Category: Podcast

We know we live in an attention-deficit age, where attention spans and concentration levels are lower than ever.

It’s not just about social media though. These trends carry forward into every day life, including in the court room. We simply can’t assume that just because the jurors are there and present, that they will necessarily be paying as close attention as we expect. It’s human nature to start to drift away and think about something else when you’re not otherwise captured by a subject, and there is fascinating brain science that demonstrates why!

So today we look at ways to maximize your impact, grab hold of the narrative, choose the most effective facts and frame your arguments in a way that keeps jurors engaged and wanting more.

Even the judge will notice this approach! And will appreciate how you started with the hook.

In fact, you could say that regardless of the impact of social media doom-scrolling, understanding these persuasion techniques has been a winning strategy in courtrooms, and beyond, for generations.

So, get to the point, cut the small talk, lean into the hook and the best facts, and remember who you’re talking to: tailor your presentation so that it resonates with a juror’s brain.

Set up a free consultation today: https://www.calendly.com/elizabethlarrick

In this episode, learn how:

• Mediation focus groups help assess case value and strategy.
• Running focus groups early can provide critical insights.
• Each focus group builds on the previous one for better results.
• Timing is key; don’t wait until the last minute.
• Lawyers should commit to at least one focus group per case.

Links from this episode:

• Beyond Bullet Points: Using PowerPoint to tell a compelling story that gets results, by Cliff Atkinson
• Mark Lanier, Lanier Trial Academy – laniertrialacademy.com

You can also watch today’s episode on my YouTube Channel:
The Hard Truth about Persuasion and the Lawyer Brain [Ep 161]

Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:

• www.larricklawfirm.com/connect

Transcript

Elizabeth Larrick (00:00.398)
Have you forgiven a presentation and then saw people be completely confused by things that you said? Or maybe you gave a statement in a hearing and then the judge completely misread what you said? Well, it’s totally possible that you’re using persuasion the wrong way.

Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries. Gather strategies to help you with persuasion and learn how to use focus groups along the way. I’m your host, Elizabeth Larrick, and in this episode, we’re gonna give some hard truths about how persuasion can escape trial lawyers. All right, I deal with this subject nearly every day with my focus groups and helping my lawyers prepare to give the best possible presentations.

Well, what I have found is there are three very simple ways that lawyers can confuse and get persuasion kind of messed up. So I want to talk about those today. And I want to help you do a better job. And these are three very simple things that we can consciously look at and change going forward. Now

You will see they are very simple, but they are also things that we can do in our preparation to change and make our presentations more persuasive. And they are based on brain science. Okay, so it’s not this magic that we’re gonna slip in there that you’ve never heard of. Okay. These are things that work with our brains. They come from lots of different areas of brain science, but my experience comes from doing focus groups and mock jury’s for over 10 years.

And so these are things that I help lawyers with when we prepare for focus groups. So every month I do focus groups from one hour all the way to three hours, but we always work and prepare with our lawyers for their presentations to be as persuasive as possible or to avoid the pitfalls of confusion. And so that’s what we’re gonna talk about here today, are three very simple things that we do as lawyers that can confuse our audience.

Elizabeth Larrick (02:19.99)
Lead them down the wrong path or get them to completely turn off before we even get to the juicy stuff we need them to hear. So let’s get right on top of it. Our lawyer brains are not juror brains. We have been trained a very different way, and then we take that training and we work with it for years. And so we have patterns of thought that stick with us all the time and they work for us because.

That’s what we do all day is we try to take the facts and apply it to the law. And so our patterns of thought are very simple. And we sometimes assume that everyone around us has the same thought pattern. And that’s where it can get a little bit confusing or crossways. So our lawyer brain, what does that really actually mean? Well, that means most of the time our brains tell us I need to give all the facts to prove my case. I need to really explain.

All of these things that are going on for you to really understand what happened. And also, I assume you think like I do. Now I try to simplify all these things, which means number one, we love to fact it up. We just pile facts and facts and facts and facts. We investigate more to bring more facts and we just inundate our audiences with facts. Number two, we start off on the wrong foot.

I am not really sure where this actually begins, but pretty much every lawyer that I’ve dealt with has some training somewhere. And again, trust me, I was that person too, where we’re told how we start is that we talk about ourselves. All right. So we’re gonna talk about starting off on the wrong foot. And the last thing is we forget framework. People need framework. They need an outline. They need structure when we’re giving them presentations, a little something we typically forget.

So let’s talk about very specifically how does this show up? Well, our first topic facting it up. So I feel like when we have opening statements, we tend to just fill them with facts. And we bombard our brain. So what happens inside? We can only hold a few things in our short term memory, right? I believe it used to be five to seven. I think it’s more like three. And so we overwhelm the brain with facts.

Elizabeth Larrick (04:44.366)
And then jurors lose it. They can’t hold them all in our short-term memory, so they get lost. And they don’t actually know the priority either. So they don’t know which ones are very important, which ones are not. So they have to pick their own. And typically they’re not going to pick the same ones as you. And so we really want to do our job in limiting and prioritizing.

So that our audience doesn’t have to do it. They know what our priority is, and we’re not overwhelming them with a set of facts. I see this happen pretty often in focus groups where we try to do either an opening statement or we try to do just a neutral narrative of the case. And facts upon facts upon facts upon facts. And then sometimes they just get repeated again in the same fashion.

And again, that’s sometimes where we think we’re repeating is persuasive, but not if it’s just a bunch of facts. So that’s where one of the best things we can do to fix this habit is to look at our presentation. Let’s just take an opening. Look at our opening and count the number of facts that we have in there. And then realize do they need all these facts in opening? Now I’m not saying remove them and don’t let them bring them in the case. You obviously think they’re important.

You’re gonna have to prioritize those things, right? So you wanna limit your facts that obviously gives priority, but then you want to rank them and deliver them in a way that also prioritizes them, okay? For the attention span of our audience. Now, you could be doing a hearing, it’s the same thing. You want to look at what your facts are, limit them to the ones that are the most important because you know you’ve already written a brief, you’ve already put it all in there.

Now we’re trying to talk directly to our short term memory of our judge and what’s the most important thing they need to know right now in this moment. By doing that, right, we alleviate our brains. We get we we don’t we don’t cause confusion immediately. So let’s move to number two here, which would be starting on the wrong foot. So this plays into the concept of brain science of primacy, meaning the first thing we say is given priority. It’s it’s given

Elizabeth Larrick (07:01.132)
More memory space, it’s more likely to be remembered. And so what happens here is we start off introducing ourselves almost all the time, every time. Hi, thank you so much for being here. My name is Elizabeth Larrick. I represent the plaintiff, Bob Smith. Okay, great. But what have you done now with those first four, five, four seconds? Like you you lose them, right?

What we know so far about how our brains are right now, I would say, is we have eight seconds to grab the attention. And then you have a little, if you get it, then you get a little bit more time, a little more, like a little less than 40 seconds then to then get the engagement that you need to keep the attention. But if we’re using our the first seconds out of our mouths to talk about who I am, who my client is, you’re you’re gonna get to that. They’re already gonna know that. You don’t need to reintrodu introduce yourself, right? So that

Very quick eight seconds, we don’t want to start off on the wrong foot. We don’t want to lose our audience. We want to use that primacy for the best that we possibly can. So there’s a camp obviously out there that says start with the hook, an open statement. Start with the statistic. Start with the this is a simple case about boom boom boom, right? All of those are keying in on the

Persuasion that you gather with the first thing that you say. So primacy is so important. But we have to be very conscious about fixing this. Okay, so the fix it here on getting off on the wrong foot is because we are so ingrained, literally, we have to write it out, and either you need to read it or you need to memorize it so that you don’t slip back into that old habit of my name is Elizabeth, I represent the plane of Bob Smith.

Thank you so much for being here. My name is like though, but get to the point, okay? And so that’s where, you know, some people think, well, a little small talk is helpful. Think about a hearing, Elizabeth. That may I promise you, that judge is gonna really appreciate that the first thing that you said was the hook. The most important thing for them to hear. Right. So let’s not lose that beautiful gem of attention that we get in that first eight seconds and that concept of primacy, okay?

Elizabeth Larrick (09:28.086)
Let’s talk about setting up a virtual focus group for you. I run several every single month. And you can click the link in the show notes for a free consultation. Now, let’s move into our third one here. This is going to be a pretty nice and short episode for you, which is we forget framework. Again, this falls back into we have our lawyer brains, our patterns of thought, we do them every day. We take the intake, we put it to law, we apply it.

And it makes sense for us, but it does not make any sense for regular folks. So we have made it in our brains very easy to find connections with fact and law. But regular people do not. This is where you have to help them make the connections. This is where our framework is so important because brains love patterns. They love to find patterns.

They love to see patterns that makes it happy. this is easy. I understand this. And so that’s why when you see a lot of opening statement frameworks or even hearing, like having a hearing, you have there’s a framework for that argument. It is so important when we talk about jurors that we pick a framework they are familiar with. So there’s a great book by Cliff Atkinson about PowerPoints, and there’s also a great seminar.

put on by Mr. Mark Lanier, where he talks about these frameworks and he picks easy frameworks. It’s the A B C’s, it’s the seasons, fall, winter, spring, summer, right? wait, I that’s a pattern that I know. That wait, okay, good, right? Because when we are starting something, right? We’re starting our opening statement. Yes, we have our eight seconds and our primacy, but we also have curiosity.

We also have anticipation that comes with that. And when you begin, we want to give them a framework. I’m gonna understand this. I’m gonna, okay, great. But the other thing is they can see the connections that their brains need to be making with facts and law without you hitting, you know, it’s subtle, right? So let me just step back here and give you a good example.

Elizabeth Larrick (11:54.382)
So rules of the road, Rick Freeman, rules of the road, are great. But other things are not as easy to grasp as rules of the road. People know we drive, great, rules of the road. you’re speeding, that’s a violation. That’s simple, right? We can make that connection quickly. But other cases are a little more complicated. And so when you create these rules, safety rules, company rules, right? When you create rules that go with the case.

You need to help them make the connection with the violation. So that’s where you’ll have the rule and then the checklist for the rule that says, okay, trucking companies must hire qualified drivers. Okay, great. Oop, I like this rule, but now I I really am lost after that. Okay. Because again, they don’t know what all the the specific rules are. So then here’s the checklist. So how does a company hire what’s the checklist that they use?

Okay, well, number one would be: does the driver have a valid commercial driver’s license? Yes or no? whoa, that’s great. I got that. Check the box. So that’s where we’re making a simple framework, a checklist that helps them make the connections. So many times, what I see in focus groups, and what I see even in trial, is lawyers will bombard their audience.

with a lot of information and no framework. And when you can provide a very structured framework, here’s what you’re going to hear next. Here’s the checklist for this. Now, what does that allow you to do? You can then use the checklist with every witness. You can use it again in closing, right? So then we’re repeating our framework. Okay, it’s familiar to our brains. So it’s not unusual. We’re just now taking other facts and putting it and making those connections

Because we will assume as lawyers that they are making the connections and they’re not. If you’ve ever gone to trial and you lost, you know they didn’t make the connection. Okay. So we want to use frameworks. We want to work with the brain that loves these patterns and these familiar frameworks. So let’s back up and let’s talk again. We have talked about three things that we do as lawyers with our lawyers’ brains that can completely get

Elizabeth Larrick (14:14.41)
Our audience on the wrong track and that are just the opposite of persuasion. And number one is that we fact it up. We bombard with all the possible facts. All the facts to prove are one point, or all our facts to prove are three or four or five points, right? Limit it. Prioritize it. Keep it simple for them, right? You’re gonna give them the rest of it in trial. Don’t worry. Our second one is starting on the wrong foot, right? Where we lose our audiences with an

Eight seconds because we are talking about ourselves. We’re saying things that make no difference to the case, right? That’s why we start with a hook. That’s why we start with this is a simple case about blah blah blah. Or you start with a stat, right? That’s why primacy is so important when we are lawyers and we’re talking to a new audience, or even if you’re talking with a judge, right? Maybe a familiar audience. Don’t lose out on that very first thing. Start off on the right foot.

And lastly, we forget framework. We forget that regular people need help making the connections that we make so easily in our brains. And how do we do this overall? And again, it’s making the time right to prepare, go back and say, okay, where could I be losing people? Do I have a framework? How am I starting? Okay, let me not get off on the wrong foot. Let me write this out and read it verbatim. And then

Obviously, let me limit the facts here to the most important ones and then prioritize them for my audience because they won’t know. They won’t know how to prioritize it. I’ll help them out and do it for them. All right. I hope that this episode was helpful because listen, it’s the hard truth to know that sometimes our brains are working against us, but simple ways to fix it. Thank you so much for listening to Trial Lawyer Prep. Until next time, keep preparing to win.

You’re not going to be one of those lawyers that only starts thinking about a focus group 30 days before the trial, right?

To make the most of the power and impact of focus groups, work backwards through this three-phase roadmap that helps you plan and prepare.

You will see, and feel, a remarkable difference in your confidence, arguments and ultimately, your case.

Why three phases?

This structure taps into the various stages of trial prep, and gives you focus groups that are appropriate and effective for the moment your case is in.

Whether it’s in Phase 1 (Discovery), Phase 2 (Settlement/Mediation), or Phase 3 (Trial), focus groups reflect juror attitudes, bias and weakness detection, theme and damages testing, witness credibility feedback, and help lawyers make better settlement-versus-trial decisions.

Work with me to fine-tune this strategy and ensure you’re getting the most out of your focus groups! 

Set up a free consultation today: https://www.calendly.com/elizabethlarrick

In this episode, learn how:

• Mediation focus groups help assess case value and strategy.
• Running focus groups early can provide critical insights.
• Each focus group builds on the previous one for better results.
• Timing is key; don’t wait until the last minute.
• Lawyers should commit to at least one focus group per case.

I also talk in today’s episode about a common misconception we have on how decisions are made for mediation. There is a dedicated episode on this topic, Episode 142, which you can find here: 

Avoid This Mistake if You Plan to Use Focus Group Clips in Mediation [Ep 142]

You can also watch today’s episode on my YouTube Channel:
The Three-Phase Focus Group Strategy Every Trial Lawyer Needs [Ep 160]

Follow and Review:

We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:

• www.calendly.com/elizabethlarrick

Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:

• www.larricklawfirm.com/connect

The jury selection process is changing and evolving. Are you willing to be bold and confront jury selection challenges head-on?

This was a popular and very actionable conversation that I had with Sharif Gray last year, where we talked about what could be broken with your jury selection.

We looked at assumptions and stereotypes that are often made, and I think it’s a question worth returning to as we get deeper into 2026, when you may have trials coming up on the horizon.

It could be very useful to consider these suggestions and tips when you’re making important decisions on selecting, or deselecting, your jury members.

Sharif turns the tables on many standard approaches and perspectives, and suggests that instead, we take potential concerns and weaknesses and turn them to our advantage.

In so doing, you will demonstrate credibility, authenticity, trust and respect, for the potential jurors, the judge and even the defence.

“We’re there for fairness. So I’m looking for jurors who are going to do right by my client, but I’m also looking for jurors who are going to do right by the defense. Because it’s not justice if you’re  going to close your eyes and just vote for my side every day of the week.” – Sharif Gray.

Sharif is a trial lawyer based in Richmond, Virginia, and the host of the Courtroom Stories and Tactics podcast, where he and his guests do deep dives on topics like voir dire, jury selection, the role of the legal system, and one of my favorites: focus groups! I was honored to be a guest on Sharif’s show earlier this year.

In this episode, you will learn about:

• Challenges in Traditional Jury Selection
• Building Credibility with the Jury
• Starting Jury Selection Right
• Effective Communication Techniques
• Building Credibility in the Courtroom
• Handling Juror Bias and Concerns

Follow and Review:

We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Guest Sharif Gray of Broughton Injury Law.

Find Broughton Injury Law here: graybroughton.com

Reach Sharif personally at RVA Trial Lawyers: rvatriallawyers.com

Listen to Courtroom Stories and Tactics, by RVA Trial Lawyers: rvatriallawyers.com/podcast/

Find my episode on Sharif’s podcast: Mastering Witness Preparation Method and Focus Groups | with Elizabeth Larrick (Trial Consultant)

The Voir Dire to Verdict training event is happening again! October 23, 2026. Click here for more info

Email Sharif: triallawyers@rvatriallawyers.com 

You can also watch this episode on YouTube here: Traditional Methods of Jury Selection are Broken! with Sharif Gray (replay) [Ep 159]

Are you confident in knowing the difference between trial strategy and trial tactics?

Because ultimately the question is, does your jury understand what you’re doing?

Today, we’re looking at how to identify a clear strategy as the overarching theme that guides the trial, followed by the tactics to achieve that strategy.

There’s a risk of confusing the two, including wasted time and causing confusion for jurors. The best strategies combine preparation and flexibility when you’re in the courtroom.

And remember, focus groups can test strategies early in the trial preparation process, showing you where to refine those strategies early.

In this episode:

• Confusing strategy and tactics can lead to juror confusion.
• Tactics should be flexible and adaptable during trial.
• Jurors expect consistency in case presentation.
• Wasting time on tactics without a clear theme can cost cases.
• Focus groups can help test and refine trial strategies early.

You can also watch this episode on my YouTube Channel:

Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:

• www.calendly.com/elizabethlarrick

Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:

• www.larricklawfirm.com/connect

Episode Transcript

Welcome to Trial Lawyer Prep, where you learn how to better connect with clients and juries, gather up strategies to be persuasive, and how to use focus groups along the way. I’m your host, Elizabeth Larrick. In this episode, we’re going to talk about trial strategy versus trial tactics and how this can often get confused. So let’s straighten it out so that you can be on the right path.

Here’s the thing, trial lawyers mix up often and frequently, and it’s not really our fault. We’re constantly bombarded with new CLEs, new tactics, a new book, and here’s the thing. We get these things mixed up because there are lots of new fangled tactics that are thrown out often at new CLEs or away somebody did their trial. We try to pick all these things up.

and put them together, which can cause some disorganization of our presentation. And that’s how we can end up losing cases. I’ve seen it in focus groups, I’ve seen it in the courtroom. And I can immediately tell when people are throwing any kind of tactic against the wall without an overarching strategy. So it gets backwards. And of course it confuses your audience, whether that’s a jury or a judge.

So today we’re gonna talk about the differences between trial strategy and trial tactics. Not just what they are, because I think most of us understand what they are, but when you need them, how they work together, and what happens when you get them backwards. I promise you your focus groups will reveal confusion faster than anything else, but you may be missing that this is a tadic

versus strategy problem versus other kind of problems with confusion. So we’ll talk about that as well. So let’s dive in to the very first point, which is strategy sets direction and tactics executed. Tactics gets you there. So the simplest way I’ve found to understand or make clear

Elizabeth Larrick (02:16.898)
what trial strategy is versus tactics is I like to think of strategy as your destination. Strategy is our 30,000 foot view of where we need to get. And then your tactics are the very specific little pieces that get you there, right? So the little jumps here and there that can ultimately get you to your overarching destination. So again, strategy is your

big picture, our overarching theme, right? Our story that we are trying to tell, our two to three very critical points that the jury needs to come down on our side in order to get the V. But tactics are really about that specific cross-exam question, right? The metaphors that you’re using in opening statement, the very specific visual aids, and even down to the colors that you’re using, right? Those are tactics.

So let’s talk about a very common trial strategy that I hear, but is also very challenging to actually prove, which is part of the thing. If you’re gonna choose the strategy of corporate greed, right? Profits over people, profits over safety. That’s a total strategy and this is your destination, right? This is where you want the jury to be ending up and thinking. However, it’s our tactics that get us there to be able to

So again, thinking through our corporate documents, our discussions you may have in deposition, right? And then how you’re putting that together for visuals, how you’re putting that together for cross exam, what’s the order of witnesses that gets you to that ultimate destination of corporate greed, profits over safety. Your strategy is really kind of an overarching why. Now I have seen,

organization tactics that are helpful for memory, that are helpful for getting people ultimately to the jury to the verdict that you want. If we’re thinking about those kinds of things, that’s like when we’re having an organizational way, like the ABCs or one, two, threes presentation that goes through in a way where your memory is going to pick it up.

Elizabeth Larrick (04:41.72)
Those are very helpful things, but those can also end up just being tactics for just throwing several different things and not, again, having this overarching strategy. Let me give you an example. So if your trial strategy is to show the jury, the company, the defendant knew about the danger but did nothing, right? That’s our overarching strategy. Now we’re gonna look at our tactics. So.

who’s gonna be our first witness? Well, that would be a company, corporate representative, or maybe it’s the safety director. And then it’s the very specific documents that you’re going to use in the order of those documents. Again, the order of cross exam, the style, the questions of cross exam. Each of those tactics is gonna serve your strategy. And so here’s the thing, you can have a lot of tactics without strategy,

and it’s going to leave jurors not putting the whole thing together. Many times we try to lead the horse to water and hopefully they’ll drink, but you’ve got to actually put it all together for them with our trial strategy. So I’ve definitely seen focus groups where there are lots of great tactics with, we’ve got opening statements and maybe some videos of cross-exam, but without

the full direction of you giving that strategy, then generally jurors are pretty well lost. So we wanna make sure that we had these two things together. So let’s talk about then point number two, which is when do we think about these things and when do we start planning for them? Now, most of the time we wanna be thinking about strategy from the very beginning, even with our basic bone facts.

we can be thinking about our strategy because most of the time our tactics can’t really be formulated until we’re getting into that trial prep phase. So our strategy comes early thinking in discovery so that we know the documents that we’re aiming for to prove that they put safety over people. We’re looking for those documents that show that they

Elizabeth Larrick (07:05.154)
chose to ignore the danger or made a different decision, maybe that was cheaper. Those are the things we wanna be looking and thinking about discovery, our depositions, questions. Those are things that are really gonna feed into our overall strategy. And a great thing you can do is focus group early to see if your working strategy is working. So, and we talk about this often on the podcast.

but using focus groups early to make sure that we’re making good strategic choices. Don’t forget, that is something that I can help you with. If you are curious about how to test your strategy early in a case, you can book a free call with me. The link will be in the show notes. What we want to be doing in these early focus groups is just making sure the theme is resonating, right? Or a lot of times what I work with lawyers on is

This is my theme, I feel really good about it, but what is it missing? And when we do focus groups early enough and you get the feedback back from focus groups, you can actually go get it, right? Maybe it’s more documents, maybe it’s another witness. Sometimes it’s an expert, not always, most of the time they would rather see a document or a different witness versus an expert, but sometimes we have a lack of education.

and you need that education to make your theme work. So always be keeping that in mind if you’re missing an education piece there. So then after you do your focus groups, then you can really look at what worked, what didn’t work, what fell flat, how do we unconfuse people about this? And of course your tactics will come later because once you’ve made it through discovery, you’ve made it through that final mediation, now you have a good grasp on all your evidence.

You know what your theme is, so now it’s about how do you pick the best tactics to put that theme in, but also knowing tactics can change in trial. Witnesses who don’t cooperate, right, how do you then use a different tactic to get what you need to meet that theme? And that’s why tactics are flexible, they’re adaptive, there are many different ones, like I talked about, there’s lots of different ideas. You can do the David Ball opening, can do Sardegna-Lomade opening, right?

Elizabeth Larrick (09:23.04)
Some people think the same thing. My point is we hear a lot about tactics. There are lots to choose from, but we need to choose the right ones to meet our trial strategy. Okay, let’s move into our last point here, which is what can it cost you when you confuse the two? Or like we talked about earlier, you do it backwards. You think all about the tactics and you come up with that theme a little later.

So we talked about this just very briefly, which is you can really waste a lot of time and energy and effort on tactics and the jury never get the overarching theme. And then they’re just kind of lost. They may let you score a couple points here and there, but ultimately you’re not gonna win the game and that’s what we need. We need to win the game. So.

you can end up doing a lot of wasted time and focus groups. This is where when folks come to me and they say, well, we’re just, we need to test everything, right? So then they’re like, we want a six hour in-person focus group. And we can totally do that. But a lot of times until you skinny things down and you simplify it and you get it down to these three key points with this six key documents, all right, let’s test that. And that’s why

in almost all of my focus groups, we have extensive planning because while testing everything you maybe think is helpful, not everything comes down to how jurors make their decision, right? They can’t take in everything. It’s almost impossible for our brains. So we wanna make sure we narrow it down to those few things so that you can really have feedback and analysis on those one or two, three key points and then you know,

they stay in or they stay out. Now I can move to the next thing versus thinking, it’s all 30 things. Well, generally not. So we don’t want to waste your time in those focus groups. The other thing that can happen is, again, we talked about inconsistent case presentation. I see this sometimes, unfortunately, where we have teams of lawyers trying cases and they’re not on the same theme. And so they’re using different tactics that can somewhat

Elizabeth Larrick (11:44.642)
be a little out of alignment for jurors. The best way I’ve heard this put is from one of my mentors, Don Keenan, who would talk about doing a cross exam that’s like the McCulloch chainsaw where you just like, you just ripping that person up or it’s the paper cuts, right? So when you have a tactic of you’re just gonna rip up this person and just tear them down all the pieces and then you have somebody else that you’re doing paper cuts,

it’s a little bit out of alignment because jurors begin to expect certain things out of the lawyers when they watch it. And when things come a little bit out of sorts, it doesn’t match their expectation like, you know, it actually caused a little bit of discombobulation in their brains. You may think Elizabeth, people are humans, we are more complicated than that. We are really not. mean, at grand scheme of things, our brains like things simple. We’ve talked about that here.

And so when we do these strategies, these tactics, and we’re a little out of pace, it can be very confusing, even if it’s just that simple of a difference in cross-examination. So we wanna have consistent case presentation. Yes, of course we wanna have consistent case presentation for our strategy, but also for the jurors and the thing of what they’re expecting out of you, what they’ve seen, what they expect, okay? We don’t wanna cause people, whoa, hold on a second, right?

We wanna be meeting their expectation that we’ve set an opening which is, I’m gonna teach you, look at me, I’m gonna tell you the truth and the facts and follow me, I’m gonna tell you what’s right. You make your decision about those guys over there on that other table. All right, so we can totally get these things wrong and that is of course the real danger. If you’re just executing tactics without understanding your underlying strategy, things may fall apart and it’s hard then to put it back together.

So if witness doesn’t come across well or a piece of evidence gets excluded or the judge rules against you on something, you may be stuck. And because you’re relying on a tactic rather than your overarching strategy, you can get flustered, not know what to do. And that’s definitely not what we want to happen in the courtroom. We want you to be very clear on your trial strategy and then have tactics that you can adjust on the fly. This is where when I work with lawyers getting ready for trial,

Elizabeth Larrick (14:05.26)
we have a witness, we have plan A, B, and C, okay? Because I want you to be prepared, no matter which way they go, right? You are very comfortable, you’re calm, you have a plan for that versus making your brain come up with that plan on the fly. Because that’s what happens in the courtroom. Bullets are flying, you gotta have a couple of different tactics so to make sure you’re always gonna get your theme across. All right, so let’s do a quick,

little recap here, which would be we’ve talked about strategy is your destination and tactics are the way that you get there. Together is how we win. So we always want your trial strategy to be started early and in our discovery phase so that we can be building things along the way. Our tactics come in a little bit later when we are getting ready for trial and we’re having

Several different tactics to meet our strategy and also have a coherent presentation throughout the way. If you confuse these things and you’re just going for tactics, you’re gonna confuse your jury. They may give you a couple points, but ultimately, again, they’re not gonna give you that verdict at the end of the day. Talked about how we can use focus groups to test those things so that you know which way you’re going. And if you’re preparing for trial right now, you want to sit down and say, okay,

Number one, what is my strategy? What is my overarching theme? And then underneath that, what are the tactics I know that can get me there? All right, thank you so much for listening to Trial Lawyer Prep. Until next time, keep prepping to win.

“What part of this story just doesn’t hit you right?”

How would a potential juror answer that question? We’re talking about gut feeling, instinctive reaction: something that’s there, and they’re trying to put their finger on it.

These are very good avenues to explore in focus groups, and can uncover emotional and cognitive responses that you weren’t expecting.

Today’s episode features three questions that are deceptively simple yet powerful in their nuance and framing. Successfully applying them will not only make your case stronger, but help you be much better prepared for what the other side is thinking as well.

In this episode:

• Strategic questions can reveal case weaknesses effectively.
• There are hidden weaknesses in your case that you may not see.
• Asking jurors to explain the case in their own words can uncover confusion.
• Emotional responses are crucial in jury decision-making.

Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more: www.calendly.com/elizabethlarrick

Are you a lawyer looking to run your own virtual focus groups? I have a free starter kit that can help you get started that includes checklists, questionnaires, confidentiality forms and more! 

Use this link to download: https://elizabethlarrick.kit.com/diyvirtualfocusgroups

Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:

• www.larricklawfirm.com/connect

Episode Transcript

Elizabeth Larrick (00:00.746)
You think you know your case’s weaknesses. You’ve lived with this file for months, maybe even years. But there are hidden weaknesses even you can’t see. And the right focus group questions will reveal everything.

Welcome to Trial Lawyer Prep, where you learn to better connect with clients and juries, gather persuasive strategies, and learn how to use focus groups in the process. I’m your host, Elizabeth Larrick, and in today’s episode, we’re gonna dive into a direct how-to for your focus groups.

Today, I wanna share three questions that you can use to expose problems you didn’t even know that you had. And these aren’t necessarily obvious questions. In fact, sometimes when lawyers hear them, they’re pretty surprised. But great questions can reveal really great hidden biases in your cases. Now, these are just three questions from hundreds that I have developed over the years of running focus groups.

I pick different questions based on the specific facts that you give me on the problems that you’re trying to solve and what we’re trying to discover as a focus group discussion unfolds. But these are the three that give you a taste of how the right questions can uncover the case weaknesses you didn’t know you had. So if you’re heading to trial or maybe you have that big mediation coming up and wanna make sure you have strategic insight about your case,

Let’s talk about setting up a virtual focus group for you. I run several every single month. And you can click the link in the show notes for a free consultation. All right, let’s dive into these three specific questions you can use. Question number one. If you had to explain this case to a friend who knows nothing about it, what would you say? This question is excellent at trying to get

Elizabeth Larrick (02:08.696)
the focus group members to regurgitate your presentation and they take a different frame because they can’t just tell you exactly what you said. Now they’ve got to explain it to someone. So it’s very creative in the sense that we’re getting out of our typical tell me what you think. It also kind of bypasses some legal jargon and gets you out of your own way as a moderator. But really what this is revealing is where is their confusion?

where are their missing steps? Whereas you have created maybe this presentation, you’ve created this opening statement, you feel like it’s got everything they would need, but this question will show you really what they have in their minds because they’re then recreating it, okay? And that’s really what we wanna make sure because that’s how memories are made. Now, let me give you a quick example of this. We often have lawyers that come in and they will practice an opening statement.

and then we will go directly into getting feedback from our focus group. So in these situations, do fairly often hear when I ask this question, focus group members are missing vital pieces of the presentation that’s been given by the lawyers, and then they just fill the holes with things that they never even heard. Or there has definitely been times where I ask this question,

And when I get back is a blank stare because then they actually realize I don’t even know how to describe how the crash happened. I can tell you where it was. I’m pretty sure I can tell you a couple things about the injuries, but I don’t even know how this crash happened. That is a huge problem and definitely something that you want to know. Also, this gives you an idea of some of those facts or assumptions that people make when they just hear some of the facts, but not the whole thing, right?

And again, this is where that regurgitation comes from when they give it back to you. So you can see where that confusion was, find what they’re missing and then be able to reconnect them and figure out ways in that strategic insight session to learn how you can present a little better. So we always wanna know how our case comes off to people. Well, ask them to explain it to someone else. All right, our second question that we have for you today,

Elizabeth Larrick (04:33.742)
kind of falls more into the, I would call an emotional category. We always wanna be thinking about how our cases are emotionally hitting people. We’re emotional creatures, we make almost all our decisions that way, that’s what brain science tells us. So in focus groups, we really wanna be asking questions that get to how the participants are feeling, and that’s really hard to get to without sounding like you’re.

pandering or looking for sympathy. this particular question I find very helpful and that is what part of this story just doesn’t hit you right? Maybe it just doesn’t sit with you, right? That’s all it is a very simple question and it’s broad for a reason because we want to gather up anything that may not be sitting right with them, but it doesn’t make it so specific that they

kind of say, well, I’m not really sure because they maybe can’t put their finger on it either. So it gets to our emotions without using the word feeling. A lot of folks, when you ask them, well, how are you feeling about it? Sometimes they don’t know, right? So it’s hard to get them to answer that question. That’s why I love this one because again, it’s pretty broad. It avoids the appearance of pandering for sympathy. And then again, kind of reveals some of these hidden things that they may not be able to totally put their finger on, but rather,

tugging at them or whatever that hunch may be. So again, this question’s super neutral and it gives people kind of the option to say something that may not be fully formed right in an opinion, but it just doesn’t sit right. And one of the examples that I have for this is we recently ran a focus group, a fairly long focus group I would say, on a nursing home case. And so the facts were really, there’s some severe negligence claims going on.

And we wanted to know where were the feels in this case. were lots of different things that we had expected to hear, but one of the things we did not expect to hear when we had this question was that the fact that they had stopped charting in the medical records. That was something that just did not sit right with a large portion of the panel. And again, not something that we had flagged as an expectation before.

Elizabeth Larrick (06:56.696)
There were many other pieces of egregious facts that were very touching, very terrible, that would give somebody the feels, but that particular one was not one we expected and very glad that we asked that question because then we were able to kind of gather it up and be able then to put that at the forefront of the case when they were getting ready to formulate their presentation. So when something doesn’t sit right with focus groupers, with our jurors,

they find a way to tap into that and rule against you. We don’t want that. We want to be able to find where it is those feels are not matching up before you get there, right? That gut feeling that they may be having, you wanna be sure and discover those early on so then you can reshape your presentation of evidence, reshape how you are talking about the case as well. All right.

Our last question to share with you in this episode is kind of a strategic framing question. So there’s two parts to it, okay? And you’re gonna see why there are two parts. The question goes, the plaintiff loses, why do you think that would be? Now I’m using the word plaintiff with you because if I tried to use an example, it’d be challenging. So in this scenario, you would want to put in whatever the main

name or if you said person driving car B or the red car. And then you would flip flop and you say, if the defendant loses, why do you think that would be? Now I love this question because we’re getting both sides of the coin here. So we’re really as a moderator, as somebody seeking feedback, we are looking very neutral and we’re also having them put on two different point of views. This works excellent.

when you have a focus group that feels like it’s very weighted feedback on one side, because then you’re going to force people to put on the other point of view and give you their thoughts. And it really makes them articulate the strongest arguments for you and get rid of any fluff. If there is any. Again, I like this from both sides. And typically when I use this question, I tell them ahead of time, we’re going to take both sides. Okay, so let’s start with this one. If the

Elizabeth Larrick (09:20.994)
blue car loses, right? Why would that be? And again, if we’re just looking, we’ve got a short time period and we just really wanna get in there and get those main case weaknesses, this is a great question to get right on it. And again, it’s pretty broad. If you wanted to finagle with language, which you don’t have to, remove that word why and just say, how come? If FedEx loses,

How come, right? You could make it even shorter and simpler than that. But again, you can use the whole one as well. Obviously I’ve used this question many a times and it’s very helpful when we get to see our focus groupers take both sides of it. And again, in the frame of why lose, okay? Not why win, okay? But why lose? Very key on that. And again, helping you understand where is the true battleground for your case.

So this question does a lot of heavy lifting for you and it shows you kind of those real weaknesses that are boiled down to those simple points. And you can do it without revealing your own bias. These are three very simple questions you can start using today in your focus groups. So let me say them one more time for you so that we make sure we get them right. And of course, you know there’s gonna be a transcript somewhere that you can also

look at. again, question number one, if you had to explain this case to a friend who knows nothing about it, what would you say? Question number two, what part of this story doesn’t sit right with you? Question number three, if you were the plaintiff, if you were the defendant, loses, why do you think that would be? Or in a shortened version, if you’re the plaintiff,

If the plaintiff loses, how come? If the defendant loses, how come? Now, you’ll notice none of these questions are asking our jurors to vote, right? Yes or no, or make any kind of decisions. Instead, we’re really trying to reveal how they are thinking and feeling, which is really key in these focus groups. And really what you need before trial, before that big mediation,

Elizabeth Larrick (11:45.142)
Instead of just a simple note, we really want to know how things are working in their brains, how they’re synthesizing things and analyzing your case. That’s the key point, of course, of doing focus groups. If you found these three questions helpful and you would want more specific strategies, then please join my monthly newsletter. I share one email a month that has practical tips, focus group techniques, witness prep, how-tos,

to help you each month and the link to join the email newsletter will be in the show notes. Thank you again for listening to Trial Lawyer Prep and until next time, keep prepping to win.

It’s your favorite episodes, topics and themes from Trial Lawyer Prep in 2025, as reflected by the data: you know how much we love facts!

I look at what you enjoyed the most, and why, with all the links below if you want to revisit or catch up on these episodes and their valuable information.

I’m excited in 2026 to bring you more content on trial strategy, more inspiring guests, and useful tools that help us in our preparation as trial lawyers. I love providing advice and insight to help you present the best case possible, whether you’re a long time listener or brand new to the podcast.

And if you want to start off 2026 with a focus group, or you’re curious about it, don’t forget to book a free consultation call:

www.calendly.com/elizabethlarrick

In this episode:

• Discover the most popular episodes of 2025, based on your engagement.
• Learn what were the three most listened-to topics of the year.
• Find out why lawyers often underutilize their own focus group insights.
• Remember that early focus groups can help in strategic thinking.
• Going through focus group transcripts can hold valuable insights for lawyers.
• Why the eight-second rule is vital for grabbing attention.

Top Guest Episodes:

Sharif Gray: Challenging Traditional Jury Selection Methods Ep 149

Ben Gideon: How Trial Lawyers can Better Assess Risk Ep 138

Dina Cataldo: Trial Management for Trial Lawyers Ep 133

Top Topic Episodes:

The 8 Second Rule That’s Costing You Verdicts Ep 144

Rewiring Witness Prep: 3 Brain Science Strategies Every Trial Lawyer Needs [Ep 143]

What Trial Strategy Is and What it is Not Ep 131

You can also watch this episode on my YouTube Channel:
What Trial Lawyers Loved in 2025: Guests, Topics & Focus Group Trends [Ep 156]

Have a trial or mediation coming up and want to test with a focus group? Book a free consultation call with Elizabeth to learn more:

• www.calendly.com/elizabethlarrick

Don’t miss out on the Trial Lawyer Prep Newsletter that is delivered right to your email with extra tips and ‘how to’ information. Join the newsletter here:

• www.larricklawfirm.com/connect

Episode Transcript:

Elizabeth Larrick (00:00.268)

Welcome to Trial Lawyer Prep, where trial lawyers learn how to better connect with clients and juries, gather tips and strategies for better persuasion, and how to use focus groups in the process. I’m your host, Elizabeth Larrick, and in today’s episode, we’re going to tell you what trial lawyers wanted to hear in 2025.

2025 is wrapping up and before we head into the new year, I wanna look back at what resonated with you and more importantly, what I learned from the dozens and dozens of focus groups that were conducted this year that I think every trial lawyer needs to know. You made some clear choices about what you wanted to hear. So let’s jump into your top picks from the podcast and then move into the patterns that I saw.

Top pick for the podcast was guest episodes. Now, these were fantastic episodes about jury selection, assessing risk, and even time management. So our top picks were episode 149 with Sharif Gray, where he and I talked about challenging traditional Voydier methods with research-backed alternatives. Another great episode was 138 with guest Ben Gideon.

where he talked about assessing risk for trial lawyers, a few tools to do that, and also Dina Cataldo’s episode 133, which was time management for lawyers. Now, these were topics not by me, but by consumption rates, which were over 75 % for each of these episodes, which tells me you enjoyed them and got wonderful pieces of advice from them. So a link will be in the show notes for each of those episodes.

Now, another top thing that came out of the podcast this year were three specific topics, again, with our statistics not lying over 80 % consumption. So we saw trial strategy, witness prep, and persuasion as the top listen to topics, but let’s dive into those specific episodes. So if you wanna go back and re-listen, you certainly can. For trial strategy, we had episode 131. What is trial strategy and what it is not?

Elizabeth Larrick (02:21.166)

This clarified the difference between strategy and tactics, which is a pretty big one for lawyers. But one of the key takeaways was doing our strategic thinking early with focus groups. Now, this brings me to something that I see almost every year, but especially in 2025 as even more lawyers went to trial, was waiting to do those focus groups in the 30 to 45 days before trial.

And this is where we could be missing out on testing things early in order to make corrections. This is exactly why I encourage lawyers to run early focus groups during discovery. When you can test strategic frames, try some tactics if you want early though, so you can course correct before you’re locked in. If you’re heading in a 2026 with a trial scheduled or a big one going to mediation,

and you want some strategic clarity, let’s talk about scheduling a focus group. You can book a free consultation call with a link in the show notes. Now moving to witness prep, we had episode 143, which was rewiring your witness prep with brain science. This was a great episode. If you have a deposition coming up or even a trial with how to make your witness prep more effective with three simple tips. And again, that link will be in the show notes.

And finally, our top episode for persuasion was episode 144, the eight second rule. This taps into the what we know to be so true, but primacy. We have about eight seconds to grab attention and then the next 43 to keep it. If we don’t get our audience’s attention during that timeframe, it is an uphill battle to get them to hear what we are saying and also understand it.

And that’s for any audience that we’re talking to, jurors, judges, mediators, even your client. So this was a great episode and the link will be in the show notes. This particular primacy point is something that I talk about often. And a recent post on LinkedIn that a lot of people appreciated was a story I told about a lawyer who was practicing their opening statement with me and started out with reciting a piece of law from a very famous law professor.

Elizabeth Larrick (04:45.186)

And I had to stop him because people were going to be lost, right? The judge would have been lost, jurors would have been lost. And what happens is our brain is trying to figure out what is he saying and why is he saying? And while our brains walk around confused trying to figure out what they’re saying, they don’t hear anything else in your opening statement. So we don’t wanna do that. So I stopped that lawyer. We went back and refashioned that opening to make sure we…

grabbed that eight seconds, kept him for the 43. His opening started with the bang and he felt so confident in the point he was making in that first minute that he was able to echo it. Again, demonstrating this is important, y’all. We’re gonna say it again throughout the trial. So we wanna start out with a bang. We wanna grab that attention. That episode 144 is a great way to refresh on that point. Now,

let’s talk about the trends from focus groups in 2025. Again, over 75 focus groups conducted. And so these were some of our main takeaways that we saw. Number one, visual is always important, but the more fine-tuned point was comparison. So we see comparison in almost everything we do. Scroll on Instagram, going to pick a car, everything has a side-by-side comparison.

And so the pattern that came across from multiple focus groups was that jurors were really struggling to understand the both sides when it was just a verbal presentation or had a few visual aids. Commonly used visual aids that reiterated this point were property damage photos, right? They’re using those photos to compare to injuries, to compare to how people could explain how the crash happened.

Our brains love visuals. 60 % of our brain is dedicated to understanding visuals. So we love them. But also when we have that side by side comparison, we are making it easy. Our brains love it easy. And then it gets fast, right? So we want our audience to quickly be able to evaluate and find in our favor. So one of the things we’ve talked about is when we have a comparison, maybe it’s a

Elizabeth Larrick (07:02.69)

Fact pattern versus the safety rule or the standards or the norms. That’s a super important way to visualize that comparison for our audience, whether it could be jurors or even in our focus groups. But also another great one is experts. We see dueling experts in almost every large case, almost every case, there is a dueling expert. Maybe you have one, maybe they have one, right? They’re fighting it to the death. And a lot of times as lawyers, we put a lot of credence in what experts are saying.

focus groups, not so much. But a way to test it, because I know this is a strong point for many trial lawyers wanting to test experts. Are they gonna follow the other one? Are they gonna follow this one? What is it that they’re doing that maybe is swaying our jurors, doing a side-by-side comparison? Were you distilled down what the expert did, what their opinion is? Credentials don’t really matter, right? It’s really about what did they do and what was their opinion.

and distilling that down onto one PowerPoint slide or one visual significantly helps them be able to quickly evaluate and give you feedback. A helpful tip for focus groups, but also very helpful for a jury trial in that visual aid can be used again during cross and in closing. All right, let’s move to our second trend that came out of our focus groups, which was emotional detachment.

When I say emotional, mean like maybe they’re tragic facts, maybe they’re egregious defendant conduct, and it just fell flat, right? No emotional movement. This particular red flag was more predictive of a no juror, a juror you would not want, than some of our demographics. So tracking that early, putting some of those things in early to test emotional feedback and jury selection is one of the biggest tips that we saw.

But another piece of interpretation on that emotional flatness, occasionally, sometimes both, it detects our no-jurs, but also detects a big block that’s missing, a gap in education or just overall knowledge and experience. Story recently saw this where our jurors were falling completely flat. We had tragic facts. We had…

Elizabeth Larrick (09:24.15)

a defendant clearly ignoring safety rules and a safety altogether, but nothing was jiving. As the discussion kept going on and the feedback continued, it became apparent that they were very clueless about the industry of the defendant. So we said, all right, what’s our takeaway? We got to educate early and often just to make sure they’re not making the wrong assumptions about this industry or comparing it to industries that are completely skewed.

and would be skewed against you. Okay, our last trend from our focus groups would be lawyers underusing your focus group investment. I see this where lawyers will sit in, take notes. They’re super excited and enthused after we have our focus group strategy session and then nothing. They don’t go back and revisit the transcript or the focus group reports. And I know this because I am able to track.

when people are downloading and using those things. Now, this is a huge point for me because when I spent a year with the Keenan Law Firm, one of my largest takeaways was the goal that was lying in those focus group transcripts and reports. I do this for the reports for my clients, but also you can do this just with going back and rereading the transcripts. We would spend hours going back to focus group reports and transcripts in order to find, okay,

Let’s get back in there. What were they saying? What were the exact words? Can we work those words, those phrases into opening? Can we work those words and phrases into deposition questions? What was their attitude for against us? How do we use that to our benefit? Also, what were some of the main questions that they had when they were just talking, right? Free flow, conversation with them. Not necessarily that pointed what was missing here. Sometimes people draw a blank.

when we ask that question. But if you just go back and read through the transcript, you will see when things are missing, people naturally percolate. They’ll tell you that first, or it’ll naturally percolate for them in just conversation and then listening to other people as well. So that’s a huge point. We want to make sure we get from our focus group transcripts. We don’t miss it. So if you have something coming up in 2026 and you ran a focus group in 2025, go back, reread that transcript.

Elizabeth Larrick (11:48.576)

you will gleam so much more information out of that group. And again, this was a large investment, so let’s use it as much as we can. This just taps into the point that our brains can’t focus and concentrate on all things that are happening. We’re not going to see all the body language that’s going on. We’re not going to be able to take down a note and hear what every single person is saying. Again, that’s why that transcript is so helpful to make sure you didn’t miss anything. Okay, so let’s recap what you loved in 2025.

guest episodes, trial strategy, witness prep, persuasion, and our top trends from our focus group. Comparison, but use of a visual, emotional slattness, detecting that, and then also going back and reusing our focus groups and squeezing as much as we can out of that focus group investment by rereading those transcripts. Now, as we look ahead to 2026, I am very excited to bring you more content on trial strategy.

on guests, on other things that we can be doing to improve our preparation. Which brings me to don’t forget that I have an email newsletter that provides more how-to and tips. Once a month to your email inbox, you can sign up for that newsletter in the show notes. All right. Thank you so much for making 2025 so amazing for me. I love learning from you and I love providing what I can back to my long-time listeners.

and to folks who are just coming to the podcast. I appreciate either way, you being here. And if you want to start off 2026 with a focus group, you’re curious about it, don’t forget to book a link in the show notes. All right, until next time, thank you so much.

We’re going back to the basics this week, asking, “Why do trial lawyers even do focus groups?”

Focus groups are not primarily for determining case value or winning cases. Instead, focus groups provide valuable insights into jury perceptions, case weaknesses, and effective storytelling strategies.

I share some real-life examples of effective use of focus groups, including a doozy of an example that, although it was a rough go, it left the lawyer with much more clarity on the path forward, and where to concentrate their time.

In this episode, you will learn:

• How focus groups help in understanding jurors’ perspectives.
• How focus groups allow for deeper conversations.
• Why starting your opening in the right place is key.
• The hidden attitudes that can be revealed by focus groups.
• How to build a stronger case, thanks to the feedback you receive.

Elizabeth offers virtual focus groups with several options. Book a free call with the link below to find out the options for your case:

• https://calendly.com/elizabethlarrick

Don’t miss out on the additional free tips and strategies Elizabeth provides via email in her Trial Lawyer Prep newsletter. Sign up here:

• www.larricklawfirm.com/connect

Episode Transcript:

Elizabeth Larrick (00:00.526)
Welcome to Trial Lawyer Prep, where you learn to better connect with clients and juries, gather persuasion strategies, and how to use focus groups in the process. I’m your host, Elizabeth Lerick, and in today’s episode, we are going to talk about why do trial lawyers even do focus groups? This episode is going to take us back to the basics

but it comes from a recent focus group that I wanna share with you. Many times when lawyers come to me and they want a focus group, or when I hear lawyers talk about focus groups, they talk about finding the case value, but that’s really not what focus groups are for. Also, lawyers come to me or they’ll talk about finding the percentages of fault or responsibility. Also, not really what focus groups are for,

And also, most importantly, focus groups are not here to win. Now, there are tools to find your case value that are reliable. There are tools that you can use to find the assignment of fault on all the parties involved. There’s a tool for that. And of course, there’s a tool for you being able to stand up and try to win. But it’s not focus groups.

And this episode directly comes from a recent focus group that I had where it was a rough go. They did not like the plaintiff. They ultimately almost put over 90 % of responsibility overall on the plaintiff. But what that lawyer said, the first thing they said after that focus group was over, said, this is why I focus group. Because

This focus group alone, even though we heard pretty much all things negative, tells me number one, I’m going to trial. And so for the next four months, I know what I need to spend my time concentrating on. Also, I learned the facts that the jury will create in their own mind when they hear the story of what happened. I also learned

Elizabeth Larrick (02:21.076)
Overall, this venue, this jury poll is gonna be very unfamiliar with a lot of topics that are gonna be discussed in this triumph. So I need to learn what I need to educate my jury on very early, almost first before they actually hear the facts of what happened in the case. So those are three really huge takeaways, but they don’t have anything to do with the case value.

And they ultimately don’t have to do with the exact percentages of fault that they’re going to put on somebody. And they definitely don’t have to do with winning. So I really want to emphasize in this episode, how valuable focus groups are, even though they’re not going to give you that case number, that assignment of liability, or they’re not going to tell you, this is a total slave dunk, you’re going to win. Right? And so this,

comes down to a lot of how to do focus groups because when we run focus groups, what we’re talking about here, what gives you all these awesome things, why you’re losing the facts they’re gonna use, the facts they’re gonna create, is because these focus groups are designed to have conversations with each participant and have time for follow-up, right, to understand even deeper about where some of these comments

these ideas are coming from when it comes to each participant. Okay, so these are not deliberation style focus groups, right? These are focus groups that allow a lot of space, a lot of comfortable conversations, even though they’re uncomfortable for lawyers listening to, but they allow for a lot more space for conversations. And again, one of the key things about how to do focus groups is that you don’t want to argue or fight

or even if you see the focus group getting the facts wrong, you don’t step in and try to just reiterate. So this is actually a really big pitfall that lawyers fall into when they’re running their own focus groups. And again, I’m saying this from my own personal experience, but also having years of experience watching lawyers step into do focus groups. One of the biggest things that comes, and you don’t think that you’re being

Elizabeth Larrick (04:48.224)
argumentative or trying to persuade, but it absolutely is. So it is really common for you to give a neutral statement of the facts. And then what happens when they give you back what they heard, they invent facts or they fill in gaps or they make a lot of assumptions. That’s their analysis, right? But you try to repeat facts. And so instead of saying, okay, all right,

Tell me more about that. You say, well, wait a second. No, no, it’s the white car and then the black truck. No, and then this is what they said. No, no, the black car says, right, so you’re actually in a way arguing with them. This is a huge pitfall. And so I want to bring that to your attention if you’re running your own focus groups, but this is exactly why I offer virtual focus groups with several options so you can avoid these mistakes.

get the feedback you need and be really confident in relying on the results to build your case. If you want to talk about the options for your case, book a free call with the link in the show notes. I really want lawyers to be able to run focus groups and know the reasons why. What is the value that is going to come out of focus groups? So let’s talk about a few other examples that I have. And number one to feed off what we just talked about is

how they will explain your case to you. So how they bring it back to you. Recently, we did a very short focus group that involved several different factors, but one of the things was quotas and possibility that was a quota given possible gender discrimination. And one of the point of views we got was, well, no, that’s the new person. A new person should always have more workload and be expected to work harder than the people who are already on the team.

Now that’s not a perspective that was ever entertained by the lawyer. So again, how are they going to explain their case to themselves right once they hear it? So great way to grab value from a focus group. The other thing that we talk about here on the podcast, but just to reiterate, is they’re going to find the case weaknesses. Now those could be facts or those could just be attitudes that they have. And naturally of course they’re going to find your strengths too.

Elizabeth Larrick (07:14.382)
But most of the time when people come to focus groups, they want to know what am I missing? What is there that is a weakness that I need to know about and fix? An example of this here recently again, another employment case, different situation, but the real big concern of the lawyers was offer letters and how were offer letters going to be perceived? Was it negative? Was it positive? Was it going to be a weakness for them? Turns out the feedback we got was no.

Offer letters are good. Nobody would want to change a job without having an offer letter to know that this is a true offer. It’s not risky if they’re going to lose one job and go to another one. It was great. So another great thing that we grab from focus groups and a reason to do focus groups is learning what point in time do you start your case? So

This goes back to our privacy and recency. The first thing people hear is generally the strongest piece in their brain that they’re gonna remember the most. So when you make the decision about where to start your opening, where to start your order of proof, it’s very important to know where do I start the story, right? Where do I bring this in? This also can be one of those questions of, I need to educate first before I can get to?

wrongdoing or pieces of the story. This example that I have comes from a food poisoning case. Now, naturally, the target defendants were in the distribution, right, not in the actual place where the actual event occurred. So we had to dial back to get them to the point of the story where it’s getting on the truck and it’s being shipped out, right? So that’s not normally where people would start the story and our focus groups

really keyed in on focusing on the last step, which was the delivery to the customer, right? well, it’s gotta be them, the restaurant, where it’s happened, right? It has to be, because that’s their personal experience. So it was very key when looking at and having a strategy session after this focus group was where to start. How do we get the focus away from the restaurant and onto the distribution line and the distributing company? Okay.

Elizabeth Larrick (09:39.992)
So that particular piece was gonna be key for them. And it’s key for you. Because if you start in the wrong spot, that’s where they’re always gonna go back to is the first thing they heard about your case, that’s what they’re gonna remember the most. So that’s where you can plant good seeds or get stuck in a bad seed and have to try constantly to overcome, right? That bias they may have in their mind immediately. All right, just a few other fun things and reasons why we focus group, finding underlying.

hidden attitudes or assumptions, learning what visual aids are needed. What can they just not conceptually put together in their mind, but maybe words on a page is not gonna help, but they literally need some kind of drawing to get them there. Also assessing case themes, if you’re using safety rules as part of a case theme, like focus groups are great to give you feedback on that. So ultimately, why trial lawyers focus group?

Well, we want to see and we want to hear how people think and talk about our cases, right? Regular people. But what does that really help us do as trial lawyers? Well, number one, we want to build better cases. That means you want to have stronger liability. You want to have stronger damages case. You want to have a case that has higher value before you went into that focus screw. And that is one of the main reasons why

I strongly encourage lawyers to do focus groups early on. Remember how we started this episode? We had a humdinger of a focus group, but the number one thing, the number one takeaway from that lawyer after listening to two hours of a really hard focus group where they were just dragging that case down was, this is going to trial and I have four months to prepare to come back to this table again and try again. But I know now,

which path I’m on and I need to stick to my guns and use my time wisely. So I hope that you have enjoyed this back to the basics episode about why trial lawyers focus group. And I hope you also know the other tools that you can use to get case value, apportionment of liability or responsibility, or big data study.

Elizabeth Larrick (12:01.656)
those are much more reliable tools because again, the field is going to be 2000, 3000, 4000 people, right? That’s a whole lot more reliable than sitting down with our discussion, the conversational focus groups. All right. And if you just want to win, then set yourself up a mock jury. That’s going to be the place where you’re going to go in, put on your best case, put on your best suit, have everybody else dress up, play witnesses, play the judge. And that’s where you can.

practice to win. All right. I hope this episode was helpful to you and until next time, thank you so much. Did you know that I also offer strategies, tips and stories in an email newsletter? That’s right. And if you join now, you will get access to the focus group trends email that’s going to start going out in 2026. So

You don’t want to miss any other free advice, then use the link in the show notes to sign up for the trial lawyer prep newsletter and the focus group trends email. They’ll start going out in 2026.

In this week’s episode, we’re looking at a powerful and often overlooked tool for persuasion: side-by-side comparisons.

Discover how this method can simplify complex information and sway jury decisions in your favor. I shares practical insights from my virtual focus groups, which offer strategic ways to leverage this tool throughout your case.

Our brains respond intrinsically to visual comparisons, and I’ll show you how to implement this tactic in opening statements, mediation packets, and beyond.

Learn how side-by-side comparisons can become your secret weapon for a better case outcome. And book a free consultation for virtual focus groups using the link below.

In this episode, you will learn:

• How our brains always look for patterns, and how comparison is a powerful persuasion tool.
• How our brains also crave easy decisions, and comparisons helps clarify positions.
• How focus groups reveal jury preferences.
• How to use comparison in your opening statements.
• Why visual aids are crucial for understanding.

Want to learn more about the virtual focus group Elizabeth does with lawyers? Schedule a free call:

• https://calendly.com/elizabethlarrick

Don’t want to miss an episode? Join the Trial Lawyer Prep Newsletter for resources, tips and episodes by going here: 

• www.larricklawfirm.com/connect

Episode Transcript:

Elizabeth Larrick (00:00.448)
If you want to know what persuasion tools will work best with your jurors in your case, that’s exactly what I do in virtual focus groups. I test your themes, your facts, your arguments, your visuals, and then give you strategic insights you can use throughout your case. This is your secret weapon. And don’t worry, I’ll be there to help you and add any other persuasion tools I can so that you can get the best outcome possible.

If you’re ready to do virtual focus groups, up a call with the link in the show notes below. Hello and welcome to Trial Lawyer Prep, the podcast dedicated to trial lawyers preparing better cases and better outcomes for their clients. I’m your host, Elizabeth Larek, and today we have a fun episode about a tool you can use pretty much anywhere in your case to win your point. Now,

Fundamentally, jury trials are challenging because cognitively we have a lot of information to bombard our jury brains with and we have to do it in an organized fashion. We have to think about word choice. We have to think about how much information we’re giving at each point and when we need to stop and summarize. Lots of different things to keep in mind so we avoid confusion.

We want always to make decision making easy for our audience. May it be the jury, maybe it’s a mediator, maybe it’s a judge, maybe even it’s our clients. And so today’s episode is dedicated to comparison, a powerful, overlooked persuasion tool. We use it just a little and I want to use this episode to talk about how we can expand using it.

Now, let’s just take it at face value and think about it in your mind, a side-by-side chart. Your side is on one part, the other side is the defense. All right, and so what happens when we do a side-by-side, just taking it as in your mind? What we can see are extreme positions that are being taken. We can also see the things that have to be ignored in order to accept the defense’s position.

Elizabeth Larrick (02:24.684)
And ultimately, we make it extremely easy for that brain to make a decision quickly and in your favor. So let’s talk a little bit why does this side-by-side comparison work so well. We’ve seen it work extremely well in our before and after witnesses that we use for our injury cases.

We use it really well with our plaintiffs getting ready for their depositions. We walk them through that in preparation. Okay, let’s talk about the things that have changed. Maybe you do that for your demand letters. Really good, helpful thing so you can write about it. But why can’t we use it somewhere else? And so this came up here recently as I was helping a group get ready for a jury trial. And we began to do focus groups and saw a very clear

theme that ran through almost all of the focus groups. The participants hated, even despised the defense’s number. And the number was a calculation. So this is not a traditional personal injury case, okay? It’s a different kind of case. I help on those too. So we saw this as a big strength, but how, how could we use this as a strength, right, to bolster

their position and also show how absurd it is and boom, it’s the side by side. And so they began to develop this side by side chart with at the top, right, the numbers to show again, number one, the absurdity and then what they had to rely on to come to that number. And again, this is a case that has complicated calculations and lots of expert testimony and

in the focus groups, it was kind of getting lost and they would only pick up on certain points. And so that’s where the comparison side by side became, okay, this has got to be something that gets down almost perfectly in the sense that we need to have simple, clear language, simple points, but also just a few so that they’re the most powerful points. And so the visuals created, the focus groups are…

Elizabeth Larrick (04:41.024)
lined up to test it and I will let you know in later episodes how it fares out in the jury trial. So let’s talk a little bit about why, why does this work with our brains? And number one is our brains always look for patterns. When things are unfamiliar, we try to find a pattern and comparison is an easy pattern. is quickly, it’s something we use often. And again, brains love things that are familiar.

So comparison is something that we use all the time in making decisions in our lives. Think about the last time you booked a trip and you used any of the numerous travel websites that show you all the airlines side by side and the costs and the bags and all the things so you can make an easy decision. A couple years back, there were insurance websites where they would run a quote for you and put the competitor side by side.

We do it all the time. go to the grocery store. We just go shopping for clothing, right? We put things side by side to make the decision easy for us. Our brains crave easy decisions. So that is why comparison works. It’s a familiar pattern that we use often in our lives and it makes that decision making easy when we can see it all visually, right? Which is the other strong thing.

about the brain science here is 60 % of our brain or more is dedicated to analyzing, detecting, finding, seeing visuals. And so having this as a visual is so powerful to make it easy for our brains. And again, this is an easy visual for you to create thinking again, it’s just a simple T chart, a side by side so they can see the things. The harder part is coming up with the things that go on that chart because they have to be evidence.

testimony, things that you know for sure will come into trial. And we’ll talk about that a little bit, how we can use them in other places. The other thing about comparison, and again, this draws from the recent experience we had was how obvious it was once we put things side by side, the absurdity of the position. Now, just talking verbally to someone and trying to explain comparison is a challenge.

Elizabeth Larrick (07:02.048)
Our brains can only hold three to five things in short-term memory. So when we try to verbally explain our position and then compare it to the defense position, things are just naturally gonna get lost. And that’s where this visual becomes very helpful in showing the absurdity of the defense positions. So let’s think about this in comparison of experts on the topic of causation.

experts on the declaration that there is no injury, right? Or even life care plans, right? Having that side-by-side comparison of just the simple facts, the simple differences, the simply put opinions, right? Will help them be able to understand the positions, but also again, see who is ignoring facts, understand the defense’s position, right? Making it clear to them. This is one of those things where as…

defense lawyers making it confusing, making a variety of things available for possible causes, possibly this, possibly not right. That just makes everything muddy. And with this side by side, you make it very clear. It’s very difficult to argue against when you do that hard work of boiling things down and writing it down till they can make their decision quickly.

So let’s talk now a little bit more about where we can use this. Now, the main example that we have again is our before and after witnesses, before and after testimony. But like we just talked about comparing our expert opinions is so helpful, especially when we have an expert that’s ignoring a fact, right? So again, think about our experts who give opinions about

it’s a sprain or a strain, there’s no real injury here. And so what does that mean? What do they have to ignore to get to that position, right? Having that side by side with what your expert has done. And so maybe it’s as simple as they never examine the person. There was, know, examination six separate times, right? This testing, no testing, right? And we have done a lot of this already in many of the cross-exam.

Elizabeth Larrick (09:18.638)
CLEs that have been out there for a while have talked about how to do this in cross exam. But what I am encouraging you to do is to use that comparison in your opening statements. Use comparison in your mediation packets. Boil it down, make it simple for the mediators to understand where is the hitch in the giddy up? Why can’t we seem to get this thing done? Where are the positions are and what are the facts that are being relied on?

And again, also helpful in hearings for our judges. Same thing, they can only handle three to five things at a time. It’s just their brain, it’s my brain, it’s your brain. So how do we get around that, right? Make that comparison, your position, their position. What are the facts they’re relying on? Putting case law on a comparison chart does not necessarily help them, okay? I’m talking about making the simple points side by side so they can see what’s happening. All right, so.

I hope that you found this episode helpful. I hope you have in your mind right now as we sit here, the next place that you are gonna sit down and make a comparison chart. Now, you may not be 100 % comfortable with writing, but you could put this on a PowerPoint slide. You could even make one of the big blow ups for demonstratives for your hearing, even for jury trial. But it’s a helpful persuasive tool because our brains wanna make decisions.

and you wanna make it easy for someone to decide in your favor. So if you’re wondering what persuasive tools you can be using in your cases, then the best way to find out is virtual focus groups. In my virtual focus groups, we test not only your case, your facts, but we also find the best ways to persuade the jury. If you’re interested in doing a virtual focus group, please use the link in the show notes to book a free time to talk.

Right now, are still spots available for January and a few for February as well. Thank you so much for tuning into this episode and until next time, thank you.

Today, we’re talking about the advantages of using virtual focus groups to enhance jury selection, especially in jurisdictions with limited voir dire.

I share a real-life success story where a lawyer used virtual focus groups and a detailed jury research chart to navigate a challenging trial with confidence.

We then look at the nuts and bolts of how to conduct virtual focus groups, create insightful jury profiles, and maximize the value of focus group feedback. By analyzing qualitative data from focus groups, lawyers can identify potential jurors who may not align with their case, thereby making informed decisions during jury selection.

This episode is a great starting point for learning practical strategies to better understand jurors, identifying their emotional engagement, and improve your overall trial strategy.

In this episode, you will learn:

• Creating a jury research profile helps identify unfavorable jurors.
• Demographics alone are insufficient; life experiences matter too.
• Judges may make impulsive decisions during voir dire.
• Multiple focus groups enhance confidence in jury selection.
• Transcripts from focus groups are crucial for extracting insights.
• There is no perfect method for jury selection, but strategies can improve outcomes.

Supporting Resources From This Episode:Case Study: How Virtual Focus Groups flipped Disputed Liability (blog)

Jury Selection: What’s Broken With Traditional Methods? with Sharif Gray [Ep 149]

Want to learn more about the virtual focus group Elizabeth does with lawyers? Schedule a free call:

• https://calendly.com/elizabethlarrick

Don’t want to miss an episode? Join the Trial Lawyer Prep Newsletter for resources, tips and episodes by going here: 

• www.larricklawfirm.com/connect

In our last episode, we heard from Tim Bechtold, whose perseverance ultimately led to a verdict in Montana of over $27 million for his client.

Today, we’re joined by Tim’s partner in the case, John Heenan, for his perspective on the process and the role he played in achieving the result, particularly as someone who joined late in the day to help push it over the finish line.

We talk about how to approach the trial, the importance of adding someone new to a team for crucial fresh perspectives, and advice for working with conservative mentalities on juries and trial presentation.

John emphasizes the importance of empowering jurors and leveraging collaboration to achieve results in the courtroom, while also reminding us of how we can measure success, keeping an honest assessment of our role in the outcome.

You can also watch this episode on YouTube here: The Art of Teamwork: Winning a $27+ million dollar verdict, with John Heenan [Ep 152]

Follow and Review:

We’d love for you to follow us if you haven’t yet. Click that purple ‘+’ in the top right corner of your Apple Podcasts app. We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Guest John Heenan of Heenan & Cooke Trial Lawyers, Montana.

www.lawmontana.com

Contact John directly at john@lawmontana.com

Books recommended by John:

• Carl Bettinger, Twelve Heroes, One Voice: Guiding Jurors to Courageous Verdicts
• David Ball, David Ball on Damages, 3
• Nick Rowley and Steven Halteman, Trial By Human

Do you have an upcoming trial and want help writing your opening statement? Book a free call with Elizabeth to see how she can help.

Don’t want to miss an episode? Join the Trial Lawyer Prep Newsletter for resources, tips and episodes by going here: www.larricklawfirm.com/connect

Episode Transcript:

I’m your host, Elizabeth Larrick, and we have a treat today. We have guests, John Heenan joining us all the way from Montana to talk to us about a recent verdict. Hello, John, and welcome to the podcast.

Hey, Elizabeth, thanks so much for having me and what a treat to get to be on your show.

Speaker 1 (01:02.136)
Well, I think it’s gonna be our treat because you guys had an amazing verdict, 27 million. And so I’m excited to have you here to talk a little bit about that. But before we jump in, for folks who may not be familiar with you, tell us a little about where you practice, what your main focus is. Give us a little background.

So I’ve been a in the trenches trial lawyer here in Montana for 20 years now. Cut my teeth on some federal criminal defense and have been a consumer protection lawyer. So I’ve for many years sued debt collectors, banks. Back in the 2007, 2008 time period, I kind of did nothing other than sue mortgage servicers for defrauding people.

had some good results at trial in those cases. And yeah, I fight bullies. I take on bad guys. And here in Montana, everybody’s somewhat of a generalist. So I think I get referred cases involving people getting picked on by bullies.

Okay, well that’s a good background to give us and of course if you want to reach out to John his information will be in our show notes. But what I find so curious about this verdict was you jumped into this case kind of just a few weeks before trial. So what made you get excited? What made you say yes to going to trial in this case?

Well, I think probably like many of your listeners, my least favorite part about the practice of civil plaintiffs law is how long it takes to get a case to trial. And so, you know, my normal case is like probably everybody else’s where I file it, grind it out for years and years and years before finally after all the doors have been closed on the defendants, we finally get our day in court.

Speaker 2 (03:03.714)
This one was kind of every trial lawyer like me dream. I was literally sitting at the brewery having a beer with my good friend and we had another trial coming up and he told me that he had back to back trials. And I said, what’s the other trial? And he told me about this case that we’re here talking about. And I said, hey, do you need some help? I work on tips.

Hahaha

So that’s literally how I think that was two or three weeks before trial that I first heard about this case. And I do think and I a lot of times help other lawyers either jumping in and helping them try a case at the last minute or at least kind of giving them a fresh set of eyes. And that’s a big thing that I want to visit with you about Elizabeth. And I know that you specialize in is, you know, I think lawyers.

grind all these issues for years and years and years. And so we just think because it’s important to the other side or the court that it must be important to a jury when 99 % of the time it’s not at all. And so I do think whether you’re willing to relinquish the control and let somebody else try your case, that’s always hard, but at least getting fresh sets of eyes on a case that you’ve been staring at for a long time.

is incredibly beneficial. I brought a fresh set of eyes to the case.

Speaker 2 (04:37.432)
helped my good friend to help his client get a fair result.

Absolutely. You guys have so much wisdom and knowledge. I really wanted you each to come in and give your own thoughts.

Kind of the flip side of this case and working a case for three weeks is Tim and I just finally got resolved a case that we’ve had for eight years together. So that’s sadly more the norm in the civil practice than a couple weeks.

Absolutely. mean, I think you’re going to be preaching to the choir to most people who totally understand the slogging it out. This case is a case that it really kind of lingered pretty significantly long. It took a while to get to trial. There was an appeal. So there was a lot of, you know, back and forth, a lot of slogging out. know that Tim really had to do a lot of fighting and digging in this case against a private prison. And so we did a focus group together. So I am curious.

You you got to take it all the way through into trial. So tell us a little bit about what you learned from that virtual focus group.

Speaker 2 (05:40.366)
Yeah, it was hugely beneficial. And I mean, for more just kind of, you know, interesting story or whatever, somewhere between the bar with Tim and agreeing to be on the case. And then I had a long planned road trip that I drove from Arizona back to Montana. So for me, thank God for the zoom nature, the virtual nature of your focus groups, because I was in a geodesic dome at a campsite in remote Utah.

in range of their Wi-Fi in order to participate in this focus group. And so I’ve always done focus groups in my cases way back when before Zoom, we, you know, put an ad in the newspaper and bring people into the office, feed them a sandwich and give them $20. So I will say that, you know, that was the first time that I’ve ever worked with you.

Speaker 2 (06:40.462)
And I was incredibly impressed with not only the people that you found, because in my experience, it can be kind of the usual suspects when you’re trying to do it yourself. There’s a certain kind of group of people that likes to do the I mean, rightly so. I think it’s fun, but you get the same people. And so their perspective gets kind of stale. And also, you know, we’ve read the books.

I what we thought was the best, then I watched you handle one and realized that what I had been doing up till then was not the best. So I know who I’m going back to next time. It’s not me running an ad in the newspaper anymore.

I appreciate you saying that and I will say from all my virtual folks you had the coolest background because you were

Yeah, I’ll send you picture if you can link it because the geodesic dome was a pretty neat place to office from for the day.

It was, I, you know, as far as getting up to speed so quickly and thinking about those three weeks and thinking about that focus group, I you yourself did an amazing job getting up to speed on the file because you did part of our presentation in that focus group as well. And then, you know, sat back and watched everything else people were saying. So there was a lot of information to kind of synthesize down and then get that feedback. And then you took that then and

Speaker 1 (08:05.1)
you know, recreated and went back and create an opening statement that I thought was fantastic.

Well, and I really also continue to sing your praises, Elizabeth. mean, I’ve done focus groups with other people too, but that never involved kind of, hey, let me look at your opening PowerPoint slides, because I might have feedback, and you had amazingly good feedback. One of the things I like most about trial is the collaborative process and just the finished product that the jury sees is…

It’s never the work of one person or I would say it shouldn’t be the work of one person. I definitely the way we do it in my office is it’s very collaborative and through that process, the jury gets the best version.

Absolutely. think you used a beautiful word for that, which is stale. You know, we get so stale, our stale perspective as lawyers and having more people get eyes on and give even just very small things make, I feel like the biggest difference. And in this case, I think you guys had a really good challenge of getting the focus in on the really bad violations. Cause you had so many ways to go.

so many bad acts it was really trying to connect everything together and keep the jury focus.

Speaker 2 (09:25.068)
Yeah, and that was, you did a great job of helping us with that. For the listeners, I think I had four or five things I wanted to prove them guilty of, and you correctly said, let’s just go for three. I couldn’t help myself in closing. I reminded them of the three that we were told them we were gonna prove, and then I put up a four, five, six.

think that’s brilliant!

just to kind of sugar coat it for him. Yeah, so I…

I think that’s, mean, that’s, you know, that’s one of the things I was hoping they would, you’d kind of tell us a little about because one of the things about, think sometimes can be difficult when you’re approaching a trial, especially in your case, right on the eve of things, you’re taking in all the information and creating all the crosses and the openings and being able to then think through and tailor opening into closing. But you use it in a way where it was just like, and let me show you what else we proved. You know, they were not paying attention.

Yeah, you know, we all get good ideas from, at least I get good ideas from other people and just kind of, you you crib them and you make them your own. A mentor and friend of mine is Carl Bettinger, who wrote an excellent trial guides book, 12 heroes, one voice. And that’s kind of my go-to for how to put cases together. It’s the Joseph Campbell, it’s just a way to tell a story.

Speaker 2 (10:55.246)
is explain to the jury what’s going on, kind of what they’ve entered into and what their options are for either stepping up and doing something or choosing not to. And that’s the way I sue debt collectors, it’s the way I sue banks, I do bad faith insurance stuff, it’s the way I present bad faith cases and that’s how we presented it here too.

And I think it works. mean, you tell me if you’ve been successful before.

Yeah, yeah, it does work plaintiffs lawyers. Our instinct is we feel so by the time of trial we feel so kind of emotionally wrapped up in our clients. We uniquely know all the crap that they’ve been put through behind the scenes, how disrespected they are almost always through this process. And so kind of we go in with a chip on our shoulders that the judge, the jury, nobody else.

has that perspective. And so when you start off from a position of, and I guess I’d say too, Montana is a very conservative venue. Our jury here was a federal court, Eastern Montana. These are farmers, ranchers, people that do not want to give money away, period. Everybody says, that hurts, rub dirt in it, get over it. You know, and that’s great. And that’s

kind of the only place I’ve ever, I’ve had a couple cases in California and stuff like that and I won’t lie, that’s pretty fun too. But on a case where kind of values have been broken, think a conservative jury is your best jury because they understand right and wrong and are willing to act when they see wrong.

Speaker 1 (12:44.04)
Absolutely. But I mean, let’s spin it a little more here because it’s federal court. You guys are pulling from 300 miles to get people.

Yeah, it’s the Canadian border to North Dakota. That’s right. Damn near Idaho.

You’re doing a private entity, which is one of the biggest employers in that entire area. Everybody knows where this place is, who’s, know, and the fear would be, my gosh, right? You’re going to put these people out of business. Like they’re the main employer. Also, let’s be real here. These are prisoners. Like you deserve to be there. Why should we even care about this situation? So you guys kind of had a little bit of an uphill battle to get

and really position the case and frame it in a way to where, like you said, you focus on the values and correcting the wrong.

I think a lot of that happens in Bordier. Bordier isn’t just the place to select your jury and get rid of the people that you don’t want. It’s the place to frame your case for the first time and stake out the posts of what ethical drama, what are the moral values and moral issues that are going to come into play in the trial. And I think I always do cards up and tell the jury panel it’s cards up.

Speaker 2 (14:07.074)
And that’s just cribbed Jerry Spence stuff. I mean, there’s no, it’s not so original, but it’s really effective when you say, here’s the warts in my case. Let me show you what they are so that the jurors are hearing it for the first time from you. So yeah, we had a prisoner, a positive meth test, stuff that might scare somebody away from taking their client’s case to trial.

Absolutely. don’t know if you, there was much of a choice here though, was there? don’t think there was even anything remotely that would give any of you guys an opportunity to settle, I should say before.

Yeah.

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Well, talk us through if you can, anything a little bit about jury selection or opening statement. Is there anything that you can kind of share with us as far as thinking through? Cause there are lots of people who have the same bout, know, the same battles, conservative venue, uphill battle against a defendant, a not so great plaintiff. So tell us a little bit about if you can, things from the trial.

Speaker 2 (15:39.18)
You know, jury selection, obviously one of the big things that we had to kind of put front and center was does anybody think that people in prison don’t have the right to be kept safe? That, you know, stuff happens because that was going to be their big defense and we knew it. So kind of getting ahead of that, having the jury panel openly talk about, you know, and some people did say basically, why should somebody like that be kept safe?

So that’s, don’t fool yourself into thinking if you don’t have the discussion with the panel, they won’t think of it on their own as they’re deliberating. So, you know, we had that conversation and we had the hard conversation about money and that’s always been the scariest part for me is talking about money and especially getting ahead of the jury because I do really think that you can kind of like when the record screeches, like

Every, you the music’s going, everybody’s having a good time warming up and then you say, $20 million and it’s like, and the record screeches and that can be hard to come back from. And my friend, Brett Turnbull, he came up with the good idea that, you know, I’ve used since I’ve stolen from him on in Vordir, it’s just millions and millions of dollars. There’s not a specific amount. There’s not a litmus test.

but it’s putting it on the table. I mean, if the case justifies it, defer to everybody in your own venue, but I don’t think just asking for millions and millions of dollars gets juries to award millions and millions of dollars. think there’s a credibility component and you’re gonna get burned if you start throwing big numbers around and the case doesn’t justify it. But if the case justifies it, I think it’s really important to let the jury know where you’re going.

so that they have the opportunity to talk about it. And we a lengthy conversation at the jury panel, people saying, I’ve never seen a million dollars. How would I know whether I could award a million dollars or two million or more? But they kind of had that discussion amongst themselves. And then, so by closing, I mean, there were specific things that the people that ended up on the jury said that we were able to harken back to.

Speaker 2 (18:06.35)
kind of remind, use their words as they were contemplating what the verdict was gonna be. And I think it was all from a position of empowering them that they didn’t have to award any money, much less a lot of money, but they certainly had the power to if they decided that was appropriate. So our client, as you know, Elizabeth, I mean, he has a brain injury and so he can’t walk. He has kind of a…

stunted gait, he talks very slowly, it would be obvious to anyone that he has problems to eyeball him. Well, in Vordier, one of the potential jurors basically said candidly, you know, I feel sorry for your client. Unprompted, she just said, I feel sorry for your client. And we use that as an opportunity to talk about how no sympathy in the courtroom.

Our client didn’t want sympathy. He wanted, I love the phrase we used was cold justice. And we kept going back to, know, he just wants cold justice and not your sympathy. And in Bordeaux, had a panel, had a nice conversation about this is America. We don’t just take money from a big company and give it to somebody that got hurt. So I do think getting ahead of that.

and kind of staking out the high ground of that kind of language, especially with the conservative jury. Here in Montana, you’re not going to get sympathy. So throw that idea in the garbage and talk about what the rules are and get a commitment to follow the rules.

Awesome, wonderful. It sounds like you guys had an ample time for journey selection.

Speaker 2 (19:58.092)
Yeah, it was great. Federal court, the judge did about an hour and he did a great job and then let the parties each do about an hour. In state court here anyway, we can get half a day. But, you know, I also think working under a timeline can be helpful, keeps you efficient and sure, there’s ways to dribble out the clock. Even if you have four hours, I’d say use one hour if you can.

Yeah. Yeah. Awesome. And you guys ended up with a panel that you were pretty pleased with, right?

Yeah, they were, I mean, a good cross section of Montanans, but everybody was committed. Before COVID, sometimes there were potential jurors that were just downright hostile to the whole system. I do think that people are more open to serving on a jury now since COVID and everybody was kind of locked inside. But I mean, another thing I asked and I think I’ll always ask now again is,

who hates being here, who wants to be here, and who’s somewhere in between. And that even was kind of a good conversation of taking people’s temperature to see. you don’t want the person that hates being there. The person that loves being there is also a little bit dangerous.

Yeah, I was like you kind of actually want somebody in the grave

Speaker 2 (21:21.086)
Yeah, like I want a five out of ten.

That’s right. That’s right. Yeah. I think that’s a great question because I’ve seen juries here in Texas where before I feel like people were kind of little subtle about like not wanting to be there. Some people made excuses, but it is like eye rolling, huffing and puffing, like, you know, very obvious, like they do not want to be there. And if you have to get stuck with that person, cause I’ve seen it happen. It is not, it is difficult to overcome that, that burden of them not wanting to be there.

Yeah, I’ll say, mean, jumping around on you, but I mean, the other I’ve gotten burned on technicalities enough time and I’d gotten burned on, especially in federal court. You get that one juror that just wants to play NCIC investigator and they want to, it tanks the case. It really does. And so if I can lend one good thing to the listeners here, it’s, you know, in closing, before I got into the case, I gave him.

kind of helpful hints on how to do their job in deliberations. And one of them was I use the analogy of an escape room, which, you know, I told them that my family, we always do an escape room at Christmas and you go in the room and Santa wrote a letter and every word in the letter has some hidden meaning and you have to figure out what the hidden meaning is. And I said, that’s not what this is. This isn’t an escape room.

The judge isn’t trying to trick you with the jury instructions or hint, use your common sense. And that was really designed to neutralize that one person that can go back there and deliberations and tank your case and say, well, they never talked about this weird thing or why did the judge use the instead of them or what? mean, just whatever, but just

Speaker 2 (23:17.954)
talked to enough juries after verdicts that didn’t go our way where it was just like you bang your head against the wall because you’re like, how could anybody have anticipated? But then that’s probably a good segue into how important it is to get a focus group because there is a lot of those things that you might not anticipate. But if you hire Elizabeth to do a good focus group for you, the people on that focus group panel will anticipate. There’s nothing better than in real trial.

solving mysteries that you didn’t know existed until you learned about it in a focus group.

Yeah, I mean, you definitely hear all the off the wall possibilities where, you you as a lawyer think, okay, well, that’s not likely to happen. But it still goes into a category of if I get this kind of person and they’re stuck in there, they could be thinking about, well, you know, where are the fingerprints? Well, how could there not be a video of this or maybe and it’s like, no, like we’re all doing.

To me, one of the biggest values of a focus group is that cognitive dissonance is a real thing. And if you’re prosecuting cases and don’t understand it, you’re doing your clients a disservice. we think my plaintiff had a hip replacement surgery, so I think I want people on the jury that had hip replacement surgeries. Maybe, but probably not. Because they’re sitting there going, nobody gave me a million dollars when I…

got a hip replacement surgery. Human nature is to sit there and go, how would I have never been in the circumstance that this plaintiff was in? And I’ve heard some preposterous, you I’ve heard people saying that they never listened to music while they’re walking down the sidewalk, because they’re always ready to jump out of the way of a vehicle that jumps the curb. mean, crazy stuff, but that’s what we need to be anticipating and closing doors on.

Speaker 1 (25:21.334)
Absolutely, and I think that’s where you know the creativity of focus groups always blows me away. We’re just like my gosh They’re trying to put themselves so far from the position of the plaintiff and I mean in this case None of your people were probably were been in prison or in jail. So Right. It’s hard that point of view in a case like this is very difficult because that’s always what you want to be seated is knowing what the point of view is of the jury are they with us or against us and in the situation

no one’s going to have the point of view of being in prison. They’re more likely to be working at the prison.

Yes. Yep. Not for sure. Well, surprisingly, though, I mean, I’d never handled a prison case before, but I do do a bunch of assisted living cases. so I I kind of presented it as an assisted living case. And even in Vordir, we talked about who’s had loved ones at a facility that, you know, they’re dependent on other people to take care of them. I mean, it was kind of a natural analogy.

Obviously different reasons why you’d be in an assisted living facility versus a prison, but

Sure. Definitely. But I think, you know, the way that you guys framed the case and of course, starting first with focusing on the defendant and the conduct there, not focusing on injuries and that kind of stuff. Like you said, sympathies out of the courtroom. Were there any other takeaways that you feel like could stand out that would help other trial lawyers either getting ready for trial now or just putting a tool in their toolbox?

Speaker 2 (26:59.0)
Yeah, a couple things. mean, one is you never know when lightning’s going to strike unless you’re on the field. And so I’m guilty of it. We’re all guilty of it. But handling a case for so long, the defense can say, well, you might lose on this. You might lose on that. You can talk yourself out of taking a case that ought to go to trial to trial. And you can talk yourself into

convincing your client that something’s better than nothing. And often it is, I mean, every case is different, but when you’re getting low balled, when the defendant or the insurance company are not offering any work in the neighborhood of close value for your client’s damages, you know, we’re trial lawyers for a reason. And part of that means showing up and trying cases every once in a while. And I use the line with

insurance adjusters and defense counsel sometimes that’s, and I probably stole this from somebody, but I’ll tell them like, you know, yeah, if I’m batting 250, I’m playing in the major leagues. You know, I just got to win one out of every four. And they hate that because they don’t want to be the one hit that you get. And I think my average is better than that. But I still, mean, even if you’re only one out of every four for the right reasons, you should probably be taking those cases to trial.

I think we as plaintiffs’ lawyers make ourselves a bigger part of the equation than we really are for big wins. I think that if I set my ego aside, most big wins that I’ve had in my career and I’ve watched others have, have more to do with compelling facts, compelling plaintiffs, and then the magic spice on top is often not what we as plaintiffs’ lawyers do.

but the way that the case is defended. No holds barred, no accountability, beat the plaintiff in the submission might sound pretty good when it’s the insurance company and the defendant and the defense lawyers all huddled up. But sometimes when you watch it play out in front of real people, it just looks kind of ugly. And I’ve seen that happen quite a bit. And so I guess my…

Speaker 2 (29:22.434)
Council in those circumstances is don’t re-inject yourself as part of it. Get out of your way. If there’s particularly nasty cross of a plaintiff or a family member, maybe just let it play out instead of objecting. Like we just presented it straight up. There wasn’t any razzle dazzle. Some people are.

better at the razzle dazzle than I am. And some people are in places that that’s maybe better received, but razzle dazzle doesn’t work in front of conservative Montana juries and they don’t like feeling tricked. And so I think just, you know, straight up the middle, cards up the whole way.

I’m sure you had some razzle dazzle in there, John. You know, okay folks. He went in there with, know, pretty much a no offer case. I’ll say pretty much and turned it around, gave it to them, empowered them, asked for, you know, a range and then they settled themselves on around 27 million. So, I mean, that’s a pretty, there’s gotta be, like you said, I think the magic of the courtroom.

does so much good for us than we can ever anticipate. It’s just hard to trust that that’s gonna happen.

Yeah, I think and even the, you know, people want to try and boil it down to a science, but it’s just not, you know, if you try the same case 10 times to 10 different juries, you’re going to get 10 different results. And that risk makes us scared, but I promise you it makes or should make the other side more scared. I think a product of what happened here was a company that’s used to getting sued by pro se litigants all the time and just kind of

Speaker 2 (31:15.458)
beating them down and not really understanding their own risk exposure. But it’s, you know, it’s our job to create risk and create exposure for the defendants and the insurance companies. And that’s how we get more money for all of our clients.

Absolutely. Well, John, it has been a treat to have you and listen to you give us your pearls of wisdom for trial because there are a lot of folks that are struggling with conservative venues and a lot of people just say, I’m just not going to do it. But I hope that everyone listening says, okay, we can do it. It’s totally possible. John’s not get out of the park there in Montana and other other folks in other parts of the country doing the same thing with conservative jurors. So.

John, you’ve been such a good guest here today and I appreciate you coming on. We’re gonna put in the show notes, your contact information and also your mention of that wonderful book by Carl Bettinger. Is there any other resource books that you would recommend?

It be the big one. mean, trial by human, the ball on damages. Most people that have read, you know, the trial by human and ball and rules of the road and stuff like that. Carl’s book is a little bit less on people’s radar. And it really is just a, that formula will work for every single case you have.

Yeah. And then, like I said, I think what I find, there are so many books out there. It’s the one I go back to, right? Like it’s the one I’m like, where’s that thing again? where’s that idea? And it sounds like for you, it’s Carl’s book.

Speaker 2 (32:56.462)
It is. I mean, it’s just like, okay, how do I put this one together? Read that book? Okay, that’s how to put it together.

Well, thank you again, John. I appreciate you joining here today and have a good rest of your day.

Thanks so much, Elizabeth.