Category: Podcast

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.

Want to know what jurors really think about your case? Stop guessing and start testing. I run virtual focus groups that give you real insights from real people without the hassle of conference rooms and catered lunches. We’ll uncover the landmines in your case before they blow up because the best surprise in the courtroom is no surprise at all. Ready to see what you’ve been missing? Let’s talk virtual focus groups and book a free consultation call with the link in the show notes.

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.

Tim Bechtold spent years fighting a a civil rights case involving a prisoner from the Montana State Prison System.

In today’s conversation, we look at the intricacies of the case, detailing the client’s wrongful conviction, subsequent assault in a private prison, and the challenges faced due to procedural delays and missed deadlines.

However, the perseverance of Tim and his team ultimately culminated in a favorable verdict and a reward of just over $27 million.

Tim explains the importance of a focus group in shaping their trial strategy and reflects on the quick-paced nature of their trial, as well as the broader implications of justice and advocacy for marginalized communities.

Tim Bechtold is a Montana-based trial lawyer known for his work in civil rights and environmental law.

In this episode, you will learn about:

• How the case of Nate Lake highlights systemic issues in the justice system.
• How the verdict of over $27 million underscores the importance of accountability.
• Why justice for marginalized communities often requires persistence and dedication.
• The role of storytelling in trials that is crucial for juror engagement.

Supporting Resources:

Guest Tim Bechtold of Bechtold Law Firm, Montana.

Contact Tim directly at tim@bechtoldlaw.net

$27.75 million dollar verdict (KRTV news)

Northern Cheyenne v. BIA verdict (Daily Montanan)

Tim’s Environmental Work: https://www.npr.org/transcripts/nx-s1-5416766

2025 Leonard Weinglass in Defense of Civil Liberties Award – AAJ: https://www.justice.org/membership/awards

2025 Montana Trial Lawyer of the Year Award: https://www.monttla.com/?pg=historical

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.

Episode Transcript

Speaker 1 (00:19.832)
Touch with the emotional birth

Speaker 1 (00:36.024)
Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we are continuing or beginning, I should say, our series where we’re going to talk about the $28 million verdict, but we got to start somewhere. So I’ve invited Tim Bechdel to come and talk about building this case. Tim, welcome to the podcast.

Thanks for having us, Libous.

You are a phenomenal lawyer. I don’t need to tell you that. Okay. Award-winning. You’re doing amazing work. I saw some other stuff just searching you, but I have to tell you, did you know that you’ve been listed as one of the sexiest lawyers in America?

I still can’t believe that Alana Felkin’s cheerleader is more sexy than I.

You’re number 32 according to Business Insider. I just want to point that out to folks. We’re going to have a link to that in the show notes, okay?

Speaker 2 (01:34.306)
No, there you go. Just so know, I’m 30 seconds in last.

In all seriousness, really excited for this conversation, but tell us a little bit about you, your background. I mean, you have been fighting for, you know, people’s rights and taking the underdog for a really long time and doing some amazing work. But tell our audience a little bit about you since you may be new to them.

Well, I grew up on a dairy farm. I do not like milking cows. So I went to Harvard, was a bio major. I worked in the environmental field for a couple of years and then got my master’s degree in environmental studies at University of Montana. A couple of years later, I went to law school and got my JD and began to work primarily in environmental cases. And then by hook or by crook, I got called up by a native family from the Fort Belknap reservation.

who had been involved with environmental stuff and they wanted an attorney to deal with some situation that happened on the reservation. And so I started getting into civil rights cases on reservations. And then that led to a bunch of different cases around the civil rights cases and not just on reservations, but throughout the state of Montana. That’s how I got into civil rights cases, but I still, my caseload now is still.

a significant chunk of environmental cases and a significant chunk of cases for Native Americans and some civil rights cases.

Speaker 1 (03:01.25)
Yeah. I mean, it is amazing the work that you do. You’ve been recognized, I know by the Montana trial lawyer’s association for, know, again, fighting for the underdog here every single time. So I definitely appreciate the work that you do. And I even saw just getting ready to talk to you today. You’ve got a pretty large environmental case going in Seattle right now. And so that’s, that’s a pretty big one too. So we’ll have a link to that in the show notes for folks who are interested, but I want to talk about this amazing verdict that you got.

for a prisoner involved in the Montana State Prisoner System. And it has a pretty storied past. I mean, this thing had been out there for a while. So tell us a little bit about how you got this case and really why you took it.

Well, it turns out that a woman named Mindy Driscoll, while she was in law school, had worked on the Innocence Project on this case for this guy named Nate Lake. Nate Lake, who was our client in this case, he was a guy who grew up near Missoula, was a high school athlete, very good student in high school, went on to the University of Montana, intended to major in pharmacy and become a pharmacist.

And about the time he was about 20 years old, he developed schizophrenia. It’s an affliction that’s not uncommon among young men of that age. And unfortunately, Nate was one of those people who developed schizoaffective disorder. And so he decided to live the life of Jesus and became homeless and depended upon what people would give him. For years, he slept by a log next to the river.

near Missoula. He did some odd jobs, landscaping sometimes. And then he was accused of attempted sexual assault. The case went to trial and over the course of trial, the trial judge decided to prevent some DNA evidence, very exculpatory DNA evidence from being admitted into evidence. And so Nate was convicted and the Supreme Court eventually overturned that conviction and he was released.

Speaker 2 (05:10.84)
But in the meantime, Nate had been incarcerated at the Montana State Prison System and they had assigned him to this private prison near a small town in Missoula called Shelby, which is just south of the Albertan border by 20 miles. So in this private prison, Nate was assaulted by another inmate and was in a coma for over a month and then in the ICU in the hospital for another several months.

before he was released back to the private prison for about another six months before the Supreme Court eventually got to his case and overturned it. And so at that point he was released. So Mindy Driscoll, who by that time was out of law school and became an attorney, decided to take a civil case on Nate’s behalf for what she thought was going to be a false incarceration, but eventually turned out to be this case against Corps Civic for the assault that he suffered while he was incarcerated.

Unfortunately for Mindy, she developed long COVID and had some serious, both mental and physical issues associated with that. And she was unable to act as an attorney. She unfortunately missed a series of deadlines. And as a result, court civic move for summary judgment based upon the plaintiff’s attorney’s unresponsiveness. And at that point, Mindy actually called me up and said, I can’t do this case. I can’t be an attorney right now. Can you do it?

And I said, I’m happy to help. Let me know what’s going on. And so I picked up the case. And the first thing we had to deal with, of course, was the pending motion for summary judgment against Nate. And then what would come of it? So my argument to the court was the situation that Nate was in was due to no fault of his own. It was because of the health situation that his attorney was faced with. So the court eventually ruled that Nate could

Because you’re a really good guy.

Speaker 2 (07:08.312)
prosecute his case, but the sanction for all this was that Nate would not be able to pursue some punitive damages against CoreCivic. In a case like this, which was, I feel, a fairly significant sanction and one that we have asked the court to review several times and he’s…

Sure. Yeah. mean, you had the case for many years. This is the thing. You’re not like, you know, the case had been many years by the time you got in. And when he means unresponsive, like the discovery things had passed. I mean, there’d been a lot of things. And again, you had decided, you know, taking it on, even though they took away the punitive damages claim.

Right. And so then we began the case in earnest, started doing discovery and worked up the case to see how it all, how it all shake out.

What year was that? I feel like that would have been 2021. Is that a ton about right?

It was a long time ago. was like, there you know, was like, man, that was a long time ago. And so there’s ancient history.

Speaker 1 (08:10.51)
Well, the, know that, you we’re looking at the reviewing the case notes, you know, to get ready for the focus group that we did. Like it was very like, my gosh, you basically took this thing where it was, where it stood and began prosecuting it, even though years had already passed at this point. So many of the things that you needed were just gone. You know, I mean, some of the people who worked there weren’t there anymore. And some of the documentation just completely gone or.

Yeah, it just wasn’t there. luckily, because of the criminal case against the assaulter, the core civic had maintained the videos of the assault. And that’s one thing that your listeners should know is that the facts of this assault are actually quite simple, is that the assaulter buzzed himself out of his own pod, walked down the hall, buzzed himself into Nate Lake’s pod, walked up to his cell, beat him unconscious.

Walked downstairs, washed the blood off his hands and face, went back to the door, buzzed himself out, walked back to his own pod, buzzed himself in and yucked it up with his buddies. And that’s all on video. And that’s primarily because they were charging the assaulter with assault and criminally.

which is really good because we needed those videos to really put together the timeline of events. Cause Mr. Lake, he really had a terrible time recovering and you know, speech and a lot of really challenging difficulties from just recovering from the assault altogether.

Yes. So he has difficulty walking. He practices walking. has difficulty going upstairs, lifting his feet. Balance is an issue. He talks quite slowly. He has a cognitive delay. His memory is very spotty. He will sometimes remember things and then the next day will not remember that thing or even remember that he remembered it. So it’s very difficult. I should say the assault itself is not on camera.

Speaker 2 (10:16.11)
because the camera is not inside the cell. We can see the assaulter go into the cell and we can see him come out of the cell three minutes later. But we don’t know exactly what happened inside the cell other than that Nate suffered some serious brain damage as a result of it. whether he was being choked or just being punched, we don’t know.

Right, right. And that, you know, one of the things when it finally came down to trying the case and getting ready for it, you decided to do a focus group. Tell us about why you decided to do that.

You sure did. I should say that first, you came to the Montana Trial Lawyers Association Convention a couple of years ago and gave a special presentation for plaintiff’s attorneys just prior to our convention. And at that time, you went over the process that you use for focus groups, how you selected people, and your idea of what a focus group was designed to do for particular issues. Was this a focus group for mediation or a focus group for a trial?

or a focus group for developing voir dire. So there’s different, in a foci for different things that we’re looking for in a focus group. And in this case, we were looking for a focus group for trial. And you were able to gather a pretty diverse group of Montanans. mean, not just from anywheres, but Montanans from across Montana. So we could figure out after the focus group took place, what kind of juror we wanted.

you know, were we looking for a young male? We’re looking for an elderly female, that sort of thing. And that was really helpful to go through the process of presenting a streamlined opening that included some of the points that we were trying to make a trial and how they responded. It was a very effective tool in reshaping our opening and frankly, reshaping the way we presented the case, particularly on direct. So that was super helpful.

Speaker 2 (12:17.1)
And I should say too that you were super helpful in characterizing the feedback from the jurors to basically say, he said this and this is what he meant.

Well, that happens sometimes where they say something in the, doesn’t line up or it doesn’t match with what they wrote down. Cause we have, you know, we had them type things and we did the, we did a virtual, course. One of the things about your particular, where you’re trying the case is we’re not in state court. You had a large swath that was where people could have come from. And so it was like, okay, when you’re faced with a dilemma of virtual or in person, we knew if we try to do in person, there’s no way you’d get that good swath of everybody.

from all the counties you needed. So Virtual really helped us or helped me be able to gather you in people from as many counties as we could for that group to get that feedback and help you. yeah, they definitely will say something and then it doesn’t, you know, got to help translate sometimes.

Yeah, so I mean, just to help your listeners understand that we drew our jury pool from an area that was a thousand miles wide and about 200 miles north to south. So a thousand miles east to west and about 200 miles north to south. So a big area of land with not very many people.

Pretty rural too, yes, I to say. Definitely a diverse panel. We tried obviously not to seat it too young or too old or just to get a good variety for you. But you come in with so many different ways they had made violations. And so I felt like one of the things that was really helpful was, like you said, they told us what was most important. And then you and John were able then to come back in and refashion it and then also think through order of proof and like you said, direct.

Speaker 1 (13:56.299)
exam.

For a lot of our medical things, we streamlined it quite a bit instead of going into gory, gory detail, just to keep the focus on Nate and what had happened to him.

Gotcha, gotcha, awesome. Well, is there anything else that you felt like was beneficial from doing the focus group?

Well, practice, you you get to do a practice in front of people who are listening to you. And it’s always nice to, you you deliver an opening statement and then, you you don’t always get to have juries say, well, what about, you know, whereas in the focus group, you deliver your opening statement and they say, well, what about, and you get to anticipate what a real juror will want to know about.

And they had lots of good things to tell us. So, awesome. Well, tell me, I know you guys went to trial and tell me how long was the trial, how many days and how many days did you guys put on evidence?

Speaker 2 (14:49.954)
We put on evidence for two days and the defense put on evidence for a day. And then it was delivered to the jury on the morning of the fourth day with jury instructions and closing on the morning of the fourth day. And then the jury was out for about an hour and a half and they had a question. We came back for the question and the question had to deal with categories of damages. And then a half hour later they came back with their verdict.

gotta be a good feeling. Yeah. He’s, he’s the humble guy here. Okay folks, Tim, it was an amazing, you guys set some history here, right? mean, $28 million was pretty large, right?

Yeah, it’s a significant verdict. No question. So it’s 27.75, not 28. So as part of because it was a civil rights case, we could ask for attorney’s fees. And so we did that. And that pushed it over 28. And the bond that CoreCivic had to post in order to file an appeal is 28 million something.

Okay, okay, all right.

Speaker 1 (15:53.272)
So you guys are still on appeal right now.

Yeah, and of course, Civic has also filed a motion for a new trial over the alternative judgment notwithstanding the verdict. And that will be argued later in July. We’ll see how it all stands out.

And you’re not afraid of appeals. think you’ve probably done a few appeals. Am I right?

I have done many appeals.

Yes. So you’re handling the pillow.

Speaker 2 (16:17.9)
Yeah. Yeah. So we will, we’ll see what Corsiva comes up with their trial strategy. I think limits their ability to have success on appeal, but you never know.

You never know. You never know. That’s why we’re not going to talk too much about it. do. I do think though, you know, as far as there are simple things, of course, that anybody we can talk about and draw from. that is one that is a very, very fast trial today. It was fast.

Yeah, you know, the one thing about the federal courts in Montana are run really efficient trials. And so I think the practitioners have gotten used to getting to the point. And it’s certainly not uncommon for one of the judges to say, all right, we’re done with that one. What else you got?

I think most people talk about how, can you make this short and sweet and fast and simple because people just, attention spans are gone and people have no real patience for coming to the courthouse for weeks at a time or even a week people complain about. So that is pretty awesome. So does that mean you guys then did jury selection all in one day?

We did jury selection on Monday morning, picked the jury, the jury went out for lunch and we start offering evidence at one o’clock on Monday afternoon.

Speaker 1 (17:33.998)
Okay, then you guys roll right into it. Awesome. I know we can’t really talk too much about it, but is there anything else that you would want to share to our listeners? Some of the things you guys thought through or just, you know, the approach? I know you didn’t really have a choice here. There wasn’t a lot of offer on the table, right? As far as

That’s certainly true. So we had demanded $6 million as a starting point. And we went to a mediation with a private mediator. In this case, Cori Civic did not want to have a magistrate judge mediate the case. That’s fine. It’s their choice. And so we had a private mediator who basically said, they’re not going to offer a million dollars. So why don’t you just keep coming down to some amount and see how much you’ll put on the table. And they eventually put a half a million dollars on the table.

Nate was there with his stepfather and just like anything else, you weigh the odds of how things might turn out. And they decided they would rather take their chances going to trial. And so that’s what we did. You know, one important aspect of trial that isn’t always front and center is for a party to tell their story, make their story public and say, this is what happened to me. It’s not right. And we need to do something about it.

And even if they may lose that trial, you know, even if a jury decides not to give them very much money or any money, I think there’s an important cathartic experience for someone who’s been wronged to tell their story about what happened to

Yeah, I mean, there’s so much power in just being heard. think that sometimes we can get wrapped up in doing things for a case or wrapped up in case themes or whatever. But the point that you make is excellent that people, especially I know for you and a lot of your clients, like being heard, being witnessed, their story being witnessed means so much to them on a personal value level, right? Just being valued by somebody hearing your story means so much. And then like you said, empowering the jury to know

Speaker 1 (19:34.606)
this is what you’re doing here. There’s a lot of value of you being able to decide what is safe in your community and what is not. Sometimes it just feels like, there’s there for a car wreck and no big deal, but sometimes getting the bigger picture and especially in this particular case, right? You’ve got a private prison in a pretty remote area. That’s one the largest employers at this area.

and a prisoner, right? I I know that he was exonerated at the time, know, prisoner versus prisoner, you know, so there’s sometimes where it’s just like, well, what’s the community safety? You know, these guys are just in prison. So you all did an excellent job weaving that together at trial and having them be empowered to do something about what happened to Mr. Lake.

Yeah, and I would say, you know, my co-counsel, John Heaton, is he’s just really good at reading people and adjusting on the fly to reading the room and figuring out what’s the, you know, what’s the best way to respond to things. So really indebted to him and his people skills, really. I think it was a big part of how the trial turned out.

But you guys made a great team, right? You can’t have one without the other. You know, it’s like peanut butter and chocolate.

Yeah, so yeah, we’ve we did a trial earlier in February that would turned out well for us and I’m really happy that we had two good results so far this year.

Speaker 1 (20:58.85)
Was it a similar case that you guys did in February?

It was a case where Bureau of Indian Affairs police officer raped a Northern Cheyenne woman while on the Northern Cheyenne reservation. And the question was whether or not the rape was in the course and scope of his employment. And the case went on for eight years, went from district court to Ninth Circuit or the Montana Supreme Court, back to Ninth Circuit, back to district court, back to Ninth Circuit, back to the district court over the course of eight years. And we finally got it to trial.

in February of this year and returned a verdict for our plaintiff, this poor victim of rape. And just so know, the cop denied it categorically, but unfortunately she was impregnated and decided not to have an abortion. And the FBI did a genetic testing when the child was born and proven conclusively that the cop was the parent. It’s just a really tragic case, but…

Because he was an employee of the United States, the United States denied liability for eight years until we finally got to trial.

Wow, and that’s the case that you won the Montana Trial Lawyers Association Award for.

Speaker 2 (22:10.146)
That was originally for the Pellet Award because as I just said, we had to go through three lines of field and ultimately we were successful on that. We kept getting ruled against and then appealing and winning, appealing and winning, appealing and winning. So sometimes persistence pays off.

for sure and so you guys got a victory in February. Is that on appeal?

No, that is not on appeal.

that’s that. mean, that’s another win in and of itself. Congrats on that one. That is amazing as well. I’m sure there’s a link to that somewhere on the webs somewhere on the wide web. I’ll find a link and put that in the show notes because that work that you’ve done in that case is it’s amazing. And again, like you said, justice can take many, many years and sticking with it is half the battle.

That’s right.

Speaker 2 (22:57.09)
Yeah. And, you know, the Montana state legislature passed a new definition of consent based on that case saying that anyone who is being questioned by law enforcement cannot consent to a sexual encounter and anyone who is in a prison cannot consent to a sexual encounter with a guard. So basically we got the law changed in Montana statutorily about the meaning of consent. So there’s, there’s no way that

someone who has that power over another individual can argue that the individual consented to a sexual encounter.

Wow, that’s amazing, Tim. Congrats. That’s powerful. know, like make it long. Fantastic. that’s a really lovely note to end on. mean, how do you stick with it? Let me ask that question. How do you just keep sticking with it,

That’s what you gotta do.

You do what you gotta do. You do what you gotta do. And also I gotta tell you, you love what you do. mean, this is a deep, true, passionate love for correcting injustice and sticking with it no matter what.

Speaker 2 (24:09.378)
Yep. That’s what we do. That’s the idea. You know, it’s really tough. Taking Native American cases is really tough because justice for them is really hard to find. Taking cases for prisoners is really tough because justice for prisoners is really hard to find. Similarly, cases for people who suffer civil rights and dignities from law enforcement, it’s tough because justice is really hard to find for them. And so that’s what we’re trying to do. We’re trying to find justice.

Our system isn’t always fair, but we try to do what we can with it and to make it more fair for everyone.

Absolutely. All right. Well, Tim, thank you so much for coming on the podcast. I really appreciate you coming and talking about the lay case and then telling us about your other victory, which is super important and changing laws for consent. If anyone has questions or you want to reach out to Tim about his recent verdicts, either one, know he’s willing, environmental torts too. We’re going to have like all these links for Tim in our show notes. If you want to reach out to him, he is very generous and has a good ear if you have.

any questions, I know he’ll be happy to answer them.

Happy to help and big props for you. I mean, your focus group was awesome and your trial advice, quite frankly. I don’t know if that was just thrown in for free, but I’d sure appreciate it.

Speaker 1 (25:27.95)
I’m happy. Hey, look at me, I’m happy to help. I want to get that justice for your clients as well. And like I said, I mean, that’s my passion is helping you do your job as best as you can.

Super good. Well, your aid in this case was great. Really appreciate it.

Awesome. All right. Well, thank you all so much for listening to this episode. Like I said, we’ll have Tim’s contact information and tune in because we’re going to have John Heenan follow up this episode with his take on the trial and getting ready. So again, thank you so much for listening and until next time. Thank you.

Our episode this week demonstrates why even small focus groups can go a long way towards saving your case.

Running focus groups in discovery can accomplish a lot in even just 50 minutes, giving you data and analysis that you simply wouldn’t have otherwise.

I outline three specific types of focus groups that can save cases: neutral narratives, timelines, and deposition preparation. Each type serves a unique purpose in helping lawyers understand their cases better, identify weaknesses, and prepare their clients for testimony.

We want our clients to do the best job possible, so why not give them a leg up and do a focus group test run, to help figure out where jurors will land on the testimony.

In this episode, you will learn:

• How focus groups can save your case during discovery.
• Understanding jury perception is crucial for case strategy.
• How fresh perspectives can break stuck thinking in cases.
• Identifying assumptions early can guide case direction.

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:

You can watch this episode on my YouTube Channel: @ElizabethLarrick

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

• https://calendly.com/elizabethlarrick

Episode Transcript:

Elizabeth Larrick (00:01.346)

Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and today we are going to talk about focus groups you can run in Discovery that can save your case. I know it’s a big statement, but these little focus groups, and you’ll see what I mean here in just a little bit, can help you learn so much in such a short period of time

to get you on the right track and avoid wasting energy and money on the wrong claims, the wrong stories, and starting in the wrong spot. So I’ve talked about this before in episode 139, doing focus groups in discovery so that you can be on the right track.

Today I want to use this episode to talk about three very specific styles of focus groups that you can use. And we’ll dive into the details, talk about what you can learn, and I have some examples to share as well. So you may be thinking right now, well, that all sounds nice, but these are generally pretty expensive little endeavors. And I usually wait until before mediation,

Elizabeth Larrick (02:27.242)
or after expert depositions to run focus groups. I hear you. But these focus groups are little, meaning they’re short. You can get them done usually in 50 minutes. And if you have a complicated case, you can probably still get it done in 90 minutes. And of course, as you know, all these can be done virtually, as I always encourage people to do. And we’re gonna give you the specifics here today. So let’s dive right in.

We have three specific focus groups and the first one I encourage people to do to save their high knees is a neutral narrative. Now, you may be thinking, well, this sounds pretty much like a traditional focus group. We just put together a statement. Usually you have a statement from each side, but in this situation, what I’m asking you or what is being asked of you is to put together a statement like you’re a journalist.

just the facts. We’re gonna give context, facts, and depending on the style of case that you have, you may put in what each person is saying happened, what your client says happened, what the other person says happened. But you’re gonna think of it like a journalist, and that way you can just basically read the statement or give the statement with a PowerPoint if you have pictures, and then ask them what they think.

Normally the mistake I see lawyers make when we’re doing a neutral narrative is to not give them very many facts, to give like five minutes of facts. And you get really stumped with that because what they’ll end up doing is just asking you questions, many, many questions about more information versus giving you analysis. And we want analysis here. So I encourage people to put together at least 10 to 15 minutes of a journalist statement.

including pictures if you need to, to help with context, and then just ask them what they think, what’s going on, what else they want to know, and let the ponies run and just see what the conversation is. These neutral narratives are very helpful in finding out hidden attitudes, hidden assumptions, the weak facts that you have, the strong facts that you have,

Elizabeth Larrick (04:48.55)
and generally maybe what could be missing. That’s super important if you’re starting out and you’re still in discovery and you want to be able to pick the strongest claims and go forward with them. And also it’s really helpful just generally to set up your discovery to know where your holes are, where things may be missing that you just didn’t even see it because again, we get stuck in our bubbles and it’s hard for us to see things from a non-lawyer’s perspective. That’s okay.

So my example of this is recently we had a single car crash. It involved a driver and one passenger, both of whom were 16. Now we ran a neutral narrative and set it up very neutrally and then just asked them what they thought. And the group almost totally, almost all 12, about 10 of them assumed that alcohol was involved without any mention of it at all.

That opened the discussion to, well, it couldn’t be just the driver’s fault. It had to also be whoever gave the person alcohol. It opened up the whole discussion talking about alcohol and intoxication. It was a really important assumption to learn because in the rest of the facts of the case, there is alcohol involved. And the lawyers realized,

This is going to be what people come in already written in their minds when they hear this case and it’s going to be something we need to navigate even if the judge says, we’re not talking about that. It’s not something you can consider. You would want to know that. That would definitely be a case saving assumption you would need to know before you walked into court. Now, you could do that focus group earlier and then figure out how to navigate depositions. We’re going to talk about here pretty soon, but

That is a great example of something you want to know what assumptions people are blindly making, whether the evidence is there or not. Our second focus group that I encourage people to do to save their case early in discovery is a timeline. Most of the time when I mention timelines, people automatically assume we’re talking about in a personal injury case, the medical timeline, right? What has been happening after the event. But really what this

Elizabeth Larrick (07:10.164)
exercise is about is using a timeline of events leading up to the injury or the firing if it’s an employment case. Because really what’s important for us to learn early in the case is where do we start the story? We always want to be focusing on the defendant action, but which one? And this focus group will significantly help you find where in time you should be starting the story.

it will also help you be able to pinpoint the moment or rather the event at which things could have been prevented and by who. Now, sometimes this turns out to be in our focus groups, your client, but obviously you wanna know that at what point they would be responsible for their actions before the ultimate injury or firing or whatever the event that’s causing the litigation. So these are really important when you have complicated

Facts with multiple defendants. men mal is a great example of a case to use a timeline focus group with because traditionally there are appointments before the surgery or the malpractice happens and it’s important to document those out and figure out at which point in time it could have been prevented. So that’s a great example, but the one that I have very specifically to talk to you about is a plant explosion.

Now this one happened a couple of years back and there were several defendants that were a part of the possibility of causing the explosion. And so we had several target defendants and we had several different themes. Was it the installation that went wrong? Was it the maintenance that went wrong or was it something else? And so we ran actually several different focus groups looking at the timeline of events and where to start the story.

So very important because in a case like that, it was easy to just blame the people who own the plant. And so we used several different five actually focus groups to help us figure out which point in time to start the story so that the jury was focused on the target defendant. Ultimately, in that case, the jury found $18 million in a verdict and put I think 30 or 40 % on some of our target defendants, which is pretty much what they needed to get in order to

Elizabeth Larrick (09:36.876)
Get over that hump, if you will, for contributory and comparative negligence and be able to collect. All right, our last focus group that I suggest people doing for case saving, and that is deposition prep. Now, I understand this is actually a little bit of a traditional focus group, but what I don’t want you to do is have your client give testimony live. What I would like you to do is pre-record with a Zoom. Now, when you’re able to do that,

you can obviously ask very open-ended questions. You’re not going to be trying to change anything that your client is saying, but rather you can ask a little bit easier questions than those deposition questions that sometimes come out of people’s mouths. It also allows someone else in your office with their voice to make the Zoom recording not yours. What I also encourage people to do is in a focus group like this, we wanna give a little bit of context, we wanna have a little bit of facts. We wanna play…

our clients, Zoom recording, and then you wanna have at least one or two other recordings to be able to show them. And those can be deposition testimony of the defendant or another witness, but it’s very important in order for an analysis to happen that they have a comparative as well. And that way you can get a good conversation going about what was their blink reaction, what is the credibility, what kind of questions would you have for this person? And it really helps the client also be able to have a practice session.

And then also knowing what the feedback is, be able to understand how people are perceiving them. It can be really difficult as a client who has never done a deposition to understand how a jury of 12 people would perceive you. Most of the time we think about, just how the person across the table is perceiving me. Also important, but we want to make sure that we are nailing down our testimony in a clear and credible way because

We normally just have one shot at this. And if we have some testimony that comes out unclear or comes out in the wrong way, it’s kind of sealed. I know you can try and correct it with a corrections sheet, but let’s be honest, it’s kind of stuck. We don’t want that to happen to you. I want you be able to have great, clear, credible testimony so you can check that box and move forward. This is super helpful when you have, again, a complicated

Elizabeth Larrick (12:03.148)
liability case or in my example, you have a client that feels very strongly about testifying a certain way. Whereas you feel very strongly they should testify a different way. You may be thinking, Elizabeth, how is that possible? There is only one truth. come on now. We know that that’s not true. But I’ll give you a good example and that would be there are times in certain cases where a client may need to take the Fifth Amendment. So they could take the Fifth or

they can answer the question. This is a great way to test which way they should go because it’s kind of like A-B testing. You make two different videos and use two different focus groups to figure out which way is gonna be credible and how damaging is it to take the fit? How damaging is it to answer the questions? It can be significantly impactful for obviously the client to know which way to go but also overall for the case in a situation like that.

But I’ve even seen it to where people do these, even just a regular car wreck case, just to make sure our clients give clear testimony on how it happened, on their injuries. But really sometimes with car wreck cases, the how it happens can get a little bit confusing for jurors. We just don’t want that to happen on the very front end of your case, because typically that’s kind of the first discovery that happens, maybe some written discovery and then jump right into depots. So I wanna make sure we have that clear and the record is straight. All right, overall.

As I mentioned earlier, all three of these focus groups can be done in 60 minutes, 50 minutes or less because we are limiting the amount of information we’re giving them and we’re also being very structured in how we’re doing it, giving all the information and then just going straight in for feedback, not adding more information after that.

Of course, these are all three great ones that you could do virtually. I actually host virtual focus groups every single month for lawyers and we do these exact styles of focus groups to help them find their blind spots, those assumptions that people are making, figuring out how to give clear testimony for our clients, where to start our stories, which are very important, especially when we have multiple defendants, and also just to get you on the right track.

Elizabeth Larrick (14:16.918)
It is amazing how much a fresh perspective can give you new energy on a case. Great ideas that weren’t even mentioned before and sometimes just break us out of stuck thinking that happens when we live with a case for longer than we want. All right, just to make a quick review, we’ve got three case saving focus groups you can do in discovery. The first one is a neutral narrative. Remember, we’re gonna put together a statement just like a journalist and read it to them.

Second one is a timeline. We’re gonna put our events on a timeline and throw it to them to figure out when it could have been prevented and where to start your story. And last one is depo prep. Depositions are so key. We want our clients to do the best job possible. So why not give them a leg up and do a little test round and figure out where jurors will land on the testimony. All right, I hope that this was helpful and we’ll move you forward in your cases that you’re working on.

And until next time, thank you so much.

Are you willing to be bold and confront jury selection challenges head-on?

Sharif Gray is here to share his perspective on jury selection, turning the tables on some of the assumptions and stereotypes that we often associate with the process and suggesting 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

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)

More info on the Voir Dire to Verdict training event, October 24, 2025

Email Sharif: triallawyers@rvatriallawyers.com 

You can also watch this episode on YouTube here: Jury Selection: What’s Broken With Traditional Methods? with Sharif Gray [Ep 149]

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:

Speaker 2 (00:00.642)
Hello, Elizabeth here. I want to give a quick introduction about our special guest here today. We have Sharif Gray from the Broughton Injury Firm who is joining us to talk a little about jury selection. Sharif has a really interesting background. He has tried cases as a U.S. Army JAG officer and has a educational background as the valedictorian at the Virginia Military Institute.

and got his law degree at the University of Virginia. He really enjoys trying cases and as you’ll hear very shortly, he will tell us what he is excited about working on right now.

Speaker 2 (00:44.418)
Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants, ask them about connecting with clients and juries more effectively, then take strategies, tactics, and insights to increase your success? Each week, Elizabeth Lerick takes an in-depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a guest treat today. And we’re going to talk about one of the most exciting parts of trial.

selection. But first, let me welcome my wonderful guest. Hello, Sharif Gray, and welcome to the podcast.

Thanks for having me. I’m excited to be here.

Good, I’m so glad. You I was honored to be a guest on your podcast and now you’re here on mine. So I’m very

Speaker 1 (01:49.762)
Well, I have the real honor. I mean, I got your autograph, right? And I’d been trying to get that for years. So I’m a big fan of Elizabeth Larrick for a number of reasons that I’m sure are gonna come out during this podcast.

You know, flattery will get you everywhere. That’s right. Just saying, just saying. No, because you have decided to pick a beef with deer and we want to get your opinions, your take on this. know lawyers are all over the board about jury selection. So, you know, I’ve heard it said, and I’m pretty sure it was you, the best and the first opportunity to persuade the jury is in a jury selection. True.

I agree. And what’s interesting is the word persuade, it’s not like an active persuasion and jury selection, but by doing what I think we’re going to talk about, and by no means are these like my original ideas, either things I’ve learned from everyone else, right? And like kind of morphed into my own stuff. But by following the approach that I think that we’re going to talk about today, I think you do start with the pers- you do end up persuading on a few different levels.

Well, I am super excited to jump into it, but let’s give people just a little preview about who you are. So I know they’ve heard a little about your background, but what is it that you’re doing right now that you absolutely love?

Well, recently, we’re getting into a lot more of crime victim cases. So the sex assault cases and things like that. I’m really enjoying those cases largely because the thing I think motivates me most about this work, this practice area, is the betrayal of trust aspect of our cases. And so when you have a child who’s been abused or neglected or sexually assaulted in a place where they should be protected,

Speaker 1 (03:32.992)
I find great purpose in that type of work. So that’s something that I’ve been getting into more recently and I’m grateful that the phone is ringing and we’re getting cases like that. And then also our firm has really just taken off in the last year, just moved offices, got some more people who have joined us. A lot of great things are happening now. So very, very excited across the board.

Good, good, good. I’m glad to hear that. Well, you’re in Virginia, they’re gonna know that, but you also have a podcast, so folks wanna follow you and learn more about what you’re doing. Courtroom Stories and Tactics is your podcast. You’ve had it for a little while.

Yeah, two and a half years and the crazy thing Elizabeth of that like it’s just me and my friend now who I mean he’s a judge now, which is incredible I mean, he’s an a hell of a person an amazing lawyer 37 years old just took the bench like six months ago He and I started it when we both prosecutors just because we like the trial stuff and we’ve learned a lot ourselves from other podcasts and So we thought well, why don’t we do our own and that’s an excuse for us to invite all these incredible people to teach us stuff for free, right?

We did a lot in person, which is always a lot of fun. And then about a year ago, we came together and we said, you know what, like, let’s just get serious about this. And so we did and it’s really grown. So we’re really, really enjoying it. We’ve got people coming on all the time. We’ve had you, which was awesome. And I mean, we’re even taking it that next step farther, which is the conference we’re having here in October. So it’s been a fun, fun project and I’m learning stuff every day.

from the guests that we have and the feedback that we get.

Speaker 2 (05:09.75)
And we’ll have a link to that in the show notes for you if people are interested in listen to your podcast But let’s jump in like let’s get to the nuts and bolts here What do you think is wrong? I’m gonna say we think is wrong with the traditional method of what ear

premised on a belief that stereotypes dictate how a person will ultimately decide issues in a case. And an example that I like to use is this one where to look at my resume, they would see Virginia Military Institute, is, I mean, on the spectrum is more of a conservative school. United States Army officer kind of fits that category, Prosecutor. They would look at me.

I would expect if I were being pulled on a criminal trial as a potential juror, they would look at me and be like, law and order? Yeah, absolutely. But I am the first person who I think would vote not guilty if the prosecution doesn’t meet its burden. And so I think the fundamental mistake that we make as lawyers in voir dire is we put people into different categories and just assume that because they are in an engineer.

Because they are of this race or grew up in this place or are of this age and and whatever right? They’re either good for us or they’re not good for us and that is a complete mistake and actually I’ve got a story that I think really I think accentuates at that point. Can I share it? So I remember I forgot how many years ago this was wasn’t that long ago But because I did a lot of criminal work before I got into personal injury and actually I credit a lot of that

Of course, please.

Speaker 1 (06:52.846)
time on my feet experience to helping me be the lawyer I am today. And I remember this wasn’t, I don’t know if it my, it wasn’t my first jury trial on the PI side, but it was one of the earlier ones. And I remember just like, like, yikes, what do I do? I mean, this is very different from criminal work. And I ended up finding stuff by Nick Rowley and the whole brutal honesty thing. one of the things that I really took away from hearing some stuff I found of him online,

Well, it’s like, people are complicated. Let’s not just judge a book by its cover. And so I tried it. Because the traditional voir dire that we see or jury selection that we see in probably most courts is, hey, raise your hand if you’ve been in a car accident before. You raise your hand, well, what happened? Da-da-da, can you be fair and partial? Just because they’ve been in a car accident or have not been in a car accident doesn’t mean that they’re better or worse for your case. Same thing on the criminal side.

Who’s relative is a police officer? No, no, no, no. Like again, you have to go deeper than that. And so I remember having a jury here in Chesterfield, Virginia, which is a suburb of the city of Richmond and intentionally kind of did the Nick Rowley or Jerry Spence kind of try and build a tribe approach to voir dire. And there was a lady whose title was like something insurance.

And so at one point during the questioning, I remember looking at this lady and I said, you know what, ma’am, like, I see what your job is. And if I’m being truly honest with you, I’m being brutally honest, which I know I’ve asked of you all. I’m concerned with you being on this journey. I mean, you are literally the person who deals with people like me and my colleagues sitting at the table on a day to day basis. And we talked for a little bit and then she said, you know what? No, I can call this like it is.

we can be fair. So the trial ended in a mistrial for other reasons. The judge was mad at me, I think, because of my opening statement. then I think when my, I did the whole like safety rule and all that stuff. I remember he kicked the jury out and was like, what are you doing? You’re asking the jury to like punish and all that. And I’m like, I never said punish. But the fact that you think I did means that I did, I thought I did an excellent job, right? And because it an admitted liability, like anyways, car crash case. But anyways, our

Speaker 1 (09:18.478)
client took the stand, our last witness, and the client during the beginning portions when talking about, why are you here, like all that stuff, she’s like, well, I’m really upset that the defense admitted liability last week, like the week before trial. And the judge was like, that’s ridiculous, you can’t say that, and then called him his trial. I think he was wrong, respectfully, your honor, if you’re listening. But actually, I mean, there was no curative instruction or anything like that.

But that’s not the point of the story. The point of the story is after the trial, we sent out feedback letters to all the different jurors. And the only person who responded was that lady, that insurance adjuster, or she owned an insurance agency. I forgot the specifics. And we had a conversation, and I asked her, was like, well, what did you think, all that? And it was very clear from our conversation that she was the unofficial for person. Because the trial progressed fairly.

I mean, we had gotten pretty deep into the case and she was convinced that the defense’s argument that the hip tear or labrum tear wasn’t related, convinced that was garbage. I mean, she was convinced that we had a good case. And then I asked her, I said, well, what were you thinking about for a verdict amount? And she said, well, I mean, you said not to exceed $750,000. So I was thinking, well, why not the whole thing, $750,000?

Now, who knows what would have happened in the deliberations room, right? Like, that’s not to say that there’s a guarantee that we would have walked out with that amount, right? But to think that if I had done the traditional way of jury selection, she would have been the first person that I would have cut, right? And I think it’s fair to say most plaintiff attorneys would have looked at the questionnaires and the name, job title, location, and strike number one, her. Yet she ended up being arguably our best juror, despite her background.

That convinced me that this thing about building a tribe works, right? And being open to actually listening to the jurors and giving them that time and space to share their opinions with you and to genuinely appreciate them doing so. I think that’s where credibility is earned. That’s where you learn more about the individuals who may make up your jury.

Speaker 1 (11:38.008)
And I think that’s where their persuasion starts. Now there’s a fine line, right, because we can’t persuade in jury selection. And I would argue that you never even want to attempt to persuade in jury selection because it looks like manipulation and it’s just not effective. The persuasion, I think, comes at a macro level when you’re talking about, well, the tactics and the techniques you use in voir dire in building credibility and addressing issues head on in framing potential issues before the case ruling. By doing that, you are persuading.

Yeah, absolutely. I I think so much of the traditional method, like you’re saying, is very much about demographics. How can I look at this panel and go ahead and pre-select who would be bad for me and work on getting them out the door? Right?

Yeah, and mean, Rowley makes a great point. He’s like, well, let’s say you take that approach. You come in and you say, that guy’s bad for me, that lady’s not good for me, all that. I mean, what’s your body language gonna be like towards that person, right? And they may not get off the jury. Like you may be stuck with them, right? So you might as well be open to learning more about them and give them the space to talk to you because you may not have enough strikes, right? Like that person could be with you. So, and who knows that person ended up being someone who’s very favorable.

to your case.

Sure, and I think, I mean, a lot of times we as lawyers and where a lot of jury selection and demographic selection, if you will, and pre-selection comes from the fact that we want to be able to go in and have a little bit of a security net, right? It is a scary thing. You’re going to talk to a bunch of people and if you don’t practice well, right, you do end up being very robotic, right? You do end up not necessarily giving bad body signals, but maybe just none at all, or your mind is elsewhere.

Speaker 2 (13:26.422)
All those things lead to not listening, right? Some of the best jury selection I’ve ever seen is where you very intentionally listen and then you very intentionally can follow up, right? And then naturally move to other things. Now, some people like to have roadmaps and that’s great. Hey, we’re talking about this, you know what? I’ve got to turn and we’re gonna talk about this now. All those things are helpful as well when you’re moving through quite a bit of information in jury selection and questions, but.

You know, I think people going in and saying like you, that’s an engineer, like that’s not going to be any good. Like it’s really about, and what I hear you saying is talking to people to understand their life experiences instead of just saying, that’s a box they’re checking. Let’s talk to them for a little bit, but just to be able to get them off for cost.

I agree with you. To that point though, I actually do have a roadmap in Voir Deer. So I have a plan. It’s not necessarily completely wedded to every step of it, but I actually, and I got this from Satch Oliver, who’s incredible. I will have a PowerPoint in Voir Deer and it’s a very simple PowerPoint and it will, I don’t know, say money for pain and suffering, right? That’s the entire slide. And what that does, it allows one, me to stay on track with knowing the questions I need to get through.

and then it allows everyone else to stay on track with the PowerPoint presentation. And so there is some structure, but you do, I believe, have to be open.

Oh yeah, no, 100%. I don’t think any lawyer walks in without structure. mean, those who do risk missing something. So 100%, I think everybody has roadmaps. I think some people would do it much more naturally than others, you know, because they’ve had more experience or some people just have kind of that they’ve talked enough people, they have a good gift of gab, right? And they know a good flow. But yeah, I using a PowerPoint is a great way to keep yourself on track, but also keep

Speaker 2 (15:27.32)
people engaged. A lot of times it’s always helpful to just when you’re going to communicate with a large group of people, maybe the person in the back can’t hear you, right? But they’re not going to speak up and say, I can’t hear you, Mr. Lawyer, right? They’re just going to sit back and be quiet. Look, that’s where I think a PowerPoint is really helpful. Like you’re saying, just to have a few words up there.

Yeah, or a picture too. Like I use with like when we’re talking about like preponderance versus beyond a reasonable doubt, right? Like I’ll use the stepladder to get to beyond a reasonable doubt and then talk about the difference of that and then use that as like a framework. And another thing to consider and I hope and maybe I’m jumping off the roadmap here, but one of the things that I’ve really appreciated about what you do is when you accept that voir dire is like a part of the conversation, you can come back to it. I’ve had closing arguments.

or when we start talking about what is the full and fair value of the non-economic damages here, the value of what was taken from our client’s health and quality of life. And I can go back to that lady on the front row said, I remember when you asked that question in Voir Deer of Me saying like, you know what, like, is there a guide? Like, I don’t know how to do this, right? And so now, I mean, what are you doing there? You’re tying everything together. You’re showing that juror that you respect her, you appreciate her, you believe her concerns are important, and then you’re addressing them.

And so, voir dire is something that I think is often under looked, at least where I practice, but it’s incredibly important. And it’s, I think the way to do it correctly is to get away from what is traditionally done. And there is a lot of momentum that I think pushes us to do the traditional thing. Judges expect it. The other side expects it. There’s worry or concern about if you deviate, are you trying to sneak something in?

Are you trying to start persuading, right, from the get-go? And so you end up having a short leash. There’s a dynamic of the trial just started. The judge is the authority figure in the courtroom. The jury rightfully looks at the judge and says, gosh, this person knows us. The judge is super nice. Hey, guys, we’re only going to be here for two days. We’ll make sure you get your Jimmy Johns for lunch. Da da da da da, right? Like, so as a lawyer, to do anything that could potentially put the judge

Speaker 1 (17:44.622)
against us right off the bat is also very concerning. so that’s, it’s not an easy endeavor. Judges, of course, have incredible discretion when it comes to voir dire. And so that’s something to definitely to know beforehand, know your judge, know what they’re gonna do. And then also we have a bench brief that we file on almost every trial and we try, I mean, I don’t know if it’s read, hope it is, but it’s important to get ahead of this, to know what the law is and to remind.

the court and the other side before the jury selection gets started about what you’re gonna do. You don’t have anything to hide, right? And anyways, I can go on.

No, no, it is very important to, if you’re gonna try something new and different is, you know, is to practice it, number one, even if you’re just gonna practice to a mirror or just practice, because there needs to be a lot of flexibility for you when it comes to doing something different in jury selection. Because like you said, you’re gonna get a judge who is very quick to shut you down or opposing counsel. And so it’s just being really flexible, knowing what your law is and being able to pick a different word. I’m just checking attitudes. I’m just checking.

expectations. I just want to make sure we don’t have any hidden opinions. Like, you know, to be able to feel like, okay, and again, when I would do jury selection, I had all those extra words on my paper just in case something happened so that I wouldn’t feel stuck because that’s the thing I think a lot of times lawyers can feel very stuck when it comes to jury selection because almost all other parts of the trial, they flow. Meaning I’m going to ask a question of that witness, they’re going to give me something back, right?

Drew selection, you could be crickets. And then it’s like a whole other set of like, you know, fear creeps in and like, my gosh, what are they going to say? But I think that’s where practice comes in significantly for that, for comfort of doing something new, knowing you’re going to get some response out of somebody out there and it may be off the wall, but you’ll know how to recover and keep going forward. But I think like you said, some of the smartest lawyers that I have ever heard have people

Speaker 2 (19:42.582)
watch, listen, take notes, and then integrate it into every part of the trial, what they’re saying, so they feel a part of what’s going on. you know, having gone, you were just at Mark Lanier’s Trial Academy, he talked about where there was a very large trial, they had very short jury selection, so they didn’t get to do a lot, but what they did was they went and looked into their panel and then integrated things about, like, it was, simple things, right?

somebody loved dogs or whatever. And so like there was a client who loved, you know, really tried to be very curious about what was going on, but then also integrated into pieces of the trial, especially the closing. But again, bring them along, bring them part of the story. They’re not just sitting like a bump on a log, you know, judging everything. Like they want to be included and it really lights people up when they feel important and included.

Absolutely. And I mean, they have a job and to empower them to do their job, right? mean, if you can get to the end of a case and look at the jury and say, I recognize like my job here is done. This case now belongs to you and we trust that you’ll do the right thing. And if you’ve done everything in the case to allow yourself to get to that point, you’re giving your client the best chance.

Absolutely. Well, let me ask you, why do you think some lawyers don’t like jury selection?

It’s for the reasons you mentioned. mean, it’s not scripted. You don’t know what’s going to come out, right? You’re in the middle of a room. There is a judge who’s watching his clock, wanting the case to move along and get started, right? Even though the case has started, right? With jury selection. Jurors don’t want to, mean, especially at the beginning, I mean, nobody wants to talk. You don’t know what answers you’re going to get, right? You don’t. It’s just, there’s a lot of uncertainty. There’s a lot of vulnerability, I think, that’s required to do it correctly.

Speaker 1 (21:32.642)
But I mean, that’s where practice comes in. My dog is the one I practice on a lot. I go, like literally, like I go, I mean, I have certain questions that like, want to make sure I get right. And so night before, a few nights before trial, like, I mean, we’ll certainly practice it with our team and all that stuff and review stuff. But when it comes to just the delivery of it, I mean, my dog Maximus, he gets to hear a lot of what year. So, cause it’s important. And I also think it’s very important to get the beginning right. Cause your job at the beginning,

is to set the tone and to get the conversation started. I do think Nick Rowley does a very good job of it and I do try and model a little bit of what he does and it’s worked for me. So I have no reason to stop doing that. And then to be intentional with kind of what you’re trying to get in voir dire and what you’re trying. To me, I’ve got three goals. It’s the one, it’s to build slash earn credibility. And then two, it’s to

identify concerns and to expose the issues in your case. And then the last thing has just to do with framing, framing language that can help kind of get you started off in the right direction. And I’m happy to talk.

well, I just was making a mental note. So yeah, let’s dive into that. First little road sign here, where you start is always one of the most important things that we can do as lawyers. Primacy, what we say first gets tagged as important. So like you said, how you start jury selection, that conversation is so important. And I just, crushes my soul when lawyers start talking about themselves first.

because I’m like, you’re missing this beautiful, awesome opportunity to do something like build credibility or start the conversation or, know, there’s so many different ways that are out there that you could try to start, but it just crushes me. People talk about themselves first in starting the conversation.

Speaker 1 (23:29.814)
Right? No, absolutely. So the way that, and by no means am I saying that the way that I do it is the right way, right? It’s just the way that I’ve done it recently that I think is effective and it works for me.

Well, let’s be fair. When we say the right way, it’s what’s right for you because I’m not Nick Rowley, you’re not Nick Rowley. Everybody should find what is really comfortable for you and that’s what makes it right. I know many times people get really caught up in, oh, it’s gotta be the sorry way or this is the edge way or this is the rally. Like, listen.

We’re all gonna mush it all together in our brains and do what’s most comfortable, and that makes it the right way for you. So, okay, keep going, tell us about it.

Absolutely and to that point like it’s just a toolkit right like we all are building our own toolkits and our job isn’t to go mimic others right it’s to take the things that work for us and to implement them on for the benefit of our clients so I’m a big believer that I don’t take notes during voir dire I have some of my co-counsel does but what I do is as soon as a jury walks in I am desperately trying to make sure I have

the names match up with the right seat. So that’s all I’m doing. I’m just, I’ve got that seating chart in front of me and I’m juror number one, Mr. Smith. I’m making sure I write Mr. Smith juror number one. So once I have that done, then I get up. And the only thing I have is oftentimes my clicker, because I’ve got the PowerPoint provided it’s been allowed. And then with the, you have your clicker in hand, you’ve got your list, you get up in front of the jury. And what I like to do, and again, I’m modeling,

Speaker 1 (25:10.862)
Nick Rowley here when I do this is I like to take the first question and basically say something along the lines of like, you’re going to listen to us, all the lawyers and witnesses talk the entire trial. We’re not, this is the only opportunity we get to hear from you. Would you be okay talking to me during for the next 45 minutes an hour? And you get the head nods, right? You don’t really get many verbal responses. And then what I go to next, and again, this is all crediting Nick Rowley for it. I say, okay, all right.

I guarantee that there’s gonna be a time during this next 45 minutes or an hour where there’s silence. Would it be okay when that happens if I say, would someone please answer my question? And then what happens there is you get a little chuckle and then you actually, put the hand out and you say, and the person goes, who you pointed to will say yes, right? And now they’re starting to get a little bit more warm. you then go into, listen, we’re not trying to say that.

anyone here is a bad juror or just trying to say that some jurors are better or some people would be a better fit for this case while some people would be a better fit for other cases. Would it be okay if again for the next 45 minutes an hour and I asked a bunch of questions of you guys to help us understand whether this case is actually a good fit for you. And there’s you can use examples there you can go into the nitnick cherry pie stuff you can do all that but that’s ultimately the fun and that’s a good one. Now I’ve used it before and I got made fun of.

by the jurors because they’re like, what do mean you don’t like cherry pie? Because I don’t. And so anyways, you do that. And then there may be a couple other things I’ll do at times. But then what I like to do is I like to go into concerning issues. And there’s always concerning issues in every personal injury case. I mean, money for damages, right? That’s always something that you want to

Pre-existing conditions. Gaps and treatment.

Speaker 1 (26:57.666)
there’s exactly pre-existing. I mean, there’s all types of stuff. But before we dive into that a little bit more, I think there are a few things that are important takeaways to consider through all of this. And this goes, think, what I’m about to mention goes towards the building credibility. I if one says, how do you build credibility? Like, there’s no checklist, right? But there are things that one can do to help, right? Because at the end of the day, the jury rightfully presumes that

the lawyers and the judges know more about the case than they ever will. And they’re right, right? So in some respects, they’re looking for somebody to trust, a guide. And so that’s where credibility becomes incredibly important because when there is that close call, if you’ve been upfront and honest with them and respected them and their opinions, and maybe they’ll do the same in return. And so that means, so how do you do that? One, means listen. So one of the rules that I do think

can measure whether a blodger has been successful or not successful is who’s doing most of the talking. If it’s a lawyer doing most of the talking, my guess is that probably wasn’t the most successful jury selection. You want them to do most of the talking. And how do we do that? Well, and encourage them to talk. Well, we do a warmup to some extent, and then we ask open-ended questions. It’s not, do you have a problem with? No one raises their hand or talks to that.

Do you have an issue with? That’s also a major red flag. How do you feel about the possibility of this? How do you feel about that? Okay, great. Well, can you tell me more about that? What else, right? And that’s where it’s kind of almost like direct examination. And to some extent, it’s actually not that difficult because all you have to really say if you’re ever stumped is just, tell me more. And then it puts the ball back in their court and they end up talking, right? And they go a little bit deeper and then you can go,

Well, okay, sir, I really appreciate that you shared that with me. I recognize being the first person to raise your hand here certainly isn’t the easiest, but I promise you, you’re probably not alone. Would it be okay with you if I asked some of the other people here in the box whether they feel the same way? And of course they say yes. And you go, all right, well, who else feels this way, right? Well, tell me more, right? And so those are kind of the things that you wanna do in order to build credibility. The other thing that I think

Speaker 1 (29:19.978)
is important is we want to be, it’s our courtroom, right? It’s we own it or we should. And what I mean by that is like, we want to appear that we’re there for justice, we’re there for fairness. So I’m looking for jurors who are gonna do right by my client, but I’m also looking for jurors who are gonna do right by the defense. Because it’s not justice if you’re gonna close your eyes and just vote for my side every day of the week. And if there is a, let’s say,

a prospective juror who is just so your side, like there’s no way to protect them. There’s no way to do the prehabilitation and say, well, you can still go, like they’re gone, right? Either cause or you just know they’re gone. Then why not? And this is what I’ve done before. And again, I’m giving Rowley the credit for this. Why not you kick them off, right? Like, well, sir, I appreciate what you just shared with me.

And while I would love to have you as a juror, if this is something that, because it’s certainly favorable to my side, if this is something that you firmly believe and hold onto, well, I’m concerned that the defendant here may not get a fair shot. What are your thoughts about that? Let’s just assume they say, yeah, I think you’re probably right. I’m like, well, is there anything that I can do to really change your mind? Or is there anything the defense can say or the judge that would change your mind? No, not really. Well, do you think, would you be offended if I asked the judge here in a few minutes and said, sir, Mr. Smith,

I mean, as much as of course he’d be favorable to us, like I just don’t think he’s the right juror for this case. Would you be offended if I did that? No, no, no. You think I would be doing the right thing by doing that? Yeah, absolutely. And what have I just done there? I’ve just gotten rid of a juror who is going anyways, right? You’re not gonna do this for close calls. These are people who, they’re gone, right? There’s just no way they’re staying on the panel. And I’ve shown respect to this juror. I’ve shown the jury panel that

I’m trying to call it straight, right? Like I’m not trying to like sneak something by you or be inauthentic. So stuff like that, by actually listening, by following up, by caring about what they say and about being as transparent as you can is how you build.

Speaker 2 (31:30.478)
Yeah, and I would add things that are even simpler than that, which is like, look somebody in the eye when they’re talking to you. know, that, mean, listening is important, but many a times we’re thinking about what’s the next question or who do I need to go to next? And so taking the time to, if able, to be able to go stand in front of that person and make eye contact, if not just making eye contact with that person while they’re talking, right? And listening, right?

is so huge because even though you’re not talking to everybody else, what they’re seeing is you be very respectful to people who are talking. It sounds so simple, but I’ve seen so many lawyers get it wrong because they’re thinking they’re doing something else and it’s just, you know, having eye contact. So very important. Not cutting somebody off. Another super simple, but builds huge credibility that I see, you know, lawyers do all the time is just cut somebody off when they weren’t finished.

for whatever reason, most of the time, because we’re just not paying full attention to what we’re doing. But yeah, those are some excellent tips on building credibility. So tell me a little bit about how you handle then concerns or issues that you maybe have. We talked a little bit about a couple of those examples. How do you like to handle those?

Yeah, so I think you need to do a share at some point. I by no means am necessarily good at this, but I did do the Jerry Spence three week course. And one of the things that really kind of hammer is this idea of like, they’re only going to go as deep as you will. Right. So something I’ve done, I don’t think this is necessarily the greatest, but it is true. I don’t think I would have been a great personal injury juror before I got into this line of work. I mean, my law school didn’t talk about it.

I didn’t know what this work was, So sometimes I’ll come up and say, you know what, like, I get it, the billboards, all that stuff, right? The stigma, it’s real. I myself, if I’m being brutally honest, probably wouldn’t have been the best juror. I would have prejudged the case. the settlement must have been good enough. And now they’re just greedy plaintiff’s attorneys. So you just want, you want to find a way to kind of share a little bit about you before you get into one of these issues. Cause that gives permission for those who do have some concerns to actually be vocal. But.

Speaker 1 (33:42.518)
The biggest piece of advice I’ve gotten when it comes to the issues you want to bring up in voir dire is just really kind of a thought process by yourself and with your colleagues and also issues that you’ve gotten through focus groups on what are the concerns in the case. So for example, if your client’s a felon, well, that’s going to come up. So you’re going to want to get ahead of that in voir dire. You’re going to want to be open. There’s a reason why my client’s not sitting in the courtroom right now. I want you guys to be brutally honest with me during this process.

And I’m gonna tell you that he’s a felon. He had a felony conviction 10 plus years ago, and you’re gonna hear argument about that he’s just not credible. How do you feel about being a juror on a case where you’ve got to take that into consideration? And you’re gonna get all types of answers, right? mean, oftentimes I get, well, I mean, what does a felony from 10 years ago have to do about this incident, this personal injury case, right? I haven’t ever gotten anyone who’s said,

Well, I just I’m not going to give him his day in court because he’s a felon. So that’s an issue. mean, we’re in Virginia. We’ve got pure contributory negligence. So in any case, slip and fall, trip and fall or premises case where contributory negligence could be an issue. mean, that’s an issue I’m raising in four a What else? Money is always a massive question about something you have to do. Right. It’s just non-economic damages in particular. Right. But

It’s any time you think there is a concern in your case, then that’s for jury selection. You have to get it out, because they’re going to hear about it. But it’s better they hear about it from you, and that if it’s also a concern for them, then that’s their opportunity to not stay on this case.

I think, you mentioned, know, focus groups will really help you be able to fine tune the language to use because we may struggle with trying to say it in a way or have to over explain injury selection, like mitigation of damages. Like that’s a big garbled goop that takes too long. We don’t want to waste time in jury section. You want to get right to it. So using their phrases and their words makes it so much easier on you.

Speaker 1 (35:46.766)
Absolutely. It makes it easier on the lawyer and also it goes back to that first point about credibility. If we can be as Joe Fried has phrased it when he was on our podcast, shockingly vulnerable, Be off code. I believe that’s the Edge Institute language, right? To be something different from what the jury expects and to just be that normal person, you’re then again building trust, building credibility. And as to your point, you’re just making it.

more efficient and move better.

Absolutely. So, all right, so we’ve gone step one, step two, walk us through the third approach for your one year.

Sure. So there are some questions that I know the answer I’m going to get, but I do them just for framing purposes. And I got this from Keith Mitnick. So the example I’m about to share. let’s say in a case, and most of our cases have what I’m about to share, is there’s a very well credentialed expert witness that the defense has hired. Their opinions are in stark contrast to what our expert says.

And we are, of course, naturally concerned about how their testimony will be received. Well, what Mitnick will say, and what I’ve really come to believe, and I act on this belief, is that why are we going to wait until cross-examination to start dealing with that expert witness, right? Let’s get ahead of it. And we can get ahead of it in opening, and we can also get ahead of it in voir dire. And so let’s talk about the expert witness example.

Speaker 1 (37:20.002)
The question would go along the lines of, guys, at end of this case, the judge is going to tell you that you have to use your common sense to devaluate credibility of the witnesses. That includes just regular people who show up to testify. It also includes all those fancy doctors with all the initials and years of experience and getting paid tons of money. It also includes them. How do you guys feel about evaluating credibility? Is that something that you think you can do? Sure, yeah, da, da, da, da. Right, there’s not much conversation there. And then you go, well,

you’re learn that there are some experts who they get paid for living and they’re calling it like it is. They’re calling balls and strikes, you can trust them. And there are some who just might be pushing a little bit too far for the side that hired them. How do you feel about evaluating credibility in that situation? Even if that expert has a degree from Harvard and Yale and all that stuff. And then you start having that conversation, it’s like, well, now I get it, right? You know what you’re gonna get. Everyone’s gonna say, yes, I can evaluate credibility.

But what have you done? What is the framing there? There is going to be an expert witness on the defense who’s got all these credentials that should not be believed because he’s pushing too hard for his side. And so then what do you do in opening? You explore that even further. So by the time that defense expert takes the stand, the jury’s heard about them at least twice. Watson-Voideer wants an opening. And so they’ve already got a lens as to which to listen to that.

testimony and then you get to go up on cross-examination and aren’t trying to impeach or attack that credibility for the very beginning then but you’ve already done it. You’ve started that process before the case really ever got going. So that’s framing. You can do it for damages too like what I know depends on the jurisdiction and this question that I’m about to share is both a framing slash a concern. So I like to ask do the anchor thing where it’s like

How many of you when you hear that we’re going to ask for a verdict not to exceed $7 million are thinking, you know what, I don’t care what the evidence is, I’m just never coming back with a verdict that high. It’s a legitimate question because you’re not, I mean, you are asking basically to see if anyone has an artificial cap, right? And that would constitute them not being a proper fit for the jury. So it’s a concern type question. But what have you also done? You’ve just told them what your number is.

Speaker 1 (39:47.35)
seven million dollars. And so I’ve had trials where I’ll do that question of Wadir and I will never mention the number again. Maybe in rebuttal, but there’s no need to. They know what the number is. It’s seven million. It’s not to exceed seven million. What’s the defense going to do? And I got this from Satch Oliver. The defense attorney is not going to get up and look at these greedy guys, asking for seven million dollars. What do you mean? They said not to exceed seven million. We trust you to come up with the right result based on all the evidence that you’ve heard. So those are kind of framing questions.

And it depends on the case and that’s the classic lawyer answer. Another thing that I really like to do is, and I got this part from Jessica Breylo, so clearly I’m a nerd slash workaholic.

Listen, what I hear from you is that you love to learn, you’re very curious, and it doesn’t stop for you. You’re going to keep learning and keep taking it in and keep making it your own.

That’s the goal. The joke is that, well it’s not a joke, it’s reality. When my wife is watching Love Island or something else that’s really dumb on TV, I’m over there watching Marc Lanier on YouTube or something like that. And that’s not a joke, I it’s real. So I’m very grateful that I found work that I really do enjoy. But Jessica will say, and it didn’t occur to me until she said this, always ask the open-ended question at the end. What more do we need to know, guys? I know I’m not the brightest person here.

Is there something I should have asked that I didn’t? Just to see if there’s just something else, because you just never know. And so yeah, that’s a question I kind of like to end with. And one thing that I learned the hard way, so I’m about to share a technique that I use, is I’ve had defense attorneys who will get up after I’ve done my voir dire, and they’ll just, I mean, we’ve gotten the goods, right? Like we’ve just spent 45 minutes an hour with them, talking to them, and the defense, of course, is learning stuff.

Speaker 1 (41:29.932)
And so the defense doesn’t really have that much of a need to do their own void here. And so some of them will get up and still say, well, can’t everyone just be fair? And then you’ll get a chuckle and then they sit down and it’s like, they’re almost like mocking you for having taken all that time when in fact you just did the work for the defense. So what’s something that I like to do right before I sit down, I say, guys, I appreciate all the time you spent with me during this process. I know I asked a bunch of questions. I don’t expect the defense is going to have too much to ask from you because I already asked a ton.

And then I sit down and that I don’t know how it works, but like, I hope it leaves takes the sting if out of that approach when the defense attorney gets up and says, can you all just be fair?

really think that that is a very is a good tactic to use as a defense lawyer.

I don’t because the feedback that I actually got from a juror was that was unprofessional, it wasn’t prepared, all that. But that said, I haven’t spoken with every juror who’s done, who’s experienced that.

Well, I mean, just take, mean, a defense lawyer, she’ll have to do their job and ask questions. And if they’re believing what you’ve said and what the judge has told them, which is now is the time that the lawyers are going to ask you some questions and blah, blah, blah. And this is, you know, and then the other side gets up and goes, can you be fair? And then just sits down, like, people would be like, what, what? Like, there’d be a little more confusion there would be. That’s the smartest guy in the room, Rex.

Speaker 2 (42:51.266)
That’s one of the things where, you know, we talk about jury selection and a lot of times people will worry and be concerned. Like, well, what is their jury selection going to be? like, you don’t even need to worry about what theirs is because yours is going to be so great. You’re going to learn everything you need to know to make your decisions. Don’t even begin to worry about what they’re doing. It’s on them to worry about that. Let it go. You don’t have space in your brain to worry about what they’re going to do. If they want to waste their time by saying, like, could you be fair? Like,

Okay, but I think a smart defense lawyer is not going to do something like that because boy howdy, they’re kind of sitting there, even if it’s defense insurance gesture, they’re going to be like, what did you just do? We didn’t bet you to ask a question.

I’ve had it a couple of times, so it’s a…

I’m sure it is because again, you know, then that gets into the industry of that side, which is like the amount of money with which they get paid to do trials is minuscule. Some of them are just on autopilot. You know, like, the hell is that?

Especially for like your car wreck cases, it’s a lot of volume. And it’s a good model. mean, it’s just not good for justice, really.

Speaker 2 (44:01.196)
Okay, so we’ve got credibility issues, framing. Is there anything else, you know, we started this whole conversation about persuasion, right? Jury selection being the first and best place to begin your persuasion. Is there any other thoughts that you have about how to do that in a way that is not, again, super overt, just flat out advocacy?

Not particularly. The goal isn’t to persuade. The goal is, I think if you’re trying to achieve the three goals we talked about, I think by doing so, you are starting to persuade. So I don’t think there’s really much more. mean, at least from my perspective, making sure that you’re getting the issues that you’re concerned about in front of the jury is critical, right? Also making sure that you’ve primed jury selection so that you’ll be given the freedom and space

to actually do a meaningful one is important. And that could be bench brief beforehand, which we file. We have one and we file. And the law in Virginia is fairly permissive when it comes to voir dire jury selection, but the practice in courtrooms is not. And so we try and get ahead of that issue before we run into it, right? So everyone at least understands what we’re doing or at a minimum thinks, wow, these guys filed a five page bench brief, citing all this law, they must at least know the law on jury selection, right?

I think also understanding the cause language, right? Like the actual in Virginia, it’s indifference is or indifferent to the cause is in our code section. It’s not bias. It’s not impartial. And so by unknowing your actual language and when you are moving for a cause, right? Again, as I mentioned, like I’ll do it in front of the jury and I will use the word, well, it sounds like you’re have trouble being indifferent in this case based on A, B and C.

Yeah, yeah, yeah. So if you can get them to use those words, then that I think sets you a little bit farther apart. Something that I haven’t figured out and I don’t think I ever will is I’m still not good at picking people. Like I often like I’ll tell my co-counsel, I’m like, you make those decisions. And I say, I’m gonna stay out of it. Do I stay out of it? Absolutely not. Like I know it’s gonna be a wall.

Speaker 2 (46:16.17)
I that’s relinquishing a lot of control that most lawyers would be like, well, I have a little bit of opinion.

And so I don’t know, mean, and maybe more bureau research needs to be done that I’m not doing and probably something I could probably do a better job at. Bureau research and maybe that’s malpractice, you know, that all my team are doing it. Now, Boisier, I also think is very important. You helped us on a case that, unfortunately, is now on a field, so it didn’t go our favor. And we were once known as friendly like Boisier. And when we walked into the jury room after the verdict, a jury who we did not expect to be the leader was

clearly and had a background that you were not aware of and were not represented in in work. I mean there’s no guarantee have we had the opportunity to do one year that we would have necessarily found all of that out. The jury selection is out of the works and I would argue that it is demurred.

Yeah, and again, if you, I think the hard part of saying it’s the best and most important is that if you don’t get it, which some places still don’t get it, lot of it, course, so let’s see, and it’s still good. If you have it, it is the best place to begin, right? Don’t ignore the opportunities that you have there as thinking through primacy and case framing. And even the way that you approach and talk things is persuasion, right? Like there’s a lot of persuasion in how you just talk to them.

And again, people would say, well, you know, it doesn’t need to be overt, like we talked about, like just regular language. But even how you’re framing that question can be very persuasive in the words you’re using. So I really appreciate that you came on the podcast. And I know that people who are curious to learn more can come to your CLE, Vodartavirdic. So tell us a little bit about your upcoming CLE.

Speaker 1 (48:04.588)
Yeah, so October 24th here in Richmond, it’s called Voie de Verdict and we are going Voie de Verdict. So we’ve got some really incredible lawyers and consultants coming out to help. Sorry, Elizabeth, that it didn’t work out this year, but next year for sure we’re going to get you. Next Tell your husband he can’t have another back surgery.

I will try to persuade him with all of my tactics not to do that.

But we’ve got, so let’s see, it’s October 24th, which is a Friday. We’re at the Virginia War Memorial, which is a beautiful, beautiful spot in downtown Richmond over looks the river. And it’s also, it’s a really cool spot, purposeful spot because it’s a memorial to those who’ve served. And our firm, something that’s really cool about us is all the lawyers at our firm have been in the military and specifically JAG.

Next our senior paralegal was a former police officer. it really certainly fits our ethos. I would also argue that it fits the ethos of the trial where but that night before we’re having a welcome party at in downtown Richmond, all are welcome. And then that day, we’re starting off with session one is authenticity in the courtroom. Andrew Cable Shaw from active communication is coming in from Georgia to share like what is authenticity? How does one

develop and work on authenticity. Why does this matter? We then move on to case framing and we’ve got Eric Gerard actually out of Houston, the Soros law firm, who’s a former federal prosecutor. I actually, went to the same law school. That’s kind of how we connected and he’s done exceptionally well as a trial lawyer. He’s going to come in and talk about what is framing? Why is it important and what should our cases be about? And I won’t…

Speaker 1 (49:49.454)
I guess give it away, but our cases aren’t about our clients injuries. They’re just not they’re about conduct if we’re trying to get the best results its Vertex are to deter and damages are just the means to do so and I think I think air is gonna do a really good job on that We then move into voir dire and we’ve got one of the best in the country doing that Joe Fried Who’s gonna do a session on voir dire? We then move into focus groups. We’ve got Artemis Malk

who’s partners with David Ball in North Carolina coming up and showing us real footage of focus groups so we can have a better understanding of what jurors are really thinking, right? And so we’re excited about that. Then we’ve got a guy named Rob Choi who I’m good friends with who’s helped me with a lot of visual graphic type design for trial presentation stuff. And this is a guy who works for MetaVisuals here in Richmond and he’s traveling all over the country every other week or so to basically be that trial presentation guy.

in trial, so he’s seen a ton. He sees what works and what doesn’t. And we’re going to talk about, and I’m going to bring the tools that I use, and I’m going to do it with him, and we’re going to talk about all the different methods of using visual, and how you can create them, and what’s effective, what’s not. We’re then moving on to opening statement. We’ve got Kenny Berger out of South Carolina. His firm is also hooked in with Nick Rowley, his trial lawyers for justice. He’s an excellent lawyer, and he’s going to talk about opening statements.

Then move into direct cross examinations with my co-host, which is Judge Nawa Buzaki, incredible prosecutor, had been doing it. I mean, I would have thought would have been a career prosecutor. still could happen, but he just got on the bench about six months ago. Then we move into closing statement, and Joe Fried’s gonna finish us out with closing statements. got an after party and stuff. Anyways, I’m super excited. We’ve sold, I think, about 60 or so tickets.

We’re capping it at 100 people. The goal here isn’t to make money, all money that’s, if there is a profit, which at this point it’s not looking promising, but if there is a profit, it’s going to go to the Wounded Warriors project. I’ve already made a donation, and I’m sure we’ll probably make more. But the goal is to add value. We firmly believe here that like a rising tide lifts all boats. As cliche as it is, it’s true. And so if we can bring people together and friends of mine who’ve

Speaker 1 (52:12.012)
and really influence how I do the work that I do to get better results for our clients. And if we can make everyone better and start building that community, I think we’re all in a better place. the goal is to add value. And so the price is actually fairly low. I know you’ve criticized me for how low the price is. My colleagues at the firm have criticized me. even got like, mean, secondhand, I know one of the guys we use to help market the conference is actually good family friends with the Rowleys and.

He was like, Nick Rowley said that your prices were too low. it’s very reasonable for what you’re getting. my hope is a ton of value that one can implement. it’s not, and we were advertising this as not a like come here war stories and all that. No, no, no. Like the goal here is practical tools and methodologies that you can use the next day. So I’ve probably taken too much time talking about our.

No, no, I wanted you to talk about, we’ll have a link in the show notes for anyone who is interested in doing that, along with link to your podcast and just your general content information if people want to have you on as a guest or if they have a case in Virginia or I know that you actually do trials all over, you’re here in San Antonio doing one. So I will have your contact in the show notes for anybody who is interested.

Well, this has been a lot of fun. Thank you, Elizabeth. Again, I’m super gratefully connected. For those of you who don’t know, Elizabeth is a master when it comes to witness prep. And I remember learning about the method that she uses a few years ago, and I can’t tell you how the results of it. It’s just truly incredible. Counterintuitive than what you’d normally expect, but truly incredible. And I fortunate enough to work with you, Elizabeth, for this last case.

even more fortunate enough to get an autograph and I’m sure I have it somewhere in my office.

Speaker 2 (54:00.81)
You forgot to say I’m also an excellent seat saver for ceilings if you need.

Even when there is another gray law firm.

That’s right. Absolutely. Well, I, is truly a blessing to have you on and talking about jury selection. So thank you so much, Sri, for, for joining this podcast. And like I said, we’ll have all the contact and the show notes for you. And until next time, thank you so much.

Awesome. Thank you guys.

We turn to focus groups for different perspectives, different viewpoints and unexpected interpretations.

But sometimes, these insights can really catch us off guard, even when we think we already know the case.

My good friend Sheila Wilkinson and I continue our conversation from Episode 147, and talk about why teaching lawyers to see their cases through fresh eyes changes everything.

Sheila has her own revelations about what focus groups really reveal, and shares her own unique insight as a combined licensed attorney, licensed social worker, educator and coach. Sheila loves to share her passion for teaching and the benefits of involving clients and their lawyers deeply in the focus group process, to improve trial outcomes.

We then share actionable advice for plaintiffs attorneys considering focus groups, and emphasize the relational and educational aspects of trial consulting.

In this episode, you will learn about:

05:15 Building Relationships with Clients

09:47 Advice for Attorneys Considering Focus Groups

15:24 The Importance of Lifelong Learning, and Building a Strong Team for Trial

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.

Want to learn more about Sheila Wilkinson?

Check out her website: sheilawilkinson.com

Book time with Shelia: Book Time With Me

Find Sheila on LinkedIn: @smwilkinson

Discover Sheila’s podcasts:

Managing Client Disputes

Building Your Joyful and Thriving Lawyer Life

Do you have an upcoming trial and want help with a focus group? 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

Why are focus groups so transformative to the legal field?

Today I invited my friend and fellow lawyer Shelia Wilkinson for a “podcast takeover” – Sheila becomes the interviewer, and asks me about my background and what brought me to doing this unique work of running focus groups for lawyers.

We look at the methods and motivations I use, the value of focus groups in legal practice, how groups help lawyers communicate effectively, identify key case elements, and enhance overall strategy.

Focus groups can transform a legal practice by offering a clearer perspective and fostering confidence in your arguments – ultimately helping lawyers navigate complex cases more effectively. 

And stay tuned for part two between myself and Sheila, where more surprises and insights await!

In this episode, you will learn about:

• Assessing risk
• Gaining certainty in trial preparation
• Building better communication skills, and understanding nuances
• How to identify key case elements
• How to navigate complex cases more effectively

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.

Want to learn more about Sheila Wilkinson?

Check out her website: sheilawilkinson.com

Book time with Shelia: Book Time With Me

Find Sheila on LinkedIn: @smwilkinson

Discover Sheila’s podcasts:

Managing Client Disputes

Building Your Joyful and Thriving Lawyer Life

Do you have an upcoming trial and want a focus group? 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

Explore the importance of building confidence in clients for depositions in this episode of Trial Lawyer Prep, hosted by Elizabeth Larrick.

Learn the difference between confident witnesses and ego-driven witnesses, and discover practical strategies for instilling confidence in clients ahead of their depositions.

Elizabeth emphasizes using clients’ words, co-creating preparation materials with them, and offering positive feedback. The goal is to help clients believe in their stories and communicate them effectively under questioning.

We also look at the importance of role play and testing, to ensure clients are truly prepared for their testimonies.

In this episode, you will learn about:

• Understanding Confidence vs. Ego in Testimony
• Building Confidence: Using Client’s Own Words
• Co-Creating Documents for Confidence
• The Importance of Positive Feedback and Encouragement
• Role Play: Test Your Client’s Confidence

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:

Check out the latest ways to re-wire your brain for better deposition prep in Episode 143.

Book a free call with Elizabeth to pick her brain about deposition prep:

• 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

Elizabeth welcomes Michael Schwarz, founder of Prairie Nation Creative, to discuss innovative approaches to creating settlement videos for trial lawyers.

Michael, a seasoned filmmaker, shares his journey from film school to starting a company specializing in impactful legal videos. His company introduced the concept of ‘Trial Trailers™ ­’ – concise and compelling videos designed to summarize case damages and liability, pushing for quicker settlements.

Michael also talks about ‘demand impact videos,’ a more affordable alternative using online interviews for lower-tier cases. Additionally, they explore the challenges of engaging viewers, the importance of early evidence preservation, and how creative storytelling can significantly impact legal outcomes.

Michael also touches on his passion project, the Abandoned Atlas Foundation, which focuses on documenting and preserving historic abandoned buildings, and provides another snapshot into his production style.

In this episode, you will learn about:

• The Concept of Trial Trailers
• Demand Impact Videos as Affordable Alternatives
• The Art of Video Editing and Storytelling
• Addressing Lawyer Needs with Custom Videos
• The Power of Video in Legal Cases
• Importance of Evidence Preservation
• Bonus! Michael’s Abandoned Atlas Foundation

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 Michael Schwarz of Prairie Nation Creative.

Learn more about Michael Schwarz and the work he is doing: https://prairie-creative.com/

Email Michael: michael@prairie-creative.com

Watch samples of Michael’s work here: https://vimeo.com/prairienation

You can also watch this episode on YouTube here: A Fresh Take on Using Video for Case Settlement, with Guest Michael Schwarz [Ep145]

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

Elizabeth Larrick (00:01.032)
Hello and welcome back to the podcast. I’m your host Elizabeth Larrick and today we are going to dive deep into a topic that I know all trial lawyers want to know just a little bit more about and that is using videos to promote your cases.

And to do this, I brought along a good friend of mine. I just met him and I saw him working. I saw his work. It was amazing at the Arkansas trial lawyers association seminar. So of course I said, we got to bring him on the podcast to spread the knowledge that he is bringing to this amazing space. So welcome to the podcast, Michael Schwartz.

Michael Schwarz (00:25.962)
Hello. Thank you so much for having me. I’m just absolutely thrilled to be talking about this. Good.

Elizabeth Larrick (00:52.392)
Good, I hope so. You have formed your whole life around filmmaking, which I think is amazing. And then, so tell us a little bit about your background. I know right now Prairie Nation Creative is your company, and we’ll have links in the show notes for everybody. But tell us, Michael, a little bit about kind of your background and how you got started doing film.

Michael Schwarz (01:04.269)
Sure. So I mean really I I’ve just always loved watching documentaries and even as a kid. You know I always thought though like in history class that some of the documentaries were you know a little bit outdated and you know needed a fluff and so coming into this industry I went to film school

at the University of Central Arkansas after graduating from Bishop McGinnis here in Oklahoma City. And I got a Mass Communications degree there at UCA. And then I moved to California for about four years looking to get into the film industry. And I actually got a job at a documentary production house that specialized in this type of work.

And I immediately fell in love with it. I had no idea it was it was even a need or a thing and as you know, people started needing more video for for cases to help explain stories and I was able to use my talents and At that company and then I didn’t really like California I kind of liked where I grew up in Oklahoma and decided to move back and I started my own company and I Couldn’t be more thrilled to be here and and now I’ve like

I’ve been lucky enough to have expanded into Arkansas, Texas, Kansas, even New Mexico and just all around we’re starting to really grow outside of our bubble here. So I’m just thrilled to have this opportunity. so that’s a little bit about my background.

Elizabeth Larrick (02:44.296)
Yeah, awesome. So here’s what I’m hearing. You’ve got some extensive film experience where you went to California, you learn from the pros, and then you said, you know what, I’m going to bring what I know to a brand new space, right? There’s not a lot of folks in Oklahoma city doing what you do. So I think that is awesome. But let me tell you what, why would you get into working with, with trial lawyers? What was that pull to help in that particular segment?

Michael Schwarz (02:54.317)
Well, you know, it’s interesting you actually said what you said, because I think when I first brought this back to Oklahoma and this area,

Lawyers would oftentimes only use this type of video or thing on really, really high end cases like multi-million dollar. And that was all well and good, but I feel like it was all come down to cost.

Michael Schwarz (04:22.679)
I was actually talking to one of my friends, her name is Kathy Christensen, and she said that, yeah, lawyers around here use those every now and again, but they save them for like the multi-million dollar cases, and you know, in which they can be really powerful for. But in my head, I was like, how can we bring video storytelling and the technology of nowadays with compassionate editing and interviewing? And I was like, in my head, I’m like,

how can we apply that to lower tier cases that really need that type of storytelling and to where lawyers don’t have to save it for the really, really big cases. And so I was just in talks with one of my friends and then they gave me a connection and I kind of did some preliminary like just asking them questions, picking their brain. And I found out they were like, I would use this on every case if it wasn’t, you know, 15 to $20,000 to have a video done like this. And so I was like,

How can I make one more affordable? And that’s kind of how the business was born.

Elizabeth Larrick (05:25.956)
Awesome. And that is why when I saw you at Arkansas trial lawyers and I saw what you were doing and went to your website and reviewed the videos that you done, I was blown away that you were able to create this amazing, powerful video that was not a day in the life, by the way, even though I know that’s what you do and we’ll get to that. I promise. But We’ll get to that, I promise.

I love that you are coming into a place to allow lawyers access to this amazing product. And that’s why was like, okay, we are totally aligned because I feel the same way about focus groups. And so I’m so that’s why I was excited to get you in here. So tell me a little bit about you do a couple of different types of videos for lawyers. And I know we talked about day in the life and it kind of has a negative connotation a little bit like it’s, you know, old and traditional. So

Elizabeth Larrick

Walk me through your services.

Michael Schwarz (06:14.157)
Well, you know, and that’s that’s a really valid point. So I knew immediately when I when I kind of came up with a product, I didn’t want to call it a day in the life video or a settlement documentary. And again, those can be really great and very powerful. But part of what the problem was is that a lot of lawyers like we’re oh, it’s just they’re going to follow my client around. And I could do that with my cell phone. Right. And so

Michael Schwarz (06:43.105)
Part of what our talent is is the actual storytelling being You know creating a narrative that helps paint a picture of what exactly that clients been through and I know that some lawyers are familiar with settlement documentaries as well, which actually include interviews but Looking at a few of them. One of the biggest things I noticed was that they were really long and often what the videos intention is to help summarize to the other side what the case damages are, maybe if the lawyer wants to include liability, and they want to include pretty much just a little snippet of what the trial is gonna look like to say, hey, let’s settle this thing ahead of time. But if you bore that other side and make it too long and everybody’s repeating the same thing over and over and we’re not cutting to pictures and we’re not, you know, it kind of looks low quality, I personally think that low production

quality can backfire and be more of a detriment than it is a help. And so while you have your client story, putting that together in a package that’s quick and fast, also it takes the time to breathe and the moments that it needs to breathe and really be there emotionally. kind of, the idea is that you want to make whoever’s watching forget that you’re even watching a video.

you’re just ingesting this thing and you’re like, you’re almost captivated by what’s going on. And of course, you know, defense attorneys, the goal is not to make them cry. That never happens. But the, Yeah. know, gender, I’ve never heard a story where like, wow, a defense attorney was so moved, a defense attorney is moved not emotionally, but like they’re moved in the sense of like, I definitely don’t want a jury to see this.

Elizabeth Larrick (08:21.736)
They don’t cry. What are you talking about?

Michael Schwarz (08:37.843)
And they’re like, you know, yeah. So I don’t want the trial version of this video to come out in front of a jury, which is actually how we coined the term trial trailer. Because I believe that these videos are literally a trailer. This is what the trial is going to look like if we don’t settle right now. And so in my head, I’m like, that made sense. I’ve never seen anyone else call it that before.

And I don’t know, it just kind of stuck. And now we get calls asking if they can have a trial trailer. And it’s really interesting just how coming up with a new term for kind of a refresh of an old thing that people are used to, but if we put more of a modern spin on it, it can really make a huge difference.

Elizabeth Larrick (09:27.9)
Well, and let’s give yourself some credit here. You’re not just re-labelling something. I mean, the editing that you guys do, the thoughtful process of the story, the thoughtful types of interviews. mean, there’s a lot of creative process that you put into it that has created a new product that fits with what’s happening right now. And that is people have shorter attention spans than they’ve ever had.

Just give yourself some credit here.

Michael Schwarz (09:39.15)
I mean, there’s a lot of creative process that you put into it that has created a new product that fits with what’s happening right now. And that is people have shorter attention spans they’ve ever had. We all look at video for everything, but we don’t want to watch a long one. You know, we’re impatient. So, I mean, you’re combining all of this amazing film background.

Elizabeth Larrick (09:56.082)
We all look at video for everything, but we don’t want to watch a long one. You know, we’re impatient. So, I mean, you’re combining all of this amazing film background, like movie thinking background with what we need to, as lawyers, tell a story that’s quick and impactful.

Michael Schwarz (10:06.861)
like movie thinking background with what we need to, as lawyers, tell a story that’s quick and impactful. Well, and I actually appreciate you catching that. I sometimes get into this place where I downplay myself. So I appreciate you catching that, but you’re exactly right. Every single time, like I even do focus groups within my own company and we kind of like, hey, how can we

What’s missing? What can we add? What can we take away? What’s too much? Before we send it to the client. It’s a total team effort here. It’s not just me doing all the editing and I hire some, you know, overseas person just to throw it all together. It’s really a team effort here. And the more that we grow, the more people we can bring on and the more collaborative. And my favorite part is even working with attorneys, you know, because they’ll bring their own ideas.

I have, what’s great to me is that some clients will come to me and say, Michael, here’s the client’s information, go do your thing. And we have other attorneys that come to us and say, Hey, I have an idea. Let’s work together to bring in like, they’re very involved. And, and if you were to ask me which one I prefer, I don’t have a preference. I really, I love the sometimes working with attorneys and I love just being able to go out and do it too. So, but at the end of the day, the

main point is that there are really, really difficult hurdles in our attention spans nowadays. And if a video is 30 minutes long, it has to be changing subjects, like new content, and you have to bridge things together. Make it flow, because if you let the video die down even for just a second, you’re gonna lose them. You you really gotta keep it moving, keep it going. And so sometimes…

Videos are 30 minutes, it doesn’t happen very often, but when it’s 30 minutes, there’s a lot. There is a lot to the case, and a very… generally they’re about 12 minutes, but, sorry.

Elizabeth Larrick (12:08.968)
Yeah, that’s a large case. Awesome. So I know you do… Sorry, 12 minutes. I’m so sorry. So normally about 12 minutes is a trial trailer.

Michael Schwarz (12:18.665)
Yeah, and that’s about a standard, but I would say they can be as short as four minutes, and they can be as long as, like I said, 30 minutes. It just kind of depends. I say average.

Elizabeth Larrick (12:29.488)
Yeah. And so I know you do a lot of the trial trailers. What are some other things too that you got that y’all are doing? I know you said, so are there any other kind of videos that you guys are producing for lawyers?

Michael Schwarz (12:32.941)
things too that y’all are doing. know you said, so are there any other kind of videos that you guys are producing for borders? So it’s interesting you asked that because when we started filming them and putting them together, one of the biggest notes we had still was that even though our prices were significantly lower than the 15 to 20,000, it was still like, hey, I’d love to use this on every case, but.

It’s again, you know, it’s still a little bit costly. So I was like, how can we come up with a product where maybe no in-person filming is required? So another video or another video product that we offer is actually called the demand impact video. And it’s basically a little brother to the trial trailer. And it’s essentially all the same editing graphics, everything you love about the trial trailer, but we do over the internet based filming.

Excuse me like zoom interviews is probably what but we use a different type of program the the help with production value But it’s essentially Zoom interviews which cuts down on the cost significantly and they they these types of videos are more reserved for like 300 thousand dollar cases a hundred thousand dollar cases when you’re just trying to tell the story and you don’t want a big like a well, not a big production crew to start with but you don’t want to

Elizabeth Larrick (13:34.685)
Mm-hmm.

Michael Schwarz (13:56.183)
pay for the travel and everything involved, and you just want your clients to tell their story, we can actually help kind of put the story together through online video interviews and then edit it to be the same thing that you love about the trial trailer at a much lower cost.

Elizabeth Larrick (14:13.362)
How long are those videos?

Michael Schwarz (14:15.285)
And they’re about the same. I would say they’re generally shorter. cause we, with the trial trailer, you get five interviews and then with the demand impact video, you get two interviews, but, then, you can add on any amount of interviews. It’s just a little extra cost, but I’ve developed this product specifically listening to lawyers who want to use videos more frequently in their cases, but they don’t have, the, the resources or funds to be able to spend.

You know, I think we’re charging 6,300 right now for our trial trailers as of today. And these are 2750, $2,750 for those. And we have found that there’s a lot more interest in that now for lower value cases that still need a story to be told.

Elizabeth Larrick (15:03.442)
Sure.

Elizabeth Larrick (15:08.54)
Sure, absolutely. I think that when you, so thinking in people’s minds about making a 12 minute video or even a six minute video, mean, the, the power of your editing is, overwhelming. And I say that just because I, you know, used to think, I could do my own video editing. then hours and hours go by and you just, you know, it really takes a long time. So there is definitely a craft to it. There is a professionalism that goes into

Michael Schwarz (15:42.996)
Yeah, and you know on that like one of my favorite parts it’s like it’s literally it comes down to the tiniest of things like if you have two interviews right and someone is saying something and they’re like, you know, my father he can’t walk the same and he’s you know, he’s hurt because of x y and z and you have somebody else kind of adding on to that. I’ve seen cases or I’ve seen previous video work done where they would just butt those two interviews up right next to each other.

And it, can almost hear the edit where you can almost like, you know, but like just the small amount, just putting a little bit of space in between interviews and, and, know, really thinking about the pacing too, and making sure that it’s not like, jarring. those are like my favorite details, sound effects, a little bit of music. You don’t want too much music. You just want a little bit of music just to help because, we’re rhythmic, creatures.

We like rhythm and music is not, I’ve often heard that music can be, it’s like, you’re trying to make them feel something. It’s not exactly true. Music can do that if you use it wrong. What I like to use music for is to help just kind of keep the pacing going. But more importantly, when we change subjects, when we go from one, like we go from maybe liability.

Elizabeth Larrick (16:51.112)
Yeah, yeah, yeah.

Michael Schwarz (17:10.285)
to damages or we go from damages to future concerns. Like when you go from those different sections, you have a music change. There’s like a change in energy and that way it’s like, we’re going on, you know, we’re keeping that momentum going. And so little things like that can make large amounts of difference and those are my favorite parts. Sure, and I mean, also when you think of how our brain works, when you are queuing in more than one sense, like more parts of our brains like.

Elizabeth Larrick (17:29.606)
Sure, and I mean, also when you think of how our brain works, when you are queuing in more than one sense, like more parts of our brains light up and the more likely we’re going to be engaged. And like we said, keeping people’s attentions these days is like kind of the key part. We could be telling a super compelling story, but if I’m just talking at you.

Michael Schwarz (17:39.11)
and the more likely we’re going to be engaged. like you said, keeping people’s attention is the part. We could be telling a super compelling story, but if I’m just talking at you, you’re going to be gone pretty quickly. if the story cues into my visuals and what I’m hearing, and then some music, which is like, it kind of plays on keeping people engaged and then also, you know.

Elizabeth Larrick (17:52.05)
Like you’re gonna be gone pretty quickly, but with the story cues into my visuals and what I’m hearing and then some music, which is like, it kind of plays on keeping people engaged and then also, you

Michael Schwarz (18:05.235)
It does happen to other parts of our brain that really help with persuasion, even though people say, you’re trying to make me sympathetic. Well, sure, there are definitely times where, you know, we’ve seen commercials that 100 percent, you know, you know, donate for the animals that Sarah would love. We all know. It’s like, it’s playing on me. Yeah.

Elizabeth Larrick (18:05.288)
it does tap into other parts of our brain that really help with persuasion. Even though people say, oh, you’re trying to make me sympathetic. Well, sure. There are definitely times where, you we’ve seen commercials that 100%, you know, that, you know, donate for the animals that Sarah McLaughlin song, we all know that she’s like, ah, that’s playing on my sympathies. But you guys are a little more subtle than that. would say.

Michael Schwarz (18:29.193)
Yeah, we like our interviews and the client story to speak for themselves. The music’s just there to help guide it, help, you know, we’re taking the viewer’s hand and walking them through their life story. And exactly, it’s just like, we actually had one of our videos called By The Defense, we actually also, you were asking me about other products we do, we also do,

Like animations sometimes, like not big animations of like recreation. Like we don’t do that. We will happily refer you somewhere else. But like little graphics. think there was, they wanted to show how the water levels would like impeach on this person’s property. Well anyways, we put this beautiful animation together, little graphic animation. It was called a cartoon by the other side. like, oh my, it’s a visual representation of what, you know.

Elizabeth Larrick (19:20.401)
I’m

Michael Schwarz (19:24.333)
And it was, it wasn’t ins- I was not insulted by it because like obviously they’re just grasping at straws. To me, an insult like that means I did a good job. That’s right. They need to label it something, right? Yeah. And if they’re- that means they’re grasping at straws and trying to say anything they can to keep that out. It’s like… Alright. Cartoon it is. Anyways.

Elizabeth Larrick (19:34.342)
That’s right. That’s right. Because they need to label it something, right? So that, yes.

Elizabeth Larrick (19:49.192)
Awesome. tell me a little bit about, let’s walk through a little bit of like, what are this, you’ve got these videos, like what are some of the problems that you’re trying to solve for lawyers with these videos? you know, I think almost all of these may solve some of the same problems, but you know, kind of walk me through that.

Michael Schwarz (19:55.319)
video.

Michael Schwarz (20:02.157)
I would say 99 90 % of the time what our videos are for are damages Because day in the life videos they can show the day-to-day struggles And those are great and those could be very powerful especially if someone’s an amputee or like they you can see the scars and you can clear just them walking around you can see

how their life has been affected. But sometimes a day in the life video is not good for invisible injuries. Like let’s say, like we’ve had a couple of cases where… Brain injuries. Oh yeah, sorry, I thought you were saying like my, no. Oh no, brain injuries, yeah. Brain injuries, yeah, cancer, just things you can’t see in a day in the life video. And so our solution is to…

Elizabeth Larrick (20:44.818)
Brain injuries, yeah, sorry. no, no, no, injuries, yeah.

Michael Schwarz (21:00.813)
interview the clients their friends and family and mix that in with day in the life video and that way whenever lawyers are saying like to the other side like Yeah, our patient or our client with brain injury is going through this this and this hearing it firsthand from those people and bringing up graphics and showing them all together and it all mixes in and by the end of it they’re like, We’re screwed. So our

Our intention and you know, one thing that I keep learning. The other part about this company that I love is that I learned something new every day. And so when talking with my clients and figuring out what their needs are, oftentimes I’ve heard over and over again that defense attorneys often take these cases without really knowing much about it. And so The company hires the defense attorney or they have one on staff. And so they’re kind of coming into this case blind. And so a video.

right off the bat can be something like, my gosh, okay. And then they can go back to their client or their client and say like, hey, this is a really damaging case. I really think you ought to settle for the X, Y, and Z. But if you’re sending a demand letter, it’s long and it has a few pictures in it. It could take a little bit longer for that process to happen. so I’ve actually heard from multiple of our clients before that

The video was a game changer right from the start. In fact, I just got an email two days ago that they’ve already settled the case and we shot it a month ago and turned in a product two weeks ago and they’ve already resolved it for like 1.25 million. And they got the policy limits, everything, and they said the video was a huge part of that. So I think the problem that we’re trying to solve is how can we convey

Elizabeth Larrick (22:45.308)
That’s amazing.

Michael Schwarz (22:56.673)
to these defense attorneys who come into the case not knowing much and tell our side of story. Theirs, like your side of the story in a concise, quick, powerful way that’s, I don’t want to ever use the word guaranteed, but that is most likely going to be a game changer in some way right from the start.

Elizabeth Larrick (23:21.712)
Awesome. Yeah, and that’s what I going to say is, you know, it seems to me like one, it’s very effective communication because it’s quick, quick and to the point, but also you’ve got the story format, which sometimes I will tell you from a practicing lawyer perspective and also now, you know, as a, as a consultant, it is sometimes really challenging. We hear that told to us over and over again. It’s gotta be a story. It’s gotta be a story. And it’s so challenging sometimes when you sit with a case for a long time.

Michael Schwarz (23:26.231)
Yeah. Yes.

Michael Schwarz (23:37.71)
It is sometimes really challenging. hear that told to us over and over again. It’s got to be a story. It’s got to be a story. And it’s so challenging sometimes when you sit with a case for a long time. And that’s because again, we get these things at inception right when it happens, but it may take some time for things to develop, to file lawsuits, to do a lot of the point to get where they’re like, okay, now is when I need to get Michael in.

Elizabeth Larrick (23:49.948)
And that’s because again, we get these things at inception right when it happens, but it may take some time for things to develop, to file a lawsuit, to do a lot of the point to get where they’re like, okay, now is when I need to get Michael in. And so it can be a struggle sometimes to then put the whole story together in a way that is short, which is why, like you mentioned, sometimes our demand letters are pages and pages. And again, sometimes they have to be, right? When we have adjusters that require all the key

Michael Schwarz (24:03.551)
And so it can be a struggle sometimes to put the whole story together in a way that it’s short, which is why, like you mentioned, sometimes our demand letters are pages and pages. And again, it’s enough they have to be, right? When we have adjusters that require all the key language and the keywords, but then you’re able to basically take that and create this powerful video that anybody who opens that file

Elizabeth Larrick (24:19.902)
language and the keywords, but then you’re able to basically take that and create this powerful video that anybody who opens that file most like what you’re going to do. You’re to go to the video first, right? Like any, we have any surveillance video, that’s show me that first before we do anything else. So, that is a great story as far as helping people get things done quickly that you gave us here about an email you got yesterday.

Michael Schwarz (24:29.517)
Most likely what you’re gonna do. You’re go video first, right? Like any surveillance video. Show me that first before we do anything else. that is a great story as far as helping people get things done quickly that you gave us here about the email you got yesterday. Yeah, and on top of that, I always forget this one. Evidence preservation is an extremely important part because like we have been getting more and more videos lately where we go and film right after the, so like right when

the lawyer takes on the client, they call us, we go and do kind of just day in the life and film the interviews. And that way they have it early on. And that way, even if it takes a, you know, six months or a year to get things done and their client is mostly healed now, but they’re back to work and, they missed three months of work and it was a really terrible time for them at that time. We have all that footage that showed their struggle right then and

It’s so much easier to tell the story when it’s happening as opposed to having them go back a year earlier and say, oh, that was a really tough time for us. And then you see them walking around great and fine, and it’s a little harder to, I’m not saying it’s impossible. It’s just, it’s so much easier. So lately we’ve been getting more and more clients that will hire us as soon as they get the client knowing that we’re gonna have a video done. It might not be six months from now.

but we’re gonna get it filmed now so we have a more powerful story.

Elizabeth Larrick (26:00.402)
Yeah, that’s a great idea too because jurors want to see video. They expect that we have video of the crash or the incident. They expect that there’s going to be video somewhere along the way. So that’s an, as an excellent idea to get you in early to go ahead and just start queuing in and creating a video database so that you can make that story video later on.

Michael Schwarz (26:23.185)
Exactly exactly

Elizabeth Larrick (26:27.504)
Awesome. Well, you gave us a little bit of an example so far, but could you mind just walking through a little bit more of an in-depth example of how a trial trailer helped a lawyer?

Michael Schwarz (26:28.045)
Sure, I’ll actually give the the most public one that I have it was a yeah, so and he would be more than happy to be a reference if you have any questions, so Taylor King law in Arkansas They hired us to do a wrongful death on Somebody in, Arkadelfia. His name was Max and he was killed in a trucking head-on collision. And they had us come in and interview all of his friends all of his family. And we put together I think that one was about 12 minutes just because his life was so Impactful. He worked in prisons helping Helping with faith and and he also like went with his golfing buddies and

He mentored the person that worked for her at his insurance company. His wife ended up having cancer and she was in remission. And so now she’s scared if it’s going to come back. She’s scared she’s going to lose the house. She’s scared she’s going to lose her own business that she started. So there was a lot of, a lot of story to that. And so we, we put this together and I, I don’t want to say I don’t remember, but I believe they sent the demand letter, just filed the case.

I can’t remember if they filed the case or they didn’t file the case. It’s one of the two, but they didn’t have to do depositions. Nothing. It was just our video with the, with a few of their other materials that they sent. but the main thing was the video and they settled for eight figures. and so that one, still like brings brings a tear to my eye every time I think about it, because that family could have been drugged through them, dragged through the mud for.

you know, two, three years, four years, but right off the bat, they were like, no, this is, this is, you are at fault. We barely even had to go into liability. I think the other side was already accepting liability or they were right on the edge. But our video was just like, no, you’re, and we actually heard from the insurance adjuster on that one who said, I see these videos all the time and I’ve never seen anything like this before. Your client story was empowering and so we’re gonna give you this it was obviously wasn’t a defense attorney because they would have never said that but but i don’t know i don’t know also that one day i know there’s some smart ones out there i’m not gonna discount all them i cannot wait for the day that a defense attorney gives us a compliment that would be great oh that’s gonna be that’s gonna be like a big banner that’s gonna pop up every time that you go to the website

Elizabeth Larrick (29:03.4)
It’s possible. Maybe. I know there’s some smart ones out there. I’m not going to discount all of them.

Elizabeth Larrick (29:16.86)
You gotta put that on the website if it does, okay?

Elizabeth Larrick (29:25.072)
Which leads me to ask, just because I know some people may be wondering, do you ever work with defense or defense or insurance companies?

Michael Schwarz (29:26.189)
Sure.

Michael Schwarz (29:32.31)
So that’s a great question. I have worked with a couple of defense attorneys, not on the personal injury side, but more of like, trying to think like drone footage or like we do drone site inspections, things like that. Not really, just more for evidence preservation. We’ve also done surveillance enhancements or like body cam, police body cam enhancements where we’ll take video.

gotten from a security camera or like I said police body cams and we will enhance them to either make them look a little bit better or We’ll take audio files and make dialogue appear more clear or like happen more clearly And so we do a lot of enhancements as well And that’s usually the type of work we do for defense attorneys, but we do that work all the time for plaintiff work as well I don’t really advertise to defense attorneys not because I don’t want to work with them, but just because

Elizabeth Larrick (30:26.312)
Thank

Michael Schwarz (30:31.309)
most of the bread and butter of what we do are obviously for plaintiff. And you have a total heart for the plaintiffs. That one. Yeah, that too. No, no. know that you do, if you go to the website, you do a little bit of real estate stuff. So you do some other type of work. So what I want to ask you about is Abandon Atlas Foundation. Tell us, there’s a little bit of a sidebar, but I it very interesting. So I think it’d be super

Elizabeth Larrick (30:35.596)
And you have a total heart for the Plaintiff’s work as well. No, no, I know that you do, if you go to the website, you do a little bit of real estate stuff. You do some other type of work. So what I want to ask you about is Abandoned Atlas Foundation. Tell us, there’s a little bit of a sidebar, but I found it so interesting, so I think it’d be super fun for people to know about you. Tell us about that.

Michael Schwarz (31:01.718)
Wow, okay, I love so I like to say we have two sides of our business we have the legal production side which is what we’ve been talking about and we have the Abandoned documentary side so we started a nonprofit called abandoned Atlas Foundation Because I loved in high school. I loved to explore old abandoned buildings and historic places that were really run down and creep creepy old hospitals and amusement parks that were grown up with trees. And it was really fun because you had all these historic places just completely abandoned. It used to be, I’m actually getting chills just talking about it because I love it so much. And over time, just like you being in the only space and being in an old hotel that still has beds and chandeliers and Persian rugs in it, and you’re the only one there.

and it hasn’t been stepped foot in for years. It’s just interesting. But after high school, I was like, man, I love abandoned building so much. I wonder how I can make a living off of it. So I figured out that with our documentary filmmaking, we can help shed light on some of these historic properties, starting a YouTube channel, working with developers to tell their story of how they restored an abandoned building. We also write articles.

On these historic places and they can be found at like abandoned ok.com abandoned AR like so we have now 24 states I think and we’re trying to find other photographers around those states to help document these important historic places that have that need a second chance and there are developers Everywhere that are always looking for their next restoration project. And so we’re hoping to create a huge database

of these places that have the full history, pictures of what it looks like and why it needs to be saved. We’ve worked with schools or like universities that have a design, interior design program where they’ll take old abandoned buildings and the students will draw up of how they would restore it if they had the chance looking at it. So there’s so many different things. And we’re even working on a series right now in Pine Bluff, Arkansas, the fastest shrinking city in America and and that’s been really interesting it’s gotten 3.7 million views on YouTube and so when we talk about retention rate and how to captivate audiences we do that all the time with these abandoned buildings for a YouTube audience and so you know that’s how we can kind of apply it to both you know so yeah exactly

Elizabeth Larrick (33:45.724)
I love it, I love it. You’re staying in tune with what people want by, know, that is so awesome. So we will definitely leave a link to that as I know that you have a lot of passion for that.

Elizabeth Larrick (34:14.696)
That is so amazing that you have translated your passion to that. And I even know you’ve written a couple of books too as well about it. Oh, that’s right. Abandon Arkansas, Abandon Oklahoma. mean, you have a passion for this. What I love is just the historical aspect of these places that have just, you know, that are a piece of our history, but they just go by the wayside because they’ve been replaced.

Michael Schwarz (34:20.192)
yeah, you mean these? So we have a co- That’s right! Yeah.

Yep.

Michael Schwarz (34:34.093)
but the there was one particular building. It was called the Majestic Hotel in Hot Springs and we tried to save it. We were we were on a mission. I made it actually a feature link documentary about it.

Michael Schwarz (35:04.045)
In the city was trying to demolish it and we tried to save it. We ended up losing the battle, but I think it the The loss of that actually ended up saving other buildings in that town And so we’re trying to save some other buildings But anyways, the majestic was my favorite place because it was literally like you walked back in the 20s And everything was still there

Like the spas the the check-in desk that literally everything you would want in a historic hotel was still there in Almost like a museum you had to yourself and so I thought that could have been restored, but unfortunately the city had other ideas

Elizabeth Larrick (35:40.38)
That’s so cool.

Well, that’s okay. You preserved it for us so that we can go if you’re interested in, we will put a link in the show notes for that as well. So if we have some lawyers who are interested in just learning a little bit more about what you do as far as filmmaking and that kind of stuff, what’s the best place someone can go to learn about you?

Michael Schwarz (35:58.573)
best place someone can go to learn about you. That’s great. So if you just go to trialtrailer.com, it’ll take you to our website where you can learn it. There’s like three little categories down there. It’ll say legal impact videos, which is where our trial trailers demand impact videos would be. We have a couple of public samples that you can watch on that page. And then if you want to learn more about our historic

buildings are just interested in that. There’s a tab for that. And then you have the other category. We do so much that we just labeled everything else in other. So that would be realistic. Yeah, exactly. The two main things are the historic and the legal. Those are our two biggest things. So it’s good to have a passion. I appreciate that tie in to helping you with YouTube. So do you have a

Elizabeth Larrick (36:36.85)
then that’s okay, we’re talking to trial lawyers. we, you know, I totally, yeah. So if…

Elizabeth Larrick (36:45.991)
It’s good to have a passion and I appreciate that tie-in to to helping you with YouTube. So do you have a YouTube channel for the Prairie Creative Nation or Nation Creative Prairie? Let me just start over. Let me just start.

Michael Schwarz (36:55.213)
It’s okay it’s Yeah, so there’s one for Prairie Nation creative And I think it’s just at Prairie Nation creative. You could also just google Prairie Nation creative our thing will come up there There’s not like a YouTube channel in the standard sense where we are we’re like, hey guys, welcome back to our YouTube they’re usually filled with samples and just

Elizabeth Larrick (37:04.136)
Do you have a YouTube channel that we could look at too?

Michael Schwarz (37:23.502)
random stuff we might be doing for trial lawyers associations and things like that. It’s, it’s kind of, it’s not a YouTube channel that’s meant to be a YouTube channel. It’s more of just a demo reel for some things that you can go see. It’s, it’s full of just a bunch of random stuff, but shows what we can do. Wonderful videos that align with projects that maybe- Yeah, it’s full of, exactly. I, you are so much better. I’m just like, yeah, it’s just a YouTube channel for our stuff and-

Elizabeth Larrick (37:40.804)
wonderful videos that align with projects that may be random to a lawyer, but not random for you. Yeah, you’re good. we went. That’s right. That’s exactly right. No, Michael, you’ve been so lovely to have on as a guest. Is there anything I didn’t ask you that you think would be helpful for lawyers to know?

Michael Schwarz (37:52.587)
You’re like, you’re my personal chat GBT, know, like, no, you mean, what?

Yeah

Michael Schwarz (38:05.569)
Hmm. That’s a great question. you know, I think one of the one of the biggest reasons I do this too is because our team, get to work on one on one with your clients. and I think the, obviously this is not the only reason, but it’s interesting to be able to walk away from a shoot.

and interacting with clients and hearing them say, wow, that really felt like therapy. I’ve never actually said, like, sometimes I walk away and they’re like, I never thought I would ever say anything like that. cause I don’t show up like our team, don’t like show up with like a list of questions and we just kind of go down. Like we have kind of a pre-cong, it’s just engaging. It’s just like a conversation and we get to know them. We get to hear what their struggles are. And I don’t know. It’s just,

That’s what kind of motivates me to do what we do and then to see the final product really make a difference in someone’s life. I mean, why else do this job?

Elizabeth Larrick (39:11.336)
That is an amazing note to end on. Okay, so we’re gonna have all the contact for Michael and his company in the show notes along with a couple other links if you’re interested about the Abandoned Atlas Foundation. Until next time, thank you so much and again, thank you so much Michael for joining us.

Michael Schwarz (39:11.693)
That is an amazing note to end on.

Elizabeth Larrick:

The company in the show notes along with a couple other links if you’re interested about the Abandoned Atlas Foundation. Until next time, thank you so much and again thank you so much Michael for joining us.

Michael Schwarz: And thank you! You did a wonderful job. I’ve been watching your podcast and it’s been really great so I really appreciate you having me on as a guest. You do incredible work too so don’t discount that. Use her for your focus groups.

Elizabeth Larrick (39:41.916)
That’s right.

In this episode, Elizabeth tackles the challenge of capturing and maintaining attention in legal settings, emphasizing the importance of the critical eight-second window to engage audiences like judges, mediators, opposing counsel, and juries. Discover methods to simplify complex legal jargon and prevent cognitive overload, ensuring clarity in your arguments.

Elizabeth dives into crafting compelling trial strategies, focusing on the power of visual comparisons and thematic development in opening statements to effectively counter defense narratives. Whether it’s contrasting visuals or structuring arguments to reinforce your points, these techniques will elevate your trial preparations.

In this episode, you will hear:

• Mastering attention in legal settings using the critical 8 second rule
• Simplifying complex legal jargon to avoid cognitive overload
• Utilizing visual comparisons and thematic development in trial strategies
• Integrating visuals with verbal communication for enhanced audience engagement

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:

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.

Join the Trial Lawyer Prep Newsletter

Subscribe to get my monthly email newsletter full of tips, resources and helpful insight on trial strategy, focus groups, witness prep, and more!

Subscribe

We won’t send you spam. Unsubscribe at any time.

Built with Kit

Episode Transcript

Welcome to the podcast Trial Lawyer Prep. I’m your host, Elizabeth Larrick, trial lawyer turned consultant here to help lawyers clearly communicate their cases in order to win.

In today’s episode, we will directly speak to how we can hold people’s attention and not lose it. We have eight seconds to grab people’s attention. We already know as lawyers that attention spans are getting smaller and smaller. It really doesn’t matter who your audience is. It could be a judge, a mediator, opposing counsel, or a jury. Either way, we have eight seconds. If we lose that eight seconds, it is costing you verdicts, winning, possibly even settling cases quicker.

This episode, we want to talk about how we can work through that eight seconds to grab attention, but also to avoid cognitive overload, giving people too much at one time. I want to express all the things that we have found in doing focus group research, going to trials, and getting feedback to understand what worked. And of course, we know when it doesn’t.

So let’s talk about our eight seconds. There’s so much research that goes into our attention spans. Tons of marketing companies pour millions of dollars into figuring out what is the attention span. And right now, most current research I would say is eight seconds. What we really want to know is how to get that eight seconds down and keep their attention. We’ve seen this before. If you’ve watched any of the CLEs that talk about opening statements, if you’ve read any of the fabulous books that are out there about setting up and structuring opening statements, you will know that the instruction, the request is to start with a hook. Start with a simple attention-grabbing sentence. This case is about boom, boom, boom, starting with a statistic because we want to grab that attention, right? Get those brains going.

The other thing that we want to make sure that we do is then be able to keep that attention without overloading or overwhelming our brains. What happens is we unknowingly provide a bulk of information that overwhelms our brains and they end up being turned off. When you’re speaking, you’re giving folks a good rundown of the case, maybe you’re rundown the evidence, maybe the standard that applies. When you do that, if a juror or anyone in your audience hears a word that they don’t understand or maybe a phrase, or maybe it’s just how you’ve actually phrased the sentence, their whole brain will stop processing anything else and direct all the energy into figuring out that one word, that one phrase, or trying to restructure the sentence to figure out what you’re saying. Meanwhile, you’re still talking and delivering information and they’re not receiving any of what happens then? Well, maybe they keep trying to listen. Maybe they go to something else and think about other things. Maybe they think about what they’re going to have for lunch. Either way, they’re not listening to you. Either fill in the gap with what they think you said, taking a guess, or they just sit back and just resolve that they’re just not gonna understand. It makes no difference to them. And they’re just not gonna pay attention. I don’t want that for you. I want you to be able to grab people’s attention. I want you to work through cognitive overload.

And so we’ve got three plus a bonus that we’re gonna talk about here today that you can work through and these are simple things, there are three very simple things we can do with any presentation you’re about to give. So think about opening statement, think about mediation, think about an upcoming hearing that you have. All three of these things can be applied to any presentation you’re about to give so that you don’t lose someone’s attention or you don’t sit in their brain on a scavenger hunt trying to figure out a word or a phrase that you use. And again, these are time-tested results, done focus groups on these topics, read books on these topics, and again, taking these things to trial to test it out.

Number one is linguistics or language. We are really known for using some large legal terms, medical terms that really can stump jurors. I see this very often in focus groups and the easy thing to do is just pair. I know that we have to use certain languages in certain cases. We have to do it. The law requires us. I understand that. I’m not trying to fight against that, but what I want you to do is pair it. And you heard me already do that. When I said linguistic, I paired it with language. So I want to give you a couple other examples that have gone through focus groups. And we have heard directly, right, that these are things that need to be paired. So medical malpractice cases are great examples of this. And we once had a medical malpractice unfortunately the person developed some eschar. Well, that’s dead tissue. Now the lawyer used this word no less than 10 times.

And that was the first question we got when I asked for what do you think? What is your impression from this information? They were like, I don’t know what that word is. Even though, right, he may have explained it, because he kept using it, the brain kept getting stumped again and again and again. And so all we did was very simply reduce the amount of times you use the word, but also we just paired it together. We gave it a little sidecar, right? Like, eschar, dead tissue. It just goes right along together, so they pair together. Another example here recently was uncontrolled intersection. Now that stumped me because I don’t know really what that means.

So we paired it together with an intersection without any signal or sign with how to direct traffic. Now that’s a long pairing, it was a key element in the facts of the case. So I didn’t want to lose the people in the focus group early. And then I paired it with a I said uncontrolled intersection showed a picture and then I paired it. An intersection without signs or signals that direct traffic. Boom, simple, right? Super simple. Again, these are simple tips, but we tend to overlook them. So number one, think language when you’re walking through your presentation. How can I pair my language or change the language, remove it altogether to make it very simple?

Number two is structure. Number one, let’s just have it. A lot of times we put together arguments, we put together presentations, and we don’t really think through the structure. So this is where we’ve talked about rules of three. We’re going to say it again, rules of three, working memory in our brain can hold three to five things. So if we already say, I’m going to walk through three can handle three. That’s easy. But when you can structure it and a lot of times people say, well, but what if this particular case m is going to have six different questions in the verdict form. Or what if the law has five elements? Okay, so we’re getting into the nitty-gritty here. When we wanna structure things in a three, we wanna go to that 30,000 foot view and try to get broad and then group it together. This will also really help you cut the fluff. Right, so if we’re making our strongest argument, not everything can go in there. it’s either fit in or it’s not. It’s not gonna be important. But not every detail’s important when we give our first presentation, right? Thinking about you’ve written a motion. You’ve given pages of information over to the judge and now you’re going to stand up and give your argument. You don’t need to hit everything in that motion. You need to hit the strongest things. You’d have strong structure and hit the top thing. And the same thing happens with an opening statement, You can’t give them everything in the opening statement. It’s overwhelming. You will lose them. So you want to make sure you structure it down to those three different pieces, right? Rule of threes. and then everything else can be saved for gonna actually give it more emphasis by targeting it later in cross exam or direct exam, okay?

Alright, next one is cognitive space. So this just means that when we look at our sentence structure, we make it simple. We don’t have long, dense sentences with lots of information. We take those apart and we give simple sentences that are very short and sweet and to the point. Alright, so if you’re gonna talk about a car crash. m on July 6th, it was a stormy, rainy night when the car was going eastbound on 35 with slick rain on bald tires. That’s kind of a lot. You really wanna break that down. There are lots of pieces in there that are helpful to the story, so just take it back, And realize what’s really important here. Is July 6th important to what the jury needs to hear? Not likely. So what is it? It’s the weather, it’s the bald tires, maybe it’s you’re on a highway. How many lanes are on that you’re just gonna break that down and when you do that, you’re giving space for the brain to process. Instead of trying to cram six things in a one sentence, we’re spacing it out. also make it easier on your audience who is listening.

Alright. Last bonus point I will say, and we will do an entire episode on this because I know how important it is to have a visual presentation that matches what you’re saying. So I talked a little bit about this. earlier we talked about showing a picture of an uncontrolled intersection while pairing it with what it we in order to grab attention and keep attention, we want to use visuals that convey our message but not duplicate our message. So many times when we’re using PowerPoint, we’ll just put the words on the screen and then we’ll read them. This actually compounds the difficulty of working memory. Makes it difficult. So what you wanna do is you wanna be able to pair your message, right, visually with what you’re saying. You don’t want it to be a duplication. And when you do that, people will pay more attention. Just typically, people identify as visual learners, even though learning styles have been debunked, that’s okay. If we wanna speak to how each person learns in your audience. I mean, if you have a jury, you have probably many different styles or many different ways that people want to learn. So you’re gonna hit both of them. You’re gonna have the visual, you’re gonna have the verbal, and that’s gonna key in on keeping our eight seconds, keeping things moving. keeping people’s attention, but also allowing some space. Because as you put together your presentation, you’re gonna wanna follow the same rules. If you put a word on the screen, maybe you’re gonna verbally pair it with a simpler term. You’re gonna use simple structure on your PowerPoint slides, right? Not dense wording. And then of course, you also wanna make sure when you structure it, It follows with what you’re saying.

Wanna talk a little bit about an example here recently, and we just had. So I worked with a lawyer, we’d done three short virtual focus groups on the same case over a period of a year as they got ready to prepare for trial, to prepare for mediation. tested many different things. We parts of the story, pieces of the defense arguments, and then it was getting ready for trial. So we came together for what I would call a strategy session. We each did our own homework, looking at the past focus groups. We wanted to look at what is working, what is not working, and how do we need to structure this opening statement.

So thinking through our eight seconds, we want to know what had to go first, right? Primacy. would be the hook that we would need to do? And then we also looked at what was working for the defense. and what was being tapped into. And again, we’re obviously running these focus groups and playing the defense. The point of view that was being tapped into was significantly defense. And so they were tapping into the point of view of the juror as a homeowner. And this particular case involves an knew, oh okay, we need to get ahead of this. This may need to be the thing you do very first, the primacy. We have to set this out straight for them and in a very simple way.

And so that was what we worked on. The rules that a business must follow to keep their place safe and how it’s different than a homeowner. we needed to think about how to educate them very simply, but then also even pair that with questions and jury selection. in that hour that we spent together, we really just worked on what would be first had to grab their attention, but also set things straight in a very simple language, very simple structure, And then ultimately had to make it very have this eight seconds. And through that visual comparison. Even if our slide had a business building versus a home, that would still be able to bring up different things in their mind on top of what the lawyer would have been saying an opening statement. So we were able to get a lot of work done on our themes, on our structure, and how to get out in front of oh the point of view that the defense was using to win the case.

Alright, I hope that this episode was helpful to you. If you are preparing for trial and you want to review your opening statement, maybe look at injecting case themes, I can help with that. There’ll be a link in the show a free consultation call if you’re interested. Alright, thank you so much for tuning in to this episode and until next time, thank you.

Elizabeth explores the application of brain science in witness preparation, offering trial lawyers strategies to enhance deposition prep. This episode focuses on leveraging the limbic system and amygdala to reduce stress and improve memory retention, moving away from fear-based tactics. Elizabeth discusses the importance of engaging clients by addressing their concerns and shares methods to counteract the forgetting curve through repetition and structured sessions.

Elevate your practice with these insights for building a strong foundation in witness preparation. Elizabeth highlights the significance of understanding and applying brain science to transform the way trial lawyers approach witness prep. By addressing the emotional and cognitive needs of clients, lawyers can create a more supportive and effective preparation process. The episode emphasizes the benefits of using technology and structured repetition to ensure that clients are well-prepared, confident, and able to retain crucial information.

In this episode, you will hear:

• Transforming witness preparation using brain science techniques
• Avoiding fear-based tactics to enhance client memory retention
• Importance of repetition to combat the forgetting curve
• Empowering clients with confidence and clarity through tailored strategies

Supporting Resources:

Learn more about the Forgetting Curve

Need to earn CLE credit and learn more about witness preparation? Check out my in-depth presentation: Witness Prep That Works through ALI CLE.

Set up a free call to talk to Elizabeth about her witness prep services: www.calendly.com/elizabethlarrick

Join the
Trial Lawyer Prep
Newsletter

Every month I send out an email newsletter that provides valuable insights on:

– case preparation

– trial strategy

– focus groups

– witness preparation, and

– episodes of my podcast

​

Additionally the TLP Newsletter is where I announce the opening of my Foundations Virtual Focus Group Class, and other upcoming opportunities.

How did you hear about me?

Your Podcast

LinkedIn

A Friend

Google/ Internet search

CLE Event

I am a(n):

Lawyer / Attorney

Legal support / Paralegal

Legal Consultant / Vendor

Subscribe

We respect your privacy. Unsubscribe at any time.

Built with Kit

Episode Transcript:

Looking for ways to improve your witness prep for your clients? Maybe you have a challenging client who you need to find a different way to communicate with them. Well, this episode is for you. Hello and welcome to Trial Lawyer Prep. I’m your host, Elizabeth Lerick, and we are here to talk all things preparation for trial lawyers. Today’s episode is going to focus in on witness preparation for your client.

And I want to talk about how we can use brain science to better improve our witness prep. Now I gave a full CLE credit presentation on this particular topic with ALI. And you can actually still watch that on demand at their website, which I’ll include in the show notes. But today I want to give you an abbreviated version and just three simple ways we can improve your witness prep.

work with our brain instead of against it. I know that witness prep can be a little bit of a daunting task and sometimes we put it off. Sometimes we even delegate it to somebody else. But I want to make us smarter and that is why using brain science we can use the natural pathways that we already have in our brains, meaning making memories, all right.

Elizabeth Larrick (02:10.138)
to make it easier for our clients to retain the preparation that we are helping them with, learning about depositions. And again, this will make it easier for your client as well. So let’s just talk a little bit about witness prep generally. We are as lawyers hoping that we make some memories for our client when it comes to learning about depositions, how to answer questions, and how to process putting together a response.

Now working memory is really holding three to five things. And our brains don’t actually commit our short-term memory into long-term until nighttime. So when we sit down with our clients and give them a list of instructions, walk through the rules, start talking about content, we are really overwhelming our short-term memory. And so a lot of things are not gonna get committed to long-term. So…

Let’s talk about ways that we can work with our brains and working with memory is one of those things. But my first tip I want to talk about is working with the brain and the limbic system and with the amygdala. Now limbic system, amygdala, you’re thinking, what is she talking about? This is kind of our fight or flight sense. And the natural inclination for many lawyers is to have

a fear as a motivator for our witness prep. So maybe we’re starting out initially with cross-examining our client or asking very powerful defense oriented questions. Maybe we’re talking about if you say this, you’re going to lose your case, right? All of these things are going to trigger the amygdala. It’s going to start sending out stress hormones. And when you do that, it literally

blocks access to rational thought. Okay. So think about that time, prepared a client, they go into that deposition and all of a sudden they get a surprise question and it’s, don’t remember, I don’t remember, I don’t know, I don’t know, I don’t know, on repeat. And you’re thinking, what is going on? They’re in stress mode. Okay. And we don’t want you to trigger that when you’re preparing somebody because again, we don’t make memories when we’re super stressed out.

Elizabeth Larrick (04:31.268)
And even if we do, sometimes it’s just a fear associated memory, right? Which is not really what you want to be associated with when it comes to your client. So number one, we wanna stop using fear first. Now, there is a time and a place for role play, cross examination of your client and preparation, 100%. But when we use that tool is most important. We do not wanna start off by using that tool.

You wanna save that for later, right? Towards the end of preparation, not the end of that meeting, but the end of preparation. And we’re gonna talk about why we might be having more than one session with our clients. But number one is we’ve got to stop trying to use fear to motivate our clients, fear as a way to get them inspired to prepare. Typically what happens in our brain, we’re just swirling, we’re spinning.

or nothing’s really being retained. Again, no access to rational thought. We’re not really making any new memories around these things. And so where do you start? My suggestion is that you start your very first prep meeting asking the client what their concern is about the deposition, right? Now we’re hitting on a couple of different things with our brain.

Number one, we’re asking a question. When our brains get a question, we want to answer it, right? It’s like, boom, we’re engaged. And that’s what we want. We want engagement. We want to make sure that brain is working. And as a lawyer, it’s very helpful to know what is on that blackboard. What is it that they are thinking instead of launching into a list of instructions or a list of rules?

Right, we really need to know what’s going on in that brain before we put things into it. Now, a lot of times clients will resist this. Well, I have so many questions. I just need to know what to say. Or I need to know what the questions are. I’ve never done this, so I have no idea what my concerns are. Okay, it’s a little pushback, right? Just keep moving in, just keep asking them again. Okay, that is my suggestion of where you start. What you will hear are many things that you can use in preparation.

Elizabeth Larrick (06:49.093)
What you will also know is the priority with which they are telling you information. Okay. So you are going to learn so much about what is on their brain, on their minds, what is their concern and the priority of that. Okay. Now that moves into number two, using proper language. So typically people are coming into deposition, never done this before. No context whatsoever in their brains.

So when we feed things like instructions, rules of a deposition, it sounds kind of negative. Also, there’s no real explanation in their brains. It kind of comes in and it doesn’t stick to anything. So number two tip is to use roles, use expectations, and use roadmaps. We always want to be giving an overall context to

what a deposition is and the preparation, right? Preparing them for deposition because we wanna give them the why. Why is the deposition so important? And that’s where kind of the roadmap comes in of where it fits into the case. You can draw a little roadmap. I totally suggest you do that. Now let me go ahead and stop and give credit for roadmaps to Mark Lanier and his amazing constant frequent use of roadmaps in trial. Now I’m applying it in depo prep. And once you’re able to do that, you can…

let the client know what is their job and what is expected of them. What is the job that you will have in the deposition? What is the job of the opposing counsel? Now, when we frame things as expectations, as roles and jobs, we have a little bit better chance at empowering our clients to step into those roles and expectations versus running up against the roles. This particular kind of language really helps

clients who are fearful. These are clients who not going to say a whole lot. They got a real tight lip. They’re real worried. And their thought is like, but the less I say, the easier this will go, which we know that it’s not true. However, if you lean into that job of being able to speak your story, carry the case forward, here is your place. Here’s the expectation that they will have. It significantly helps them be able to relax and lean into that place.

Elizabeth Larrick (09:09.009)
Now this also significantly helps with our clients who may get a little defensive, meaning why are you asking me that? I don’t have to answer that question. You don’t need to know that they get a little defensive and it can happen all different kinds of folks. But again, coming back to thoroughly explaining everyone’s job, the expectation of each person and how that overall plays into the case significantly helps reduce that defensiveness.

just telling somebody that lawyer is just doing their job without explaining what that hall entails can sometimes completely nonstick. And that’s why when we are preparing our clients, again, we really want things to be sticky. We want them to be able to take in the information and organize it, retain it, and keep it so when they apply it, it’s making a lot more sense. Because if we get into the deposition,

and you have a, run into a problem, you really have to figure out in that you can’t just take somebody out in the hallway and say, stop doing that. Typically you’re going to, they’re going to keep doing that because they can’t figure out a different way around it. Well, again, we want to start off on a good solid base of what the expectation is, what their job is and overall how that fits in the roadmap of the case and inside the deposition. You can take all those instructions, take all those rules.

and move them into categories of expectations and jobs makes it much less scary. Remember we don’t want to keep, we don’t want to hit that limbic amygdala fight or flight since we want to empower. Now number three, and that is repetition. So you may have heard about this, maybe not, but it’s called the forgetting curve and it’s been around since like the 18th century. I’ll link to it in the show notes if you don’t believe me.

But basically it says, well, as humans, our little brains forget about 80 % of things after a day. Now, maybe it’s not that bad, but after seven days, I mean, it’s less than 10 % here. How have we figured out how to work with our brains if we forget everything? So first of all, let’s take this into context. If you’re just doing one meeting to prepare your client and let’s say the depot is the next day, they’re not going to remember even probably 60 % of that.

Elizabeth Larrick (11:39.313)
Well, what if there’s two days in between? boy, we’re getting worse. Use this rule, the forgetting curve, as a way to plan your preparation. Except our brains need repetition. It’s called the spaced effect, where basically researchers figured out how much repetition we need in order to retain information. It’s gotta be repeated at a spaced interval. Now for our use as trial lawyers, that means

We need to be thinking about two to three meetings. These do not have to be long, extensive meetings, but you will find as you kind of work with people and do a two to three meeting approach, okay, this meeting will be a little bit longer. Typically it’s the second meeting. Our first meeting, we’re kind of covering the expectations. We’re setting up the playing field and our second meeting we’re getting on the playing field.

We’re going through questions. We’re organizing what is in their brain and helping them translate what is in my brain to the questions I’ll be asked. And then that last meeting where we are fine tuning, we’re practicing, there’s our role play. There’s that cross exam in there. Okay. And again, what you can do at the beginning of each of these meetings is just go back and ask simple questions. Hey, at our first meeting, you told me this was your concern. How is that for you now? Let’s not forget.

And again, every meeting you’re just recoding over the most important things. Typically, if you can have them understand their role, their expectation in their job, and you repeat that, that’s going to get them out of 99 % of problems that occur in a deposition, right? Because they have a good solid foundation, but what they’re supposed to do, where is their lane?

Where is it not? They’re going to feel comfortable. Preparation is just what’s working with already what’s in there, not forcing right our own thought into our own words into their mouths. Okay. That’s called, that’s like unethical. Okay. We don’t want to do that, but want to work that brain. I also want to remind people, I get a lot of hesitation occasionally and people are like, Oh my gosh, three meetings. Again, we could have an hour long meeting. We can have an hour and a half meeting, maybe, maybe an hour and a half again.

Elizabeth Larrick (13:56.133)
Again, building up, recoding over things, you will find that people will bring more questions to you in that second and third meeting. That is excellent. mean, their brain is working on it and they’re trying to assimilate the information. It’s a good sign for you. Don’t forget about Zoom. You can Zoom with people, especially if you’re doing a virtual deposition. Zooming preparation is extremely important to help them get used to Zoom.

and the pitfalls and the benefits. Don’t hesitate to use Zoom. Even if you’re gonna get together and it’s an in-person, it’s okay to have the first one on Zoom or do little warmups on Zoom. That’s totally fine. Use technology to make your life easier. All right, let’s do a quick recap. We wanna use the brain for us, not against us. So here are three ways we can help with our witness prep and use the brain for us. Number one is we’re not gonna start with fear.

Right? We’re going to move that cross examination, that tough role play. We’re going to time that for the end of our preparation. We do not want to start there. OK? Number two, we want to use words that stick. We want to use expectations, jobs, roles. We want to give an overall roadmap for what is happening so our brains know the why and we can move into the what.

Number three, we want to use repetition. We forget it’s just natural. Okay. So we’re looking at two to three preparation meetings and coding back over the most important concepts we learned again to keep refreshing the brain so that they actually stick in there and be ready to use on the day of deposition. All right. I hope you enjoyed this episode. If you want to hear more, I’ve done a full CLE approved

presentation on witness prep that works with ALI and the link will be in the show notes. Naturally, if you have a client that is extremely challenging or maybe you’re having a difficult time communicating with them, I help lawyers prepare their clients. You can reach out for a free call. There’ll be a link in the show notes. All right, until next time, thank you so much.