined virtually. Because you don’t have to bring people to the office. You don’t have to feed the people.

You don’t have to print out all the forms to sign. There’s just so much you don’t have to do when you do it virtually because everybody just logs in on Zoom. And we’ve even developed some Google Forms, like, that you can use online. So when you do your virtual focus group, you send a link through the chat.

To the people who are participating and you say, go fill out this form for me. And all that information just [00:07:00] populates in your Google form. So it’s a lot easier in many respects to do them virtually. 

Elizabeth Larrick: Absolutely. Well, let me tell you the con is most people are a little hold down and say, well, no, Courtney, I hear you tell me it’s easy, but am I going to get the same feedback?

Courtney Wilson: Oh yeah. So I think one of the really interesting things about virtual focus groups is that people feel so safe in their homes and. The screen in and of itself creates a like measure of protection for the person who’s talking because you’re not really there with other people. I think rather than inhibiting the feedback that you get from the focus group that somehow or another the anonymity of the internet allows them to be more free with what they’re thinking and their responses.

Elizabeth Larrick: Absolutely. Totally agree. And I think the style that we do, meaning Courtney and I do, is very much about moderator remains very [00:08:00] neutral and is gathering information. We’re not pitting people against one another. We’re not saying, Hey, everybody in the room must agree with One person’s point of view, because yeah, then you’ve got pressure and you’ve got people trying to convince each other.

But most of the focus groups that we run are really about, let me get your individual feedback and your thoughts. And I think that’s absolutely true. There’s something about sitting at home and they may be in their PJs and just telling Courtney, oh, I hate that case. I don’t like whatever it may be, which brings us to the complete opposite style of focus group, which is adversarial focus group.

So it’s been a couple of months, but Courtney and I got on the phone and she was telling me about, they had run adversarial focus group and how much fun it was, but how much work it was. And I said, Hey, let’s come on the podcast and let’s talk about adversarial focus groups because they are a lot of work.

But they’re definitely totally worth the extra time and effort putting into them. So Courtney, I’m going to give you the floor. Tell us nobody’s ever done [00:09:00] adversarial focus group. Like what on earth are we talking about? 

Courtney Wilson: So an adversarial focus group, I think you can think of it. As an abbreviated mock trial, but where you stop in between the presentation of the opening and the presentation of the witnesses and take score.

So you’re asking your participants to fill out a little form. After each presentation so that you get to keep track of how people are feeling about a certain witness or how do they feel after opening or how is all this information coming together? What’s actually moving needle one way or the other? So I think the trick to the adversarial is brevity.

While you may want to, I don’t know why you really would want to, but you might want to spend an hour with a witness on the stand. You certainly wouldn’t do that in an adversarial [00:10:00] focus group because what you’re trying to do is get the information to your focus group participants so that they can understand it and make a decision.

But they don’t need all the details. What they need are the high points. to deal with. You’re trying to keep your witnesses to around 10 minutes. And you’re trying to keep all of your presentations, including your openings and your closings and everything to about 10 minutes so that the adversarial really kind of moves along at a good clip and really doesn’t give your participants time to get bored.

Elizabeth Larrick: Absolutely. And so the ones that I have done, it was fun because I got to serve as the judge, we’d set the hotel room almost like a little bit like a courtroom, but the focus group folks were sitting like they were in a jury box. And we had plaintiff’s table, defense table. And we tried to do the whole formality of everything, because that’s one of the big differences I feel like between just a regular focus group [00:11:00] versus adversarial or mock trial.

We really want to impress upon them. Like the work they’re doing is really essential and it’s very formal and there’s a judge in here. And so we really tried to make sure it was looked like as formal as possible. But at the same time, like Courtney said, you really have to boogie because it takes A lot of time to get all 12 people or all 10 people to fill out all these forms and pick them up and then move to the next witness and move to the next witness or play that video or do whatever.

So it really is important that they get a flavor, but they’re not getting the whole slice, right? They’re just getting a little taste of everything. So. Is there anything we’re missing? Courtney talked about, Hey, we’re doing openings. We’re doing witnesses. We’re doing closings. I don’t know. And Courtney, you tell me, did you guys conduct any kind of jury selection or you just kind of rolled right into the openings?

Courtney Wilson: I don’t remember doing any more dire or [00:12:00] anything like that. But I say that I feel certain that there was a little bit of a presentation done before the focus group, at least to give them an idea of what they were going to be listening to and break the ice a little bit. I didn’t actually do that part.

So for the most recent adversarial focus group that we did, I was plaintiff’s counsel, which meant I did opening and closing and all the witnesses, but Anything else someone else did? You asked if we were missing anything. I think something important to point out about the adversarial focus group is that it requires you to recruit other attorneys to help you.

So somebody’s got to play defense counsel. Somebody’s got to play plaintiff’s counsel. Somebody has to play the judge. And then you need other people to play your witnesses, right? So whoever is going to be plaintiff’s expert, you got to have an attorney. Or maybe you know a [00:13:00] bunch of actors or something, they could come do this, but you got to have somebody who can fulfill the role.

Somebody’s got to pretend to testify as your expert, and somebody’s got to be the defense expert. And if you have recorded depositions of clients or witnesses, Maybe you could use those, but I think that’s a little challenging because probably all the tight information you want is not structured that way in a deficit.

So you got to have a few friends who are willing to help you out to put this thing on. 

Elizabeth Larrick: Absolutely. And that’s definitely when we talked about time and effort, it is recruiting everybody is half the battle, but then as a person, like you then have to go through all the depositions and gleam through all, get that testimony in order for your witnesses.

So they get up there, they can study the material and everything kind of flows very evenly. But yeah, because you can’t really snip it together. The depositions like [00:14:00] there’s going to be transitions that are going to know that they’re missing something and you really don’t want your folks group people thinking, well, that we could have missing something really major here and you’re not giving it to us.

We don’t want to have any mystery. We just want to give them what they need so they can answer those vote questions and move on. What is it? And you said it’s kind of like a mock trial. And I think one of the biggest differences is Is the continual constant voting. And you’re really wanting to have a whole other room of folks that are basically charting out the votes so that you can see as you go along, where are people swaying, what has significantly changed, like after defense opening, like, Oh gosh, we had a bunch of people switch over after each witness, you’re able to kind of see the sway of things.

And then also you can ask them questions, but. What I always caution people when we’re doing things in person and we’re doing adversarial is like, make it a short question. Because you could have somebody write a paragraph and you’re [00:15:00] just waiting for that person to finish writing. And you’re like, we’ve got to move.

So how else would you say it’s a little different than just doing like a straight up mock trial? I think the only thing that as far as what I’ve seen is basically where you would have multiple panels of people. And yeah, I’ve seen mock trials that have basically multiple panels of people that are watching the trial because you don’t stop and vote in a mock one.

You just roll with it. Right. You. You’re rolling through everything they’re absorbing in and then you basically separate everybody out into separate rooms, give them the charge and then have them deliberate and fill a charge out and then you 

Courtney Wilson: would just be comparing between different panels. That’s right.

That’s right. But the information doesn’t change. 

Elizabeth Larrick: No, no. Well, and you don’t really with adversarial style that we’re talking about, you are pause vote, go again, [00:16:00] pause, vote, go again with the mock trial ones that I’ve seen is basically you still have a bunch of scripted people in there watching witnesses and all that kind of stuff.

It’s still abbreviated, but you don’t have the gauging the temperature along the way. And. Sometimes you’re able to get back in the room after they finish deliberating, ask them questions, and sometimes you’re not because you have three panels. So you would need to have basically three moderators be able to go in and ask questions after deliberation, which you may or may not have time.

That’s always the toss up to is how much time does it take to get this all done so you can ask them questions at the end. 

Courtney Wilson: Yeah, it’s definitely a time consuming process, for sure. If you’re going to do one, you need to set aside a day to make sure it gets all done and finished. 

Elizabeth Larrick: Don’t think you’re going to accomplish this thing in half a day.

Have them show up, get ready to feed them lunch. Have a space big enough to let them get out of the room and come back in. And I just think that creates a lot of formality to the [00:17:00] process, which means they’re They’re gonna take it more seriously, which is good for you. Okay, so let’s talk about what do you get?

All right, so you run this adversarial focus group, you get all these data points. So tell me, Courtney, what you guys ran one recently. What kind of things did you learn? I 

Courtney Wilson: think the most valuable thing that you get out of one of these adversarials is the ability to watch the needle move in between different pieces of evidence and different witnesses.

So, you give a plaintiff’s opening. Most people vote plaintiff right after the plaintiff’s opening. And then you get a defense opening and you get to see if that changes anything. Are they getting any traction here? And then, as you start moving through your witnesses, you can watch the needle move. Are, are people compelled by the plaintiff’s expert testimony?

Are they compelled by the plaintiff themselves? If the defendant doctor testifies, are people jumping ship on you, [00:18:00] you know, and you can watch how the evidence affects jurors in real time. So you don’t end up at the end with a result and then no idea how you got there. I think that’s probably the most valuable thing that you get, but I really enjoy getting to test defenses.

Because as Plaintiffs Counsel, we’re so in our heads about these defenses. And we’re convinced that this is a really good defense, right? Oh, that’s, that one’s gonna be a problem, that one’s gonna be a problem. But when you run one of these adversarials, you get to really push that, right? Like, you write the defense opening, and you write the defense witnesses.

So, whatever you think is the big scary thing, you can hammer it. Like, bring out the big guns, like everything you’ve seen defense council do, bring it out. And the great thing about that is only, [00:19:00] you know, what you’re really afraid of. And you get to tailor this adversarial focus group to that to find out if there’s any validity there, right?

Like, is this something you need to be worried about? Do you need to fix it or not? Because as you may find out in your adversarial focus group, Focus group doesn’t care about it. And in the most recent one we ran, there was a big defense that had me terrified. And when we ran the adversarial, you take these forms, you give them to your jurors, and after every piece of evidence, every witness, they fill out an answer sheet basically, and it has them.

Rate on a number scale like which way are they leaning and then it says tell me what pieces of evidence you find compelling right now something like that and No one wrote down the thing. No one wrote down the defense like for the whole [00:20:00] adversarial focus group we Created these dragons in our head And then we get so caught up in slaying this particular dragon, we may be missing the point altogether.

So I think for me personally, that is my favorite thing that comes out of the adversarial focus group. 

Elizabeth Larrick: Yeah. I think having clarity and knowing where to focus your energy and time is really helpful because like you said, you could be focusing on one defense and they pick up something else that you’re like, wow, I didn’t think that was a thing.

Like. But that is really hurting us in the case altogether. How would you say running other focus groups and then running the adversarial, how do you kind of mesh all the information together that you’re getting like all the feedback on a particular file? Again, I’m making the assumption you’ve run another focus group on this one that you did an adversarial for.

So, 

Courtney Wilson: so what I would tell you is that all information is good information. Right? [00:21:00] So when you run a narrative, you’re taking a thousand foot view of a case and you’re saying, look, focus group. Here’s the general outline of the facts. What do you think about that? And they tell you something and you use that to work on your case.

So every time you do a focus group, whether it’s a narrative or you’re doing like Okay. a focus group to get an opinion about medical terminology, right? Do focus group members have any idea what this medical term means or what the particular medicine involved in a case is? Because if they do, right, you don’t want to be talking down to them through your whole case.

But, you know, if they don’t, then, you know, you’ve got some education to do, or if they have a misconception, About the medicine indicates then you really have some work to do, but those are the kinds of things that you can’t know. unless you ask the focus group [00:22:00] about them. So I see the adversarial sort of as like the culminative event, right?

You have done your narratives, you’ve done your medical, like, opinion focus groups, you’ve probably tested some witnesses out, you may have done some individual focus groups on like certain pieces of evidence or certain defenses, you’ve probably focus grouped your opening, like done dueling openings, and you have a sense of where the jury’s going based on that.

But the adversarial is the like, we’re getting ready to go to trial. We’ve got all the expert testimony. We know what everybody’s going to say. We’ve deposed all the witnesses. The die is cast as far as the evidence goes. So now you actually have the opportunity to put it all together. and give it to somebody and say, okay, now what do you think?

So, whereas you’ve been working this whole way, [00:23:00] right? With this focus group, that focus group, they’re kind of piecemeal until you get to the adversarial and you can put the whole puzzle together and say, now, with all this evidence, With all these experts, with my plaintiff testifying, what do you think of all this?

And so as compared to, well, how do you put it all together? I would say that that’s what you do in the adversarial is you put it all together. Mm-Hmm. and. You kind of are able to then look at how all the evidence is playing, how it’s all working together. And I think that’s going to be informed by the focus groups you’ve done before.

Hopefully you’re not seeing widely varying results between your focus groups. I think this adversarial is your opportunity to put it all together and get an answer. [00:24:00] 

Elizabeth Larrick: Yeah, absolutely. It’s the most in depth thing that you could possibly do to get feedback, right? Because you’re, like you said, it’s piecemeal, like you’re doing little bitty things, little pieces here and there, and then you’re really giving them everything, the best of everything, the best of plaintiff, the best of defense, like to see what it’s out.

And you really want to make sure that that is fine tuned. Based on other focus group stuff. So you really feel like you can really depend on what you are getting from the adversarial focus group, because that’s so important, having confidence in what they’re saying to you. Like you don’t want to go, Oh man, I really don’t know if I can trust what they’re saying, the results here.

And that’s why. I suggest doing one right before trial, kind of like Courtney said, like, you’ve got everything. Nothing is going to get squirrelly. You know, a hundred percent what evidence is coming in and maybe you don’t. I know sometimes people would say, well, Hey, I, we don’t know if this piece of evidence is going to come in or not.

I said, well, then let’s not [00:25:00] play without it because you want to play kind of worst case scenario when it comes sometimes to evidence, just to make sure, Hey, can I patch that hole if we don’t have that piece of evidence? Or maybe it’s coming in. If it’s really bad, how do you patch that hole? Right? As best you can.

So awesome. Well, Courtney, I know that you have an example for us, not a recent maybe example, but can you tell us a little bit about having run adversarial focus group and then taking that case through trial? 

Courtney Wilson: Oh, yes. So, I would say probably five years ago or so, we did an adversarial focus group and this is all pre COVID, right?

So, we did it live, in a big conference room, jurors all over the place, feeding them. We did the whole thing. And that MenMal case. We did not get the result we were hoping to get at the end of the adversarial focus group. That is to say they dumped us in the [00:26:00] adversarial. And then we did a very bad thing.

We decided to disregard the result of that adversarial focus group through various excuses. Then this witness didn’t do a good job. They didn’t read their transcript beforehand. They didn’t say the right things. And you know how we do this, right? We come up with all these excuses. We came up with all these excuses for why we lost the adversarial focus group and then decided, well, we can’t.

really rely on that information because of all these excuses. And I would tell anyone listening that you do a thing like that at your own peril because we took that case to trial a couple of months later and we got a defense verdict because the adversarial focus group had already told us there were problems, right?

And we ignored that, which is a very [00:27:00] poor decision. I would encourage you not to do that. 

Elizabeth Larrick: Well, we’re 100 percent that sometimes what happens and whether it be a trial or deposition or whatever, we got, sometimes you got to listen to the writing on the wall, whether you want to hear it or not is sometimes half the battle, but you guys weren’t discouraged.

You, you keep doing focus groups, you keep doing adversarial focus groups, so it didn’t turn you off from keeping using the tool. 

Courtney Wilson: No, no. Like I said, that was several years ago. And I think one of the things about doing focus groups is that you have to learn to trust them. It’s real easy to say, well, we did this focus group and we got a bad result, but that’s because of this thing rather than accepting what bad things a focus group might have to say about your case and then dealing with that like at face value, right?

Well, the focus group says this thing’s not working and that might be your shiny piece of evidence that you just love that you’re sure wins the case. [00:28:00] But if the focus group is telling you, no, that’s not it, that ain’t it, honey. You have to listen. And I think that’s a process for focus grouping to like, you have to learn to trust them.

Even when your lawyer brain is saying, no, that’s good. I know it’s good. 

Elizabeth Larrick: Absolutely. I think that’s part of the skill. You got to take it all in and you got to remove the blinders and you got to be a researcher and take it in. And, and that’s half of doing focus groups is. Starting to learn the interpretation and taking it in and how to take that information and turn it meaning like, here’s what we got.

Looks like a big pile of dog turds, but you know what, let’s use this here. And that’s what I always tell people is we’re here to gather information. We’re here to learn. And yes, it is disappointing that we got dumped out, but you should be excited because now you have all these points that we can fix and learn and learn more about and like, We can turn all this [00:29:00] stuff around.

And if you can’t, that’s okay too, because that’s also telling you like, Hey, maybe this is something I ought to just go ahead and settle and save. Good information. Save my time, my effort for another case, which is also extremely valuable. I can tell you a very hard lesson that I’ve learned many times. I used to focus group cases over and over and over again.

And finally it was just like, wow, I should probably just settle the case because the, the, all the things I’m trying to change are not changing the results. So it’s not getting any better. No, no, no, no. So awesome. Well, Courtney, I really appreciate your time so much coming to talk about adversarial focus groups.

Super helpful, I think to everybody. And if you do run another one, we’ll have you come back on, or if you go to trial, right, come back on and we’ll talk about how you learned from the last adversarial and how it turned out in trial. I’d love to. Thank you so much. Awesome. All right. Well, thank you so much for joining us.

Everybody out there listening. Appreciate you tuning in today. If you enjoyed this [00:30:00] podcast, please rate and review it on your favorite platform. If you know somebody who would love to learn from the focus group, please share it with them. And until next time, thank you.

The client deposition has a significant amount of weight when it comes to deciding case value. However, one of the most common problems trials lawyers have is dealing with clients who resist preparing for deposition. 

These are clients who actively avoid giving time for preparation. Whether it’s because of their work schedule, family commitments, or they’re just too busy to dedicate more than 30 minutes with you. They just don’t seem to have any time other than the day of the deposition. 

There are also clients who subconsciously resist. They either show up with the kids for deposition prep, or they tell you they’ve had an emergency so they have to leave early. These are little subconscious things telling you that they’re not going to give you their full attention. But why? 

In this episode, we delve into why clients resist deposition preparation and how to tackle this resistance. This is a big deal because failing to prepare for deposition can potentially hurt or damage the case. Therefore, this is the way to the end. This is the necessary step we have to take right now because if we don’t take that step, the case value significantly plummets. 

In this episode, you will hear:

• Why clients resist and why this is damaging to the case
• Asking for time commitment
• Some examples of disasters that happened due to client’s resistance
• Resolving resistance in a call
• Educating clients why they have to put effort in a case

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Do you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick. Thanks for tuning in. This is a podcast dedicated to tips, how to’s and strategies you can use right now to improve your case or client relationship. Today we are going to [00:01:00] tackle a common problem, a common question that I get, which is what do I do when my client is resisting Preparing for deposition and this is really common happens to me often happens to lawyers that I work with and this is really a common question that I get when I am speaking about deposition preparation or witness preparation.

What we’re specifically talking about is clients who actively avoid giving time for preparation. Examples would be they resist giving you any time because of their work schedule or their family commitments or just all in all, they’re just too busy to dedicate more than 30 minutes with you or because they take up time for the deposition, they really don’t have any time other than the day of the deposition.

I’m also speaking about clients who subconsciously resist, and these are the clients that show up with the kids for deposition prep, or they show up, but then they tell you they’ve had an emergency and they have to leave [00:02:00] early. Just those little subconscious things that pop in where they’re really not going to give your full attention, despite making a promise that they would, and they break that promise.

So why is this a big deal? Like, how would this really make a big deal for depositions, or how could this really damage your case? And I think that it can significantly damage the case because they walk in unprepared for any of the difficult or hard hitting questions. Lots of surprises. And if you’ve ever been surprised by a question, you generally don’t have an answer and you’re going to end up creating one or the default, which is the, I don’t know, which some of these questions they’re probably going to have answers to, but that dreaded, I don’t know, I don’t know, I don’t know, can kind of become a broken record, which can really hurt the case.

At times I have clients who basically, Hey, I’m busy. I got this thing. I’m going to do my own thing. No big deal here. Well, they end up maybe stretching the [00:03:00] truth a little bit or embellishing when they don’t have to. Or, again, like I said, if their own route, I should say, their own decisions about how to prepare may go the wrong way and they end up just shutting down.

Either way, it’s really not going to probably fit with your case strategy about what they need to do in this deposition. It can make it extremely difficult to fix, especially if your client has really important factual information that needs to come out. And ultimately, you could be looking at having a case that is difficult to settle and definitely is settling for less value.

So we really don’t want to damage the case that way. If you Work like I work, which is I’m a plaintiff’s personal injury lawyer, which means I work things on contingent. I take a risk, right? I take on cases and it takes a little while to, to get paid. You really want to make sure that you put in the effort at the [00:04:00] right point in time that will increase value.

And in my mind, the client deposition is one of those value adding places where, wow, They’re going to put more value into the case when my client does an excellent job, explains things, tackles hard hitting questions, no problem. Now I know some lawyers don’t believe that the client deposition has a significant amount of weight when it comes to deciding case value.

So they don’t spend a significant amount of time or really a lot of time at all, maybe 30 minutes with the client, maybe send them their answers to discovery to read. This is probably not the podcast for you because we spend a lot of time on this podcast talking about the I’m going to be talking about client relationships and witness preparation and spending the extra time to educate our clients to build confidence in our clients.

And [00:05:00] have our clients basically step up to the plate at deposition and knock it out of the park over and over and over again, to the point where our defense counsel’s like, wow, okay, well, I guess I’ll have to go back to the carrier and tell him. But also you got it in black and white and that depth in transcript.

So. Back to the conversation at hand. Why would clients resist? What are some of the causes that we have probably seen as to why clients are just going to avoid doing this either actively or subconsciously? And sometimes it’s just they’re uneducated. They have a failure to see the significance that they play because they’ve hired you.

You’re the lawyer. What’s going on? You’re going to do the job that they don’t have to. That’s why they hired you. Why you’re getting paid. And like I said, a lot of that is just um, uneducated, meaning they just don’t know. And I’m not saying that They’re, have a low IQ or they’re not very smart. No, no, no, no, no.

I’m just saying, like I said in a couple of podcasts back [00:06:00] about lawyer jargon, we live and breathe in this world and it’s a pretty weird world to anybody else looking in. So that’s why I say it’s important for them to just be educated about, hey, how does the deposition set up the case and where does it work into getting case resolution and why are they so important?

They don’t know that. It’s not something they regularly do, so it’s very important that we take that moment to just educate them, to give a little bit more information about it so they can see, oh, okay, I get this. A lot of it also comes from fear. A lot of people in this world operate based on fear, and if something is fearful, they just don’t do it.

We just put our head in the sand, and we just move on. And there are lots of things that we do this in our lives with. It could be for certain relationships, or having to do something different, change, this is something I’ve never faced before. So, that’s another huge cause of basically resisting. It’s just like, hey, this is, this is new, and you’re telling me I [00:07:00] never have to do it again, so, like, why do I have to do it now?

And a lot of times Anger also is something that I get out of people when they don’t want to spend some time getting ready for the deposition. Why, why do I have to spend more of my time? They’re the ones who cause this whole thing and anger, just drill down, it’s all kind of a little bit going to come back to fear.

And there are people out there also who are just extremely busy. And that’s okay. There are people who work two jobs or they work a job, they take care of their parents or they get kids take care of single parent homes. Those people do exist as well. And I work very hard when I have people that way, because I see, hey, these are hardworking people.

They’re doing the best they can. How can I work with their schedule? Maybe we can spend some time on a Saturday or spend some time on a Sunday. But one of the things that we’re going to talk about here in a minute is the commitment. We’ve got to get a commitment from our clients to do this. [00:08:00] And it’s also our commitment to them.

We’re spending the time as well. And That’s another part of the education. They don’t understand. Hey, I’m here to make this commitment to you because of how significant your deposition is. I need you to commit to me. And when we do that, I always say, hey, listen, I’m giving up something too here. Like I’m giving up time that I could be doing something else, but because it’s so significant, that’s why we do this.

I’ve had people who switch schedules on me at the very last minute. Whoa, we got, this is the only day we have together and I can’t spend it with you. And okay, just know quid pro quo here, right? Tit for tat. Like I’m going to then ask for more commitment on a different day. That means you’re going to take up time off work and we’ll talk a little about that.

I’ve had somebody, uh, how to handle those people who say, well, I just can’t take off work. So anyhow, let’s go back, take a couple of paces to go to how can we tackle this resistance that we’ve got going on? One of the things I think is a really easy [00:09:00] step to implement is before you flip that switch to go into litigation, before you file that lawsuit, you have a conversation with them pre lawsuit to get a commitment about what their time commitment is going to be when it comes to this lawsuit.

I, I think, Almost always do this when it comes, especially for discovery responses and deposition time. And it’s basically, it’s a promise, right? That, hey, this is what I’m committing to as your lawyer, and this is what I’m going to ask of you as well. And making that commitment, making that promise, that does something in our brains.

There’s neuroscience studies that basically say, hey, this is a psychological mechanism. That’s going to foster cooperation and trust. So get that on the front end. You want future cooperation. You want future, you know, hey, help me facilitate getting this done for you. And I always think that’s a very good time to [00:10:00] walk through with them, to get that commitment from them.

And that’s basically always a backstop. So when I ask something of them, I need you to give me a list of 10 people for before and afters, you know, that, whoa, whoa, whoa, whoa, whoa, you, now you’re invading my personal space and I don’t like this. And it’s like, Hey, we actually talked about this. We made a commitment together.

It’s like, okay, you’re right. So it always creates a really nice backstop. Now, if you don’t do that, hey, this is a great opportunity to start implementing that today. You can still make the request for a commitment or a promise. And then I normally do that before I’m actually going to schedule the deposition.

So anytime, you know, I get that email or that letter or get that call from a lawyer, hey, You know, we need to prepare this witness. What deposition dates work? What do you want? Okay, great. Well, let me just get on the phone with the client right now before we schedule this thing to talk about the [00:11:00] commitment that it’s going to take to figure out where is this thing going.

Resistance is going to come from with this client. Is there any resistance? And basically explaining, hey, what does the time commitment look like? And that’s me making the commitment to you and you making the commitment to me. As far as making this call, I also like to do educating. Right? Talk a little about what I know are common fears.

What are they going to ask me? Well, I say that, but I just, I go ahead and take that objection off the table. We are going to tell you what they’re going to ask you. I don’t need that. That’s so common enough that I just take that off the table right away. That objection. And I spend some time again, educating on the purpose of a deposition.

And again, one of the things that I always hear really, really common from clients is, Hey, I just want to get this thing over with. I don’t want to file a lawsuit. I don’t really want to be in the lawsuit. I’m not one of those people. I just really want this over with. Well, [00:12:00] let me give you. The road to the end, which requires your deposition.

It’s necessary, but it’s a step towards the end. Don’t you want to move things forward, right? They may not know that. And then they’re thinking, oh, well, it’s just the necessary evil. I just show up and tell the truth. I don’t really need you to tell me that in preparation. That’s where the other part comes in.

Hey, let me tell you why this is so significant. What is the importance of your deposition? What is the purpose? So let’s open the door to a little bit about why we spend time together because you are going to get hard heading questions, because they are going to evaluate you. What you say has a lot of weight in the value of the case and without it, we can’t move forward.

We will have a significant loss if we don’t have your deposition and we try to settle this case. And we also want to make sure that we, like, like I kind of talked about before, that fear, what will they ask me? I’m going to put that right out in the beginning. [00:13:00] I don’t need someone to tell me, Hey, I want to know what they’re going to ask me.

That’s total fear of the unknown. I’m just going to front load my conversation with that. I really like to think of this in the sense of, I’m trying to sell them on committing time for me to make that commitment. I’m trying to get that commitment from them. So how do I do that? Well, I need to remove objections off the table.

If fear is what’s standing in the way, I’m going to put that out there right away. We are going to tell you what they will ask you. We will practice what that question, what those questions look like. Well, if it’s, I, I’m too busy to do this, we can’t, we just do it without my deposition. Let me tell you.

This is the way to the end, right? This is the necessary step we have to take right now. And if we don’t take that step, case value significantly plummets. And we may not even be able to get it settled without it. So a lot of little bitty pieces of education go into this, this call. And [00:14:00] that way I’m tackling the resistance I may get.

The active resistance. Well, I don’t have time, Elizabeth. I can’t take off work to commit to this. I have a family, I have to pick up my kid. Or that subconscious part of it, which is just like, well, I may just I’ll just leave early or I’ll just bring the kids with me or all of us have them in the room with me.

When I zoom. No, that again, we’re in this little conversation, trying to tag away all those little things that may be there and asking for that verbal commitment. We’re, that’s where that brain science come in. we want that psychological mechanism of cooperation. I’m making a commitment to you, you’re making a promise, right?

That’s our social contract here, that’s the world we live in, so we want to make sure that we plant that seed. And exploit, talk about it on the front end. You don’t have to ask a question about it. You already know. So here are some of the disasters that i’ve encountered when I thought well It’s no big deal if I don’t get to make this commitment call or give them a little bit of [00:15:00] education or talk about this Okay, so i’ve had somebody zoom basically from a campground turn on the zoom and Sitting out at the campground going camping family’s running around And i’m just like oh Okay, this is really, uh, subconsciously she’s telling me like, I really want to prepare.

I’m going to be really distracted. At that point, it’s on me. I should have asked for the commitment and clarified, Hey, when we do these zoom preparations, you need to be in a quiet space that’s undistracted so that we can really spend some time and dig deep and work on these hard questions and work on organizing your truths.

All right. I’ve also had husband and wife show up together. And I just tell them, Hey, I got to work with you one on one, right? We can’t have you both sitting in on each other because each person’s deposition is significant. Boy, howdy. They’re frustrated with me. Just like, and then I’ve also had the client who joined zoom.

[00:16:00] Using some earbuds because she wanted to complete cutting hair for a client. She just wanted to keep working through our meeting and surely she’d absorb all the things that I’m saying. And they’re frustrated because they’re thinking, well, I made the time commitment. I’m frustrated because I’m thinking I made the time commitment.

And sometimes it’s just that really simple phone call to get that commitment. So you can avoid some of the frustrations. Now, most of the time, the resistance can be resolved in a call. So I kind of call this my level one resistance, right? Where we just have a phone call, have a little bit more education, a little bit more understanding.

Great. And that can normally solve Solve the issue. Occasionally, I got to go to level two, right where the clients doubling down. No, I cannot do this. No, I will not take off work. I’ve already had to take off work this much. I live paycheck to paycheck. Generally those people have given some kind [00:17:00] of feedback of frustration, why is it taking so long, or I have this expectation that I need to get 200 000, or I have to get 1 million or whatever this case, value expectation is.

Most the time, these people have told me this before, and then when my level 2 call like to recall that and repeat it back to them and say, Hey, you wanted X amount of dollars for your case. You’ve told me that multiple times. This is the place you can go and prove that this is the case value. But if you don’t prepare, you’re not going to know how to answer those questions because As much as you like to think you can totally handle all the questions, there’s going to be things that are surprising to you, right?

So, if you have this expectation of a return on this case, or this case value, then that is the type of commitment that you need to put into the case. If you’ve got, if it’s a million dollar case, I [00:18:00] need a million dollar effort. Okay, because I’m here, that would be great if we get a million dollars. So I want to put in a million dollar effort, but you have to do the same.

So occasionally I have to go back through and say, okay, Hey, what have I heard in this case? And how can I recall and repeat their words back to them to say, Hey, this is what you’re asked. That’s just what you’ve been telling me. You want, you want this case over with you. You don’t want to deal with it anymore.

Hey. That’s great. I’m giving you the road to freedom here. Let’s get on it and I’m committing to you and I want you to commit to me. They’re level one, level two. And this particular example that comes to mind for me is sitting down to work with a client who resisted acknowledging she had a brain injury and was very hesitant to commit time to prepare and really Did things against doctor’s orders, but was [00:19:00] adamant that her case was worth two million dollars, just to put that number out there.

Now, we were able to get her to commit, but that was only after I had a long conversation with a lawyer who told me, Hey, these are things I’m hearing. This is what’s going on. I said, okay, well, you need to get this commitment from her, but this is how you do it. She’s been telling you X. She’s been telling you Y.

You take that right back to her and you say, hey, listen, you’ve been telling me these are things that you want. Well, I need you to prove it. We got to have that level of commitment and so she showed up and there were things that she just still was very adamant about and again, there are times where it’s just like, okay, how can we make this?

How can we compromise and make this work? But it’s one of those things where you have to know why you’re committing to preparation and when you’re steadfast in that, they’re going to also see your commitment to it. And that’s really what you want to do is just make sure, Hey. [00:20:00] Why are you committing so much time, lawyer?

Well, that’s because it’s so important, right? Let me tell you a little bit about it. So client resistance is all over the board, especially I feel like now in post pandemic world, people don’t want to make time to come even sit in person. And I mean, I live and work in Austin and I have people who, my clients here in Austin just say, yeah, no, I don’t, I don’t have time to drive over there.

And I think, well, you have time to drive the deposition, you’re going to sit face to face with them, don’t you want to practice the same way? So, again, I’ve got to educate them, right? Why the time investment you’re making now is going to infinitely increase the case value, okay? So, let’s just try to translate that and help them understand that.

Most of the time, you can see this coming. This is not, Something that you’re not, it’s going to come out of the blue for you, and maybe it does, but most of the time you’re going to see it coming. You are going to know what the danger is to the case if you let this slide, right? Avoid my mistakes. Avoid the frustration.

Because when I [00:21:00] cause frustration because of something I know I should have done, and I didn’t do it, because I’m trying to cut a corner. That’s really going to impact my client relationship and I really can’t be frustrated then because it’s something I knew how to fix the problem. So that’s kind of what we’re talking about here, but again, you don’t want to waste your time with that.

So let’s just think about this and are removing fears, educating, using our call to make a commitment. And if worst case scenario, we got to up the ante, right? By going to our level two and using the words and basically helping them again, translate that into how does that become case value for them? So.

Alright, if you have any questions or you have maybe a client who’s being really resistant or you’re trying to work around their schedule, that kind of stuff, you need some ideas, don’t hesitate to email me with the email will be in the show notes. I really appreciate being a listener of this podcast. If you would rate and review on your phone.

favorite platform. And if you could leave us a review, that’d be great as well. That really helps other people find the podcast, [00:22:00] but of course share to people who you think would enjoy it. All right. Thanks.

There are a lot of emotional landmines when it comes to premises liability cases. For instance, summary judgment is an issue in just about every premises liability case. A lot of lawyers have this mental shortcut that if they beat the summary judgment, then the case is going to settle. 

But in premises liability cases, damages are not enough. You’re going to need to navigate through that, especially because insurance companies will always try to look for opportunities where they can take advantage of them. 

Now, we can’t stress enough that the preparation of the clients for deposition is key in these cases. The client has to be prepared to tell his or her story clearly so there’s no ambiguity, no landmines, and no rabbit holes. There are no missing pieces to it. 

In this episode, Michael Neff joins us to talk about premises liability cases, which he has been doing for 15 years out of 30 years that he has been in practice. Michael emphasizes the lawyer’s responsibility to eliminate the legal risks where they can, and that means anticipating where problems may arise. Remember, the trial is not about the trial lawyer, but about what the jury wants to do for these parties.

In this episode, you will hear:

• The importance of client preparation in premises cases
• Factors that can derail premises liability cases
• Minimizing additional harm to your client
• Why damages are not enough in premises cases
• The importance of working with a consultant
• Being efficient in how you present your case

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Supporting Resources:

https://www.premisesliability.org

Email Beth@premisesliability.org  for a 1-year free membership to the National Association of Premises Liability Attorneys. 

Premises Liability: https://www.trialguides.com/products/premises-liability 

Advanced Premises Liability:  https://www.trialguides.com/products/advanced-premises-liability

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: Hello and welcome to a new episode of trial lawyer prep with your host me, Elizabeth Larrick.

This is a podcast dedicated to trial lawyers who are trying to connect better with juries, get their clients ready and prepare cases better. I am super excited for this [00:01:00] episode because we have an awesome guest who’s going to come talk to us. about something really specific and I love when people niche down.

That’s what I love to do. So I’m excited to have Michael Neff join us today. So hello, Michael. Thanks for joining us. 

Michael Neff: Thank you so much for the invitation, Elizabeth. 

Elizabeth Larrick: Fantastic. Well, for some of our listeners who may not know, let’s talk a little bit about where are you based out of? What’s your niche? How’d you get into that?

Michael Neff: That’s a story. So, I am in Atlanta, but I have found myself working on cases throughout the country in the last couple of years. I started Working on premises, liability cases, probably 15 years ago. And when I was in law school, I actually thought I was going to be a real estate lawyer and maybe a real estate developer.

And I’ve always had a big interest in real estate. In fact, I got my real estate license in New Jersey when I was 18. And that was a summer job for a couple of years. Real [00:02:00] estate has always been an interest of mine. And then the intersection between property rights. and property responsibilities appealed a lot to me.

As a tort lawyer, I had to come to realize that although they’re very different, a car wreck and a premises liability case, they are united by the fact that there are both rules of the road. There’s both safety rules. And if they’re followed, keep people safe. And if they’re not followed, needlessly expose people to serious danger.

It has been an evolution because there’s lots of emotional landmines and premises cases. that I didn’t appreciate coming out of law school and didn’t need to appreciate working on and trying to correct cases, but they’re there. 

Elizabeth Larrick: Absolutely. Not to mention the rigorous legal jump hoops. You got to jump through just to survive, to keep those cases [00:03:00] going.

Michael Neff: Absolutely. Yeah. Summary judgment is an issue and just about every premises case. Lawyers that want to work in this arena definitely need to factor the risk and time that is different than in a car wreck case. 

Elizabeth Larrick: Absolutely. We met here recently at Tennessee Trial Lawyers. You had come and were speaking and I was doing the same and we kind of found each other intersecting at this, the importance of having client preparation.

in premises cases and why it is so important. So let’s talk a little bit about that. You know, what you’ve been doing this for 15 years. Why is it so important and what specifically somebody’s not done these before, or maybe they’re not knowing about the landmines. Why is that prep so important for deposition?

Michael Neff: It’s interesting. I’ve been practicing about 30, but it’s in the last 15 that I really started doing more and more premises work. And the thing that I didn’t appreciate [00:04:00] in a premises case is the ways that you, that you as a lawyer can come up with a disappointing result or a loss. And one of the big ways is if your client’s not able to tell the story in a way that the jury understands that there’s no comparative fault, that the client’s not able to tell the story clearly.

And ambiguity for a plaintiff’s lawyer is really death. If something can get interpreted two ways, it’s usually Interpreted the wrong way from our perspective. So I really learned to appreciate that the client has to be prepared to tell his or her story clearly. And so there’s no ambiguity. There’s no landmines.

There’s no rabbit holes. The jury understands A, B, C, D, E, F, G, [00:05:00] and there’s no missing pieces to it. From multiple focus groups and from learning lessons the hard way, we have invested more and more time prepping our clients both from a legal perspective here’s issues and perhaps more importantly psychologically or emotionally.

Hey, what do you need to feel comfortable? What do you need to own the story and not be shaken by nerves or guilt or whatever a witness might be going through? 

Elizabeth Larrick: Absolutely. And I think one of the things, having done a little premises viability back in the day was, It gets so detailed on like the mechanism of the event, like left foot, right foot, right wrist, left wrist down to the T.

And I love that you pointed out because if there’s any ambiguity, the jury is going to skew it [00:06:00] against us. 

Michael Neff: It seems to work that way. And it’s from a lawyer perspective. I think part of our responsibility is to try and eliminate legal risk where we can. And that means trying to anticipate, hey, where could we have problems?

And one of the problems. is uncertainty or ambiguity about the story. And another is frequently a client having some type of subconscious guilt or self blame or something like that, that can really contribute to them torpedoing the case. And when you boil down to it, a lot of times the emotions in my experience have resulted because they didn’t understand the importance of the safety rules.

They didn’t understand what the [00:07:00] property owner should have done. And therefore, they’re hyper focused on what they did, which is what the jury frequently does. If we don’t tell a compelling story, about the safety rules. And we don’t tell a compelling story that they can conclude that the defendant knew or should have known about the safety rules.

Newer should have known about the hazards and newer should have known how to eliminate or minimize the hazards. And that’s part of the challenge. You really need to plan out your opening statement and your direct exam and your cross and your documents. It’s much less intuitive than a car wreck for everybody involved.

Elizabeth Larrick: Absolutely. And I think one of the things that you talked about, which is, I think one of the biggest hurdles in premises cases, because it’s not as obvious as, you know, driving down the road. You got to get a license. You got to learn the rules. Like [00:08:00] jurors focus groups always are like, well, what do you mean there’s rules for grocery stores?

Like, and so there’s a huge education level. And I’m really glad that you pointed that out because our clients don’t know that when they don’t spend time to learn that they’re still stuck in that same mind frame of, well, gosh, I should have seen where I was going. Uh, show was worn flip flops, you know, the all the things that we normally hear from focus groups They’re still in that mindset.

So 

Michael Neff: yes, well, I think the the good thing about car wrecks for younger lawyers Is that we all generally have driver’s licenses and all the jurors generally have driver’s licenses So when you walk into a courtroom, it’s not uh, it’s not something that’s complicated for the fact finder It’s not something that’s complicated for the lawyers You But when you get in to premises liability cases, unless you have a security background or a product or a management background or a safety training background, you don’t [00:09:00] intuitively grasp.

Oh, wait, this was unnecessary. Oh, wait, this person shouldn’t have been hurt. Oh, wait, if only they had done this. Instead, in my experience, The jurors tend to look at if only and say, geez, if only the plaintiff had done something differently, but once they learn the rules Then I think they are empowered to say, well, geez, the property owner didn’t do what they should have done.

And why is the plaintiff lawyer expected to be a security expert or a property management expert? That’s not fair. 

Elizabeth Larrick: Gotcha. Absolutely. So what I want to kind of talk about is when we think about responsibility and like getting them their story straight. Is this just just kind of survive summary judgment or are we thinking more like, Hey, we’re setting it up from jump street from depo to make sure we’re going to knock it out if we end up going to trial.

Michael Neff: I definitely think that if you’re taking the premises case. A [00:10:00] lot of lawyers have the mental shortcut that if I beat summary judgment case is going to settle. And one of the things that I think COVID hammered home to a lot of plaintiff’s lawyers is that insurance companies look for opportunities and they take advantage of them.

And that from their perspective is being a good business person. But what I think that means is we need trial skills and we need to always be thinking about trial. And what I’ve found and what’s been taught to me is that in order to get a good verdict, a jury has to understand your case and they have to like and want to help the play.

And sometimes a plaintiff can be sympathetic if they’re uncertain or hesitant or scared, but sometimes it can be construed differently and their uncertainty can be viewed [00:11:00] negatively, like they don’t know what happened or they’re believable. So I think I always look at taking a premises case or any case as if I take it, I need to be ready to try it.

And, you know, if I’m going to invest time and money and emotion and effort into a case, it needs To be ready to roll all the way and I think it’s just so Underestimated how important it is that the jury like respect trust and believe your client You could be a really good lawyer, but if they don’t want to help your client You’re not going to get a great result for them So we need to remember that the trial is not about the trial lawyer The trial is about what the jury wants to do Forward These parties.

Elizabeth Larrick: Absolutely. And that’s one thing I always talk about is, hey, when we’re [00:12:00] doing anything, what does the jury want? What does the jury need? Yeah, for sure. Absolutely. It’s as much as I like to think it’s about that awesome cross exam and getting to what does the jury want to hear? What do they really want?

Michael Neff: It’s interesting because Hollywood and TV shows tend to make lawyers Paul Newman in The Verdict and Tom Cruise in A Few Good Men and Matthew McGonaghy in A Lincoln Lawyer. You’ve got these dashing lawyers that save the day or win the day. Gregory Peck to Kill a Mockingbird. With my cousin 

Elizabeth Larrick: Vinny. I mean, hello.

Michael Neff: What’s that? 

Elizabeth Larrick: My cousin Vinny. 

Michael Neff: Oh, I love My Cousin Vinny. Yeah. Or you could go with Legally Blonde. Yeah. So the lawyer is the star in those shows. And lawyers are important, but it really, really, really, really matters that they like and respect and believe in [00:13:00] the plaintiff. And I think they don’t teach you a thing about this in law school.

And they really don’t teach you about it in a lot of books. I’ve read a lot of trial guides books, I’ve written a couple, but no one really encapsulates and brings you this story that it’s about the plaintiff. One of my favorite books is 12 heroes, one voice by Carl Bettinger, which is about empowering the jury.

And that’s a little bit about the lawyer’s role as a Sherpa, but there’s not a, a great book that I know of about client prep. It is just not either understood or focused or appreciated or maybe it’s a soft science and a lot of people don’t really understand it, but it is hugely important. 

Elizabeth Larrick: Yeah. And so I have a pretty [00:14:00] specific point of view on this particular point.

A lot of people disagree with me and that is. I treat deposition preparation just as important or if not more important than trial preparation because I feel like that’s the time my client needs to get it all out. 

Michael Neff: Yeah. A lot of 

Elizabeth Larrick: people disagree because they think, no, no, no, no, no. We got to save it for trial.

So what’s your point of view on that? 

Michael Neff: Well, I think there’s a lot there, but I think the thing that most importantly jumps out to me is you have to get out any guilt that the plaintiff might have or any doubt or any self blame because really good defense lawyers hone in on that and they take advantage of that and they extrapolate that.

So if your client isn’t really Sure about all the factors, and it gets really sensitive and complicated, particularly in a sexual assault [00:15:00] case where self blame can come in into play. You, you as a lawyer have an obligation to your client to. minimize additional harm to them, to protect them, and to help get them through the process.

And I think especially in sexual assault cases, you need somebody good to talk to this client and help this client Get beyond this thought that they somehow are to blame for it. 

Elizabeth Larrick: Well, sure. Absolutely. And I think that’s I mean, I call it your depositions or emotional warfare because this is the Opportunity that they can sit there for six hours if they want And just ask and ask and ask, ask, and you got to be ready that they need to feel ready to be able to know what to [00:16:00] expect.

And like you said, especially with the self doubt and the guilt and the other emotional warfare that comes in with being just sit in front of them. So I have another question. So a lot of times we have premises liability cases, we’ve got clients that come to us and they say, yeah, I don’t know what happened.

I think maybe that’s the thing, or maybe it’s just some water. So do you take those cases, not take those cases? What do you do with those fines? 

Michael Neff: Those are very dangerous cases practice predominantly in Georgia, but in Georgia, if you can’t explain why you fell, you are very likely to lose on summary judgment.

So there has to be a clear causal connection between any purported breach of duty and the reason for the injuries. Yeah, that’s that case screening is hugely important. Damages are not enough in premises [00:17:00] cases. You’re going to need to navigate through that. And so case selection, it starts and then depo preparation, it escalates.

But you’re right, if the depo doesn’t go well, you have a lot of problems, particularly you might not be trying the case, or you may have a really difficult, if not impossible time saving your client’s credibility. And that’s worse than losing on summary judgment is losing a trial for a lot of reasons.

Elizabeth Larrick: Sure. Sure. Sure. So tell me, walk me through any kind of example. If you pick a case example where you took the case in, went to depo prep and work through some issues and had some really good testimony that made a good impact on the case. Can you give us an example? 

Michael Neff: I can kind of talk about the process in our firm.

So we have four lawyers and we all have different job responsibilities or strengths. [00:18:00] And I am not the best person to do client prep in my firm. So Dwayne Adams is a partner and he is fantastic at it. And so is Susan Kramer. She’s a nurse lawyer with our firm. And Susan is like fanatically good at looking at all the medical details and going through the medical history and kind of spotting potential issues.

And Dwayne is like one of the best human beings I’ve ever met. Very patient, very poised, very very calming influence. So people feel safe with him. And we also do use a trial consultant in Atlanta who is also remarkably good at this. This is what I consider a soft skill, but an essential one. And my professional strength is cross [00:19:00] examination, which frequently is Being aggressive and sometimes being impatient and being persistent and being unrelenting and all of those things.

So that’s what I tend to do. So what we do in our firm is have a combination of Susan and Dwayne sit down and talk to the witness frequently in conjunction with a consultant. And one of the things that I think is helpful about working with a trial consultant. Is that they have fresh eyes, which is a benefit.

They don’t have tunnel vision. They can view the case from multiple perspectives, but they don’t have an emotional investment in the case, the way someone that has a contingency interest has, or someone that has a lot of professional, uh, pride. I want to beat this defense firm. And there’s a lot of emotions that go in to what we do.

And I find it really [00:20:00] helpful to be able to bring into our team somebody that doesn’t have the same stuff that we do, the same issues that we’re dealing with, the same pressures that we have for a lot of reasons. So I think working with a consultant is a really good thing to do in cases that financially warrant it.

And there’s a lot of pros and cons. but mostly pros. So those are some of the things that we do. I also find litigation a lot of times being a male dominated, traditionally male dominated work that a lot of male attorneys can benefit from getting a different perspective. professionally and personally, your jurors are going to be both.

And as much as I like to think I’m right all the time, I’m not right all the time. And as much as I like to think I get the pulse of everybody in [00:21:00] the courtroom, I don’t always do that. And so having, having some diversity, having some different perspective, having some different life experiences, And having different emotional baggage really helps.

So that’s how we do it. I’m not great at the details, but I am involved in the big picture. 

Elizabeth Larrick: Gotcha. Okay. That makes sense. Well, tell me kind of, as we kind of wrap up here, any other kind of. input that you would have kind of on client prep or things that you have seen recently with the change of pandemic or anything like that that you would suggest to lawyers that would be listening here?

Michael Neff: Well, it’s interesting. Since COVID ended, we had one trial with a lot of COVID protections and the trial was a Spanish speaking individual. And one of the [00:22:00] things that it brings to mind having to work through interpreters is being aware of the need for more time and being extra efficient in reducing unnecessary questions because of the time lag.

So I think that’s something that is universal. And I think with a COVID protections and COVID protocols and people spacing out, it takes a lot longer to get through the process. So I think that’s the big deal. I think also people are more anxious. Since COVID, they’re more impatient since COVID. And as much as we want to be thorough, we also want to move through things as quickly as possible and get momentum building.[00:23:00] 

And I think from a witness prep perspective, being efficient and helping them appreciate being efficient is really important. And from a lawyer perspective, even now more than ever, being efficient in how you present your case is hugely important. 

Elizabeth Larrick: Absolutely. And that’s, I mean, that’s something we’ve had.

So folks on who’ve had trials who’ve just said the level of impatience in jurors is just through the roof. And they’re telling you about it, rolling eyes and do all kinds of stuff. So I appreciate you mentioning that. 

Michael Neff: I think there’s a certain stress for a lot of people just being out in public. And the longer they’re out in public, the more stress they feel.

And even they’re not able to say, Hey, I’m stressed because I don’t really want to be here. If you can keep it moving, you alleviate that. And the less stressed they are, the better it is for us generally. 

Elizabeth Larrick: Absolutely. [00:24:00] Awesome. Well, I know that in your quest for premises liability cases, you’ve written a book and you’re putting together a group.

So tell us a little bit about the book and we will put the link in the show notes to find it. And we’ll also do a link to the organization, but tell us a little bit about the book and the organization. 

Michael Neff: Well, actually it’s been two books now. So trial guides published. Premises liability, a guide to success in about 2000 and I think 19.

And then during COVID, we published what is advanced premises liability, a guide through trial. So the first book is about premises cases A to Z, from case selection and intake up until trial, but not a lot. And advanced premises liability is mostly trial and really advanced deposition work. cross examination [00:25:00] skills and direct examination skills so that you’re able to convey the information that you need in order to prove your client’s case.

So they’re both available through trial guides. And that second book was a COVID project. And the other COVID projects that I had was the creation of NAPLA, which is the National Association of Premises Liability Attorneys. And it’s an organization that only focuses on premises liability, whether it’s falls from height or trips or slips or nursing homes.

Or unfortunately, inadequate security shootings and sexual assaults and things like that. NAPLA is on the web at premisesliability. org and we do monthly webinars and we are looking to do our first annual next year, June of 23 in [00:26:00] Chicago. So if anybody listening. To the podcast, the plaintiff’s lawyer wants to join a nap up, send us an email and we’ll be happy to give you the first year for free for listening to the podcast.

Elizabeth Larrick: Awesome. What’s the email address? We’ll make sure and we’ll put it in the show. Beth 

Michael Neff: is our executive assistant. And so Beth at premisesliability. org and you can find out more about the website at premisesliability. org. 

Elizabeth Larrick: Awesome. Well, thank you so much. I really appreciate that. I know our listeners will appreciate that too.

Thanks for joining us. I think can’t stress enough, right? That the preparation of the clients for deposition is really key in these cases for lots of reasons. And of course for trial. So thank you so much for joining us. I appreciate your time. 

Michael Neff: Thank you, Elizabeth. I appreciate it. Well, 

Elizabeth Larrick: I hope that you enjoyed this interview with Michael Neff and just know that we will put all of his contact information and that free opportunity to join his organizations [00:27:00] for premises liability.

In the show notes, if you found yourself counting how many times I said the word, absolutely, just know I was too. So we’ll get that corrected. Just remember, we’re all still in the new phases and new parts of. starting a podcast. So I appreciate your patience and just know that any review, any rating is always so helpful for the podcast.

So whatever platform you’re listening on, please rate, review the podcast, share it with somebody, you know, and again, thanks for listening.

Losing points with the jury is the last thing you want in your trial. At the end of the day, the jury will scrutinize your client more than anybody else in the room. So you want to bulletproof your client before they even get up on the stand. 

Compassion fatigue is not unusual in a world where we are constantly bombarded by horrific news. You should not repeat the same testimony over and over again. You risk wasting their time and losing their patience. 

Therefore, make sure you’re keeping things as organized as possible. Organize your topics, have bulletproof questions and be able to shift and pivot after the defense opening or other witness testimony. 

In this episode, learn how to organize the direct exam of the client. One of the first steps is to create a topic list. Your questions are more likely going to be based on this. It will navigate you through the process of preparing your client for when you put them on the stand. Also, this is a process that you can start very early and take care of the other more important things you need to do for the trial.

In this episode, you will hear:

• Why you need to come up with a topic list
• The point of view of the jury
• Topics of liability and damages
• Other witnesses and order of proof
• Considering the possibility of compassion fatigue
• Time management strategies
• Preparing your exhibits

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Supporting Resources:

Did I miss something for client direct exam? Do you have further questions? Send me an email: elizabeth@larricklawfirm.com. 

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Episode Transcript:

Elizabeth Larrick: Hello, and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

This is a podcast designed for trial lawyers who are looking to get better in the courtroom, to connect with jurors and their clients, and all in all, just. [00:01:00] And I hope that you will share this podcast with other folks, even particularly, we always talk about focus groups, how to use focus groups, how to do your own focus groups, client preparation, and those types of things to help us be better lawyers in the courtroom.

Today, we’re going to talk about organizing direct exam of your client. I recently was asked to speak at Texas Trial Lawyers Tact College, which is basically a trial preparation CLE. It’s really awesome. And It’s a great opportunity for folks who’ve never tried a case. They basically take it from all the way from the start, all the way to the finish through a trial and go through each of those teaching on each sections.

And then also having basically an on your feet time to practice doing all those things immediately. So it was a great opportunity and I appreciate that. And I was asked to come talk about direct exam of the client and also [00:02:00] plaintiff’s expert. And as I started to put the presentation together and think about it, it really came down to me as like apples and pencils.

Okay. Clients are the apples and plaintiff’s experts are the pencils because experts, there are rules and we have to go through, we have to jump through all the hoops before we can get them even into the case. They have to have qualifications. They have to have experience, knowledge, training, and then They’re gonna do a report.

It’s very much, very structured. What they’re gonna come in and talk about is very structured and the attack on the expert can also be very, very structured. And most of those times those experts who have testified in court, they have a way of doing their thing and sometimes they’re not gonna be flexible.

And I like to think about our clients and even before and after witnesses as apples. Right. It’s very organic. Sometimes you make an apple pie and sometimes it’s a strudel or sometimes it’s all different kinds of things, but either way, [00:03:00] it’s organic and there’s tons of types of apples. And I just love all the things that you can do with your client.

So that’s what I can think of as apples and pencils. So we’re going to focus on our apples because that’s generally what I have done in my experience is. I’m going to help clients get ready for trial testimony, and what I really want to do is help give a template or a way to organize that direct exam that you’re going to go through with the client, because I feel like this is something that is vague.

We’ve got not a lot of structure when it comes to the client. And so what I want to do is really talk today in this episode about how do we think about that? How can we come up with what I call a topic list? Because from that topic list, that, you’re going to take that directly and prepare your client on the topic list.

You’re going to take that list yourself. You’re going to go create questions on it. And it’s going to guide you through the process of preparing the [00:04:00] client, And when you put them on the stand, being able to go with that topic list. So what I always want to be thinking about, though, in this organizing stage is, okay, what is the point of view of the jury?

And also, what does the jury charge say? What are the questions the jury is going to answer? And specifically when it comes down to clients, depending on the type of case, you need to know, Hey, what is it that my client is going to give or provide to the jury in order to answer a question? Sometimes we have clients who pretty much everything they’re going to answer is just going to go towards a damages jury question.

Sometimes we have clients that have to answer for liability and damages, but that’s really kind of the starting point for me for organizing is, okay, let me get out the jury charge. Let me look at liability, question one, damages, question two, what parts of my client going to have to answer for liability?

Yes or no. Is there anything in there that my client Yes. The jury must [00:05:00] answer to the jury. Right? That the jury point of view is I need to hear that client get on the stand and tell me how this wreck happened, or maybe not. So depending on where your client was, another example in a bedMAL case, clients not going to be able to tell how the surgery happened.

They’re completely knocked out, right? It’s still an important fact, but it’s kind of one of those things. Okay. Well, how much can they really answer on liability? Well, thinking about the POV of the jury, jury wants to know about this person’s prior health. They’re in a really good position to talk about that.

So we’re thinking through all those things at this point in time. We’re thinking about the POV of the jury, point of view of the jury. We’ve got our jury, charge out. Now we’re just looking at our topics of liability and damages. What in liability do they need to answer? What in damages do they need to answer?

Okay. Now let me add a third thing here that we’re gonna be thinking about, which is our other witnesses and our order of proof as well. So most people don’t put their client on as a judge. [00:06:00] Number one. First witness. Okay. They’re put them in there somewhere in the shuffle or sometimes at the end. So I always like to look at, okay, thinking about the trial from a 30, 000 foot view, what is my order of witnesses?

Okay. Now let’s also think about what exhibits, what documents, are also going to be coming in, in my proof. Okay, so I’ve got a couple of before and after witnesses that I’m going to give to my client before my client gets there. I’ve got a couple of before and after witnesses, are they going to tell stories that my client is involved in as well?

Okay, so maybe those stories need to be off the list and just give them to that particular witness. Maybe that witness doesn’t have any other purpose other than to tell that story. That goes to the blank on the jury charge. Okay, great. We’re, again, we’re just organizing. We want to see, but we also want to know, okay, what is it that only my client can answer for?

Only my client can answer for when it comes to liability or damages. And also thinking about, okay, what’s already been coming into the jury at this point that maybe we don’t [00:07:00] need to repeat again. Because jurors don’t want you to waste their time and they certainly don’t feel bad For your client, right?

So at the end of the day, and this is not just post pandemic, this is before that, but I think even now people are even more impatient is, we’ve all experienced. At some level, some kind of compassion fatigue, because we live in a world where we are bombarded constantly by horrific news, by horrific things that are happening in the world constantly.

Open your phone and if you’ve got Android or even Apple, you’re gonna get whatever that news is and it’s gonna be some kind of horrible, awful event. And what happens is, it’s really hard to keep some compassion for people when we’re constantly bombarded with these just like super over negative Like just, wow, this world is full of just horrific tragedies and there’s nothing I can do about it.

And it’s also like, well, what about me? That’s the other part of our world we live in [00:08:00] where it’s allow a lot of places, many platforms, I should say, for your personal opinion to be projected everywhere and on to other people whether they like it or not. So, and also all this is coming into this compassion fatigue.

That we’re all experiencing this kind of burnout, right? And then add that fact that the jury probably doesn’t want to be there, right? For 7 a day or 10 a day. Keep that in mind when you’re thinking about what topics, what stories, right, your client’s gonna give and your witnesses and repetitive information.

So we’ve got a lot of things that we’re organizing in here. What I love to do is just take a sheet of paper and just write it all out, everything out, all the topics, okay? I’m not saying questions, your topics. Now compare it with your Order of proof with your other witnesses, with your other documents, thinking about where that comes in a trial.

Can you eliminate some things? Is there somebody, is there a piece of evidence that’s stronger than having it come out of your client’s mouth? All right, cool. Let’s take [00:09:00] some things off their plate because we want to make sure we want to manage their time on the stand. That’s the fourth thing that we are adding to this list now is time management.

Where are they coming in the order? How long do you want them up there? And how long is cross going to take as well? You’ve got to average that in when you’re thinking about how about how long you want your client on the stand. So we’ve got four things on our list. POV of the jury, point of view of the jury.

Our jury instructions, our jury charge, specifically our questions. Our order of proof. And now we’ve got how long do I want to keep this person on the stand? How do I manage the time? So now that we’ve got all this, we’re going to look at, okay, with our topic list out there, comparing to other topics, can we eliminate some?

Is somebody stronger? But now you just basically got the bullet point of the list. And what you want to do now is you want to add in cross exam points. And you’re going to go find those cross exam points from client deposition. [00:10:00] Gone right through it. Gone right through it again. Highlight the question and the answer.

You want to make sure you have that documented so that you know where that goes on your topic list, how to build that in, but also be thinking about what else have you heard? What did you hear at mediation about your client? What has the defense lawyer been telling you about your client? What does the insurance adjuster been telling you about your client?

Put all those things in there because when it comes time to trial, there’s not going to be a magical new list. It’s going to be the same items. So you just want to build those into your topic list. And if it’s not on your topics, then you need to add it into your topics. Because what we want to make sure that we’re doing is we want to get all our points That we need to score, but then we also want to insulate our client before cross exam to just deflate that balloon.

We don’t ever like aha moments, right? Surprise. I got you. The jurors looking for those. That gets them all excited. We [00:11:00] want to deflate that. We want to make sure, hey, we don’t leave somebody up there on the stand all high and dry. We want to be able to give them some protection beforehand and give them that opportunity to explain before cross exam comes up there.

We also want to look at building in exhibits. Right, so we got our topics, we’ve built in our exam points, cross exam points, and we want to put in our exhibits. What exhibits do they need to cover? What are exhibits that we can use with them to help make it easier to testify? For example, I’m working with an individual going to trial on an employment case, and she has a tendency to over explain, if you will.

So, in order to help with that, Avert that compulsion that she has. We’ve worked through and we’ve role played with the exhibit specifically about a text message string. So she doesn’t have to feel like, okay, message one, blah, blah, blah, reply, message, because she’ll do it verbatim. We just put that up there, [00:12:00] put that exhibit up there.

Now, at this point in the trial, the jury has probably seen this thing 20 times. You’re not putting it back up there to walk back through it again. You can just put it back up there to confirm that’s what happened. Yes. Great. Now you get to move on. But we want to make sure that we’re using exhibits, we’re keeping things moving around the room, we’re keeping the jury interested, we’re putting things into evidence that maybe they need to go in there.

Got a car wreck case, you need to talk about bills, you need to talk about medical records. By all means, just do it. Put it in there. But you want to build that list as well so that you can prepare your client as well on those exhibits. But build those in there as well, and then think about how can you work in a demonstrative.

Another example, working with a disemployment trial. You did a lot of dates. And they wanted to create a timeline, that’s great, but maybe let’s create a calendar, right, and so they’re going to have her walk through the demonstrative calendar to show how much [00:13:00] time has passed, what’s going on, great, that’s fantastic.

And then how, if worst case scenario, you don’t have even any photos or any demonstratives to go through, just create one with them. Right. At the end of the day, most clients have to testify on some level for damages here in the state of Texas. You have to have your client testify on very specific pieces of the jury instruction to make sure that it gets into the record.

Let’s get real specific physical pain. We’ve got to have testimony about physical pain. We’ve got to have testimony of stress, frustration, right? That mental anguish portion of it. It’s a good way to get things turned over. So create a demonstrative, make it something that’s digestible that, hey, best case scenario, get to use it again in closing statement.

And it’s just a way to visualize things with the jury, with the client. We’re all working together and we’re trying to put something up on the board to keep [00:14:00] things interesting and flowing. All right, putting all this together in my experience doing client direct exam is a lot of lawyer preparation. I think it takes so much more organization on our part, digging into, doing research, re reading those depositions, going back through our notes for mediation, going back through our call notes with adjusters and what defense have said, on top of it.

Looking at the order of proof and the exhibits and it’s a lot of organization and then on top of that thinking, okay, how do we have questions that avoid objections, right? What are my plan A and plan B on questions with people? And then ultimately being able to shift, if you have to shift the defense opening then is now putting more weight on a different point.

It’s okay, you’re, you’ve organized it so that you can do that. But we want to organize our topics, we want to have questions that are bulletproof, and be able to shift and pivot after the defense opening or [00:15:00] other witness testimony. At times, I’ve had this happen to me where we put on the before and after, and something happens and the before and after does not get to testify to their three points.

Maybe they have three stories, maybe they have four stories, and all of a sudden the judge decides, nope, nope, not coming in. One story comes in. You’re thinking. Well, okay. How do we get those other points in? We really want those in. So sometimes you got to shift and you got to have put more things on your clients.

Sometimes you shift and take things away from them. So trials are always maneuvering. A good point though, about this is these are our clients. We have access to them well in advance so we can start this process very early. We can start organizing that order of proof early, find other people to help carry the load when it comes to testimony.

And then ultimately, we can test, we can test our client’s testimony, have them create a five, seven minute zoom clip, [00:16:00] play it in front of a focus group to see what they think, what’s the strengths, what are the weaknesses, we have a lot of control over this element, and we can start very early, which I would urge you to do that, because once it’s done, you can set that down and keep looking at something else, because as we’re going into trial, Whether it’s waiting for a pretrial, or waiting for exhibits, or last minute motions, like, there’s just a lot of things, other things that have to go on into organizing and creating.

You can do this early, because you don’t want to lose points with the jury when it comes to your client. And, at the end of the day, In that courtroom, the jury is going to scrutinize your client more because they’re like that person more than anybody else in the room. So you want to make sure, all right, you bulletproof it before your client gets up there.

So hopefully this was a helpful episode in thinking and organizing for your client direct exam. If you have questions or maybe you think, hey, Elizabeth, you totally left out this thing for direct [00:17:00] exam, please let me know. I would love to add it in here or maybe make an episode. So my email will be in the show notes.

Thank you again for tuning in and supporting this podcast. I would love it if you could rate it, review it on your favorite podcast platform. And of course, I really love it when you share this podcast with other people. All right. Thanks so much.

Sometimes, we live with our cases for years, before we can find any kind of resolution either through settlement or trial. Now, this creates a tunnel vision where we can put these blinders on. There are blind spots everywhere that we just can’t see. And it gets worse when we block out any other theory or possibility. When we do this, we take on a whole new risk because we are holding the case back. 

A focus group is a laboratory. It’s to gather research. Sometimes, you’re going to hear good things, but you’re also digging in to hear the bad things about your case. Focus groups are going to give you fresh eyes in terms of approaching your case and getting you to a whole new emotional movement in your case. 

In this episode, I’m going to talk about some reasons lawyers would hold back a case and why you should start considering focus groups to help get you to the next level in solving problems. Ultimately, you have two options here – either stay in the blind spot or be open to learning and eliminate a huge risk of getting a zero on the case.

In this episode, you will hear:

• How people make decisions based on emotions
• What shapes the filter system of jurors
• Finding the problems you can see and you can’t see
• Creating multiple ways to solve the problem

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Have questions? Send me an 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: Hello and welcome to a new episode of trial lawyer prep with me, your guide, Elizabeth Larrick.

I am excited to have this podcast and to broadcast tips and tricks for trial lawyers trying to get better to connect with the jury and connect with their [00:01:00] clients. Today’s topic we are going to look at, are you holding your case back in the mindset or in the frame set of I’m going to be talking about the concept of focus groups.

Are you holding things back? And this can happen. I see it happen all the time. It happens with me all the time. Not as much anymore because I’m using some focus groups. But what happens is when I think about this question, I have lots of examples to talk about today. But why would a lawyer hold back a case?

It’s not anything they want to do. I love what we do. We love our clients. We want to help them. We take on a risk by taking on their case and not getting paid till the end. So where could this happen that we end up holding things back? We live with our cases sometimes for years before we can find any kind of resolution either through settlement or through a trial and that creates a tunnel vision where we can put these blinders on and we can’t see [00:02:00] things like blind spots everywhere that we just can’t see because we have tunnel vision.

But what I’ve also seen is it can get even worse than just tunnel vision where we block out. Um, Any other theory, any other possibility. And when we do that, we take on a whole new risk and we, I truly believe are holding the case back. So we have focus groups every week, several a month and different styles.

Sometimes people come in and present themselves. Sometimes I’ll present things. Just a variety of things, and it can be any kind, like either we’re just doing an opening statement, or maybe we’re just having a neutral discussion, kind of with a snapshot of the facts. And at times, the moderator will end up trying to either argue with a participant, or try [00:03:00] to add facts to change their minds, or maybe repeat facts to try and change the participant’s mind.

I’ve also seen where after the focus group, there’s a blaming of the participants, there’s blaming the bad questions, there’s, hey, we should have told them this thing over again and repeated things. And I just kind of scratched my head because a focus group is a laboratory. It’s to gather research. It’s yeah, sometimes you are going to hear good things, but you’re also really digging in to hear the bad things about your case.

And a lot of times what’s happening in these focus groups is this whole other level in your case that you have been either putting those blind spots on or putting the block out, not even seeing it. It’s this whole emotional movement in your case. We go to law school, we’re trained, let’s look at the logic, let’s look at the rational thing.

Okay. That’s what happened. This is this, this A to B, B [00:04:00] to C. Okay. It’s the law, right? Black and white. Take the facts, apply the law, we’re all good to go. If you’ve done any trial training, or trial lawyer training, or any of that good stuff, over and over and over again they talk about, well, people make decisions based on emotion.

Not just in what we do in marketing, making decisions about all kinds of things. Really, we make decisions on the subconscious level. And when we have a case, and we get this tunnel vision, and we really block out what other emotional movements can be going on, we really end up Doing a huge disservice to the case and the client jurors Focus group participants will ignore logic and just use right emotion They’ll use their belief system about the world and it’s just this filter right it.

I’m not creative Someone else has come up with this, right? it’s just this filter that basically all the facts come through in the filters shaped by the experience and Sometimes experience is really broad Right? Think about things that are regularly on [00:05:00] TV or movies or how we get the news. That can be a really broad experience.

Everybody had to go through the pandemic on some level, and that’s a big experience we’ve all had. And then there’s also smaller experiences, right? People who have been in a car wreck or people who have had family members who’ve experienced a medical malpractice, and that all shapes their belief system that basically that filter system.

And then once it comes in, the facts are going to either go support it or not. And so, what happens if we start to ignore that filter system or just decide we don’t even want to know about it? We are really doing a disservice. We’re taking on a whole other risk on the case that we just don’t even know about.

Let’s just talk about this. I’m sure we’ve all heard of an example of you’ve got somebody who went to trial and it’s a run of the red light, crash, and the whole thing’s on tape. The red light’s on tape, the car going through [00:06:00] the red light is on the tape, and they lose. Defense verdict. Zero. Like, how on earth could that happen?

Very logically. Look, we can see there’s a red light. We can see the vehicle running the red light. All the facts are meeting up with the law that says don’t run the red light. But people will make their own decisions. They’ll create those things up if it doesn’t match with what’s in their emotional minds.

So, as I see it, we have two options here. One, we can stay in the blind spot, we can stay in the blocking spot and just say, You know what? I know what I’m doing. I have experience. I know what’s going on here. I got this, right? Just stay where we are. I’m just going to ignore it. I’m going to take the risk that I may get a zero out.

I may take a risk that I’m going to get lower value case. And maybe I understand it, maybe I don’t, but I’m just gonna move on to the next one. Or you could choose the other option, which is [00:07:00] being open to learning, asking other people, trying to find out what is that emotional movement in my case? Is it on my side?

Can I move it to my side? Can I neutralize it? Right? Or at least can I minimize it? But when we find That problem, at least we’re aware and we can know how to fix it. Sometimes it’s not fixed and you do need to settle the case, but that still eliminates a huge risk of getting a zero on the case. So, here’s what I’ve seen in lawyers gaining more information about the problem, right?

The emotional movement in their case, whether it’s for them or against them. Maybe it’s something that they haven’t ever heard about, maybe it’s something they have, but What I always tell people is, even if we’ve heard about it, right? Like, hey, you’ve got a videotape of what happened in this case. It should be slam dunk, no problem.

You, test that out. You [00:08:00] still want to go and look at, what do other folks think about this video? To try and find out, what is the lens that they’re looking at this thing? And what are the snacks? What are some hangups? Once we learn that and can look at all those ways, we can go to work on the problem, trying to create multiple ways to solve the problem.

This kind of emotional hangup that can be there. But once we have more information about where this is coming from, what experiences is having people lean this way, what is, what’s the concern here? And it could be something completely, totally off base. It could be something as simple as having a fact inserted into.

The opening statement got a good group of folks that we do focus groups down in Houston. And they talked about how they had run, it was an explosion case in a home. And one of the most important things they gained from the whole focus group was that [00:09:00] they believed that the plaintiff was smoking, even though there’s no, no evidence anywhere, no medical records, no, nothing, nothing about anywhere was introduced that this guy was smoking, but they created that in their mind.

That he was smoking. He caused the ignition, which then caused the explosion. And they were like, wow, totally worth running the focus group to understand like that whole thing was there. We never would have seen it otherwise. And I totally believe that along with finding the problem and pulling it apart, understanding it as much as you can.

I truly believe that focus groups can go to the next level and help you even solve the problem. But it requires you to understand. to have kind of a level of curiosity that you are able to ask the question in a neutral way. And then you’re able to listen and not argue or talk back. Right. So most of the time, the best kind of questions we can have in [00:10:00] focus groups are open ended questions and then following that up, but tell me more Okay, great.

What did you hear or see that, that brought you to that, right? You just want to understand, hey, where is it coming from? What’s going on? Because that’s where you’re going to learn, okay, well, let’s just think creatively. Let’s just think outside the box. If to move the needle, what else would need to be in this case?

What else would need to be in this fact pattern? What facts or other things? And they’re going to give it to you. Now there are things that they’re going to say that you’re not going to be able to get into evidence. And that’s okay. Think about maybe what they’re saying more, or if you know right then that that’s not admissible evidence, you don’t need to say, well, that’s not admissible evidence.

Tell me something else. They don’t understand the rules of evidence. Most lawyers don’t understand the rules of evidence. So there’s no point in telling focus groups about the rules of evidence. Just say, okay, great. What else? So that what other things? And if somebody says, well, that’s just the absolute one thing and you think, Oh, okay, great.[00:11:00] 

Now it’s telling you something about that person, right? We’ve got to have lots of ways and choices to solve problems. Okay. People are one minded, one mind that should tell you something else about, Oh, okay. Well, we need open minded people here to serve on juries, but either way, it’s going to give you information.

So. At the end of the day, we are problem solvers. That’s our whole job. People have a legal problem. Family law, criminal law, personal injury law, workers comp, employment. And we can get stuck in our own mindset, in our own place. And smart lawyers learn constantly. We want to learn more about our cases.

We’re not going to say, Oh, that’s just like the other case I had. You know what, it’s perfectly the same. It’s not. It’s really not. And I guarantee you, jurors and focus groups will tell you, Oh, no, there’s this one little thing right here. But you want to find the problems you can see and the ones that you can’t see.

Because you can [00:12:00] handle all the ones you can see and know about and reduce the risk of those problems. We don’t want to put blinders on, we don’t want to put blockers up, because we want to be able to know the problem in order to reduce the risk of the problem. Otherwise, we already have a lot of risk in a case, but if we put blinders on or we block outside opinions, block outside beliefs about our case, we’re really taking on a whole other level of risk that we don’t really want to do.

So, I challenge you to think about the cases that you have. Is there a case? That maybe you’re standing in the way. Your particular belief, or you think, Hey, this is easy, open and shut. Do you need a fresh set of eyes? Take that case and go ask a non lawyer and don’t ask somebody in your family, right? Ask a complete non lawyer about the facts and just listen and see what they have to say.

And if you’re so inclined, put together your own focus group and put things [00:13:00] together and ask the focus group what they think about stuff. Have somebody else, you’ve got to have somebody else moderate them do that. If you need to read from a list of questions and by golly do that. But the options for finding out more about your cases are really available.

They’re doable and you don’t have to pay somebody if you don’t want to. You can totally do it in house, but at the end of the day, you got to ask yourself, Hey, am I missing something? Is there a risk that I’m just missing altogether? And also, Hey, is there something that I’ve heard that I’m just blocking out of my mind?

So. I hope that this episode was helpful to you. If you have any questions or comments, please feel free to email me. My email is in the show notes. Thank you so much for listening and for being a supporter of the podcast. I would love it if you would rate and review on your favorite podcast platform so that others can find this as well.

Thank you so [00:14:00] much.

As trial lawyers, we live in our trial lawyer space for several hours each day. It even follows us sometimes at night and wakes us up because our brains have been rewired in law school and even further into practice. Along the way, we’ve picked up legalese and legal jargon that we use when we get together with other lawyers or we talk to the court. That’s all fine when we’re in the lawyer world. 

But once we move into dealing with our clients, especially in litigation cases where we prepare them for deposition, mediation, or trial, we need to make sure we’re not using legalese. Otherwise, it leaves our clients confused and it eventually leads to mistakes in their depositions, or even at mediations when they’re asked to talk – when all that could have been prevented. Therefore, communication is key with our clients. 

In this episode, I’m going to share some common phrases that don’t really work well with our clients, as well as some alternative ways to better explain things to them. That way, they understand what we’re saying and they can move forward and follow advice. It does help to put in enough time and effort teaching people about depositions and organizing their stories in the most effective way possible.

In this episode, you will hear:

• Common phrases lawyers use that confuse clients
• Visualizing things for people
• Alternative statements you can use with your clients
• The fine line between explaining vs. oversharing

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

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

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick. Thanks for joining us today for this episode about lawyer jargon and client confusion. Sometimes quite a bit. It’s like two ships passing in the night. [00:01:00] Communication is so key with our clients. And that’s why I want to spend this episode talking about some recent phrases that I’ve heard and that we use and maybe why they’re not working so well.

We are trial lawyers. We live in our trial lawyer space hours each day and it even follows us sometimes at night and wakes us up because our brains are been rewired in law school and even further into practice and along the way we’ve picked up legalese and legal jargon and we use it when we get together with other lawyers and we use it when we talk to gestures.

We use it when we talk to the court. And that’s all fine and well, because that’s in our lawyer world. And when we get together, we just love to give gab and throw those things around. And that’s awesome. That’s totally fine. But what I’m talking about is when we move into dealing with our clients, And when we’re, especially when we have litigation cases, and we are trying [00:02:00] to discuss with them what’s going on, or preparing for deposition, or maybe mediation, or trial, and we use some of these phrases, and we expect that they’re going to understand it, because again, This is how we normally talk, but they don’t.

And how problems can occur when we use the phrases and the clients get kind of tangled up and really do, do they, do I understand what that really means? Or just making a guess at what you mean when you say these things. So we use these phrases, we expect that the clients will understand them, but what really happens is obviously confusion.

They’re confused. They’ve brought a problem to you or they brought a concern to you, or maybe you’ve brought a concern to them and they’re not a hundred percent certain really what you’re saying because again, they don’t live in this world. So, there’s confusion and then you use one of these phrases and the clients don’t really want to [00:03:00] ask, what does that even mean?

Because you don’t want to appear dumb or ask again. So, at times, that means they’ll make mistakes, preventable mistakes in their Depositions, or even at mediations, when they’re asked to talk, sometimes clients will go try to find the answers in the wrong places, like on the internet, through YouTube, and what does this phrase mean?

And there’s a lot of times the internet’s obviously not clear and generally not correct. A lot of times clients will just ignore their lawyers. You give them confused. They don’t really have an answer. They’re going to go with their own answer, what they’re going to make assumptions about. And sometimes clients, when it comes to confusion and you give them an unclear answer, they’re just going to stick with, I don’t know, which can create even bigger problems when they do know the answer, but they just didn’t know that that’s, Oh, that’s the connection that you were hoping they would make, but they never made.

I don’t know if race can get us [00:04:00] all in trouble, especially depositions or mediation, because Supposed to know the answer, especially if you’ve got it. So we definitely don’t want to create holes. We definitely want to prevent mistakes when we can. So I just want to talk about some of the things that I have heard recently and most of these again are old school methods when it comes to preparing clients for their appearance for deposition or going into a mediation, anywhere where the client’s going to be present and we have to prepare them for that.

Even in trial, and most of these phrases, in my mind, are definitely fear based thoughts behind them, and my point of view is that let’s get rid of these. There’s a better way to do this. We are smart people. We are knowledge workers, and there are There are other ways to explain. There are ways to rephrase so clients can understand what we’re saying and they can learn and they can move forward and follow advice.

Because at the end of the day, [00:05:00] jurors are in the same boat. You can’t walk into trial and use legalese or use legal jargon and expect that they’re going to know. They’re just, yeah, they’ll be confused and then they’ll be confused. not very happy with you. And this is, most of this is from focus group work, right?

From trial work, but also from focus groups, because they’ll tell you. Once they listen to an opening statement, and then the other, the presenter leaves, and I start asking questions. They’re like, that was so confusing. I don’t even know what this thing is that they’re talking about. And so, that’s why I’m going to talk a little bit about that today, to try and help curb some of these things that are super confusing.

One of the things that I have heard recently was, paring for deposition is Telling the client to learn how to behave at a deposition. That one is very interesting to me. Learn how to behave. Depositions are question and answer and Most important thing is the answers, but this is just a curious one to me.

That’s really not what we’re doing for depositions is trying to teach someone [00:06:00] how to behave. Super confusing. What do you mean how to behave? So just know that one’s gonna pop up a lot of questions for people. We’re really not trying to Teach them how to behave, but more how to prepare for the questions, organize answers, feel comfortable, feel confident, and really understand what their role is when it comes to the deposition versus let me teach you how to behave.

Nope, that’s not what we’re here to do. I’ve also heard, and I’m sure we all have the do not volunteer, right? What does that even mean? Don’t volunteer. That goes along with the only answer. What is being asked? Isn’t that what we’re doing? Isn’t that what question answer? Isn’t that what it is? Super confusing.

If you’re trying to tell them don’t overshare, okay, that’s one thing, but we also need them to explain things. So again, just super confusing. Only answer what the question is being asked. [00:07:00] Wow. Okay. It seems like we’re, that seems like a simple phrase, lawyer friends, but I think it’s super confusing when you tell people something that’s like that obvious, like don’t like, wait a minute, what are we really trying to say here?

The other one would be, be short and complete. Well, that’s. It’s kind of the opposite. Sometimes being complete means I have to give my full thought, I have to give the full explanation, I have to give some backstory, I have to give context, and that ain’t short. So I don’t know how to be short and complete.

I think what all these things are trying to tell me to do is just to be complete. Don’t talk, yes or no, don’t say anything. And that’s really definitely in my mind, a detriment to the case when you are discouraging them from talking and you’re encouraging them to basically, Hey, just go in there and say as little as possible, which is another thing that we see in a kind of our old school mythology of preparing people.

Another one that I’ve heard recently [00:08:00] was this is not your day in court against the Super throwback kind of phrase, but it’s so, it’s so illusory because if you really sit down and think about at trial, your client is just one piece of the puzzle and a very important piece of the puzzle, but you’ve got experts, you’ve got, exhibits, you’ve got fact witnesses, you’ve got defendants and corporate reps, and you have this whole orchestra going on to make your symphony.

I think there’s a huge misconception, and once you actually explain to clients what a trial is, they’re thinking, hey, wait a minute, I don’t want this thing. That sounds horrible. I mean, I have to go sit for days in a courtroom and hear everyone talk about me, how I’m a liar, a cheat, and a fraud, or how my husband or my deceased Um, and then the next person is a liar, cheating, fraud.

Like, wait a minute. I don’t want to do that. That is not to me a day in court. And we also know like, jurors don’t want to hear clients get up on the stand and just [00:09:00] complain. They just don’t. They don’t want to hear complaints. The sympathy, they checked it at the door. They had to be there because they’re required by law and because your client drugged them there.

That’s really not the place. The trial is definitely not the place for them to Okay, here we go. Now’s my time to talk. And it’s not. So you saying, hey, this is not your day in court. Well, once we get there, it’s not then either, by the way. So, deposition is a great place. Let’s use this. Time to, it’s not their day in court since literally in the court, but it is their time to fulfill their role in the case, tell their story, and get it all out there.

And that may be that they have to be complete and explain. So, in thinking about, okay, how do we solve this problem? Hey, Elizabeth, this is This is just the way that I prepare people and I’ve never had a problem with this before. Oh, okay. Well, I mean have you ever been frustrated walking out or just maybe you just wash your hands the whole deposition is like Well, that was a [00:10:00] wash.

There’s ways to round this. Okay, one of the biggest things that I always talk about is visualizing things for people. 60 percent of people are visual learners and it could be as simple as writing, writing out, The style of the case and showing them the claims that they have and writing out the jury questions to really help orchestrate the conversation and teaching and learning that really make a big difference and Understanding like what the position of each of the people who are in the lawsuit that is also super helpful Deposition or trial like okay Let me get a visual on this because it’s hard for people to hold a concept in their mind and then you teach them So, uh, okay, hold this here and now keep holding it and now take in all these other thoughts now.

We really, we’re one track mind, so let’s, can keep it that way. So I want to take one of these phrases and redo it for you. All right, so let’s talk about do not volunteer. Happens often, [00:11:00] frequently. You’re telling, hey, hey, whatever happens, just don’t volunteer. Information. Don’t volunteer. Just don’t, don’t volunteer anything.

Okay, let’s go. Think of another way to say that, which would be, okay, first of all, you gotta give people context, right? So they know they’re walking into a deposition, but that’s all they really know. They’re going to be asked questions, so don’t volunteer. Okay, so first of all, let’s give them some context.

Okay, so in the deposition, you’re going to be asked lots of questions, right? You have lots of opportunity to answer questions, to give responses, to get your story out there, okay? So sometimes people feel pressured, right, to just get everything out of that first question, okay? So when you’re asked a question about When is your birthday?

You don’t have to say in, I was born in Sunnyside, Washington, and there was a blizzard outside and it was so cold and it was January and [00:12:00] okay, that’s a little bit of an overshare. Okay. So you got to give them the context. How is this going to come up for me? This don’t volunteer thing. Okay. So let’s give them some context, which is in the deposition.

You have lots of questions. We’re going to want to learn lots of things about you. if you have the right to explain, but there’s a fine line between oversharing. So let me give you an example. So you really want to help them give them context. How is this going to come up for them? You want to give them what it is that you’re teaching them, the right to explain versus oversharing and then examples, and then circle back around to make sure and check in with them to say, okay, do you get it?

What would be an example of that? Right? So test it out. You may be thinking, Elizabeth, that conversation could take 30 minutes for somebody. I know. [00:13:00] Think about once they get the concept of explain versus overshare, what a huge difference that makes in depositions. And once they understand that, and they’re going to show you their understanding, right?

Because you can ask them a question, make sure they do. You can ask them to give you an example of that. And then once you’ve gone through the concept. And they get it and they understand it, you can check in with them at any time. Is that explaining or do you feel like that’s oversharing? Boom. Instead of being super discouraging, tell them to do not volunteer.

Again, we, I always try to avoid telling people what not, what do not do something, right? Because it’s really, that’s the first thing they do. It’s confusing or because that’s what they’re focusing on not doing it and then they do it. There’s so many other ways that we can explain things to people and this is an easy way to do it.

Give them context. Because again, people are [00:14:00] stepping into our lawyer world. They don’t get what the context of a deposition is or a trial is or mediation is. So you got to give them context. Then you got to give them the concept that you’re trying to teach them, explaining versus oversharing, taking the question one at a time versus trying to answer hidden question or something you’re anticipating the next question, right?

Take one time. Let me give you an example of that. If you want to take another look, let me, let me tell you how that’s detrimental, right? Okay. And do you get it? Tell me about, tell it back to me or give me an example or let’s test it out. You can solidify that concept. Once you solidify it with them, you can always check in with them later and use again a mediation or even a trial.

It’s just a, it’s an easier way, I think, to teach something to our clients, have them understand it versus just throwing some of these phrases at people and just hoping for the best. And then when they don’t [00:15:00] do well, you’re just thinking, well, I told them what to do. Well, they didn’t get it. The comprehension wasn’t there.

These are. Context, concept, give an example, test it, ask questions about it. Really couple simple steps. And the nice thing is once you move through it one time, they are going to understand how you are going to keep teaching them about different things in the deposition or how to avoid problems in the deposition.

And again, that’s just going to roll over for you in different parts of the case. So this episode is about just check what we’re saying to people like check what we’re saying to our clients What is that legal jargon that you may be using with someone and are you causing confusion? Are you discouraging the client in some way to share or to be a part of the case and Why are we doing that?

Are we not putting enough time and effort into teaching people about [00:16:00] depositions and organizing their concepts and their stories? Either way, just take a step back, take a different approach because I, I bet you’re going to get a different result. And when you do, you’re going to feel so much better. The client is going to be so much happier and the case is going to be much better off.

It may take a little bit of extra time on the front end, but just think about once you get that set. Instead of saying don’t volunteer, now you go through this concept with everybody that you talk to because you’re probably going to find, wow, that one problem, people oversharing, or people talking too much, is my biggest worry in a deposition.

And Because it’s my biggest worry, I use all these little things and I throw them at people. It’s not your day in court. Don’t volunteer. Be short and complete. Only answer the question that’s asked. All [00:17:00] those things are just saying shhh. Saying. It’s kind of subtle, but it’s kind of not. So, I’m just saying, hey, just take a step back, think about it.

If you can solve this one problem, Right? This oversharing, over talking, they won’t stop talking. How much better would you sleep at night? If you could just change this one thing about client depositions, it could really significantly change the way you work and the way clients feel about you. So I just test it out.

It may work for you. It may be a little clumsy on the first get go. The clients are going to appreciate just you stopping and explaining a little bit, trying to give some context to it. They’re going to see that you’re trying to teach them and they’re going to appreciate that all the more. Versus just throwing some instructions at them in legally.

So, all right, let me know how it goes Shoot me an email [00:18:00] put a comment put a review in or rate this on your favorite podcast app I appreciate all of your encouragement and I appreciate any review that you are going to do And if you have a suggestion for a topic or you have a question, please email me I’d love to put podcast episode.

All right. Thank you

Once you’ve worked through mindset and organized things, the last piece of the puzzle in preparing for client deposition and trial preparation is role-playing.

As trial lawyers, we can do a better job at getting better results for the client. Most people haven’t experienced being in a deposition or trial before. And so, role-playing will give them a realistic experience before they step into the room or turn on that zoom to be asked questions under the spotlight. It helps remove first-time nerves, testing what is going to happen and what the reaction is going to be. 

Role-playing is definitely an important aspect that may dictate the trajectory of your case. In this episode, I’m laying out the keys to effective role-playing so that both you and the client can get the most out of it. Learn how to compact roleplay into a digestible, easy exercise for everyone involved as well as some tips or tricks to supercharge it.

In this episode, you will hear:

• Another person to play as the opposing counsel
• Using roleplay to tackle the difficult and challenging questions
• Sticking with the exercise
• Roleplaying with different lawyers on different days
• Doing multiple rounds and checking in with the client in-between the rounds
• Ways to supercharge the roleplay

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Need help crafting role play questions? Have a question about client testimony prep? Feel free to email me: 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] 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 a new episode of Trial Lawyer Prep with me your host, Elizabeth Larrick.

This is a podcast designed to assist trial lawyers with how to tips, interviews other. tools that you can use to improve your cases, [00:01:00] connect with your clients and connect with jurors. I recently gave a panel discussion on the Kenan Trial Institute Employment Seminar, and we had a great discussion about role playing for deposition preparation.

And I thought, hey, let me just take the podcast and discuss a little bit about what we talked about on that panel discussion. But also some tips or tricks on how I run the role play to be the most effective. I talk about role play in the deposition prep and trial prep is really the last piece of the puzzle.

So we’ve worked through mindset, we’ve organized things, and now we’re practicing. And role play is key. The end. Hey, Roleplay is not new. People have been using Roleplay for a really long time. But I think that we can be doing a better job at it to get [00:02:00] better results for the client. And what I mean is we want to give Roleplay that gives the most realistic experience for clients before they step into that courtroom, before they step into that conference room or turn on that Zoom to be asked questions under the spotlight.

Bye. And it’s so important because most people don’t have this experience. There’s nothing really compared to it. And it’s hard to just describe it to someone and then have them be able to recreate that in their mind, like try to visualize it. It’s very, very difficult because again, super unique. So that’s why I think role play really helps do that.

We’re giving them a realistic experience, it does help remove first time nerves, and it helps really test what is going to happen. What is the reaction going to be? What is their response? Is there going to be strong resolve, or is it going to be full like a deck of [00:03:00] cards? What is it going to be? It’s really helpful for everybody to use role play, meaning the clients and the lawyers.

So what are the keys to effective role play? Number one, I always think you got to use another person, right? You can’t be. The opposing counsel in your role play for preparation, whether deposition or for trials, cross examination, you really need to use an outside person, someone who’s not involved, the client doesn’t know.

That’s because you need a fresh face, right? They’re used to seeing you there. They know you, there’s a personality connection there, right? Having this new fresh person was that there’s a lot of unknowns. Which that is what we’re trying to accomplish the role play right giving them an experience with something unknown.

So they’re new Unknown, they have no idea what they’re gonna get because they don’t know this person It also allows this person to really take a different approach or different approaches to asking questions, to seeing what’s going to [00:04:00] work, to trying different things out as far as looks for the role play.

So effective role play has got to have another person come in to play that opposing counsel. And these days it is super easy to do with Zoom, all right, and we’re going to talk about how to make it even easier, right, for those people that you’re asking for help, asking them to come in and play that outside person.

You can use somebody else in your office, absolutely, just, what I’m trying to impress upon you is somebody who’s outside the case. It could be another paralegal or a lawyer who’s not assigned to the case. Another important key to effective role play is setting the topics and the questions. to be difficult and challenging.

You really want to give the hardest possible role play. You want to give those hard questions. You want to hit the hard topics. Easy stuff’s not really going to be a problem for people. They know where they went to high school. They know what The [00:05:00] job was two days ago. Those are easy questions. Use the role play to tackle the hard stuff, right?

Cause that’s where you want the test to be. That’s where the client wants to test me. You know, Hey, show me the hardest stuff. And it’s makes it when you’re using an outside person and you’ve already set the topics and you’ve already set the questions, you’re making it so much easier for somebody else to volunteer their time.

It’s like, Oh, You’ve already got the topic set out. Oh, you’ve got the questions. Oh, perfect. This is great. That also allows you as the lawyer, when you’re listening and going through, you can watch and see which questions are the struggle. You’ve already got written out so that when you have to go back and talk about it, you can say, Hey, this question, let’s go back over this.

Let me read it to you. Tell me what’s going on. What’s what you’re thinking about. That really helps. Digest the question and the problem like what is the trick of that question versus if you just try to do it off the cuff Or you have somebody come in [00:06:00] off the cuff It’s much more difficult for you to be writing that question down Verbatim that was the stumper or that they were Folded on so if you have already written out makes it very easy for you to track and go back and talk about the questions Another key point of effective roleplay is actually sticking to the exercise So many times I have people want to break the roleplay, right?

Well, they want to you know, well, hey, did you Oh, okay. We’re really in it. Oh, okay. Okay. Right. And it’s like, no, to really have that true experience, you’ve got to stick with the role play. You got to stay in the exercise. Okay. And that’s so hard to do for everybody, especially if somebody’s laughing or whatever, it’s hard to, it’s hard to be, stay in the seriousness of it.

But, and here’s like what I have come up with to help with all three of these things. And that is when I set up to do role play for the first time, and I’ve learned it in my seminar, there’s lots of lawyers that We’ll do the role [00:07:00] play multiple times, maybe even with different lawyers on different days.

It’s a great idea. Totally should do it. Let’s just take it from the first go round. So, we’re going to set up role play. I’ll ask somebody else to come in. And what I want to do is set up a 30 minute time block. So I’m going to ask that other lawyer, hey, 30 minutes? Okay, we’re going to do some role play with this client.

I’m going to send you a little synopsis of the facts. Thanks. Maybe I’ll send you the police report. Maybe it’s a picture of the cars. And then here are the topics and here are the questions. Boom. So what, oh great. You got it all set up? Yes, I can. Okay, perfect. Alright. Boom. I got my other person. My questions are done.

My topics are set down. Now on the day of, what I do is client, either if we’re in person or if we’re on the Zoom. Either way, it doesn’t matter. The format is still the same. What I tell them is we’re going to role play. And that means you’re going to play yourself. I’m going to play your lawyer and Steve’s going to [00:08:00] join us and he’s going to join us on Zoom and he is going to be the opposing counsel and we’re going to actually practice like a real deposition.

He’s going to ask you questions, you’re going to answer them, right, and we’re just going to go through and actually have a real look at how this is going to be. Okay. Okay. Okay. How we actually format this is we’re going to set a timer for eight to 10 minutes. And what’s going to happen is we’re going to swear you in as a witness and we’re going to go.

And that means Steve’s going to ask you questions for eight to 10 minutes straight. As soon as the timer goes off, we’re going to pause. We’re going to stop the role play, check in, and then we’re going to go again. Now, you’re going to do three rounds that way, because you got your other lawyer there for 30 minutes.

So let’s maximize that other lawyer, right? So that means our pause in between each round is 30 seconds to a minute. All we’re doing in between rounds is checking in with the client. How are you doing? [00:09:00] What questions were challenging? Anything you didn’t like. Okay, great. We’re going to go again. Steve’s going to go in.

He’s going to ask you some other questions now. So each round is a different set of questions. Maybe it’s a different topic. And what you’re doing is you’re watching. You’re watching body language. You’re watching where are they having a problem. You’re highlighting the questions that are the problems.

You’re making notes. You can really focus in and tune into what they’re doing. And Steve’s just doing his thing. So that’s also why we want to have somebody else do it, the role play so that you can really hone in on what is it that they’re doing? Is it, is there just a major malfunction, a major disconnect, or is there a problem you’ve talked about, but now it’s back.

You’re going to be able to be present for all those things because somebody else is actually asking the questions. And once you finish all three rounds at the end, [00:10:00] then you can ask the other lawyer, Hey, Steve. Do you feel like there’s a question that you really got the client on, right? You got them to answer the way you wanted.

Oh, yeah, it was this question right here. Okay, great. Any other feedback about where, in your point of view as the opposing counsel, that you scored some points or you saw some weaknesses? Oh, yeah, it was A, B, C, D. All right, awesome. Thanks, Steve. You can leave. Boop, Steve’s gone. Now then, it’s your turn, right, to give feedback.

So we’ve been doing all these rounds, three rounds, taking notes and not giving any feedback, withholding any feedback. Why? Because we want to make sure we go through all the rounds. We want all the different looks. We want to have all these notes. Then we stop regroup and then we go back. We’ve highlighted the questions that were issues or the topics.

Right now we can just go back and look at those. And hey, do you remember what you said to this one? This is, hey, this is what you said. Hey, here’s this question, right? Then we really go through and look at the feedback. After they’ve had the full, [00:11:00] 24 minutes, 30 minutes of really grueling role play. And then we go back and look at, there’s this issue, we need to go back and reorganize this answer, or hey, there’s a whole nother topic we never talked about, but this was your reaction, how are you feeling, all that, but we’ve really compacted role play into a digestible, easy exercise for the other person, other lawyer, for you and for the client.

We’re packing it in. We’re doing as much work as we can in 30 minutes. That’s why I say make them challenging questions. Make them intense questions. Make sure that the other lawyer knows like you’re playing like this particular opposing counsel. So if you want to get really supercharged your role play, All right, the best way to do this one find old depositions taken by the opposing counsel of other plaintiffs so you can get the exact questions.

Do they ask the same thing every time? Maybe they don’t. Either way, you’re going to have the exact wording, which is always [00:12:00] important. Our lawyer, wording is different than regular conversation. So very important to give that look when you’re doing role play. Another way to supercharge the role play is to have the other lawyer use different tactics.

Sometimes we don’t have time for that. Sometimes we do. If you have somebody who, for example, Debra Hensley, who you’ve met on the podcast, she’s here in Austin, has practice here, and she and I role play with each other very often. I’ll call her, she calls me, hey, you got 30 minutes, 30 minutes, yep, yep, yep.

Because we were so used to doing that together with each other, I already know I can weave in other little things. tactics to try because I know I’m going to be able to hit all of her questions and I’m going to be able to weave in the different tactics. And by what I mean by that is using silence.

ignoring the person, never making eye contact, just looking down, taking notes, asking questions immediately after an answer, basically just allowing zero time in between [00:13:00] question and answer, being really friendly, being a total jerk, objection non responsive, right? Just trying all these different styles along with challenging questions, right?

So just really, really heaping it in there in that 30 minutes. is so helpful. Again, you’re trying to give the most realistic look, you’re packing a punch with that 30 minutes and with that other lawyer who’s helping you. And it can really significantly test the preparation that’s been done. And that’s why I always encourage people to do the role play after you’ve done preparation.

After you’ve looked at what are the difficult parts of this case, look at what the truths are, let’s organize your truths, right? Let’s do some work together before you get in a role play because if you get in a role play too early, they’re going to be really discouraged. Right? Like, wow, this is just hopeless.

There’s no way I’m gonna survive this thing. I’m just gonna roll over. We don’t want them to be hopeless. We do want them to give them [00:14:00] a realistic experience and that way they know, hey, I just totally froze up in there. Or, wow, I just, I could not stop talking. Whatever their experience is, they go through it and they’ve, whoa, oh, wow.

Okay. I felt that. I know. Okay. All right. Now I feel a little bit more prepared. When I have that lockup feeling I’ll just take a break or when I have that oh my gosh I need to have verbal diarrhea all over the steps. I should like stop and that also gives you the lawyer the same Benefit, so if you see the behavior you can also take a break and just check in Because that’s sometimes all that we need to do is have that check in moment.

Come back to presence. And that’s why we do the role play that we do, so that you could check in with how they’re feeling. What’s going on in your brain? Are you exhausted? Are you, hey, this is what’s going on. Do you realize you’re even doing that? Sometimes people don’t even know. Some people are fidgeters.

They know they fidget. Some people [00:15:00] have a no idea that they’re fidgeting. Until you say, hey, you’re fidgeting. Like you’re rocking in your chair the whole time. Did you even know you did that? I had no idea. So all these things are super helpful and again, we had this amazing discussion about how helpful roleplay can be and the purpose is to give a realistic experience which may be a roleplay that You know, the client doesn’t master.

They’re not, okay, I get a kick, but they’re going to come out of the sink and wow, whoa, that’s what this thing’s going to be like. Okay. Like I know why we’re preparing and they also feel like, okay, I got this right. Thank you for giving the experience so that I can know what to prepare for better. And again, people always walk in to prep.

First thing they say is what are the questions you’re going to ask me? Boom, we’re going to give it to them, especially if you’ve supercharged your role play with actual questions from the same opposing counsel, which I encourage you to do. You can find that by having people who’ve had cases with that opposing counsel or just asking your local [00:16:00] listserv, or if you’re part of any listserv at all.

Please join one because they’re super helpful with all kinds of things. If you have questions about roleplay or you need some help with roleplay, please don’t hesitate to email me. Love to exchange roleplay time with other folks. Just know that I will absolutely call you and ask you to do the same. So thank you so much for listening here today.

I hope that you found this podcast helpful. Please rate and review on your favorite platform. Share this podcast or this episode with a lawyer who, you know, may be needing it in this moment. And as always, thank you so much.

We’re joined by Ryan Squires, a partner at Scott, Douglass & McConnico. He is an experienced trial lawyer with many trials under his belt. In this episode, he talks about one specific trial he did in Austin in July 2021. 

It was a record-setting verdict in that the jury awarded them worth $40 million in damages and money, something they haven’t seen in the last 20 years in terms of a private plaintiff in Austin. It also answered certain questions in a manner that allowed the judge to also give them a constructive trust that included real estate and Bitcoin. 

To give you a brief overview, this was a father versus son case concerning cryptocurrency and some real estate controlled by the son, but those have been traced back to the seed money provided by the father. 

Today, Ryan shares what went behind the scenes in preparing for this trial from how they’ve set up the focus groups to gathering evidence and witness preparation.

In this episode, you will hear:

• How they’ve set up focus groups for trial preparation
• Using deposition testimony in court as evidence
• The cross-examination preparation
• COVID protocols observed in the courtroom
• The importance of having time limitations for the witnesses
• The benefits of focus groups in this case
• The challenges in gathering evidence

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

To learn more about Ryan Squires and his practice please visit: https://www.scottdoug.com/attorneys/ryan-squires/ 

If you’d like to learn more about the jury verdict we discussed in this episode, you can go here: https://www.scottdoug.com/sdm-obtains-record-setting-verdict-in-bitcoin-case/

Episode Credits:

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

Episode Transcript:

Elizabeth Larrick: Hello and welcome back to another episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

This is a podcast designed to connect trial lawyers with tips and tricks. and tricks for courtroom connecting with jurors and their own clients. I am very excited to have an interview today with an [00:01:00] exceptional trial lawyer, Brian Squires. He is here in Austin with me, and he’s a partner at Scott Douglas McConnico, and he’s done many, many, many trials, but we are here to talk about one really specific trial that he did here in Austin, an actually record setting verdict.

So I’m excited to have Ryan joining us today. Hello, Ryan. 

Brian Squires: Hey, Elizabeth. Thanks for having me. 

Elizabeth Larrick: Absolutely. Well, I want us to jump right in and tell us a little bit about why is this a record setting verdict for Austin and then tell us also if you can a little about the case. 

Brian Squires: It’s a record setting verdict just in terms of the amount that was awarded by the jury.

I think the jury awarded north of 40 million in damages and money and then also answered certain questions in a manner that allowed the judge to give us some equitable relief in terms of a constructive trust, which included real estate and Bitcoin. And depending on the price of Bitcoin at any given day, it might [00:02:00] be well north of 40 million.

And so I think When we were trying to look at the numbers and see when the last time a Travis County jury gave that type of an award, we looked and we really couldn’t see any in the last 20 years in terms of a private plaintiff. I mean, in Austin, sometimes we have public plaintiffs, maybe even the state of Texas bringing suit against somebody.

And sometimes those numbers are enormous. And so we’ve excluded that. But in terms of a private plaintiff, actual damages. We didn’t see many that were bigger than this. 

Elizabeth Larrick: And this was to make it even more unique. It was father versus son, right? 

Brian Squires: Yes. Unfortunately, this was a case where the father had essentially provided almost most of the father’s net worth back in the nineties to the son to invest.

And the son did what he did over the course of 15, 20 years. And ultimately Did not give the father [00:03:00] back his share of the ultimate investments, which is why we ended up suing. 

Elizabeth Larrick: And one of those things was crypto, right? A lot of crypto. 

Brian Squires: It was, it was an interesting part of the case because we had to trace beginning with the father’s money back in the mid nineties.

We had to trace it all the way through the years. In various investments, various liquidations, various reinvestments, which we were able to do. And the jury certainly followed our tracing, but it started off as stocks and stuff like that. And it was moved into some real estate. And then from the real estate, it was moved into cryptocurrency and Bitcoin.

And that’s ultimately over is just some cryptoc controlled by the sun, but which can be traced back to the seed money provided by the father. 

Elizabeth Larrick: Gotcha. So what ultimately were the claims [00:04:00] in the suit? 

Brian Squires: We had a variety of claims. The theory that we chose to proceed with respect to the final judgment was a trust theory under the trust code.

And we also succeeded on breach of fiduciary duty and unjust enrichment. 

Elizabeth Larrick: As far as kind of overall strategy, what were some of the things you guys had in your mind, knowing this is probably not gonna be a case that settles, it’s going to have to go to a trial, go to a jury trial. 

Brian Squires: I mean, that’s sort of where you came into play pretty early in the case in terms of the focus groups that we did and just trying to see, because when you’re tracing assets over the course of 20 years.

And sometimes you had the benefit of financial statements. Sometimes you didn’t, sometimes you’re trying to piece together the tracing through. emails and admissions of the defendant, etcetera. We wanted to make sure that we traced those assets in a manner that could [00:05:00] be easily understood. Despite the fact that those investments took many different characterizations, we had to piece it together with evidence that was not just statements, but emails and everything.

We just had to make sure that that message was clear enough. and easy enough to follow that the jury would be able to start here and trace it all the way to here without any real question. And so I think most of the time we did for trial preparation was fine tuning that message so that we could show it in documents, we could show it in pictures on a PowerPoint with a timeline, whatever we could do to simplify it and make it easy to understand is what we focused on.

Elizabeth Larrick: I know that there was a lot of documents and especially a lot of emails between these, all these family members involved for the course of, like you said, 20 years. So how, you know, how’d you guys decide which, which emails were the smoking guns, or did you even give any emails as exhibits? [00:06:00] 

Brian Squires: We did give emails as exhibits.

I think there was a ton of emails and there was not just a ton of emails. Some of the emails were extremely lengthy. pages. And so it’s hard to put that type of information in a format that’s easy to grasp and understand and not overwhelm the judge or the jury with paper. And so I think we tried, just like I talked about with respect to the tracing, we tried to pick and use the emails that had statements in there, for example, from the defendant acknowledging dollar amounts on this particular day.

or investments made on this particular day. And I think the focus of the emails was to use them where we didn’t have maybe other evidence, whether it be financial statements or otherwise. to just help plug in any holes on that tracing analysis. And we also had [00:07:00] a defendant who he was an interesting defendant and we needed those emails to sometimes rain in his testimony and get him focused on what he was saying at the time.

versus what he may be saying now. 

Elizabeth Larrick: Gotcha. And along the lines of investigating and especially with the defendant, you guys actually went into some of his other divorce lawsuits as well, right? 

Brian Squires: We did. And honestly, it was maybe the most important piece of evidence we had because his defense in the case was that dad’s money that he may have had access to or controlled or invested was gone.

Dad had either spin it away or dad had either given it away and thus dad was essentially broke and all the assets that currently existed were all the defendants and the defendants alone and we didn’t [00:08:00] believe that and the jury didn’t believe that but we had to prove it we had to trace it and we had really good tracing evidence starting with dad’s inheritance and sort of the seed money And following that money through the son’s investments and stocks and even some real estate.

But the majority of the wealth that remained at the end of the day was bitcoin and two pieces of real estate, one in Austin and one in Park City. And so obviously we had to show and prove that the bitcoin and the two pieces of real estate. can also be traced back to dad’s money. And we found a deposition that the defendant had given in, I don’t know if it was his divorce proceeding, but I think it was in a, in something related to that.

It might’ve been a [00:09:00] child custody modification type case, but he gave a deposition and it just so happened that the. defendant was asked questions about some of his real estate investments that were important to us prior to obtaining the bitcoin and the two pieces that were at issue in our case. It was investments in some real estate that he had made back in the mid 2000s.

And he acknowledged in that deposition what we had thought all along, which was Dad was invested in those pieces of real estate through him indirectly. And thus, dad may not be on the deed, but dad’s money was invested in those real estate projects. And then he mentioned several of those real estate investments by address.

Several of them had since been foreclosed on, but one had, and the one that had not been foreclosed on turned out to be the smoking gun. As we [00:10:00] Moved forward in time and in tracing that piece of real estate. It was bought back in the mid 2000s. It was then sold somewhere around 2015. And then we saw from there, the proceeds from that sale be used to buy the Bitcoin.

And then some of the Bitcoin be used to buy the house in Park City. And so it was really that deposition testimony that the defendant had given that allowed us to conclusively trace the sort of end of our timeline, which is what we needed to do. 

Elizabeth Larrick: Were you able to use that, that other deposition testimony in court as evidence?

Brian Squires: We ultimately were, although I’m not sure that basically the way it happened was, we We were asking the defendant the very same or similar questions that he had been asked at that deposition. We had wanted to [00:11:00] introduce just the excerpt that we cared about. The defendant’s objected. The judge initially wasn’t, I don’t believe, going to allow that deposition testimony to just be entered into evidence.

And so we had to do it through sort of impeachment, if you will. Like we had to ask him the same questions. If he gave us different answers, we had to impeach him. And If I remember correctly, the defendant would not give us the same answers that he gave back in the day when he gave that deposition. You know, certainly before there was any dispute and fight with his dad, all indications where he was being honest in his testimony back in the day.

But we had to impeach him so often that I think that the judge finally said, Look, if we’re just gonna have to impeach every question and answer, we might as well just enter these two pages or whatever it was into evidence Yeah. Eventually they actually did get entered into evidence, but initially I don’t think that was the plan.

Elizabeth Larrick: Gotcha, gotcha. And you were doing the cross exam, is that right? 

Brian Squires: [00:12:00] Yes. 

Elizabeth Larrick: Okay. So how long did that ultimately take, and was the jury like, could you see if they were frustrated or if they were loving it or, I mean, I know. Tell me a little bit about that cross exam. 

Brian Squires: cross examination for this witness took a ton of preparation because I knew that for every question I asked him essentially I need to have backup if he gives me any answer that’s contrary to what I know the answer should be.

And because this litigation span the course of 20 years of correspondence and emails and tracing investments and because we had prior depositions that the defendant had given because we had prior proceedings in this very case, depositions that he had given and or testimony at injunction related proceedings.

I had a lot of material [00:13:00] to go through and master the minutia of. And so the cross examination preparation was extensive. It took a long time and I basically had to have impeaching evidence at the ready for almost every single question I asked. And so I think my cross examination lasted the entire day of trial.

And then the defendant’s direct lasted a day or two. And so the defendant himself was on the stand, I would say most of the first week of trial and then things picked up a little, but he was the most important witness. He had the most important things to say. And so it’s natural, but we did take a long time.

Elizabeth Larrick: Was he your first witness? 

Brian Squires: Yes. 

Elizabeth Larrick: Okay. Wow. So you guys right out of the gate 

Brian Squires: just, yeah, we did. We did openings and then we called our first witness and we called the defendant adversely. And so my cross examination was that entire day after [00:14:00] that. And then the direct happened. Gotcha. 

Elizabeth Larrick: And tell me, we jumped a little bit into the trial.

You guys tried this case in July of 2021. So what were, what was going on with the covid protocols? What was the courtroom like? I know you got to do in person, which was pretty amazing for Austin. 

Brian Squires: We did, although I think it was touch and go. And I think, you know, I think we were the first in 16 17 months to get to do an in person jury trial.

I think we were the last for another maybe 10 months to do an in person jury trial. One of my partners here just finished a week or two ago. an in person jury trial in Travis County. And so it very well may be that those the only two that have occurred in the last 2. 5 years. I don’t know. I know ours was the first to occur in person since the covid pandemic and the judge did an awesome job in terms of the protocols in place in terms [00:15:00] of wanting to land the plane and get through an entire verdict without people falling off because they’ve been exposed or concerned about exposure.

And so the way the judge did it, which worked fantastic under the circumstances was she rearranged the courtroom completely. The jury sat in the section where the audience usually sits and spaced out. And so we had, I think, 12 jurors and two alternates and they were in the gallery. You had some of the courtroom personnel like the court reporter in the jury box.

You had everybody wearing masks. The attorneys were allowed to take off their masks. and use a face shield if they were the ones asking the questions or making the objections, but otherwise everybody wore masks. The judge wore a mask and was behind some [00:16:00] plexiglass at the bench. They had set up monitors in the courtroom such that the jurors, even though they were in the gallery, could very easily see on these big monitors the evidence that was being presented.

The board dire was done in two stages. Let’s say for number sake, there was 80 people on the panel. Numbers 41 through 80 came in the morning and spread out in the gallery and you did your board dire and then they were allowed to leave at lunch and they weren’t released from juror duty because some of them did not know if they were going to be picked or not, but they were released for the day.

And then you had jurors one through 40 come in in the afternoon, sit in the gallery. You did your voir dire again, and then you made your peremptory strikes and picked your jury that [00:17:00] afternoon. And so most of the jurors I think probably came from that panel of one through 40. But some of them did not.

Some of them were in that back panel and they were given a call later that night and said, you’re on the jury and we need you to report back the next day. And so the next day we had our full jury there. But the judge did an awesome job in making everybody comfortable and under the circumstances getting through an in person jury trial when at the time the pandemic everybody thought had sort of slowed down enough to where we could get an in person jury trial but during our trial it started going up again and I think they they shut the courts down again after our trial for a while.

Elizabeth Larrick: How long ultimately was the trial? 

Brian Squires: two weeks. 

Elizabeth Larrick: Okay. And nobody came down. No exposures. No, 

Brian Squires: nobody came down. I think we we might have let one juror go, but it had nothing to do with the pandemic. I think it was [00:18:00] religious holiday type thing. If I remember correctly, and then we had one alternate, at least at the time that the lawyers were giving closing arguments and she had sat through the entire trial.

And then at the close of evidence before closing argument, she was told, Hey, thank you for your service, but you’re free to go. She stayed. She wanted to hear the closing arguments. She obviously didn’t deliberate, but so it worked. It worked out well, thanks to the judge and everybody else who was taking all those precautions.

Elizabeth Larrick: Yeah, that’s awesome. And I remember that because it was like, oh, yay, we’re getting back. And then it was just you guys at that one trial. So other than the defendant witness, how many other witnesses did you guys have? And how did you manage the time that you had? 

Brian Squires: The judge gave us pretty strict time limitations, and I think it was designed to make sure that the jury got the case [00:19:00] at a particular point in that second week such that they could continue deliberating as long as they needed to.

But the judge at the time was starting I think another trial that third week. And so there was no way the trial that we were doing and conducting what was going to be allowed to go past the two weeks. And so We had to divvy up our time accordingly. I don’t think as the plaintiff, we ran into any real time constraints.

The defendants did, I think because they spent so much time with their defendant witness on as the first witness. But we got through all of our witnesses and like any other trial, once Once the story comes out and you’re no longer having to put things in context and the jury sort of knows it, the further down the list of witnesses you go, the shorter the testimony can be.

The jury has the context in the story. They sort of know [00:20:00] everybody’s place. And so as we got towards the end of the trial, some of our witnesses weren’t on the stand. But You know, 15 minutes. Gotcha. I think the jury appreciates. 

Elizabeth Larrick: Yeah, I was gonna say, I think one of the things that I’ve been hearing through a lot of trials is a lot of impatience with jurors and they’re showing their impatience very clearly at the lawyers in the room.

Did you guys have any of that kind of feeling or get anything back or have any feedback from the jury while you’re trying the case? 

Brian Squires: Not that I could tell, but it was a fascinating case and had interesting personalities involved and certainly a very interesting story. The jury seemed to really pay attention and almost be captivated by the story and the witnesses and coming to the right result.

Elizabeth Larrick: Gotcha. Do you guys have any questions once the jury deliberated? 

Brian Squires: We did, I believe, and I can’t remember what it was. I can’t remember. [00:21:00] It wasn’t something that was so material it stuck out in my mind, but we did have at least one question and I think it might have been evidentiary related and the judge may have just told them you have what you have continued deliberating, but that’s the only thing I remember in terms of the questions.

Elizabeth Larrick: Gotcha. Gotcha. Well, was there anything else as far as preparation? You said you really spent a lot of time preparing for cross. Was there anything else that sticks out in your mind about the trial prep that you did? 

Brian Squires: The focus groups were extremely helpful because, you know, what every trial lawyer runs into is they are trying to get organized in those few weeks, getting up, getting ready to try the case or trying to get their exhibits organized.

They’re trying to get their witnesses at the ready. They’re trying to deal with all of the local [00:22:00] rules may be about designating page lines and depositions and then objecting to the other side’s page lines. Or there’s just a lot of stuff that happens in that week or two before trial that takes up a lot of time.

And I think a lot of times some trial lawyers put off, for example, preparing a robust opening statement. Or even their board dire because they don’t have the time. They’re dealing with all this other stuff. And so the focus groups we did allowed us to prepare for that ahead of time. And thus, by the time that we got to trial, our opening statement message was clear.

It was done or dire was clear. It was done, and it allowed us to not have to worry about doing all that while we’re in court. In the minutia of the depositions and exhibits and everything else. And so we found that very helpful. 

Elizabeth Larrick: Yeah. And you guys [00:23:00] actually, you did three focus groups. So they all were spread out about six months to three months apart.

That sounds like 

Brian Squires: that’s right. Yeah. 

Elizabeth Larrick: And you did the same thing over and over again. How come you just why can we chose to do the same thing over and over again? 

Brian Squires: It was mainly just to fine tune the opening statement. And as we receive new evidence or new information, we might feed that into the focus group and get some feedback.

But for the most part, it was like I said, trying to make sure that our tracing story and the evidence we had to back it up was easy to understand. And a lot of times you do that with a power point or pictures like we used at trial. In our opening statement, we had a timeline and we just wanted to make sure that that was something that Anybody could grasp and it was easy to follow, 

Elizabeth Larrick: right?

Because you guys had a lot of time to cover [00:24:00] and a lot of events to cover. 

Brian Squires: Exactly. 

Elizabeth Larrick: I know that our focus groups we did together, we did almost all of them were virtual. 

Brian Squires: I think that’s right. 

Elizabeth Larrick: All of them were virtual, but you had an in person trial. Was there any pause or any concern by doing virtual ones?

Brian Squires: I don’t think so. I think that yeah. With technology, especially power points and everything else, as long as you can show your screen and they see what you’re trying to convey in terms of your demonstratives or whatever, then it works out fine. And it probably is easier in terms of making sure you get participants.

They can do it from their own home. They don’t have to come down to a hotel conference room or something like that. So You know, I’m not saying that in the future, I’m only going to do virtual. I think there is some positives of being in person and seeing everybody face to face, but in terms of substance and effectiveness, I didn’t see any issues with the virtual focus groups.[00:25:00] 

Elizabeth Larrick: Gotcha. Have you ever, as far as the setup that you use kind of this, you know, repeating that opening statement, have you used that setup before with focus groups? 

Brian Squires: I feel like that’s the only thing I’ve done in focus groups in terms of a 30 minute presentation on the plaintiff side, 30 men on presentation on the defense side.

It’s not an opening statement in the sense that you’re showing evidence that you might not get to show in an opening statement. It’s more of a summary of your case presentation and evidence that you can then fine tune for your opening message or opening statement. I know that other people use focus groups to maybe focus on one particular piece of evidence or maybe they’re focusing on witness.

Deposition testimony or credibility, all of which are bought totally valid uses of focus groups, but I think the ones I’ve done have always been here’s our case. Here’s the defense’s case. What are we missing? What do we need to clarify? What’s hard to understand? All that stuff. 

Elizabeth Larrick: Gotcha. [00:26:00] Is there anything else as far as the verdict or the case or even the trial prep or anything that you felt like worked really well for this case that you want to share with us?

Brian Squires: Well, what the secret weapon I had was my partner, Abe Koochai, who was just detailed and dogged. Abe is one of the smartest people I know, and he was the one that really went in and got into the weeds of all the paper that we had. When you think about all of the various real estate investments and the closing documents associated with refinances and then sales and then using those proceeds to go somewhere else and do something similar.

There’s just a lot of paperwork and a lot of small fine print that you’ve got to get into the weeds of. And we were able to do that mainly thanks to Abe. But Abe was definitely the secret weapon in terms of the case preparation and then organizing it in a [00:27:00] way that We think the jury can understand it, but it just takes a lot of time.

And I think those focus groups certainly helped. 

Elizabeth Larrick: Yeah. And I think one of the things that I was kind of, when you were telling me about was like, you guys went after the crypto places too, and subpoenaed those records and tried to track all that stuff down too. 

Brian Squires: We did. The funny thing about crypto is there are exchanges now, like you hear about Coinbase, Gemini, and for the most part, they’re pretty cooperative in terms of.

Responding to spinous, some of the exchanges, depending on their location, may be more cooperative than others. And fortunately for our case, the tracing that we needed to prove ended up being transactions through Coinbase. And so when we got the Coinbase records, we were able to show pretty conclusively where the money went, but crypto also can be traded.

Peer to peer at a coffee shop on a thumb drive. And that would have been a lot harder. [00:28:00] 

Elizabeth Larrick: Yeah. And did you guys ever have any worry that, that people not understanding crypto would have somehow been a problem for y’all? 

Brian Squires: I don’t know if they would have been a problem. It’s certainly a. interesting topic that I think sometimes people are interested to learn about.

We had an expert that was just awesome and she was able to explain it in a way that anybody could understand despite its complexity. So it’s not like our case. really depended on the intricacies of how Bitcoin works or the blockchain works or anything like that. It was an asset that the defendant had that we could trace back to dad’s money.

And that’s really all we needed to show. Our expert helped, I think, clear up any confusion and make that whole blockchain, Bitcoin experience Something anybody could grasp. And so she was important. [00:29:00] 

Elizabeth Larrick: Sure. Any, any worries that with the price of what crypto is right now? 

Brian Squires: Well, like I said, we’ve got a, a final judgment that gives us money, damages, and a constructive trust.

The constructive trust. Includes Bitcoin. And so the price goes down, the constructive trust value goes down. If the price goes up, the constructive trust price goes up right now. It is what it is. We just got to let the process play out and then we’ll determine how that volatility impacts our client.

Elizabeth Larrick: Gotcha. You’re going to go after any more crypto cases. 

Brian Squires: What’s interesting is after this case, I’ve actually had one or two cases involving non fungible tokens, and they haven’t been. They haven’t gone very far. They were both resolved. One of them was resolved fairly quickly and I’m not sure the other one went anywhere, but it’s an interesting.

space [00:30:00] for litigation because it’s done on the Internet. It’s virtual. There’s not a real asset you can touch. Somebody owns that asset virtual wallet and sometimes there are disputes about you know whose Asset it is how much this person owns versus this person And so I think we’ll probably see more of it, but it’s just an interesting area That I think is just going to be much more ripe with disputes.

Elizabeth Larrick: Sure. Do you have any crypto yourself? 

Brian Squires: I don’t, I don’t know if I have the risk tolerance to watch it. Just go up and down all the time. I sort of like to, and I like to touch and feel assets, dirt, house, that kind of stuff, but if you talk to some, anybody under the age of about 25, I feel like they’re. All in on this world of cryptocurrency and NFTs and metaverse and you [00:31:00] name it, 

Elizabeth Larrick: Web3 and oh yeah, 

Brian Squires: Web3, and it’s, I feel like my grandparents probably did when I was telling ’em about the internet.

I just . It’s not something I quite grasp yet. , 

Elizabeth Larrick: yeah. What I think you probably have a pretty high risk tolerance. Most trial lawyers have a pretty high risk tolerance, but like I said. I totally understand. But awesome. Well, do you have anything else as far as sharing with everybody? We’re trying to hear help.

A lot of people go back to trial right now as far as after Cove it. Anything else you’d like to share? 

Brian Squires: I don’t think so. I mean, I’d love to see us trying more cases. I just think that and I think we will. Like I said, my partner tried one for two weeks just a few weeks ago in Travis County and it may have had some bumps in the road, but I think they finished.

They got a verdict, which is all you can ask for. And I think that this pandemic has on some levels, it’s gonna make future hearings a little more efficient now that everybody knows how to do zoom. There’s [00:32:00] certain hearings that you just don’t really need to go down to the courthouse for. And if you can just do them on your computer in your office and save the client time and money and you time and it just makes sense.

I mean, there’s certain hearings that I think you do need to be down at the courthouse for their certain. Obviously, the in person trials are important, but I think we’re moving in the right direction. 

Elizabeth Larrick: Yeah, well, hopefully we’ll pick up. I know that Austin itself is pretty far behind compared. And so there’s a lot of places who are back in person.

No mask. So back in 2021, so awesome. Well, thank you so much, Ryan. I really appreciate you stopping in and talk to us about your trial. And I understand that it’s on appeal. So I wish you and your clients the best when all that gets resolved. 

Brian Squires: I appreciate it. Elizabeth, for having me. 

Elizabeth Larrick: I hope you enjoyed today’s episode with Ryan Sweeney.

Squires, we’re going to have his information and contact in the show notes if you want to reach out to him. And as always in the show notes will be my email if you have any [00:33:00] questions or have a suggestion for an episode. I appreciate you listening here today. If you enjoyed what you heard, please leave us a rating and review on your

One of the common challenges lawyers have when it comes to running focus groups is where to find the participants. And if they do find them, how do they get them to respond to what they’re putting out there. 

Therefore, part of the success of focus groups lies in the recruiting process. You want to have an ample amount of people to choose from. You want participants that mirror the jurors, and not necessarily perfectly mirror your community. 

Right off the cuff, I use Facebook and Craigslist to advertise for focus group participants. But where exactly do you post the ad? And what would be the most efficient way to do that? In this episode, we’re going to talk about how you can set up a system for recruiting focus group participants so you can start getting more people to apply. 

In this episode, you will hear:

• How much to pay people for focus groups and how to pay them
• Choosing the best day and time for running focus groups
• How to make the process easy for people to apply
• Posting Craigslist ads and setting up a Facebook business page
• Creating a masterlist for the participants

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Supporting Resources:

www.advantagefocusgroups.com 

Have a question about recruiting and advertising for focus groups? Email me! elizabeth@larricklawfirm.com   

You can revisit Episode 20 for more information on setting up your own focus groups:

https://larricklawfirm.com/do-it-yourself-virtual-focus-groups-pt-2

Episode Credits:

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

Episode Transcript:

Hello, and welcome to a new episode of trial lawyer prep with me, Elizabeth Larrick, your host. This is a podcast designed and dedicated to trial lawyers who are trying to get better at connecting with their clients through deposition prep or trial prep, [00:01:00] and also connect with jurors through focus groups.

Today, we are going to tackle in this episode, a question I’ve been getting quite a bit recently from lawyers. And so I wanted to take an episode to explain because I think it is really, really helpful for everyone involved, which would be, where do you find, where do you recruit focus group participants?

And I know we’ve had several episodes about putting together your own focus groups, which I really encourage you to do. We will put those episodes in the show notes if you want to go back and listen to those. But today in this episode, I really want to focus in on advertising and recruiting because I know some folks out there are asking this question, they’re scratching their head.

They’re just having some hard time getting responses to what they’re putting out there. So, initial glance, I can say right off the cuff that I use Facebook and I use Craigslist to [00:02:00] advertise for focus group participants. But when I started to actually think about, well, is that it? Is that all that I do? I really was remembering like, oh, actually this goes a lot deeper than just, hey, where do you post this ad?

Where do you put this location in the advertisement? So it led me to a few other questions that maybe you want to ask. Hey, in looking at your system that you have for recruiting, are we up to date? Are there things that we could change that we can get more people in the door? We want to do a good job recruiting because we want to have people to pick from.

Okay, we want to have focus groups that mirror jurors and you don’t necessarily have to perfectly mirror your community. What I try to say though is, Hey, I want to mirror people who are going to actually show up. Right. And then also for focus groups, what people who are going to participate now, sometimes those two things don’t match up, but I always feel like in our [00:03:00] recruiting process, when we want to have ample amount of people to choose from.

And then also have a few other things in there to prevent some of our career focus group folks that can come in here and just basically say whatever you ask them to say, which is not helpful feedback. All right, so let’s get back to looking at what is the system that you have for recruiting and what are people responding to your ads?

If at all, again, the problem people have been running to recently is like no responses. So, I always ask, what are you paying folks? What’s your hourly rate that you’re paying people? It’s all over the board. At the beginning of the pandemic, I was paying folks 20 an hour. Now I pay people 25 an hour. But we have different rates depending on how long we’re asking people to attend.

So the longer the focus group, we may be adjusting it to 25. The shorter the focus group, I’ve actually found you gotta actually pay more per hour. So 27 an hour, sometimes even 30 an hour. But that’s always kind of a range you can [00:04:00] test out to see what works best for you. The mantra would be that, hey, if I pay more, I’m going to have more people apply and better people to pick from.

Not necessarily true. Because the other thing that kind of correlates with paying people is what days and what times are you offering your focus groups. So focus groups may be a convenient time for you, but may not be for you. Convenient at all for folks who want to attend and this has happened for me where I just basically had to experiment and kind of look at, okay, when.

It is a good time to run a focus group. So before the pandemic, we were doing in person focus groups. We kind of went through a system to figure out when are the best times to run in person focus groups. And here in Austin, we really had to think about what are the traffic patterns. Because if we’re asking people to come over to a location, one, we had to be very specific about, okay, what’s our location?

We [00:05:00] really need to be on a main thoroughfare, which for us is either 35 or Mopac. And luckily we were on 35. So it’s a very easy location on the interstate. And then it became, well, let’s look at traffic. Let’s look at school hours. Try to play with what days of the week are best. What days of the week are terrible, right?

So Fridays are really, really hard. Because it’s Friday. People want to celebrate earlier and start the weekend early. So I always felt like Fridays were difficult. Although virtual has changed my mind on that. And naturally, when we go into virtual, same kind of thoughts of, okay, well, what are the best days and what are the best times?

And when we initially started doing virtual, I was starting them at 12, because we were doing in person, we would do start at 12, but we would do, please come early, we’ll have a meal for you, some kind of lunch, we’ll start right at 12, we’ll end right at 3 or 3. 30 or 4, however long we needed it to be.

Virtual, it’s like, oh, wow, we have all this [00:06:00] flexibility. So we started them at 12. And of course, what I was finding was people were basically eating their lunch while we’re trying to ask them to talk, which doesn’t work well when you’re asking people to answer questions. So literally just bumped it to 1230 and problem solved.

Okay, so sometimes really, really small tweaks. Make a big difference. I always found that mornings were difficult. We used to run Saturday in person focus groups, but we did them on Saturdays because we knew we’d be able to get more people as far as participant group. And then also we’d have easier people for traffic.

So Saturdays were always a great day for focus groups in person. I think Saturdays are great for virtual as well. We’ve done those as well. So it’s just one of those things to look at and you may have to try to experiment to figure out what works best. I always caution mornings because it’s easy for people to oversleep or just, Oh, I got to do something else.

So either way, I always say, give yourself ample time, at least a week to recruit people, but. [00:07:00] Again, when it comes down to what days and what times, you may be, what you’re picking that fits your schedule doesn’t fit focus group participant schedule. So be thinking about that as well. Another really small thing is how do you actually pay?

So we use PayPal here. I use PayPal here. And I know some people use Venmo. People use Zelle. I had actually a participant asked me to mail them a check. I said, absolutely not. I haven’t used a check to pay a participant in years. When we were in person, we always paid with cash. And when we switched to virtual, I just.

Picked a road, which would be PayPal, and that’s all we use is just PayPal. We’ve got to make it really, really simple for us. And also, it’s one of those things, if somebody doesn’t have PayPal, or they don’t trust PayPal, it’s just say, okay, well, this is the way, this is the way that we do it. So, making it easy for people to be paid, right?

Guaranteeing they’re going to get paid the same day, get paid within 15 minutes of finishing. That is the key. That’s important to people. So just keep [00:08:00] that in mind of how you pay people and also telling them that in the ad. The other thing that comes to mind, too, about recruiting is how easy are you making it for people who are interested to apply?

Are you asking them to call you? Are you asking them to send an email? Are you asking them to fill out a Google form or maybe a contact form on a website? Different things have different barriers, I think. Research has shown like asking people to make a call is really difficult as lawyers. This is why we all have that little pop up person, a little pop up chat, little bot that says, Hey, you looking for somebody?

It’s so much easier for people to type that in versus picking up the phone to make that first call. Not everyone is that way, but again, this is a general statistic. That’s why I say if you’re asking people to call, that could be a reason why you’re having low turnout. Asking people to email, totally possible.

I ask people to [00:09:00] fill out a Google form, right? That way, we’re cutting out some of the email chatter because someone just emails me, Yes, I’m interested. Then, hey, go fill out this form. And then they have to go fill out the form. And versus, I just put the form in the ad. If you’re interested, fill out the form, we’ll email you.

We’ve also done it where we’ve screened people after they fill out the form that we actually give them a call. And I’ll talk a little bit about why we move to calls after they fill out the forms. But either way, just be thinking about that system. Are you making it easy for people who are interested to apply?

Also, do you have an official email? Or is it just some random email? Or maybe it’s Austin focus groups, ATX at Gmail. People actually look for that. People want to know that you’re legit, that you’re not a scam. I use Gmail at 6 a month, right? So it’s info at advantage focus groups. That’s it. Super simple.[00:10:00] 

But again, 6 a month gets you a business Google account. You’ve got the forms. You got all the other great things that go along with getting that Gmail, but it also helps with, is this real? You know, what is this about? Because occasionally I’ll have people tell me I saw your Craigslist app. I didn’t think it was real.

Okay. So we try to make our Craigslist ad actually talk about, Hey, it’s Advantage Focus Groups, LLC. We run market research. This is what a focus group. This is who we need. These are our requirements. If you want, if you want to apply, here. So we try to put as much information as possible in there. And I also write in there no long surveys and no politics.

Right, just so people know we are not talking about those things. But I generally try to leave out, Hey, this is about lawsuits. Who wants to join in? ’cause people don’t wanna talk about that stuff. So we have just a very general call for people who wanna participate in a focus group. But in that same vein, I’ve set up a website, advantage Focus groups.com.

We’ve got a telephone number that’s separate from my [00:11:00] office, the Facebook that I mentioned. When we post for Facebook or do a Facebook ad, it has Advantage. Focus Groups has its own Facebook group. Or not group, but it’s on Facebook page. Sorry, it doesn’t have a group, but that Facebook page is actually able to Join groups and that’s another kind of avenue for finding people.

We’ll get there Let’s stick to our list that we’ve got so far, which is are you looking official? Are you making sure you’re not looking too fishy? That’s another way to make sure people like think. Oh, this is real I’m going to apply for it. One of the things that I have found lately is I haven’t had a lack of people applying, I’ve had an abundance of people applying, and mostly from all over.

So eventually I asked, this was probably about a year ago, One of the people in my focus groups, virtual focus groups, Hey, how did you, how’d you hear about the Craigslist ad? Most of my Craigslist ads are [00:12:00] posted in the city of Austin. And he explained, Oh, well, I’m a part of this Facebook group for focus groupers.

And basically what happens is people will Join the group on Facebook, and then as things get posted on the web, on Craigslist, on Facebook groups, they will pull that ad and post it into this group. So then all these people, thousands of people, will go basically click on the Facebook group and go to the Craigslist ad.

I was like, oh, well that makes a lot of sense because I’m getting people from New York and California and all over the place. I’m like, what is up with that? So that helped because that told me like, okay, because I’ve been scammed over the past two years with virtual, where I’ve had several people who were not citizens of the U.

S. that joined my group that became very abundant after the fact. And so I thought, okay, well, how do I, one, how do I get a [00:13:00] little more keen on that myself, but then also how do I craft an ad, how do I look at things a little better so that I don’t have those people participating in my focus groups. And what I’ve done is a couple of things.

One of the things that I’ve done to try and avoid scammers is one, to keep a master list of all participants. I also keep what I call, A no list, which is if I have somebody participate and they are a scammer, or there’s somebody who would not be a helpful participant to return, I put them on my no list, but I keep a master list so I know and prevent repeats.

I don’t have a perfect memory, but I keep a master list of all of my participants that I go back and check. The other thing is on my Google Forms, I started about a year and a half ago just using one form. So I used to create a single. Get a new form for every single group and I stopped doing that and that has significantly helped me be able to see Scammers because they’ll hit up every single [00:14:00] Craigslist ad no matter where my Craigslist ad is.

So Recently, I had a Craigslist ad posted in Montana I actually had probably about two or three posted in Montana and I had people again all of a sudden from New York from Texas, all kinds of people spamming this ad. And luckily they were telling me they were from New York and not from Montana. But I had, of course, a lot of people telling me they were also from Montana or whatever the city was where I posted it at.

And I had my, who’s worked with me at the time, She just started emailing everybody who responded, and I was like, whoa, whoa, whoa. We really, we can’t email every single person who responds to attend, because one, we don’t have enough room. We only really need eight to ten people to participate, but two, we got to have quality people in the focus groups.

There’s an expectation about, one, we need to get some good, [00:15:00] Feedback, but we also need people who are actually from Montana. That’s going to be where the focus group is for, for the lawyers. Not everybody, don’t go straight down your list of form or whoever the first people who applied to your Craigslist ad, just wait and vet it out.

You want to have a good system set up. One, get lots of responses. That’s always super important. But then also so that you can actually vet and pick through people who are from the locale, location that you need are going to be good participants and aren’t necessarily our career focus group people that we, uh, that are not necessarily helpful because they say whatever you ask them to say.

All right. So if we go back and look at, okay, so. We’re having trouble getting responses. Where do you advertise? We talked about using Craigslist, Facebook, setting up a business Facebook page, and that business itself can actually go join other job [00:16:00] post groups. So if there’s a specific city or a specific location or area, you can go through Facebook and try and find a job.

Most, most places, counties or cities actually have job groups that someone has started and basically you just join it and just go in there and post your ad for a focus group and have people respond to that. That’s been fairly helpful. I’ve used folks. Facebook ads. I don’t find that as helpful for the money that you spend.

You’re really not getting a good bang for your buck. Craigslist is still works. I still get lots of people that apply through that. One of the other things that I have done is started a referral. Program. So I ask anybody who’s attended one of my focus groups that they refer me a name and an email. So with, then we then recruit that person to attend.

If they actually attend a focus group, then I’ll send a 10 gift [00:17:00] card to that person who referred them. And that has helped. Definitely helped. We talk about our referral program on our Facebook page. We tell everybody about it in our thank you emails just to remind people about that. And it definitely helps.

People are incentivized to send you people and generally. Going to send you somebody who’s going to attend so they can get the 10. So that’s always been a helpful way to get people and get quality folks and also people generally from the same location. Those are really some of the best tips that I have or what to look at, how much you’re paying, your dates and your times.

Are you making an easy payment? Are you looking official, not looking like too fishy? And then also just once you do start doing some of these things, you’re probably going to get scammed, you’re probably going to get spammed. I’ve definitely had recently somebody, I don’t know how this happened, but they took I guess an ad or a post that I had and put it on LinkedIn.

And I don’t have LinkedIn. I don’t know, for my focus groups, [00:18:00] because that’s not really where I need people from. I need people who are on Craigslist and Facebook to come. And so it just was unusual. I had a ton of email traffic all of a sudden. I want to do this. And I’m just like, I am not on LinkedIn. And you pay 100, 150, I’m like, whoa, it’s not me.

So anyhow, there’s definitely a lot going on. But I would say stick to it, get you a good system. Be patient. It’ll definitely happen. For you, and then when you do start to get more people applying, just make sure you’ve got a good vetting system. Either a couple of hoops where people jump through.

Definitely with confidentiality, I use that as a step to make sure people are actually going to show up before I give them the Zoom link. And again, those are just some of the things that I do to help with finding people, but then also vetting them to get them in the group. If you have any questions, or maybe stumped, or maybe you’re having some success, with a certain format or platform.

Please let us know. Send me an [00:19:00] email. I’m happy to tell the followers of this podcast and social media, other places that they can post or advertise. I’ve tried next door. I didn’t have a lot of success, but I would love for someone to tell me that they have. Either way. Thank you so much for listening and tuning in.

If you know somebody who’s running focus groups and they want some more information about recruiting, please forward them this podcast episode. So maybe they can have some more ideas about how to improve their responses to their. focus group ads. All right. Thank you again so much. If you enjoyed this podcast episode, please rate and review it on your favorite platform and also share with your fellow trial lawyers.

Thank you so much.

In this episode, I am sharing my point of view on a hotly debated topic in client preparation – when should a client share their damages, stories, examples, and feelings? Should they be in a deposition? Or should those be held until trial?

The old-school way of thinking would be to save it for trial. Many lawyers encourage clients to say as little as possible or to not offer any other information besides a yes or a no. For them, silence is a tactic, so they don’t explain anything. 

And I truly believe the opposite of that. I think the deposition is the place to share and that we should prepare our clients to share in their depositions. The deposition is the biggest place for the client to play their role in the case and decisions are made based on things in depositions. That’s the way that it works so we should not ignore the opportunity it gives you.

In this episode, you will hear:

• It takes so much longer to get to trial (most cases never even get to trial).
• What happens when the deposition of the client goes into the file evaluation
• What happens in a deposition is different from what happens in a trial 
• The black and white testimony in the deposition can’t be ignored.
• Getting a full uninterrupted opportunity during deposition

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Supporting Resources:

If you have a question or want to share your point of view, please email me: elizabeth@larricklawfirm.com

Episode Credits:

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Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, Elizabeth Larrick, your host.

This is a podcast designed for trial lawyers to give instruction, help, feedback, how to’s on connecting with jurors in the courtroom and connecting with their [00:01:00] clients. This episode, I am going to talk about my point of view on a hotly debated topic in a client preparation. And that would be when should a client share their damages, stories, examples, feelings?

Should it be in deposition? Or should it be held until trial? This topic comes up often for me after I’ve done a CLE discussion or when I’m working one on one with a lawyer for preparation. The old school way of thinking would be to save it for trial. Don’t share or don’t, if you do just share just a little.

Don’t share too much. We want to make sure that we save some things for trial. And this kind of mantra goes along with the advice that we see and hear on the internet and in YouTube videos by lawyers where we’re [00:02:00] encouraging people to say as little as possible. Don’t offer information. Say yes or no.

Silence is a tactic. Don’t explain anything. And I truly believe the opposite of that. I think that the deposition is the place to share and that we should prepare our clients to share in their depositions. And that point of view is really based on the realities that we face in our practice, but also what I believe is based on the fact that the deposition is the biggest place for the client to play their role in the case.

But let’s talk a little bit about our realities that we face, and we have faced for several years, right? This is not a pandemic problem. It’s a problem that’s been going on for many years, which is the courts are backlogged. There aren’t enough courts and enough judges, and so it takes much longer to get to trial.

Even if you want to say a year and a half, two years, three years, [00:03:00] and now with the pandemic, four to five years. And additionally, there are some, most, actually most cases, never even get to trial. So, that kind of piggybacks off my thought that if we’re going to limit a client for a deposition and encourage them to keep Right?

All those stories to themselves, trust us that we’re going to actually deliver them, but yet we know that it’s never going to trial. I think that’s doing a disservice to our clients. Also the reality that there’s generally a lot of time, meaning months and sometimes years between the deposition and trial, and in some cases they have a whole nother deposition because of the amount of time that’s passed.

And also the reality that the deposition of the client goes. Into the file evaluation. This is the place where they’re evaluating not only what your client is saying, but how they’re saying it. And of course we know they’re gonna [00:04:00] try and score points for their case in the client deposition. ’cause that’s what we do in our other depositions.

And I think this is especially important, the file evaluation where we have limited other places to find explanation for damages like the medical records, or as. We hear many times over the evaluations are strictly done on medical bills or medical coding like that. That’s just not really what we want our evaluations to be made on.

And I also understand the other point of view where there’s a mantra that we shouldn’t adhere to their system. I understand that. But at the same time, we know decisions are made based on things in depositions. That’s the way that it works. That’s where file evaluations come from. So. We shouldn’t ignore it.

That’s all I’m saying. It doesn’t hurt anything. We shouldn’t ignore it. And again, my point of view is based on the fact that I strongly believe that the deposition is the place for the client to step into their role [00:05:00] of the case and to be able to share. Also, trial is not going to be that platform for the client to be able to I mean, it’s, there’s objections, the jury’s there, the pressure is completely different between trial and deposition, and it’s much more choreographed.

How much your client is going to do in trial is vastly different than what they do in their deposition. You’ve got a whole list of witnesses and each one has a different role in our task and your client’s role is very different. Versus what happens in the deposition and if we’re taking away that opportunity, trial is not the opportunity for the client to go on and on and on and explain every single thing, right?

We have, we’re going to have other witnesses, we’re going to have other places, but we’re going to take away that opportunity if we limit them in their deposition. And here’s what I absolutely love about sharing at the deposition. And one [00:06:00] of the main things we’ve already covered, which is the amount of time now that we have in cases.

And that time is on your side because it’s gonna be able to give you more stories, more proof of the damages. So, sometimes cases don’t get filed right after they happen. Sometimes it’s a year or two years. Well, there’s two years of information. Well, then maybe it takes several months or even a year to get the deposition.

Well, that’s three years. Well, then we might have another year until trial, but that’s plenty of time to find stories, to find examples, to have new proof. There’s plenty of time. I also love sharing a deposition because it gives the insurance company, the decision makers, the defense lawyers, hard black and white testimony, right?

They love medical records. That’s the black and white testimony. And that’s what the depositions are as well. They can’t be ignored. I also love that it becomes the [00:07:00] backstop for mediation versus sometimes what we tend to do, which is, well, you’re going to hear at trial this person or this story. And it’s kind of like, well, why are you telling us now?

We have had to evaluate the file. That’s where mediation, because we’ve evaluated and are prepared to make an attempt at settlement. Here in Texas mediation, or at least in Travis County, is required, right? And they have to participate in good faith, right? There’s some teeth to that. But I love it as a backstop because I can basically go into mediation and say, you’ve already heard some good stuff.

Let me remind you what page in line it’s on, but let me also tell you we’ve also got this neighbor and this co worker, Who are going to come in and be able to reinforce all that stuff. So I’m just, it gives me a place to echo what’s already been said and again, they can’t ignore it, right? It’s in black and white.[00:08:00] 

I also love that it shows the seriousness because the client is prepared. They’ve got the stories, they’ve got the examples, right? It’s not just this blanket statement where everything has changed. No, they’re going to have bricks on the wall. They’re going to have support for those things. And I think that when you take your preparation of your client’s series for deposition, people notice.

Ultimately, it reflects very positive on the client experience, right? Clients feel so much better, they’ve laid it all on the table, they’ve done their job. And again, I think it reflects positively in the defense evaluations when the client feels good. They’re having a good experience that’s going to reflect positively in how they deliver their testimony.

And I also truly believe that that testimony is unique. It’s going to be in their words, it’s going to be at a level [00:09:00] that’s different than how I’m going to deliver it as a lawyer. And I appreciate that because I know through my training and my thought process and how I do things that I I’m a lawyer and that doesn’t always connect with jurors, but clients are people and jurors make decisions in cases and thank goodness.

But I love the uniqueness and how they’re going to say it versus if I’m going to come in and try and say it. Ultimately, when it comes time for trial, after you’ve given thorough preparation, the client has put all their. Put their stories, put everything out there that they’re comfortable with, right? At the end of the day, we want to make sure our clients are comfortable sharing, they understand the process, and, and what the purpose is, right?

Purpose of deposition. But that helps when it comes time to move into trial preparation. It makes that transition much easier. Because they’ve [00:10:00] had that full opportunity uninterrupted. Trial has many interruptions, objections, problems, stop, go, stop, go, right? And it’s just not the platform for the client to sit and, like we say, talk about.

Talk the whole time and be heard. They’ve already had that opportunity. It’s a little relieving, right? Because that way it’s a lot less pressure, but it definitely helps when you’re making that transition for trial prep to be able to have again, that backstop, Hey, let’s reread your deposition. Look how awesome you did.

We’re going to use this story and this story and this story, but Hey, what’s the new stuff that’s happened? Don’t forget the trial. It’s not just you. We’ve got this witness and this other witness in this. And your friend, your coworker, and your wife or your spouse, you’re going to have all these other people that are going to help you do the heavy lifting.

So you don’t have to talk about all these stories, right? You’re only going to tackle a few of these things. Super helpful. I [00:11:00] still run into folks who have a little bit of a disagreement or have a lot of disagreement about this point of view of sharing at the deposition versus sharing at trial. I don’t think that anything is lost, and I truly believe that the risk is so low.

The risk at trial is so high. The pressure is completely different than in a deposition for you and for the client. So I truly believe that nothing is lost. If we equip and we prepare and we have our clients speak their, their truth about the impact to their lives, share those stories, use their unique perspective, right?

Their life experiences. It’s going to do nothing but boost the case. It’s not going to take anything away from you or from trial. Again, I’ll just explain. The basic reality is we’re going to have more time, okay? You’re going to have more time and you [00:12:00] can mull over that and fashion it into a case theme or you’re going to find more stuff and you’re going to have more people at trial to help testify to some of these damages and create a full picture for the jury.

All right. Well, thanks for tuning in to this episode. I hope that it was helpful. If you want to share your point of view, I would love an email and I’ll put my email address in the show notes because I’m always curious as how do people approach this subject and how they prepare their clients to share their damages and when you encourage your clients to do that.

All right. If you enjoy this podcast, please rate and review on your favorite platform. And until next time, thanks so much.