In this episode, Elizabeth shares expert insights on transforming your trial preparation with Zoom focus groups. Discover the unique benefits of virtual sessions, including the ability to capture participants’ facial reactions up close, which can’t be replicated in traditional settings. Elizabeth uses her extensive experience and real-world examples to demonstrate how these online gatherings can deepen your understanding of juror behavior, enhancing your courtroom strategies.
Learn about the convenience and flexibility that Zoom focus groups offer, saving time and resources while allowing you to experiment with different formats. Elizabeth compares virtual and in-person focus groups, highlighting the distinct interactions possible through Zoom. Tune in to explore how these insights can strengthen your connections with clients and juries, ultimately boosting your effectiveness in court. Whether you’re a seasoned lawyer or new to virtual focus groups, this episode offers valuable strategies for your legal practice.
In this episode, you will hear:
Advantages of Zoom focus groups over traditional in-person settings
Benefits of capturing close-up participant reactions on Zoom
Cost-effectiveness and convenience of online focus groups
Flexibility and freedom in structuring virtual sessions
Use cases for Zoom focus groups in pre-lawsuit and pre-mediation stages
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Episode Transcript:
Elizabeth Larrick (00:02.604) Hello, and welcome back to the podcast. I’m your host, Elizabeth Leric, and we have a new episode here for you today. And I want to talk about Zoom focus groups because…
Despite talking about this and having lots of other folks in the trial lawyer world talk about doing online and virtual, I still have a few holdouts. So today we are going to talk about Zoom focus groups, what do I mean, what are the benefits, and how they really compare to in-person focus groups. So first I want to run down my stats because I think it’s really important to help
everybody listening to have a little bit of context about how many folks are really running virtual or Zoom focus groups, if you will, versus in-person. And just looking at my last year of 2024, I had four in-person and 62 Zoom focus groups with, that’s probably easily 40 plus lawyers. So we have some lawyers that come in and do multiples. I will talk about that here in a second, but
What I want us to really look at is how Zoom focus groups can really be different than in person and sometimes have added benefit. Before we jump in to the added benefits and a few other factors about Zoom focus groups, let’s dive in about what do I mean when I say Zoom focus groups.
Elizabeth Larrick (02:06.594) because there’s a lot of people talking about virtual, about online. Sometimes that’s a survey and not necessarily the same thing. So for me, when I say a virtual focus group or a Zoom focus group, I’m talking about either a one hour, a two hour, or a three hour dedicated time where you’re having face-to-face interaction with eight to 10, up to 12 participants and having kind of a conversation with them.
And the styles of focus groups can significantly change with Zoom. And so we’ll talk a little about that later, the freedom that you have in sculpting those. But typically we’re talking about a shorter timeframe. We’re talking about doing all different kinds of topics and the size is very manageable for one person. And we’re really getting those one-on-one conversations. And so that’s really what I mean when I say Zoom focus groups is very different than a survey.
where basically people are coming in and maybe they’re watching a video and then they answer questions. This is really kind of a group dynamic where we’re having conversations with folks. And so let’s talk then about those added benefits from Zoom focus groups that you cannot get within person. So what do I mean by added benefit? Well, it goes right with my episode title, which means getting in their faces. On a Zoom focus group, you have the ability to record everybody’s
very close and personal faces and their reactions. And that’s just not something that can be replicated in person. In person, you typically have one, maybe you have two videographers. And typically within person, you’re going to get a very wide screenshot of participants and a videographer will also be on the presenter. So you don’t get this very up close and personal reactions that you would in Zoom.
Likewise, what you get to see, so does everybody else. So those participants are also getting and being impacted by the face-to-face interactions they can see from their fellow participants, which has an impact versus thinking through jurors who are sitting basically most of the time and they don’t see each other’s faces at all until deliberation. So there is a lot of extra benefit there in being able to have those face-to-face reactions. Let me give you a couple of specific examples.
Elizabeth Larrick (04:31.092) When you have video testimony, when you have video footage of the event, it is crucial to be able to go back and really dial in and see who is reacting and how are they reacting? What faces are they making? Recently, we had a focus group with some dash cam footage and really wanted to understand what do they see first and what is there? they having a blink reaction? And
you know, being able to have that Zoom feature of seeing everybody’s face and then be able to go back and watch it. It’s super helpful to those lawyers to be able to determine, how do we do these depositions that are coming up? And how do we need to even modify this video to help the jurors ultimately, when they do get to see the video, make decisions about it? So that’s super helpful. Number one, added benefit that you can’t get in person. Number two is the convenience factor. This is huge. Before the pandemic, we…
probably could not have the amount of Zoom focus groups that we do now because the technology barrier is completely gone. People are using Zoom for school, their kids’ school, going to the doctor, talking to financial advisors. They use it all the time. They’re very familiar with it and they’re used to it. And they find it as convenient as you do to be able to push that button, join that meeting and push it to leave. And so that is number one that we are really going to be able to save a lot of time, hassle,
expense, energy versus doing in person. And that’s why I always tell people it’s really convenient to do these because if you need to do one quickly in less than a week or maybe a week, you can do that. You can’t do that in person anymore. There are so many barriers that have been put up by places that rent rooms out that make it difficult, if not impossible, to be able to move quickly on a budget.
And so we avoid a lot of the expenses, the room rentals, the food, the travel time to get there, even sometimes parking and having to pay people additional money for that hassle, right? You can actually pay people less on Zoom focus groups than you can in person because you’re cutting out a lot of the hassle that they get to avoid by being able to push that button quickly on their computer. And just to give you an example of some of the hassle recently on one of these in-person focus groups that I did was
Elizabeth Larrick (06:51.15) we had a larger than normal group. had over 24 people there and they didn’t set up the room exactly as we wanted. Always an issue. But we need another table. So I go ask for another table, don’t think anything of it. And then they charged me $20 for the extra table. They just said, put it out. We moved it. So it’s these little bitty things that are getting kind of nickel and dimed in there and not to mention the other expenses of videographers. So
It’s just much more convenient. You can reach more people than you would in person, right? So if you’ve got kind of a, I won’t say unique, but a different geographic area, for example, folks out in Montana, they have a very, very wide spread state. It is not convenient to jump in the car and drive a couple hours to be able to do an in-person focus group, whereas easily set up Zoom and get folks from all over to be able to join. Now.
Another really important bonus that we get when we do Zoom focus groups is the freedom and flexibility. Because we are doing smaller timeframes, these one hour, two or three hours, we really have the ability to have freedom to do different styles, right? So typically with these in-person groups, because you’re going all in, you’ve got the large expense, you’re going to be doing a mock jury. You’re going to be even maybe you’re doing a mini mock jury, but still you’re having a lot of time and you’re doing the whole case.
With these Zoom focus groups, you can piecemeal it out and do different pieces of a case. You can do pre-lawsuit Zoom focus groups to figure out, I want to even file this lawsuit? Do people even care about what’s going on? And also, how do I frame it? What do people get drawn to? What are the questions in their mind? A pre-lawsuit is a great place to do a Zoom focus group to get you on the right track. And again, sometimes to avoid some pitfalls. The other thing is just
We could easily run a style where it’s just depot clips. How are they piecing it together based on the testimony? How are they going to gauge the credibility of your client? Do they like him or not like him? What’s missing from that testimony? You can do a pre-mediation. You can use them to find your safety rules if that’s strategy that you want to use. Test your visuals. There’s a lot of freedom here. If you just have one concern about a case, it’s much easier to run a one-hour or two-hour focus group than it is to
Elizabeth Larrick (09:12.526) put everything together for an in-person. Even if you wanted to do a short in-person focus group, you want to be able to make it longer to squeeze all that effort, that energy, and that money that you’re putting into it. It just doesn’t make sense to do a two-hour in-person unless you own the space and you’re willing to do whatever it takes to have those happen. And that is totally an option if you do. Naturally, people walk into a law firm to do a focus group, they’re immediately biased. They’re not gonna buy that it’s not your case.
There’s going to be other factors that roll into that. So let’s get back to our freedom and flexibility. And one thing that we mentioned earlier, which is the speed with which you can put these things together. And if you need one quickly, you’re at trial, you need one on a Saturday, your team could put that together, go in there, practice your opening or whatever it may be between trial or maybe you just really want to get that extra information before you go to that deposition. Or recently, ran a two-hour focus group for some folks.
And they went to deposition and lo and behold, the defense gave a whole new position on the case. And so they called me up and they said, okay, this is the one issue we need. Only thing we want to test. said, okay, let’s do one hour and let’s see what they think. And we can then put those things together, which that’s the other part about doing Zoom is you can do more than one on a case. You’re not going to break the bank by doing one Zoom focus group, right? You could break the bank by doing one in-person focus group or mock jury. And so
This episode really, I want to be able to have people open to the idea of using Zoom for your jury research, for your focus groups, because if you can get some clarity, some certainty about how people think, you can make better decisions in your case, make that decision about settling or trying the case, and or knowing what your number is. One of the episodes where I talked to a lawyer hit her first focus group, I got to do together with her Zoom focus group.
which was Brooke Rogan, and I’ll put the link in the show notes. She talked about the confidence that those focus groups, very simple focus groups gave her when she went into those depositions, take those last minute expert depositions, and to know what her number was and not back down from it. And she got it. They didn’t even have to go to trial. So there are a lot of extra values that come from doing Zoom focus groups. And being able to do these in-house,
Elizabeth Larrick (11:39.022) makes it a whole other amazing gem to add to your practice. And I will link in the show notes to the two blogs that I’ve recently put out on how to do your own virtual research. They’re long, that’s why there’s two, but you can catch those in the show notes as well. All right, I hope that this episode was helpful. I hope that if you’re on the fence, that now you feel better, maybe, okay, maybe I’m gonna try it out and go talk to somebody else.
plenty of episodes and I always talk to folks here on my podcast about if someone’s on the fence, what would you tell them? And the consensus overwhelmingly is so eye-opening what you can learn. And they’re so beneficial beyond what you even imagine what you’re going to get that you don’t want to go without doing them once you start. All right. Thank you so much for tuning into this episode. Don’t forget, you can catch it on YouTube. All right. Until next time, thank you.
In this episode of Trial Lawyer Prep, host Elizabeth Larrick presents a structured approach to mastering trial preparation. She emphasizes starting with a comprehensive review of your case file, scrutinizing key documents like depositions and expert reports to identify core issues in liability and damages. This initial step involves crafting two crucial lists to streamline your strategy: one for liability and one for damages, ensuring you are aware of potential pitfalls and ready to advocate effectively in the courtroom.
The second step is to evaluate your case through the lens of a juror, focusing on worst-case scenarios and simplifying complex issues into clear yes-or-no decisions. This perspective helps in assessing the risks and understanding what aspects need reinforcement. Finally, Elizabeth discusses strategies for fixing or neutralizing any identified weaknesses, whether by gathering additional evidence, reconsidering claims, or adjusting your trial strategy. By following these steps, trial lawyers can enhance their preparation, connect better with juries, and confidently navigate courtroom challenges.
In this episode, you will hear:
Importance of a comprehensive case file review
Crafting liability and damages lists to identify potential issues
Evaluating trial risks through a juror’s worst-case scenario lens
Techniques for fixing or neutralizing problematic issues
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:
Need that list of books to get your brain excited about trial prep? Go to Episode 134.
Episode Transcript:
Elizabeth Larrick (00:02.604) Hello, and welcome back to the podcast. I’m your host, Elizabeth Leric, and we are going to talk all things trial prep strategy, focus groups. But today’s episode, I want to talk about
zooming out to get our trial preparation started. And I know that it can be overwhelming and our brains can really kind of sometimes exaggerate things, we’re getting ready for trial prep and we can lose sight of things as well. So what I want to do is kind of walk through my process that I go through with folks thinking through a trial strategy. And it’s a three-step process. It can take a little bit of time, but I do think that this
will significantly help you in your trial preparation. So let me just jump right in because I know we don’t have a lot of time and I wanted to get you this information. Number one, the place where I always start when I’m gonna look at trial prep and zooming out to get the jury’s perspective is I have to start with doing an overview of the file. And that just includes reading kind of the main depositions, always starting with what was the last mediation statement?
and reading through those to see where the points were that we were making and then go through depositions, read through the medical records, just do an overview of some of those expert reports, but really go through kind of the file itself. And this can include focus groups if you’ve done those. If it’s not, that’s okay. But what you really want to be doing is when you’re making this overview of the file, what I normally do is I kind of have two lists.
Elizabeth Larrick (02:17.9) One is liability and one is damages. And I kind of list the issues or concerns. So let me give you some examples. Thinking through liability and looking through a file, I always want to know, is it really clear or are there any kind of blurry gray issues? For example, looking through a file that has a video recording of the crash or a partial view. That’s typically what we end up with as a partial view. And what does that view compare with what the
defendant’s deposition was? And does that make it really clear? Is there an issue? And so recently in looking through and helping a client get ready for trial preparation and looking at trying to put together some strategy for them, their position was it was abundantly clear. But when I watched the video and I looked at that testimony, there was a lot of gray area. It was kind of in the middle. There wasn’t a clear…
Yes, they were taking responsibility, but there wasn’t a clear no. You know, there wasn’t like a position here we could maybe polarize. So it’s really something gray in the middle. So I put that on our list for liability. And again, that’s kind of one of those things that we sometimes feel really confident about. We go back and look at it, think, that was kind of in the gray. So I’m going to put that down on my list of concerns. Going to our damages side again, thinking we’re making two different lists as we’re going through our overview of the file. You know, here, just looking at, so
Let’s look at that life care plan again. Let’s look at where my client is right now. Is that really matching up? And again, an example that I have here recently is life care plan projects a future surgery 20 years out. Yeah, but what’s happening right now with the client. So that may be one of those things that you list on there. Again, when we’re doing this overview of the file, we’re just looking at issues and concerns so that when we jump to, well, we’re doing this task. Let me not jump ahead.
When we’re doing this task, what you can find is sometimes you have really long lists and this really then kind of becomes like, okay, if I have this many issues, this many concerns, is this really a case that I need to try? Do I need to work a little bit harder for settlement? Or what you may find is, okay, I still have some work to do, but I feel pretty confident. And so when you have those lists after you’ve gone through the file, and again, this can take some time, an hour, two hours, it depends on how large the file is.
Elizabeth Larrick (04:34.372) that you’re going through, but making those lists is really helpful just going back through that file and get your fingers back in there because then the second step is basically looking at it through the lens of a juror. Now, what I want you to envision though is a worst case scenario, the worst day in court and having a juror look at this and say, it yes or is it no? Putting it in a very clear, is it black and is it white? Because what you want to do is you want to be able to know what is the worst risk that we have here and if going through
this trial and I have the worst day in court, what is that juror going to say? Are they going to look at this issue and say like, no, that liability? No, that’s not with you. Or they’re going to say, yes, yes. So you really want to be into a place where you’re looking at it through the eyes of the jury in a worst case scenario. Because really, in reality, jurors are forced into really confusing jury questions that seem extremely black and white, right? We’ve got a lot of wording like occurrence in question and proximate cause.
And so really sometimes it does just come down to like a vote of yes or no. And you also want in this process to remove any bravado, any thoughts that, my closing is going to sway people or cross exam will add on this point, like, no, I really want you to put this into a vacuum to say yes or no. Based on the testimony, based on the evidence, do I get a yes or a no on this issue? And then sometimes you just go back and rank it, meaning like, where does this really, how detrimental would this really be in the file?
Some of them are small, they’re just small things and that’s okay. So then you look at, okay, so if I have a yes or a no on these issues, going to my no’s, are there things that I can fix or there are ways to neutralize this if it is an issue that you know is gonna be detrimental? And so then you kind of make a list like, okay, how are ways we can fix or neutralize this? Maybe we need to go find more before and afters. Maybe we need to go back to our client and get more answers, more understanding.
Maybe we need to go take a deposition and shore up that position of the police and the police report to clarify testimony, go back to that treating doctor to get them to really give you something concrete so that you can feel good. Okay, we’ve put that issue aside. Maybe it’s you actually need to drop a claim altogether to just avoid that evidence coming in altogether. Maybe it’s just you’ve got a really low number on lost wages, and it’s gonna drag things down. Or maybe it just…
Elizabeth Larrick (06:59.11) they really didn’t miss too much of work. So maybe we need to go and drop that again to make things clear and keep your eye on the prize. Sometimes we have claims we put in and the evidence is kind of wishy-washy. Thinking about here in Texas, we have gross negligence. Some of you all have the same thing where you may be just under a different name, where there’s kind clear and convincing evidence that somebody went ahead and did some action that clearly would have jeopardized and put people in danger.
that’s kind of a hard burden you really need to look at, like, what is our judge going to think and what is the information we have? And again, kind of going back to the example I mentioned earlier, a case where there’s a crash, it’s partially on video, and we have a very wishy-washy position from the defendant. Now, from one perspective of the lawyer was, this is gross. We’ve got it. It’s clear from the testimony. But in reading it and taking our juror of our worst case scenario, it was like, no, you don’t have this. So do we need to keep it in there?
Is it going to cause more confusion or just do we need to drop it? Another thing is to, okay, we have this thing, do we need to take a real strong stance in opening or in jury selection and develop some questions for what year? Maybe there’s an opportunity to do emotion and limiting on some of these things. And maybe it just needs a clear timeline. Like some of these issues can be resolved with just a little more work and some of them are going to be major and really cause you some pause about whether to go or trial.
or not. And that’s part of trial prep. And so when I encourage you all to do this three-step process when you’re far enough out that you have time to do emotion and limiting, you have time to take that extra deposition if you need to go get those folks, those before and afters, or you have time if you need to just turn the ship and do settlement discussions instead. And again, that’s all kind of part of trial prep and making sure. this is an easy three-step process. It is simple.
on purpose is time consuming, yes, but putting things in this vacuum and looking at it from the jurors perspective really will help you figure out, okay, is this a yes or no? And then how can I fix or neutralize this? And then maybe I just need to go back to the drawing board and talk about settlement again. So wrapping this whole episode up by using our jurors lens, right? Our worst case scenario juror, you can better assess the risk and also the amount of work that is needed. And
Elizabeth Larrick (09:21.466) If you do this far enough out, you can really kind of look at what is a strategy that will work best. We talked a little bit about some books that you could read to kind of get your mind going and excited about trial strategy. That was our last episode and I will link to it in the show notes because there are some really great places out there for polarizing people’s positions, defense positions. There are some really great
medical illustrationists, there are some good timeline, there are things that can be done with what you have left on your list of concerns that can really be helpful. And sometimes with enough time, you you can easily overcome it and get really excited again about going to trial. Okay, I hope this episode was helpful. Again, thinking about zooming out to get your trial preparation and a easy three steps. Number one, do that overview, make those two lists.
liability and damages, list of concerns or worries. And then number two, taking those lists and putting them through that worst case scenario juror of a yes or a no on those issues. And then finally, can we fix or neutralize these issues knowing that they may be a no for our worst case scenario jurors. All right. Thank you so much for tuning in. This concludes our episode. If you enjoy it, please rate or review on your favorite platform. And if you want to hear more from me,
Join the email list, trial lawyer prep newsletter. The link for that will also be in the show notes. And this episode will also be airing on YouTube if you would rather have a video. Thanks so much.
On this episode of Trial Lawyer Prep, Elizabeth Larrick shares strategies for trial lawyers to develop a winning legal approach from the start of litigation. Drawing from her experience with renowned trial lawyer Don Keenan, Elizabeth explains the dangers of last-minute strategy planning and the confusion that can arise from disorganized opening statements. She emphasizes the need for a clear and cohesive presentation to effectively communicate with juries.
Elizabeth shares practical methods to kickstart your trial preparation, including the use of jury research and focus groups, and highlights the benefits of committing to a single persuasive strategy. Discover actionable steps such as writing down ideas, dedicating focused time for evaluation, and seeking inspiration from trial strategy literature or podcasts.
In this episode, you will hear:
Importance of early trial strategy development to avoid procrastination pitfalls.
Risks of a disorganized “Frankenstein” approach and cramming strategies into opening statements.
Value of committing to a single, coherent persuasion method for trial success.
Utilization of jury research and focus groups to test and refine trial strategies.
Actionable steps for trial preparation: writing ideas down, setting time blocks, and seeking inspiration.
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:
Jump to Episode 131 to get an overview of trial strategy.
[00:00:00] Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world.
Understand the emotional burden of your clients and juries and use focus groups in this process. Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom.
Now, here’s Elizabeth. Hello, and welcome to the podcast trial lawyer prep, or welcome back if you’re a continued listener and thanks for doing that. I’m your host, Elizabeth Larrick, and today we are going to dive into trial strategy and how to [00:01:00] not procrastinate, why your trial strategy should not be an afterthought.
And we have talked a little bit about trial strategy this year already. If you missed that episode, it’s 1 31. What is trial strategy? What it is not. It’s great conversation, quickly overview about what trial strategy is. And if you missed last episode, please scroll back and listen to that one. We had a wonderful guest, Dina Cataldo, talking about time management and mindset for trial lawyers.
Very helpful, easy, small things we can do to help manage our time a little better, which actually fits pretty well with what we are doing here today because lawyers. You all are just really busy folks. We have lots of files in our offices. We have many things that are going to trial or preparing for those mediations.
And so when that happens, we can let that strategy piece kind of slide down [00:02:00] the priority list and it’s easy to do. And I don’t think that we are lazy people at all. I just think that sometimes these larger pieces of a trial, the strategy Thinking through some of the bigger pieces of persuasion can go by the wayside because we get inundated with what I call busy work.
We have that list of designations we need to do in trade and think about the witnesses and making sure the schedule works and then also finishing up those motions in limine, maybe even getting ready for those last minute hearings on motions for summary judgments or excluding experts. So there’s a lot of busy work that can really lead up to that trial date, including the ever looming settlement talks.
So it’s very easy for this trial strategy piece to kind of slide down that priority list. And I really want to just talk about. When we can start doing this and ways to make it [00:03:00] easier, but before we get there, we have to kind of talk about what actually happens sometimes when we do let it slide down that priority list and little procrastination may creep in.
Hey, it’s okay. I totally understand. I was there. I helped people who were there. That’s why we have our trial strategy call is to help people who may be in that place. What ends up happening? What I see when we do kind of our focus groups and getting people ready is a big pile of any kind of strategy is kind of crammed into that opening statement and into those jury selection questions without a lot of order.
And so it really becomes very confusing. So you may have somebody who is writing an opening statement and they’re using rules of the road and they’re trying to retrofit in some of the reptile stuff. And then they’re trying to fit in some sorry to Lamont and some trial by human. And when you just put it all in there, it becomes such a confusing mess [00:04:00] for the jury to try to untangle.
And confusion is our enemy 100%. You know, we get to go first as plaintiffs. We really have to be very clear about our organization and how we’re going to present things to the jury. Because if we don’t. The jury then has to use their own organization, and you won’t know what that is until the end of trial, because they’re trying to carry all this information, and without having a prioritization, what is most important, what is not, without having a clear framework from you as the leader, right, as the teacher in the courtroom, it can, things can get lost and completely forgotten, even though they may be the most important thing in your case.
So that really kind of becomes, you know, a machination of just piecing it together, what works, what doesn’t, you know, hey, maybe this will, we’ll try this here, we’ll try this there, uh, really kind of creating a Frankenstein, if you will, of [00:05:00] trial strategy. And that’s really what you want to avoid 100 percent is it just allows too many places where there may be holes.
Right. Jury is going to fill in what they think versus what may be the actual truth. And it really becomes difficult for you to then follow through with what organization you may have put out there. And what ends up, I do see happening is people basically. Different cross exam styles for different witnesses.
And so again, that still creates a confusing message for the jury. They’re trying to put it all together. You know, they’re trying to see the whole thing and you’d want to create, again, a clear picture for them to follow and understand. And that is why when we wait to make an afterthought and we try to throw, you know, everything in the kitchen sink at it, it really becomes harder for you as the communicator as well.
You want to do an amazing presentation, be a clear communicator, you know, be very passionate about what you’re saying, but if you’re [00:06:00] trying to cram so much stuff into like a small space of an opening statement, it’s really difficult for you to even remotely try to memorize even the organization of that.
So let’s make it easier on you as well. Okay, I want it to be easy for the jury and I want it to be easy for you as well. And so we know the trouble of waiting, right? It causes lots of problems and disorganization and unclear communication, uh, piecemeal, putting things together. So let’s talk about really then, when do you start looking at trial strategy?
And one of the things that I learned when I was doing trials, uh, with Mr. Keenan, Don Keenan, was learning just a very loose framework of starting at the beginning of litigation and knowing that you have the facts, you don’t necessarily have how depo testimony is going to go. But you begin to look and at least ask questions from the beginning of, Ooh, what are the strong points here?
And then [00:07:00] making kind of a plan even just to follow it through even a little in deposition to figure out You know, what maybe are the rules or the safety rules, if you’re going to use rules of the road, what are some polarization points or what are some strong principles in your case? But just looking at it from the very beginning and making a few notes right when you are starting litigation, right when you’re filing it, you’re getting that discovery ready to just really see where.
The strategy may be, where’s that overall organizational plan for laying this out, if you had to with a jury. That doesn’t have to be the whole thing, but I think when you have a, even just a rough idea early on, and then when you pick that file up again. And you see those notes and you say, Oh, okay, great.
Well, I’m getting ready for depo prep. Let me just put in a couple questions here and there to see if this is going to hit, right? If this is going to be something that actually works well based on what the testimony ends up being. And [00:08:00] then you’re just doing a little bite at the apple each way. And I also love hearing about folks, my good friend, Courtney, who likes to basically kind of pick a file in her.
Caseload and say, okay, this one, I am going to 100% try this particular strategy. I know that we have this piece of evidence in the case, and so I’m gonna pick this strategy and I’m gonna just go with it. I’m gonna go all in. I’m not gonna try and confuse it and just to try it out as well. You know, we have so many different available thoughts and strategies.
And as we are, we try to again, machinate kind of make her a little Frankenstein and like that doesn’t really always work. So I loved her idea. She talked to me about that here recently, and they basically took a case and put it 100 percent through a particular strategy, if you will, or way of persuasion organization is probably the better word to use.
And it really helped her work [00:09:00] through from start to beginning, not waiting until she’s sitting at trial or not waiting 30 days out. Okay, here’s this case. How do I retrofit it into this? I’m really taking on one particular road map or. You know, rules the road, like I said, and going through the whole way.
And the other thing, of course, is to test it out in jury research, right? Do those focus groups to see if, hey, does this ring for them? Does this make it clear for them? Does this communicate the way that I want? Is it persuasive, right? So, and again, if you have the ability to start early, Knowing, hey, this is going to be one that’s probably likely to be teed up for trial.
Not every case I understand is going to be 100 percent guaranteed trial. We all know that, but I think having a little bit of 30 minutes, 15 minutes, hey, you know what, this looks like it might line up really well with, you know, rules of the road or with doing a road map. And so how can I kind of start to [00:10:00] test that out in my depositions, and then of course use it and take it over to the focus group to see if that actually rang true for them.
And, you know, getting started early always makes things a little bit easier, doing it a little bit along the way, and having that written down also significantly just reminds you, right, when you pick that file back up. So I know it can be hard to kickstart to get us. away from procrastinating and make time to do this trial strategy, this organization.
And so I have three ways that I like to do it. They’re all a little different depending on what’s happening or what kind of file it is. And so number one, I think is to really sit down and write it out. type it out. That really helps me commit to what’s in my mind and getting it out on paper or getting it out, typing it out as well.
And I even take that next step of printing it out and going back over it at another time. So I always like to start out early enough where there can be times where I’m thinking through [00:11:00] it or printing it and coming back to it the next week, whether I’m getting ready to do a CLEs. Speaking spot, whether I’m getting ready to do a focus group presentation or helping somebody with their opening statement, I think having it written down, having it typed out is much, much better than just like free flowing thought in your head.
The second thing I would advise is just do a time block, you know, have at least one hour that you set aside, nothing else you’re going to do and just think about the evidence Think about trial and, you know, really if you want to write it down at that point, you can, but I, I always found that it was unusual at the time, but now I understood more as we did.
Again, when I worked with Mr. Keenan, he would actually spend a lot of time just visualizing the trial, thinking through the evidence that was available, even just looking through Transcripts of the focus group or was significant and just getting the ball rolling like [00:12:00] kickstarting. Like, oh, yeah, someone said that.
Oh, yeah, that’s a great spot. So I always enjoy just it’s almost like research, just getting back into the file for an hour, looking at stuff, thinking through it and then, of course, you know, making a note of it so that we don’t forget it for when we pick it back up again. Last thing that I would advise to kind of kickstart your trial strategy ideas and organization for a case is just to pick up a book, right?
Pick up Damages 3. Pick up Trial by Human. Go back to Rules of the Road. Pick up Sorry, De La Motte. Like, there are so many amazing books that are out there that just get your mind started thinking about it. And that’s really sometimes the best place for me is when I am reading a book in the morning. It may not be related at all to trial strategy, but.
It may be spark an idea and then I have to immediately write it down otherwise it’s lost. So again, three ways to kind of kickstart your trial strategy. One, sit down and just start writing it out. Super helpful. I know people always say, well, I don’t have time to [00:13:00] write it. Type it out. That’s fine too.
Print it out. Have something that you can put in your hands and go over later. Number two is just use that time block schedule. Block yourself an hour. Make sure you’re going through things and thinking about and visualizing, but blocking that time, devoted time to do nothing but think about that case is significantly helpful.
And number three, pick up a book, right? Or even listen to a podcast. There are so many great podcasts out there where people are either talking about their trial that they just recently won or Talking about picking a jury or, you know, strategies for figuring out principles, lots of great lawyer podcasts that can kind of get you kickstarted, get that creativity going as best as possible.
So in just a quick recap, all right, so number one, please don’t wait. Don’t make trial strategy and afterthought because if not, you’re going to be just picking up the puzzle pieces to see where they fit and hoping that it comes together instead of just knowing that it [00:14:00] will. And of course, knowing when to start, which is as early as you can, think about when you’re filing that litigation, making some notes.
So when you pick the file back up, you can say, how can I thread in some questions and deposition to see if this strategy is going to line up? Or if it’s not, of course, also working in some jury research to help know that you’re hitting the right button. And then of course, our last one, which was three ways to kickstart our ideas for our trial strategy and get you excited.
Okay. Well, I hope that this podcast episode was helpful to you. If you enjoyed it, please like review. We haven’t had a review in a while, so please follow the podcasts and just give us a good review out there. And of course, if you have any questions, any concerns, or want to learn more, just check in those show notes for the website and the email.
All right. Thanks so [00:15:00] much.
Episode Credits
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Explore practical time management and mindset strategies tailored for trial lawyers with expert insights from lawyer coach Dina Cataldo. In this episode, Dina shares her journey from criminal prosecutor to coach, offering actionable advice to manage stress, prioritize tasks, and overcome negative thoughts. Discover how small habit changes can lead to significant improvements in your legal practice and personal life.
Elizabeth and Dina address the unique challenges female attorneys face, balancing demanding careers with personal responsibilities, and provide strategies to enhance daily productivity and instill confidence. Learn how structured planning and healthy routines can conserve energy and reduce stress, essential skills for the fast-paced world of trial law.
Dina reveals methods like “Sunday planning” and setting time limits for tasks to streamline workflow and improve efficiency. Understand the importance of addressing internal resistance and fostering a healthy relationship with time for professional growth.
In this episode, you will hear:
Time management strategies tailored for trial lawyers.
Importance of mindset in enhancing courtroom performance and managing stress.
Techniques for optimizing energy levels and reducing daily frustrations.
Structured planning methods, including “Sunday planning” and setting time limits for tasks.
Addressing internal resistance and developing a healthy relationship with time.
Emphasis on self-care and prioritizing personal goals alongside professional duties.
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Elizabeth: Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a treat today. We have a wonderful lawyer coach who’s going to talk us about time management. So Dina Cataldo,
Dina: thank you so much for joining. Thanks so much for having me on your [00:01:00] podcast, Elizabeth. I’m really excited for our conversation.
Elizabeth: I am too, because I know that I am going to learn some things about managing my time that I did not know, but you know, I. Here’s the thing, and I know that folks who are listening, our trial lawyers in the audience, like, we all want to be more productive with our time, and we all struggle with having too many things to do with our time.
Elizabeth: So I thought you would be an excellent person to come tell us about how we can be better. And, you know, just help us maybe solve some even small things that can make a big impact.
Dina: Oh my gosh, of course, and it’s my pleasure to do it. This is what I do all day, every day with lawyers. So I love talking about this topic.
Elizabeth: Awesome. Well, and let’s talk, I would love for folks to know just a little bit more about like, what does it mean to be a lawyer coach? Because I obviously totally love having an outside perspective. That’s one thing I love to do for my lawyers when I work with them with focus groups. But tell us a little bit about what does that really mean to be a lawyer
Dina: coach?
Dina: Well, I was a criminal [00:02:00] prosecutor for about 16 years. And what I discovered was that coaching was something that could change my entire outlook. It changed my entire experience of the work that I did. And for me, coaching is really understanding my mind at the highest level, at being able to self manage, at being able to self regulate so that I can not procrastinate on all of the things that my brain tells me I should be procrastinating on.
Dina: Or if I am doing things that aren’t serving me, that I recognize it and I change gears and I do something differently. And what I know as Myself, like I call myself a lawyer coach because I’m a lawyer and by trade, right, by training, and I only coach lawyers. Like I specifically just coach lawyers because I think that there’s a very specific type of person who enters the legal profession.
Dina: And [00:03:00] I can relate to that person because I am that person. And so, you know, the things that I have learned the hard way and the things that I teach my clients the easier way. Are things that I think that every single lawyer needs to know to really function at their highest level in the legal industry.
Dina: And I know that the people listening are high achievers. They would not be in trial practice unless they wanted to be amazing at the work that they did. And there’s no way for us to really be at our best unless we are managing ourselves, managing our time effectively.
Elizabeth: Absolutely. And there is an endless list.
Elizabeth: It never ends with the things that we have to take care of and the files that we have. But, you know, we always, it’s, you nailed it, like, especially, you know, personal injury lawyers, like, we have to keep that wheel going. And sometimes it’s just like, oh, wow. Things just fall through the cracks or by the [00:04:00] wayside.
Elizabeth: And so I’m really interested to hear, you know, a little bit more, but I’m curious before we go a little further, because there are some people who have coaches that it’s like a done for you. If you know what I mean? Like I’m going to do this for you. And some people are like consulting. Well, yeah, I mean, I think the line can get a little blurred where sometimes it is consulting.
Elizabeth: Sometimes it’s coaching. So some people, it’s like a done with you, somebody has it done for you. So tell us a little about like how you like to work with lawyers. Well, I don’t do the planning for them, right?
Dina: I mean, we’re really working at. I mean, let’s take it even a step back. Like, let’s really talk about what mindset is because we have about 60, 000 thoughts a day, and most of them are on repeat. And most of those thoughts are really crappy. There are thoughts like, I have so much to do. This is so hard. I don’t know where to start.
Dina: This is just the worst. And when we’re [00:05:00] thinking in that kind of a mindset, even if it’s unconscious, Especially if it’s unconscious, it is going to have a negative impact on our practice. We’re going to feel lots of overwhelm. We’re going to feel a lot of pressure and anxiety. And what ends up happening is we start to act at the effect of the world around us.
Dina: So we think the reason that we feel bad is because there’s a dozen cases in our inbox. We think the reason that we feel bad is because there’s a million emails in the inbox. We think the reason that we feel bad is because our assistant isn’t doing what we told them to do for a millionth time, right?
Dina: Yeah, but what’s really happening is that we’re not managing ourselves to see how we’re impacting what’s going on, whether it is the negative performance of an employee, which may surprise people listening that if you’re not training your assistant and telling them exactly what you want and having it in writing and giving them something like an S.
Dina: O. P. In order to follow it, probably not going to do it the way you want them to. Right. And that’s something that, you know, [00:06:00] so many of us put to the wayside because we’re in this hurry, this constant rush to get things done. Okay. I got to jump into the work. I’ve got to answer this email. I’ve got to answer this call.
Dina: I’ve got to do these things. So we’re constantly, if we’re at the mercy of these unconscious thoughts, most of them that are running through our brain. We’re just reactive all day long. We’re just jumping from phone call to email to person walking in the door. And we’re feeling hectic inside. We’re not managing ourselves and we’re unable to manage ourselves simply because we don’t have the awareness of what’s going on in our brain.
Dina: Right? So a lot of the work I talk about is time management, right? So I work with. you know, people privately. And then I also have a program specifically around time piece and helping lawyers like really calm their overwhelm and plan and all that. But we’re talking mindset all the time because it’s not about the calendar.
Dina: It’s not even about your work that you put on the [00:07:00] calendar. It’s about how you are thinking about your work. It’s about how you’re thinking about your ability to manage the work. It’s how you’re thinking about yourself and what you’re making it mean. If you don’t do the work, if you don’t enter your billing, if you don’t do those kinds of things, right?
Dina: And that has a tremendous impact, negative impact. If you’re thinking a lot of the thoughts that a lot of lawyers I work with initially come to me thinking, right? So I have this. analogy of, think about a firefighter, right? They go up to a house and it’s on fire, right? And there’s a lot of options of thoughts they could be thinking about this house on fire, right?
Dina: One set of thoughts is, oh my gosh, the house is on fire. Another is, this is so bad. Or another is, oh my gosh, if I go inside, I could get hurt. I could die, right? And if they focus on those thoughts, that mindset, They’re going to run in the opposite direction.
Elizabeth: Yeah.
Dina: But a firefighter is [00:08:00] really trained to have a different kind of mindset and it takes practice, right?
Dina: We can’t just like. Think there’s no place like home and suddenly we’re in Kansas. We actually have to practice this. And so a firefighter, they go through specialized training to get experience going into these high stress environments. And so when they look at a fire, it’s not that they’re not thinking, Oh, the house is on fire.
Dina: They’re not, they’re thinking that, but they’re also thinking I can do this. I can figure this out. I can help them. Let’s take this one step at a time. And so they are consciously using mindset to calm their nervous system down. So they’re not feeling overwhelmed. They’re not feeling anxiety or pressure or stress going into a situation.
Dina: A lot of people would just call is innately high stress, kind of like a trial. So if this firefighter is not consciously managing [00:09:00] their mind, they are going to be in a high stress position. They’re going to have this heightened state and they are not going to think clearly. They’re not going to be able to perform.
Dina: There’s a higher likelihood that they’re going to get hurt. There’s a higher likelihood that the person inside if there’s someone inside is not going to make it. Right. So if you are going into trial thinking that a trial is just an innately hard thing that is just got to be stressful and it’s got to be really tough and you don’t really want to go, I don’t want to go and all the things right.
Dina: It’s going to be harder and it’s going to increase problems that are going to happen in a trial regardless, like if you’re not paying attention, there’s going to be evidentiary issues. There’s going to be all kinds of things. And if you’re not managing your mind, you’re not going to see them. And if they happen, you’re going to be more reactionary and you’re not going to think about the consequences of whatever decision you make in the moment.
Elizabeth: So it’s obviously, I mean, you know, very [00:10:00] much a building block of, we’ve got to figure out from the very start, get go, get thinking on the right track. It’s not just, Hey, here’s a calendar, fill it up blocks in time. Like not how it works, you’ll just go back and make the same mistake again. It’s like, I’m sure you’ve read somewhere where people tell you, you know, Dina, I’ve bought all these planners and none of them work.
Dina: Oh, yeah. And now they have these things where there’s AI and you can, if you just type your work in, it’ll pop out a schedule for you. And I’m like, yeah, whatever. So those kinds of things are out there and we’re so desperate in our society to feel some control around our time. But the interesting thing is that we’re looking for something outside of us to control the time for us.
Dina: I’ve had so many lawyers tell me, I wish I just had a secretary who just would tell me what to do. I’m like, that is the opposite of control. That is the opposite of taking charge of your practice. And it’s just so fascinating that when we don’t have the tools that we just hope [00:11:00] somebody else will take care of it for us.
Elizabeth: Yeah, it’s true. And I think, you know, we do hard things. Lawyers do really hard things. And sometimes it’s just when we have this. overwhelm, frustration, things fall through the track, you know, you’re not having some news helping you that need help. Like you do sometimes just like, oh, you know, throw up your hands and just like, I wish somebody else would do this when it’s like, well, it’s really this really kind of small few things.
Elizabeth: And then it’s really makes it a lot easier.
Dina: Yeah. I mean, I saw that with my own trial practice and this was something I learned late in my trial practice because there was nobody at my office who have these kinds of skills. Nobody had heard about a coach. I mean, it’s kind of like this vague thing. It’s like, like, what do you do exactly as a coach?
Dina: What do you cheer me on? You know, it’s like, no, but it’s interesting because. A lot of the lawyers I worked with, they overworked themselves. A lot of them you could tell were unhealthy because they were not putting time into their health. [00:12:00] And for those who were, I mean, they always had someone in the background kind of taking care of the world.
Dina: Like you could see this with a lot of male attorneys, you know, it’s like, Oh, okay. Your wife takes care of everything. You just do trials like, Oh, okay. So they can take care of themselves, but I think female attorneys are in this unique position because not only are you doing your trial work, but you’re also expected to do other things, right?
Dina: You might be able to ask for help, but at the same time, you are in charge of transporting people or I don’t have kids, but I saw this with other trial attorneys, they had their own responsibilities. I had other responsibilities that were outside of that, but it was just really interesting to watch the attorneys.
Dina: And they’re not all men attorneys have it all together, but there were the very few that I saw were usually men who had like somebody else helping them like in a large capacity. But when I learned later in my [00:13:00] trial career is that the stress that I felt in my trials early on didn’t have to be that way if I planned.
Dina: And I was like, wait a minute, what? And I didn’t jump into planning right away. I really took it really small. Like I took small steps for myself. So can I just offer some of that for people listening just to take like a small step for themselves? Yeah, absolutely. So for me, I started with the baby step of my morning routine because I hated how I felt in the morning.
Dina: So I didn’t really think I had any control over it for a long time. I just thought, Oh, this is just what it is. This is my day. I just get up and I run and I go and I all the things and I’m already rushed. But then I started to just notice how I felt. It was just one morning. I just. felt so rushed and I just decided, I don’t like feeling this way.
Dina: I just don’t like it. And so I said, well, what can I do about it? And so I think that was the only, or the first time that I ever really said that to myself, which is what [00:14:00] can I do about it? Like, it doesn’t just have to be this way. And I said, well, I guess I could wake up a little earlier. And so I started playing with the idea of, okay, what does it look like from, what do I want my morning routine to look like?
Dina: Do I want to have a cup of coffee? Do I want to be able to sit and, you know, journal? What do I want? I never asked myself those questions. So when I just asked myself this about my mornings, then I started to make a shift. But what I noticed is that shift didn’t happen overnight because what happened is the next morning, I still woke up late.
Dina: I still picked up the phone and, you know, hit snooze a dozen times. I still scrolled. I still did all the same habits. And I was like, well, gosh, like why, why? Am I not? And I think that was the first time I didn’t beat myself up for not doing what I said I would do. I think it’s the first time I just got curious.
Dina: And I think that’s where we really hit a block when we’re trying to create a new habit, is we beat ourselves up for not doing it differently because we tell ourselves, well, I should know better, [00:15:00] versus just getting curious, like, why not? And so then I discovered, well, you know, I didn’t sleep very well because I stayed up the night before and, you know, I had coffee late, you know, in the afternoon and so I could then analyze it like it was a science project and not make it mean anything about me.
Dina: And so then I started to really have this routine and I could see, oh, I can’t leave my phone in the room. I have to put it in the other room because otherwise I’ll just stay in bed, right? So it’s those kinds of things that. When we start to make progress on just one little thing, one little habit. In our life, we begin to get more confidence that we have more power, that we have more control over our life, that we don’t have to be at the mercy of what time, you know, court starts.
Dina: We don’t have to be at the mercy of whatever else we think we’re at the mercy of. We can take charge of our life.
Elizabeth: Absolutely. And I think having just thinking about being curious and [00:16:00] also just starting with something as simple as what time you wake up in the morning. And so many times, I’m sure you’ve probably heard this again, but that people will say, well, I tried to mirror, like, you know, name some highly productive person or multimillionaire and it just didn’t work.
Elizabeth: And I’m like, well, you know, cause when you try to force such a giant change, it really makes it really impossible, but. It’s so funny. We are highly evolved creatures. We, especially, you know, going to law school, we get all this training and like, it’s just sometimes super simple just to trick your body and just like put the phone in another room.
Elizabeth: Yeah. You know, they shiny object syndrome. I mean, that’s basically one of the first things I did when I was like, okay, what’s distracting me. It’s. this thing, it’s going in the other room. So if I really wanted it, I would have to get up and go and just that little thing. I was like, I didn’t do it. So it’s really sometimes such small things that you can experiment with to figure out like what’s going to make you feel even just [00:17:00] a little bit better.
Elizabeth: You know, using your time to do something other than rush out the door or immediately get to
Dina: work. Yeah, and I think a question to ask, like it’s good for all of us to ask this question is where do I feel frustrated, right? Where am I frustrated throughout my day? Am I frustrated when it’s 11 30 and I don’t have any food in my office and I end up going and getting some garbage food across the street, right?
Dina: Does that frustrate me? And then ask yourself, well, what do I want to do about it? And so that might mean that, okay, well, maybe I create a plan where I get some healthier foods and I just stock them in the fridge. You know, it’s just those little questions we can ask ourselves and reduce the frustrations throughout our day.
Dina: Because if you think about it. We’re batteries, right? But we have finite amounts of energy throughout the day. So if you start a day fully charged with a lot of lawyers, a lot of us don’t start fully charged, right? But if you did [00:18:00] start fully charged, by the end of the day, you’ve made a million decisions.
Dina: You have done a lot of work and your battery is depleted, which is why when you get home, you feel so exhausted. But what people don’t know is that our emotions can be very big power drains. So when we feel overwhelmed, when we feel anxiety, when we feel frustration and stress, it’s like Putting your phone in the freezer, it like zaps all of the energy from your phone.
Dina: If you’ve ever brought your phone up to the mountains and you’re like, why is my phone dead? It’s like, it’s because it’s been zapped of its power. So the emotions, when we get into those kinds of emotions, they can drain us. So if you start to reduce your frustrations, you’re going to find that the less frustrated you are throughout the day, you’re going to get just like a little bit of energy.
Dina: You’ll have a little less in the middle of the day. Oh my gosh, why didn’t I think about this and this? You’ll have thought about it. You’ll have taken care of it.
Elizabeth: Absolutely. And I [00:19:00] think, you know, you mentioned earlier about just like having a trial docket and learning how to plan that. And that’s one of the things that is really hard as a newbie or even even 10 years out.
Elizabeth: Nobody really tells you that. And that’s one of the biggest things that I gathered when I went off and I did my fellowship with. Don Keenan was, we did three major trials, but we did them all the same planning. And so it was like, Oh, like there was a lot of like relief of knowing, Oh, okay. There was delegation.
Elizabeth: There was. Planned out time, you knew what time things were going to happen, and so even though trials can be so chaotic, we had a plan to know, okay, this for sure is what’s happening, and that’s the same thing that can happen any day of trial, you know, of having or being a litigation lawyer is that every day somebody, like you said, could walk in the door with something different, or there’s a fire that has to be put out that day, and it is those little things of like, well, let me just plan for what I know I have to do every day, which is eat.
Elizabeth: Mm Yeah, and what I [00:20:00] know will drain me and I feel like sometimes we’ve Until you kind of start to experiment with like, Oh, why don’t I block just a, you know, 30 minutes after that hearing, even if I know that drive is only going to take 15 minutes, maybe you can just decompress for 10 minutes or, you know, having that set list of groceries that no matter what happens, you’re always going to buy, you know, carrots, hummus, and like something else that’s good for you, no matter what.
Elizabeth: And so there’s so many little things that to experiment with. And I feel like sleep and food. Yeah.
Dina: Top of the list.
Elizabeth: Yes. Yeah. To manage that energy and, you know, to really just kind of check in and say like, wow, I am exhausted. Why did I plan to have, you know, back to back hearings and meetings with people when I knew I was going to use all my brain power in that hearing?
Dina: Yeah. And I think that really comes to a point where you mentioned about. giving yourself a little time to decompress. And one of the things I see with lawyers, we [00:21:00] tend to like to squish things in our day. So we’re like, Oh, I’ve got an extra five minutes here. Let me put this 20 minute project in that five minutes.
Dina: I can definitely make some progress on it. And so we’re just like mushing stuff into our day, thinking that we should be able to get it all done. But what I want to offer is that giving yourself. A little bit of decompression time between projects, between meetings makes a world of difference. I had a client who was just having back to back consults and she was noticing she was forgetting writing notes.
Dina: She wasn’t, you know, doing things and I’m like, okay, let’s talk this through. And so she realized, oh, hey, I’m not giving myself any space between these meetings. I don’t want to have so many meetings in one day. I want to have those delegated or. Designated for specific days during the week, instead of just kind of letting my assistant hodgepodge them throughout the week, like let me decide where I want to have these sessions.
Dina: So then I give myself the space that I need. And [00:22:00] then she started doing that with her whole calendar and she started recognizing that her billing went up, that she felt more energized at the end of the day. She was taking better care of herself because she had those moments to take a breath, get organized, and then she could move into the next task.
Elizabeth: Yes. I feel like sometimes just even like remembering, like, you’re going to have to use the restroom at some point.
Dina: Like, leave space. Yeah. Please leave space because there are some people that I’ve talked to who do not use the restroom or I, before they worked with me, I think they didn’t use the restroom because they were like, I’ve got to build this.
Dina: So just give yourself the grace. You deserve to be treated like a human and not a robot. Need bathroom breaks.
Elizabeth: Yes. And eating breakfast and eating lunch and not skipping a meal. It always, you know, I know for trial lawyers, it’s, and I’m sure you probably had this too, like you just get so nervous you can’t even eat anything more than, you know, like a granola bar.
Elizabeth: Mm-hmm . But it’s just mm-hmm . The more you play with like the energy [00:23:00] intake and all that kind of stuff, the more you realize, like, okay, I may not feel like it, but I got to overcome whatever the stress is happening in my brain. And I know my body needs this.
Dina: Yeah. I mean, if you think about a marathon runner, they may not feel like eating, but you bet they’re eating.
Dina: Right. I actually learned this late in my practice too, which is I need to have a meal. And it needs to be something like it doesn’t have to be a rich meal or anything like that, but it needs to be something like a salad and some protein because protein is energy. And if I don’t have that energy in the second half of the day, my performance is going to wane.
Dina: So same thing with a runner. They’re paying attention to what is their food intake? How are they sleeping? Like what they need to pay attention to those things. So when we start to think of our performance as reliant upon the input, the fuel that we give ourselves, it makes it a little bit easier to say, okay, I may not feel like eating, but having this bit of protein is going to help me in the second half of the day.
Elizabeth: Absolutely. And don’t get me started on protein. We could probably do a whole episode [00:24:00] on eating protein. You know, as a building block of energy and, you know, keeping us all going. So, so let’s talk a little bit about, okay. So we talked about the core, you know, block of everything, which is getting your mindset straight.
Elizabeth: And I know you’re not going to make a schedule for us, but tell us a little bit more about like what it means, like, as far as, you know, I think you mentioned time piece, like tell us a little bit more about kind of what you do.
Dina: Yeah. So I mean, there’s basically, it’s very simple to manage your time. I will share them with your audience.
Dina: Like it’s, that’s not a problem. It’s a beautiful thing, but that’s not where the problem comes in. The problem comes in with implementing, which is where I come in, but I will share exactly the steps to manage your time. Do you want to hear them? Of course. Okay. No.
Elizabeth: Okay.
Dina: So, so basically you start with, you know, you’ve got a bunch to do, right?
Dina: You’ve got your different things in your emails. You know, there’s different people who, [00:25:00] you know, things on your voicemail, you’ve got things in your inbox. Okay. You’ve got probably appointments on your calendar. That’s usually what lawyers use their calendar for is just the appointments. Maybe they put deadlines on there.
Dina: That’s it. What they don’t do is think about their whole week, right? And they don’t think about it in a way that allows them to think, what can I delegate? What is the most important thing for me to do? What can I take off my to do list this week? What can be put off to another time? We can’t even think about those things until we think consciously about the things that we need to do.
Dina: A lot of lawyers have a to do list, and it’s just this ongoing running to do list.
Elizabeth: I can show you mine.
Dina: And a to do list itself is not a bad thing, but what are you doing with it? Like you might have a very effective. way of using your to do list. I have no way of knowing. But if you have a [00:26:00] really effective way of using your to do list and you don’t feel overwhelmed and you don’t feel overworked, then great by all means keep doing that.
Dina: But if you create a list of items and you go through them and you look for the ones that are the most important, maybe there are deadlines on Friday. Let’s say today is Monday. You’ve got some motions or whatever due on Friday. Okay. So you’re like, okay, I want to work on those, you know, other items. What needs to take priority this week?
Dina: I need to talk to this client. I need to talk to this client. I need to get this project going so that I can turn it in. next week, right? So maybe there’s an email you need to send out. So basically you list out everything you need to do now at this point, only spend about 10, 15 minutes doing this. I know a lawyer can spend like hours doing this.
Dina: If you do 10 to 15 minutes of this, I guarantee you, you have the most important things on that list. Don’t use this as your procrastination time. 10 15 minutes [00:27:00] tops to write that list. Now go through that list and circle the items that need to get done this week. And then next to each of those items, estimate how long each are going to take.
Dina: And this is where so many lawyers get caught up. Because they tell themselves, I don’t know how to estimate. That is not true. You estimate all the time. So go in, make an estimate of how long you think it’s going to take. If you really don’t know, add a little extra time to it. And then. Once you do all that, I want you to go back and I want you to put yourself on the to do list.
Dina: What do you want? Do you want to go to the gym three times this week? Do you want to do something else this week? What do you want? Do you want to have 30 minutes every morning so that you can sit with your coffee and just, you know, scroll social media because it’s fun. Whatever you want to do, I want you to put it on the list and then I want you to look at Do you have any other commitments?
Dina: Do you have commitments with your [00:28:00] spouse? Do you have commitments with your kids? Like anything else like that, put that on the list too. Because there’s an order of operations. When you put these things on the calendar, knowing that yes, you already have appointments and already on the calendar, that’s fine.
Dina: You’re going to put the items that are a priority in this order on your calendar. You first. You have to go on the calendar first. Wait a minute. Hold on a second. What about my
Elizabeth: consultations and my
Dina: I mean, that stuff, it’s just there. It’s like, I just pretend it’s like, okay. But we got to put you on the calendar, right?
Dina: So. You have to be the person who decides I’m leaving the office. This was me. I’m just describing what I did. I’m leaving the office at four o’clock to go to yoga at four 30. That is my non negotiable. I would leave the office four o’clock. Boom. Okay. Four o’clock. Was everybody else leaving at four o’clock?
Dina: No, but I knew that later than that I was going to be exhausted and then I wasn’t going to go. So I needed to prioritize that [00:29:00] for myself. I would do the work. I wasn’t worried about that, you know? So. I made that a priority for myself and that went on the calendar first. And it seems so counterintuitive.
Dina: And I think a lot of women have a problem with this idea of putting themselves first, because. They’re trained, we’re trained to put everybody else first and that everybody else gets our attention. Everybody else gets our time. But when do we get to have that time? So it’s important to start training your mind.
Dina: So this is where mindset comes in to say, look, what I want is important. And so you have to believe that in order to put yourself on the calendar first. What I want is important. And if you’re not putting yourself on the calendar, you’re not believing that what you want is important. Which is, it stinks to say that out loud, but I mean, it’s huge and that’s
Elizabeth: sometimes like probably the biggest, [00:30:00] hardest realization that people have when they look at their calendars and their lives and just realize like, oh, I’m not putting myself forward or first at all.
Elizabeth: Like, what does that say about how I feel about myself?
Dina: Yeah, because the calendar really reveals a lot, right? So, Oh, I’m giving my time to these organizations that I don’t even care about. Why am I doing that? Oh, I don’t have anything that involves me on my calendar. Why not? And that’s when it comes down to what do I really think about myself?
Dina: What do I really think? Am I not valuing myself and my time? So it can be kind of confronting when you start getting into the conversations and coaching around time management because we start to see, Oh, I am not looking at myself as my most valuable asset in my business. Right? I’m not treating myself like the fuel for my business to continue to grow because I’m not putting myself on the calendar.
Dina: I’m not putting time on my calendar to work on my business. So if I’m not doing that, nobody else is going to do it. I’m responsible for that. [00:31:00] Yeah. No. Back to the order of operations.
Elizabeth: Okay. So we’re making a list. We’re putting ourselves first. Okay.
Dina: Calendaring yourself
Elizabeth: first. Okay. Yes.
Dina: And then you put on the calendar, your family commitments, your friend commitments, all that good stuff.
Dina: And then you put on the work, right? Then you put in, okay, and this is where I want to give this tip. Start to pay attention to your energy levels throughout the day because everybody’s a little different. My energy is highest in the morning, and so I’ll put my more the things I need to think more about early in the morning, whereas in the afternoons, I’ll tend to put things that aren’t as focus dependent, and it makes my life easier.
Dina: So at the end of the day, we tend to be. You know, our energy is coming down and we’ve maybe done some heavy lifting earlier in the day. And so if we’re putting high intensity [00:32:00] projects in the afternoon, we’re might be setting ourselves up for failure. So just notice that where you’re putting things on your calendar.
Dina: And then put space in between your calendar. Start to just pay attention. Like, Hey, do I have back to back meetings? When I look at my calendar, how do I feel? If I feel overwhelmed, how can I make my life easier? Like ask yourself those questions. Where can I delegate, right? What order of operations needs to be done?
Dina: And that brings me to big projects, right? Like trials. So a trial isn’t, you know, it could be, all right, all day long, I’m going to be in court. But most of the time you’re not in court. You’re preparing for trial. You are creating exhibit lists or you’re organizing exhibits. You’re thinking about the questions you need to be asking.
Dina: You’re reviewing documents, you’re reviewing depositions, you’re reviewing all these things, right? So if you are not blocking time specifically for those items. And you’re just saying, I’m going to work on the [00:33:00] Smith file all day long. You’re setting yourself up for failure. You want to give yourself designated blocks.
Dina: So you want to say, if you’ve got the Smith trial you’re working on, before you put it on your calendar in blocks, you want to think about, okay, what do I need to do specifically in the Smith trial? Estimate how long each of those individual tasks are going to take, and then you can spread them out so you’re not getting burned out on the Smith file.
Elizabeth: Absolutely. Or trying to start the thing that makes you least excited. Like maybe it’s an opening statement and you’re just like, Oh, I don’t want to do that. You just sit there instead of doing, you know, like work on a cross exam or read, you know, I mean, it’s kind of one of those things like reading your energy and it’s definitely, you know, happens where you’re just like, again, mindset, like, I’m not good at this.
Elizabeth: Therefore, I’m not going to start this. Um, but it’s like, Okay, let me make a list. Let me at least organize and use this time for, like you said, like the Smith file or writing cross exam, [00:34:00] which people love or, you know, doing direct exam, like writing it out and, you know, when you take those steps further out, people always run into me and they’re like.
Elizabeth: Oh, in two weeks, I’m starting this trial and I’m just like, okay, and just walk me through what’s your, you know, order of proof. And like, let’s talk about that. I was like, oh, well, I haven’t done that yet. I’m just like, oh, okay. You know, just take a step back. But it’s so funny how much work we can get done ahead of time.
Elizabeth: Even if you feel like, oh, well, this is going to change because of emotion limiting or that’s going to change because they have the like, Okay. Just getting in and having that think time and writing it down like significantly helps you in the moment when you get there to know you’ve at least done reviewed and at least had a start on something.
Dina: Yeah, I think that’s something we underestimate how much we can get done when we use. Those brief moments, like if you give yourself an hour on a day to, like, think about the opening, right? Or an hour to think about [00:35:00] the exhibits and organize them, right? That has a compound effect. So, by the time you’re about to go into trial, oh, you’ve taken care of everything because you were paying attention to it.
Dina: And I just think about it in terms of. If I’m not thinking 10 steps ahead, then when the day comes of trial, I am going to feel so flustered that I won’t be able to think straight. And that’s not good for me. It’s not for good for anybody in the courtroom.
Elizabeth: Mm hmm. Yeah. Well, and I also feel like. Sometimes when you walk in or you watch a trial or you watch a motion, the lawyer that knows their file forward and backwards, it’s like smooth sailing versus you’ve seen the lawyers that get flustered and they just, you know, they’re looking, they’re digging around or trying to find an answer.
Elizabeth: And so it’s like, even just having, like you said, 1 hour at a time or 2 hours at a time and just being in that file really helps you just know the facts so well. [00:36:00] When there is something that comes up, that’s, you know, you weren’t expecting. It’s okay. Cause you at least know, like you said, okay. So they said, Hey, so I’ve got one, two, three.
Elizabeth: Okay. What’s going to work, you know? And so it really helps you be able to think on your feet, 10 steps ahead.
Dina: Yeah. And it’s also, I mean, trials are show. And I remember being a prosecutor and you always want to know your case front. You know, forwards and backwards. And you always wanted to know it so well that it was very clear to the judge that you knew what you were talking about and to the defense attorney that you knew what you were talking about.
Dina: So that if you were going to resolve that case, which is the goal so often. That was going to be the time because you knew your case so well and you knew the value of your case that the opposing counsel wasn’t going to pull one over you. And they also were more inclined to try to settle the case. And the judge would sometimes put a little pressure and be like, are you sure you want to go to trial?[00:37:00]
Dina: Do you see what’s happening here? So it’s important that we also do that for the sake of, in the civil context, it’s like for the sake of the client. It’s like, okay, what’s in their best interest?
Elizabeth: Absolutely. And, you know, most of the time, you know, in civil cases, they go years and years and years. So there are mountains and mountains of facts that go in with all that stuff.
Elizabeth: So it’s, you know, it’s again, having an organized, thoughtful planning way to go about revisiting and getting things ready for the show. That trial is really just. It puts you head and shoulders above so many other trial lawyers that are out there. And again, it makes a huge impression on judges.
Dina: Yes. But yeah, when you go into a courtroom confident, it’s going to make a difference in your case.
Dina: Managing and planning your time out in a way that’s effective is going to give you an advantage.
Elizabeth: Yes. And let me just point out confidence is different than the ego. [00:38:00] Yeah, yeah, definitely people who instead of planning, just try to rely on ego and that, you know, I can tell you jurors see just right through that very quickly.
Elizabeth: If you were just trying to rely on ego versus You know, confidence and knowing your file.
Dina: Oh, we can help. We could do some more stories on ego on this one.
Elizabeth: I love your three steps. I will say just from my personal experience in trying to, you know, grow business and really try to manage my time. I love this idea and I started to do it. I just call it my Sunday planning and I just take. 20 minutes. That’s all I’ll allow myself to do because I’ll do it for hours and do the same thing and just look at, you know, the week ahead and the week next and just not 20 minutes.
Elizabeth: Like you said, make some priorities, you know, puts things in different places so that I can Make time correctly. And I think one of the fallacies of every [00:39:00] person, no matter where you were, is we always underestimate the amount of time it’s going to take to do a task. Yeah. So having a little extra padding is just, you know, and not being hard on yourself for not getting things done at the perfect timing.
Elizabeth: I do want to
Dina: add this though, because this is something that’s so fascinating. And I’ve seen this. You in court where all right, it’s 12 o’clock council. I want you to find the answer to this question and come back at the 1 30 so that we can resolve this. And so having that hour because essentially I need to eat.
Dina: I need to get the answer. All of that in that hour and a half walk to court. I could do that. I researched, I found the answer, but it was because I had that limited time. I was able to do that and not feel like, okay, I need to spend five hours researching. And I think that sometimes I don’t know if you’re guilty of this.
Dina: I know I [00:40:00] have been going into research. We think we need to know everything versus let’s narrow it down to a specific topic. Let’s really narrow the search terms and then let’s go in and focus on that particular topic. And if you give yourself a limited time, like if you say an hour, you will be more likely to do that.
Dina: So there are certain tasks.
Dina: I’m only allowing myself 20 minutes to do this. I’m only allowing myself an hour of research on this particular topic. And then if I find something that’s particularly relevant, and I think I need additional time, I’ll find the time. But that can really help limit the procrastination of going down a rabbit hole.
Elizabeth: Oh, absolutely. And I totally, absolutely agree. I think it kind of goes back to when you’re sitting that estimate things like, and you’re going to write a blog or you’re going to write, you know, like 15 minutes is just not really. Let’s be [00:41:00] adequate, but I also love the same thing of like, okay, I have an hour.
Elizabeth: I need to get this done now because I am totally that way. Like if I’m going to research something, oh my gosh, I go down so many rabbit trails and I have, you know, and so one of the best pieces of advice is sometimes I got from the coaches I work with was like, okay, Elizabeth, just do three. Okay. Don’t do 10.
Elizabeth: Okay. Don’t try to find 10, just three. Really, really. I’m like, okay. Okay. But that’s really kind of one of those things where it’s like. We love research. Lawyers love to investigate and just find everything possible. And I’m, but you know, it’s like, Limit it. Give yourself an hour. Give yourself the rule of three, you know, because at the end of the day, like everything we have has a time limit.
Elizabeth: Opening statements have a limit, you know, the day has a limit in court. You know, we want to make sure that we really focus in and use our time correctly. But absolutely. I love the idea. And that’s what I do to myself too. Is like, when my calendar goes thing, then it’s done and I got to move on to the next thing in order to make sure that I have enough time to get it [00:42:00] done.
Elizabeth: Yes. Love it. Awesome. Thank you so much. Okay. Well, is there anything else to share? Because I know like thinking through, we’ve talked, we’ve covered so many wonderful things. Mindset, you know, the three top tools that you just talked about as far as prioritizing and calendaring and putting yourself first, which is So essential it is for any lawyer.
Elizabeth: So is there anything else that you feel like kind of can stand in the way, like thinking of like what the way lawyers think about things that maybe we just, we can’t even see that it’s standing in our way.
Dina: Yeah. I mean, one of the biggest things, and you did touch on this, is how we talk to ourselves. And I like to, Say it this way, which is talk to yourself like you want to succeed because so often we don’t talk to ourselves like we want to succeed.
Dina: We tell ourselves this is so hard. I don’t know what I’m doing. I’m such a bad attorney. Like, shouldn’t I know this by now? Like, what are people gonna think about me? Are they gonna think I’m a failure? And really, when we think about what other [00:43:00] people think about us, it’s actually a reflection of what we’re thinking about ourselves.
Dina: So, really, we don’t see how we’re talking to ourselves day to day. We’re not recognizing all the little digs that we make at ourselves, like, Oh, I should have known that one. Oh my gosh, I’m such a moron. There’s some people who talk like that to themselves. And I used to be really mean to myself, like I created so much shame around The work that I was doing and it put me in a position where I would overwork because I was trying to outwork the feeling of failure.
Dina: I was trying to really push myself to perform, but I was doing it at my own expense, at my own mental and physical wellbeing, because I felt like I needed to prove that I was. good enough, but I was always good enough. We’re born good enough, but because I was speaking to myself in that way, I had the mindset of somebody who didn’t really truly believe it.
Dina: And so it was really [00:44:00] causing a lot of problems. It was also causing a lot of procrastination because the more I pressured myself, the less I wanted to do and the less energy I had to do it. So a lot of people blame themselves for that. They tell themselves there’s something wrong with them, that there really is something bad or malfunctioning.
Dina: It’s not that at all. It’s just a mindset thing that needs to be addressed. And one of the ways you can begin addressing it is by having compassion towards yourself, really recognizing that you are a hard worker, that you are good enough, that what you want matters. And at first you might not even believe those words.
Dina: If I’m saying it out of my mouth and you’re hearing this, and this is the position you find yourself in listening to this, then you might not even believe it. But I want you to know that it does take practice thinking those thoughts because it’s a new mindset. It’s a new way of being. It’s a new way of recognizing your value and it requires you having fierce compassion for yourself and [00:45:00] reminding yourself of how good you really are and all of the things that you are doing right.
Dina: All the reasons why you are good enough and you are doing the things that you are meant to be doing. So I would add that.
Elizabeth: What a wonderful, wonderful addition. And just so true. I mean, you started off telling us we have 60, 000 thoughts a day and a lot of them are the same ones. And unfortunately they’re mostly about ourselves.
Elizabeth: You know, it’s such a gentle, true reminder, but just so lovely. Okay. Before we end, I want you to tell us a little about your time piece management.
Dina: Oh yeah. Okay. So, well, first of all, I have a podcast called be a better lawyer, but I say that because I talk a lot about time management and mindset in the podcast and I have a program that is specifically where I’m working with lawyers inside a group and it’s all about time management.
Dina: And if you go to Dina Cataldo. [00:46:00] com forward slash time piece, I actually, it’s not open for enrollment right now, but I have a. Freebie there. So if you want to learn more about it and get some mindset working, it’s a workbook that allows you to really think through some of the issues we talked about in this episode, even so link the show notes for that.
Dina: Oh, excellent. Yeah. So time piece is really where we talk about. All things time management. And this week we were talking about resistance to doing work, resistance to, you know, doing the things we know, like we tell ourselves we should be doing. And so every week there’s usually a theme that goes along with what everybody is experiencing that week.
Elizabeth: Awesome. That sounds amazing. So, okay. So we know we want to know more. We have your podcast, being able to be a better lawyer. And then even if somebody wanted to work with you one on one, I know there’s strategy calls that you do as well.
Dina: I do. And I work with lawyers who have their own businesses. And [00:47:00] they want to grow their businesses and they want to do it without feeling overwhelmed.
Dina: So if that describes you and you’re listening to this and you’re vibing with our conversation, you can book a strategy session at Dina Cataldo. com forward slash strategy session. And we can talk about what that would look like.
Elizabeth: Awesome. Yeah. We’ll have links to everything in the show notes. Also, I want to plug your LinkedIn cause it’s always lovely and you put wonderful things out there as well to help people.
Elizabeth: So a great podcast as well with lots of really. Interesting, but like super helpful things to, if you’re growing a business, which most of us who are in employment and personal injury, we’re out there plugging ourselves away in our solo small firm. So I’m so glad that you were here to share with us and we’ll put all the links and everything in the show notes.
Elizabeth: So thank you so much, Gina, for coming and talking us through and giving us some wonderful tips. I won’t say strategies because really time management. If we call it a strategy, that means it’s like a time hack or whatever, which is totally not. It’s a [00:48:00] fundamental, you know, learning to, like you said, talk to yourself and having a mindset and putting yourself first and being super healthy about the relationship you have with time.
Dina: Oh yeah. This is a really great conversation. Thanks for having me on. Of course. Thank you.
Even with the mounting pressures of trial preparation, Elizabeth offers three straightforward strategies any lawyer can implement: strategic timelines that tap into natural chronological thinking, active notepad writing to command attention, and the persuasive rule of threes.
Whether you prefer simple sketches or polished presentations, Elizabeth offers guidance on easy techniques that pave the way for a successful trial strategy.
In this episode, you will hear:
Strategies for mastering courtroom persuasion for trial lawyers
Utilizing timelines to organize narratives and simplify complex information
Techniques for enhancing jury engagement through storytelling
Practical tips on using giant notepads for courtroom attention and memory retention
The power of the “rule of threes” in simplifying and organizing presentations
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Episode Credits
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Episode Transcript:
Elizabeth Larrick (00:02.594) Hello and welcome back to the podcast. I’m glad that you’re joining me today for this new episode about courtroom persuasion.
And it’s not too late, okay? I’ve got three very simple ideas, you may have already heard them but possibly forgot, that are extremely persuasive to our audiences. Now, this episode piggybacks off of my last episode where we talked about trial strategies and I gave you five questions you could ask to create a strategy for your next trial.
But I wanted to give you three really simple ideas today in this episode so you can add them to any strategy that you may have coming up. And these come from my experience in doing focus groups, of course, in learning through continuing legal education, reading books. And again, these may be things that you have heard, but you may have forgotten because they are so simple.
And why are they persuasive? Well, all three of these ideas work with our brain and short-term memory because when we step into a courtroom, we have a limited time. We always have a time constraint, whether jury selection or opening statement or even with our motions and arguing there will be a limitation. And so we always should be thinking about our audiences and how to work with that short-term memory.
Elizabeth Larrick (02:15.596) Because there is a limitation and we don’t want to overwhelm it and we want them to remember. So let’s jump right in. Number one simple idea is a timeline. If you’ve worked with me at all, you know how much I love timelines and I always encourage folks, you’ve got a case, let’s put it on a timeline. Because people naturally, we naturally think chronologically. Okay, so beginning, middle, end, right? Think about our stories and
when we put it into a visual and it could be as simple as, know, literally draw a line across the page and have five points that come across chronologically where you can become even more persuasive is where you start your timeline, right? And where you end your timeline. So naturally people may think, okay, let’s take, for example, a car crash. You’re gonna definitely have that point on your timeline, but do you start there?
Well, persuasion and many other trial consultants and books would tell you, maybe not, because maybe we always want to be focusing on the actions of our defendant. And so we start with a point on our timeline that begins focusing on the actions of the defendant. OK, so boom, we’re already doing some persuasion there. Where you end, obviously, some people would end with the events that brought them there. Sometimes you go a little bit further. Either way, you are
creating something that is very familiar to people. Again, making it easy on our brains, that cognitive ease. They see a timeline that, oh, this is familiar. I’m going to get this. And it has like placing the information in a sequence so that they don’t have to hold it in their brain because most of the time our timelines are going to be a little longer than four or five points. If you can make them that short, great. But most of the time we have a few other things that have to go on there. And so having it
Organized and holding a place on a piece of paper in an order is very, very persuasive and helpful for folks. Also, you will find that if you have a really great timeline, you can use it with many different witnesses. And again, you can make it fancy. Hire a company to create you a fancy PowerPoint. You can keep it super simple and just literally draw it on a notepad. Don’t overthink this. However, just know that when people
Elizabeth Larrick (04:37.528) think about a timeline, especially our audiences, they’re gonna think about it like you would see it with a timeline and events popping up, Not necessarily a list, okay? So this is sometimes where we get a little bit confused. I will ask lawyers, hey, you have a timeline and they send me basically a Word document or a PDF that it’s just a list in order. That’s a list, not timeline, okay? So remember, it’s literally time on a line, okay? So number one point would be use a timeline.
wherever you may be, right? Even if you’re just arguing emotion about discovery, like that back and forth, they can get Huisynthesimil and Huisynthesimil, like put it on, make it easy for the court to see how hard you have been working to get that confer and get that information, okay? Use that timeline. So my other very simple idea for court persuasion is to get one of those giant notepads and write on it.
I mean, this is so simple, but it is so overlooked and generally complicated by lawyers. When I ask people to do this, they generally look at me and the first thing that they say is, I have terrible handwriting. It’s okay. Because here’s what happens when you stop what you’re doing in the courtroom and you move over to that notepad and you begin to write, you have the full attention.
of everyone because they don’t know what you’re about to write and they want to know, right? It’s like the mystery in the room. Okay. So you have their full attention, which is really hard to do. If you’ve sat and watched any kind of trials recently or even in your own, you’re going to notice there are folks who are just not paying attention. They’re off in La La Land, but no one’s talking. Everyone’s watching you right out, right on this notepad. And if you’ve been to Mark Lanier’s Trial Academy, he has a whole.
fancy, I’m going to call it an Elmo, where basically he does the same thing, right? Puts a white sheet of paper up there, these black fancy pens, and he writes, right? And he knows that folks are watching with bated breath what he is doing. He has their attention. They want to know what’s coming next. This is so simple, right? It doesn’t have to be a roadmap like he does. It could be as simple as just a checklist with one or two words on it. Draw a T chart with before and after.
Elizabeth Larrick (06:50.194) or even just points from a testimony as summary. mean, this is one of the easiest places where when people are working with their clients on direct exam or an expert on direct exam, you got to switch it up. Otherwise, people really will be falling asleep. But using writing on that giant notepad will significantly help. Plus, what I have found when I’ve used this is and save that notepad and bring it back for closing. Remember what we heard from our client? We heard from our plaintiff here who said
This is how long this lasted and here were these numbers on our pain scale and here are the things that they did, right? it all comes back. okay, great. And instead of me just saying it out loud, it was right there. They could have read it themselves. okay, I remember when you’re writing all that. that’s true, right? And so the other thing that happens is when you write it down, it becomes much more concrete in their memory. They’re having to remember whole bunch of stuff and that notepad can make it really easy.
right, to keep their attention. And also you write down the words that of course have the most persuasion, okay? Again, thinking through these things, but if you haven’t thought and you’re just going on the fly, get that T-chart up there, get that checklist going, or again, just write points from testimony to summarize what someone has been saying, but very, very helpful and super persuasive. The last idea, again, I’m not telling you anything you guys don’t already know. This is fantastic stuff, but it generally gets a little…
lost in the shuffle of when we are getting ready for trial, and that is putting things into the system of threes, right? So again, thinking through our how we learn in our story, like story format beginning, middle, end, So three points, right? Keeping it down to just three points. Think about the title of this podcast episode, three simple ideas, okay? Why are threes? Well, they have found
that three is the smallest number to create a pattern in our brains. And our brains love to look for patterns. They also know that really our brains can only hold typically three to seven things at a time. And I would say three to five. But now at this point where we are and now it’s 2025, I would say three is it, okay? That’s pretty much all we can hold in our short-term memory. So we don’t wanna overwhelm it. The lovely thing about the rule of three is it really helps you as a lawyer be able to…
Elizabeth Larrick (09:13.002) really fine tune and cut the fluff. And these are the top three things. Okay. So think about going through your opening statement, top three things. Think about doing your direct exam. Here are the top three things. Cross exam, top three things. And that doesn’t mean that you can’t have like sub points, but I think what you want to be able to do is be able to simplify for your audience point number one, timelines. And then I went into it, right? Point number two, writing on the notepad, right?
Then I went into it so that it’s easy. You’re going to remember all three of these things. You’re also going to say Elizabeth is not original. Of course, it’s not. Say that it was. But simple, right? Three simple ideas is what we came here for this episode, because what I want to remind you is that it is easy and it’s not too late. Even if you are starting trial next week, OK, you still have time to put together a timeline that has five events on it. Get out that notepad and write two or four or three things on it, right?
look at your organization of your information and put it into the rule of threes. okay? make it simple for your audience. and that way they can keep it in their working memory. okay? and they’ll tell it to each other. right? that’s why when we look at some of the the trial strategy on opening statements and our CLEs, they typically go and use the rule of threes. right? three safety rules. okay? you can have more or less, right? but three safety rules. right?
When we talk about preparing folks for trial, maybe it’d their trial testimony or depot testimony, we try to push things into three points. Again, we just want to make sure because that’s what people remember. Okay, now three simple ideas that it is not too late for your courtroom persuasion. And if I were you, you could use all three. Okay, these do not necessarily crowd the other, okay? And number one would be a timeline.
got several events, which you normally do in your case. Please use a timeline. Help your audience be able to hold the points in reference to each other. That’s also really helpful for a comparison, okay? Next one, it’d be to write on that giant notepad. Figure out a way to make a checklist. Make a T-chart, for and after, right? You can just writing up simple words from testimony will help keep people’s attention, keep it focused. And again, if you take that extra step and think through, like, okay, you’re gonna have a very persuasive.
Elizabeth Larrick (11:35.156) exhibit in front of the jury that’s going to stand up there. And last, of course, which is our system of threes. Thinking through our presentation, how can we get it into three main points to make it easy for our short-term memory to keep it and for our brain to connect it as a pattern? All right. I hope that these were helpful. They were either gentle reminders or if they were new, that’s awesome as well. Again, if you’ve worked with me, you know I’m always going to be creating a timeline for you, whether
most of the time for focus groups and even with our opening statements. One of the best examples that we talked about was with Michelle Gesner in episode 129, where we looked at her case and saw she needed two timelines. Go back and revisit that episode. I will put a link in the show notes for you so you can go back and re-listen to us talk about that and why we felt, oh, this is really necessary and who to use it with. So that was one of the things too that can be persuasive. All right.
Thank you so much for tuning into this episode. And don’t forget, if you are interested, I have a trial lawyer prep newsletter. If you want to join that, you get one email a month, try not to bug you all too much, with extra tips and strategies for preparation of your cases, maybe focus groups, witness prep, trial strategy. Each month, you will find that link in the show notes, or you can go on over to lyricallawfirm.com slash connect to fill out that. All right, thank you so much for tuning in.
Join Elizabeth Larrick as she shares insights on developing trial strategies that resonate with juries. This episode is designed for trial lawyers seeking to enhance their courtroom success by focusing on a comprehensive strategy rather than just meeting deadlines or relying on emotional narratives. Elizabeth delves into the importance of using focus groups to anticipate jury reactions and prepare multiple contingency plans for trial preparation.
Gain tips on crafting compelling narratives, prioritizing crucial information, and employing strategic questioning. Learn how to sequence witnesses and evidence to streamline your courtroom presentation. Elizabeth emphasizes the significance of flexibility in your plans to handle unexpected challenges.
In this episode, you will hear:
Understanding trial strategy beyond deadlines and persuasive elements
Importance of a cohesive, big-picture plan considering the jury’s perspective
Utilizing focus groups to predict jury reactions and develop contingency plans
Crafting memorable and clear narratives through effective communication
Strategic sequencing of witnesses and evidence to streamline presentations
Simplifying and prioritizing information for impactful trial presentations
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Supporting Resources:
Be sure to check out the Michelle Gessner episodes to hear about her trial strategy formulated from the focus groups.
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Episode Transcript:
Hello, and welcome back to the podcast. I’m your host Elizabeth Larrick, and we have a new episode today talking about trial strategy, what it is.
and what it is not. This episode is prepared for you so that you can be able to clearly [00:01:00] assess what you need for your upcoming trial and to create an overall plan of action so that everybody on the team can stay focused on the targets in order to get that win on the verdict form. and avoid getting caught in the weeds.
You’re getting ready for trial. Maybe it’s 30 days out. Maybe it’s two weeks out. Maybe you’ve got 60 days or more. Either way, you may be sitting down and asking yourself, okay, how do we win this thing? And what can happen is we get super caught up in the deadlines and the motions and the last minute questions about settlement.
And we can sometimes push things like strategy aside. And so what trial strategy is not, is meeting your deadlines. It’s not doing those depo line designations or writing out those motions in Lemony, right? That’s totally in the weeds, right? All those [00:02:00] things are necessary and needed, but those are all kind of things that sometimes we use forms for, or sometimes we may or may not win those, right?
Depo designations, judge may decide something different. Motions in limine, judge could decide something different. And we don’t necessarily want to create a trial strategy around things, meaning testimony or evidence that may or may not come in. Because if we create an entire strategy around one piece of testimony or one piece of evidence, And then it doesn’t happen.
We have to really, really scramble. And definitely when we talk about trial strategy, we want to have plan A, plan B, plan C. Okay, that’s just being a good trial lawyer, making sure we can get everything in. But trial strategy is not sitting down to do those DEPA line designations and that, you know, jury instruction form, or worrying about how to fix one witness, or, you know, Really, what I see sometimes as people think trial strategy is basically how [00:03:00] can I talk more persuasively?
How can I really rest on things that are in the case, meaning maybe it’s a sympathetic picture, or maybe it’s really sad stories, or really egregious injuries. Those things are definitely part of strategy, but they are not the entire strategy. And unfortunately, I see that happen at times where people just believe, well, this is powerful enough.
I don’t need a strategy for anything else. This is all I need. This is just as persuasive as it’s going to get. People are just going to automatically roll over when they see this picture, or they hear the sad story, or they. Understand this complicated medical surgery, people are way more complicated than that.
And what I want you to do is be able to sit down no matter where you are with your experience, no matter where you are with your trial and getting prepared and sit down to look at creating an overall cohesive plan of action to win. And making it simple on you and your team and so that you won’t get [00:04:00] distracted along the way.
So, really, what is trial strategy? Okay, well, strategy overall, like we talked about, is a plan of action to achieve a win or achieve an overall goal. So, it’s really this, this big, overarching, cohesive, think about like a 30, 000 foot view. Okay, because again, if we get down in the weeds about this piece of testimony or this, like, We’re missing the strategy.
Okay. We’re too far in the weeds. You need to pull all the way back. And trial strategy really comes from a compilation of your focus groups because trial strategy really sits down and looks at things through the point of view of the jury. All right. And always thinking through, okay, if they see this picture, if they see this testimony from my client, how are they going to perceive that?
And If you’ve done focus groups, obviously you can compile all those together. If you’ve not done focus groups, you can still sit down and look at it and say, okay, [00:05:00] what’s the point of view here of the jury? Not me, not what I think about it, but what they’re going to think and how they’re going to perceive it.
And that’s really a big key point of your strategy is just making sure to look at it. It’s like, okay, how are they going? To see this, are they going to be just overall annoyed? Are they going to be overall confused? And how do we fix that? Right? Because that’s where you really want to be able to come in with your trial strategy and say, okay, knowing what I know about this entire file, which is a lot of information, what are the top three things that.
We have to win that. We have to get in so that we can get that W on the verdict form. And how do we sequence the information that we have our witnesses, our evidence, our documents to get a W again on that jury verdict? Because we can. Provide all the information to someone to make a decision, and they maybe [00:06:00] don’t know how to sequence things well, or maybe they don’t know how to sequence things.
Well, a jury doesn’t have that luxury. They have to sit and they have to listen and take in a lot of information in a format that is very, very foreign to 99 percent of us. Okay, because we are Okay. in that learning environment anymore. Most of us don’t go to school every day or sit down and listen to a lecture.
And that’s really what jurors have to do. They have to sit down, go from zero to 60 on your case, and have to put it all together. And if we don’t do our job to give it the best sequence, the best order, We are really missing out on a big piece of strategy because we get to go first, right? So we have this large primacy effect where we get to set the stage.
And one of those things that makes a huge difference for. And so that is one of the biggest pieces of trial [00:07:00] strategy is really thinking through your sequence of evidence. Best example we can talk about is here recently with my episode interview with Michelle Gessner and episodes 128 and 129, where she learned from her focus groups that.
Number one had to be those H. R. notes, right? That was her number one key point. Number one piece of evidence. And so she had to make sure and get that out and in front of them very quickly and clearly. And she learned that from her focus groups. And if you’ll remember again from that episode or those two episodes, she did small bites at focus groups.
She did one hour here and one hour there and one over there. So there weren’t these really long mock juries or really long focus groups. That allowed her to be able to go back and test again. And in working with Michelle, we really used the time in between focus groups to look at our strategy. Is it working?
Is it not working? [00:08:00] How do we retest this? What’s missing, right? I mean, what are we missing here? Because again, we can all get stuck in the weeds if we feel really good about something and forget to test other things. And that leads me to the other part of strategy, which is simplifying, removing, cutting information, getting down to the simplest, clearest case that you possibly can.
What do you need to get rid of, right? Because we want to make sure that we can be quick about our trials. Joe Fried talks about having quick trials, right? Folks, have Not a lot of patients. If you’ve been to the courthouse lately, people have very, very little patience. And so we want to make sure that we can get to the point as quickly as possible.
And that’s really the next important key. That’s the next. Key essential in trial strategy communication, how are you going to communicate these key points thinking through your witnesses, right? Thinking through [00:09:00] questions in direct exam, thinking through cross exam, right? And how can we continue to teach them this point through visual aids?
Maybe it’s even just writing it on a notepad, having a checklist, right? What images can we use? What metaphors can we pair with our key points? Maybe there are pictures in the case, maybe there aren’t. Maybe there are pictures we can draw, right? But we always want to make sure that we’re remembering how can we teach them and make it sticky.
May it get stick in there. Because again, they’re going to get a lot of information and we want to make sure that we don’t give them too much, confuse them, all right, or give them something that doesn’t go anywhere. That’s one of the key things that I always talk to lawyers about when we talk about opening statements and we’re even just giving a presentation with our focus groups.
And that is you gave them a piece of information and they didn’t know where to put it. And what happens is sometimes our brain just holds onto it to keep trying to put it somewhere. And we waste a lot of energy and a lot of time, like, and our jurors still [00:10:00] like, where did this go? Right? You’ll hear that in your focus group feedback.
Where did this go? Well, I heard this, but I never heard where, like, what was the resolution of that? And you’re thinking, we don’t need to be talking about that. That is how much people will grab ahold of something if it doesn’t fit. So always make sure that. When you are communicating, you have the essentials and ditch the rest, okay?
Because sometimes we can pick what we need for our opening statement and we can save the rest for cross exam. We can save the rest for direct exam. There are a lot of things in our cases that need more explanation than we can give in an opening statement. And that’s another thing that you can really gain from doing focus groups is learning, Oh.
We didn’t give him enough information for that, so let’s save that. Maybe that’s for a direct exam. Or, you know what, that actually needs to be paired with this document and this visual aid, right? Okay, well then it needs more explanation, then let’s take out an opening statement, because we just really don’t want to confuse anybody right off the [00:11:00] bat.
Because if we make things simple, right, then we’re, we’re keying in on our cognitive ease, our brain shortcuts. That can be made versus if we present something that’s very confusing, it looks very complicated, our brains are naturally just going to kind of, it’s going to resist that because we’re going to try and making it work harder than it already is.
All right. So thinking through trial strategy, here are a couple of questions that you can sit down and think about, write it out, round table it with, you know, folks on your team who are going to be trying the case with you. But I found that these couple of questions really kind of help us sit down and create at least a little bit of a strategy so we can stay on point when we get into the courtroom.
And that is number one, how will the jury perceive my case? Number two, what is the best sequence of witnesses and documents evidence for the jury? Number three, what am I missing that the jury is gonna hate? What am I missing that the jury would love? Number four, how can I [00:12:00] teach the jury quickly and efficiently?
Is that with a visual aid, a checklist, using a notepad, metaphors, words? And number five, what can I cut out of my case to make it clear? And simple. What’s the fluff that we don’t even need? All right. So, sit down, do a little trial strategy, see if it helps, right? Because we want to make sure that we’re using all of our information from our focus groups, okay?
If you’re curious about how to squeeze as much as we can out of our focus group, go back and listen to episode 130 where we talk about maximizing our focus group feedback and ways to do that. And again, even if you haven’t done focus groups, right, you can sit down and ask these questions and look at you, look at your file, and be able to say, okay, I can still create a strategy here, I can still come up with the best sequence of evidence, and I will tell you, the earlier you can do this, the easier it will be [00:13:00] on witness scheduling.
Okay, sometimes I see a pitfall if people don’t do this particular thought process. And then it just comes down to, well, Betsy’s available only on Tuesdays and Dr. So and so’s only can do Thursdays. And you kind of have this mishmash where you’re not putting together the best sequence of evidence. You’re just throwing together availability.
And when things are out of order, It’s really hard for the jury. You can say that. We’re going out of order. Okay, great. You know that. The judge understands. The defense counsel, the jury is like, what do you mean out of order? Because they don’t know, like, they don’t know what your order is. Okay. Everybody else in the room does, but they don’t.
So if you can do this early, then you can really sit down and think, okay, I really got to have this person first. Okay. They are key. I got to have them go first. And if it’s not a possibility, or. If, again, going back to listening to Michelle Gessner in her interview, one of the key persons she wanted to go first was going to be a defense witness.
[00:14:00] And she didn’t know if she was going to be available on day one. So she created a plan B. And plan B was still important and it laid the foundation. But of course, plan A would have been to have Art, that defense witness, go first. But it didn’t actually work out. So she had plan B, which was, let’s lay a foundation here.
Just as important, we’ve already got out what we need to get out in opening say, but we’re going to get to the good, good juicy stuff, but laying that foundation would allow a little bit more time before we get to our essential point that she needed for her trial. So, plan A, plan B, right, to allow some flexibility, but to also know that you’re putting together the best sequence possible for your trial strategy.
All right. I will put a link in the show notes to episodes 129 for Michelle Gessner. If you haven’t listened to those yet, they are great. She talks about her focus groups and putting things together for her trial for her big verdict against Wells Fargo. And if you didn’t know, I actually have a trial lawyer prep newsletter that runs once a month to [00:15:00] your email inbox.
If you’re curious and want to join, please look at the link in the show notes for that as well. It’s also at Larrick law firm. com slash connect. All right. Thank you so much for tuning in and until next time, thank you.
In this episode of Trial Lawyer Prep, Elizabeth Larrick discusses the importance of immediate and thorough reflection on focus group feedback for trial lawyers. She emphasizes early recording of impressions, detailed review within seven days, and actionable steps to improve trial strategies. Elizabeth shares her methods for compiling and analyzing data to ensure focus group insights are effectively utilized in courtroom preparations.
00:00 Introduction to Trial Lawyer Prep
00:40 Welcome and Episode Overview
00:53 The Importance of Reflection in Jury Research
02:39 Immediate Reflection After Focus Groups
06:28 Seven-Day Reflection and Analysis
10:03 Implementing Feedback and Next Steps
16:08 Conclusion and Additional Resources
Episode Transcript
[00:00:00] Welcome to Trial Lawyer Prep. What if you could hang out with trial lawyers and jury consultants? Ask them about connecting with clients and juries more effectively. Then take strategies, tactics, and insights to increase your success. Each week, Elizabeth Larrick takes an in depth look at how to regain touch with the everyday world, understand the emotional burden of your clients and juries, and use focus groups in this process.
Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello, and welcome back to the podcast. I am glad you’re here. I am your host, Elizabeth. And if you’re joining me today, it is January 1st, 2025.
And. As usual, kind of the end of the year, I thought it would be a great episode to talk about reflection, but more [00:01:00] importantly, talk about using reflection to get the most out of your jury research. Here’s the thing. You spend time and money and energy running focus groups and mock juries to understand better what juries are thinking and what they want to know about your case.
And sometimes all we really want to know is Do we win or do we not win? But what I want to do is give you an episode to talk about how to get the most out of your focus groups. Because what I see so much in lawyers is you get your initial impression and then you just move on and I really don’t want you to miss out on going deeper and getting the most out of what you receive from your focus groups so that you can Use it better and more effectively in your cases,
maybe you are getting ready for trial. Maybe you’ve just done a focus group for mediation. , maybe you’re deciding whether to take a [00:02:00] case or not. Even in all those places, you can learn so much more about what the focus group is giving you and that feedback. If we take a little time to do some reflection.
Now, this episode of course comes out of my own personal reflections in looking at working with lawyers in 2024 and of course the many years before that with focus groups and where folks are missing the mark. And again, don’t want you to do that. You use all this energy and time to create these things, to work, , with others in doing them.
So let’s talk very quickly and make a brief episode here. Point number one. So important to do an immediate reflection after your focus group or mock jury. I see so many lawyers who just finish up and pack up their stuff or leave the zoom and don’t take those moments right after you [00:03:00] finish a focus group to reflect and put their thoughts down on paper.
Yes, of course, all of our focus groups are recorded. However, I rarely see lawyers go back and actually re watch their focus groups. So, if you are going to add any kind of step after your focus groups, after your jury research, it would be to stop what you are doing, sit down, and do an immediate reflection.
Because in even as little as 24 hours, our memory begins to fade, right? That’s just kind of how our brains work. We have to take in new information. So you want to sit down while it is fresh, right? Those immediate things on your brain and write it down, write down those takeaways. Of course, if you have others there with you, that is a great time to sit down and have just a super brief discussion.
And this is what I do with all of the lawyers who work with me in my [00:04:00] focus groups, because I think it is so invaluable to have even a quick discussion after you finish your focus group to ask, what do you think they understood? What do you think they missed? Where do you think they were confused? What surprised you?
What didn’t you hear? that you thought you would hear. Because, , we walk into all of our focus groups testing different facts, testing different evidence, testing sequence , of information, testing our witnesses. And we come in with our preconceived notions. We think, Oh, that particular defense is going to work really well.
Maybe it’s social media posts. Maybe it’s pictures of somebody. Doing a handstand, those have totally happened by the way, and you want to know, oh, those are definitely going to have traction. Well, you already come in as a lawyer and as somebody creating these focus groups [00:05:00] with a preconceived expectation about what they’re going to say.
Did they say it or did they not? You know, that’s kind of one of those things where we can look at when you create your focus group plan and your goals and what are you testing? Like what is a hundred percent going to be in your presentation? That should be a hundred percent. The question you’re asking after you finish, what did I hear about that particular topic?
So many a times when I work with lawyers, what I get back when we do this reflection, this immediate debrief discussion is Oh, well, I didn’t have enough time to give them X information. I always try to bring people back to the core of, I just want to know what is your brain telling you right now about what they get?
What was this feedback that you heard? Because what is so important when you have a round table and you have multiple people to bounce things off is what you’ll hear is. You know, Bobby Joe over here heard that [00:06:00] it was bad, but then, you know, Susie said it was good, so then it’s like, oh, wow, everybody heard a little something different.
Well, who did you hear that from, right? And now you can actually kind of really be able to see and put some things together about different participants, what they’re saying and where it may have come from, because that’s that next level of being able to reflect on what you heard about And why you may have heard it.
And having other people in that immediate reflection time is also very important. Naturally, you want to record all that good stuff too, because the next step in reflection would be to go within the next seven days of your focus group and take a look at the transcript. Take a look at the chat. If you’re virtual or if it’s in person, look at those paper votes.
What was actually written down in the transcript? reactions to the questions. And [00:07:00] what I like to do is compile that information into a chart or enter a table, because when I do that, , creating a memo or creating a report, however you want to label it, but just basically taking that information and taking it from all the separate little places and putting it into one.
So you can really compare what they actually wrote down, what they actually put or said. And when you’re able to do that, your brain. Oh, you get a whole nother level of reflection because you’ve got your initial immediate thoughts and takeaways. Now, when you’re actually going back within those seven days and looking at, Oh, this is really what they said.
Oh, wow. Everybody actually wrote down this same point or something very, very similar. Oh, okay. And how are those people then talking about it? Because one of the good things about having A chat or having in person votes is you can take those what they actually wrote down or what [00:08:00] they typed and then compare it to what they said in discussion to really see.
Did they tell me the truth? Were they actually giving me a true answer to something, or were they just telling me what I wanted to hear? That’s a very good way to check to make sure, okay, was this a good focus group, or did they just tell me what I wanted to hear? Because they’ll trip up somewhere in between those two things.
And the other thing you can do, too, is look at what you presented. Maybe it was an opening statement, or maybe it was a PowerPoint. And in comparison with what they wrote, what they typed, what they said in discussion, , were there pieces where, Oh, you know what? That’s probably why they said that. I added this fact into the timeline, or we mentioned this in the opening statement.
I can hear that reflected in what they’re saying. So then you’re able to really see connections better on the information and then compare it to what your initial thoughts were. Because many of times what will happen is in our initial takeaway. Our brains will get hung up on maybe one comment and typically that comment is negative.[00:09:00]
And then when we go back and we look at in , our seven day reflection, we can see , Oh, that was just one particular person saying the same thing over and over and over again, that my brain got ahold of. Nobody else was saying that. And that way we’d say, okay, so don’t because you don’t want to take action in your case based on one comment from one person that nobody else in the group took ahold of.
That is the danger of what you could be missing out on if you don’t do this extra reflection. So again, the other thing we can do is write down at this point, , we’ve done our immediate reflection, we’ve done our seven day reflection where we’ve really compiled all the thoughts, all the information into a one document.
You can call it a memo, call it a report, but just put it all in one place so it’s easy to find. We need to go back and look at it, but then also that really tells you, okay, what do we test next? What’s the next step for this case and what do we need to retest? And what do we need to [00:10:00] do new for the next one?
And finally, what I like to do is make. an immediate list of changes or steps that need to be taken for the information. , for example, if you did an opening statement, Go in and immediately start putting in those edits or put in those comments so that you can begin to work it into your opening statement.
If you need to create a timeline, go ahead and put that in there. Or if you did create a timeline, move things around, go ahead and make those changes right now while that feedback is fresh on your mind. And then sometimes I will put in a comment, if you’re working in Word, so that I know, Oh, this is where that comes from.
So if I try to change it back or somebody comes and change it again, they can know, Oh, that’s, that came from that focus group where we, we mentioned this. The other thing to do is make a list of action steps for discovery. For example, if the focus group told [00:11:00] you things that they wanted to hear or see, now you need to go ask for that request for production, go ask for that interrogatory.
Or maybe you need to go talk to your expert who’s about to give a deposition or maybe you are creating questions for your deposition for this fact witness you’ve immediately gotten that feedback. And more importantly, what will happen is you can actually use the language that the focus group gave you versus you using lawyer words,
It if you don’t make this list, it’s typically it’s lost, right? What I see a lot of times is lawyers will run focus groups.
We’ll have a memo or report. We’ll have it all in one place. And then we come back together to get ready for an opening statement or we get ready for the next focus group. I’ll say, okay, well, did you go and get that thing that the focus group wanted? Did you ask that expert for that? Did you, and they’re like, Oh, No, no, we didn’t.
I was like, okay, well, it’s lost, right? We don’t want, I don’t want you to lose that. I want you to be able to have that [00:12:00] information and immediately take those steps. That’s the whole purpose of the focus group, right? To not only help us better understand the way the jury thinks, but to help us now shape our case to how they think and how they expect to see this information.
The other thing you can do as well, along with making a list of steps To take or making those immediately changes to your presentation is to do a comparison to your other focus groups. This is something I enjoy doing for my lawyers that work with me on multiple focus groups is we basically end up doing kind of a large visual chart.
Again, you know how I love to make visual aids, but if we can put things in a way where our eyes can really see them right next to each other, who were the jurors that were good profiles, who were the negative profiles, and be able to just really see that, Oh, okay.
Oh, and that when we tested this, Oh, but the next focus group, we took it out. We didn’t put that in. And how did that really change things? That is really helpful for us because, , when we’re coming down [00:13:00] to trial, we’re synthesizing a lot of information, plus new information that is coming across from opposing counsel.
And so to be able to have that, , document where everything is beside itself is extremely helpful to quickly. analyze and then make very quick decisions on things that you need to put into jury selection or opening statement or direct exam cross exam. So recently we had two focus groups on a particular file and we did them two months apart and ran two kind of different styles of focus group.
One was very kind of exploratory, what are the concepts and themes, and the other one was very much directed with a very specific presentation about. The facts and evidence in the case. And what we were able to do is basically look for recurring themes and retest things that we heard that we believe to be positive,
and what that really helped was guide , Oh, did we see it? Did we hear [00:14:00] it? And then have a lot of confidence, , Oh, we did it. So this needs to be included 100%. And , when you’re able to really dive into the focus group feedback, then you can really use it again for the next one.
And then again, gain a lot of confidence, in what is positive for your case. And you will also hear what is dragging down, your case as well. I don’t want you to miss this step. I want you to be able to really get the most out of your focus groups. And so plan the time, right?
You work really hard on the front end. You prepare, you spend money and energy getting ready for these focus groups. Take that extra 30 minutes, right after and just book that on your calendar so that , okay, immediately once I, walk out of that room, those focus group participants leave that room, or I get out, exit out of that Zoom, I’m going to immediately go and write down my thoughts.
And again, this is not a [00:15:00] detailed, what did everybody say list. This is, what are my takeaways? Again, answering those simple questions. What did they understand? What did they not understand? What did they miss? That’s generally always a really good question is what do we give them that they didn’t even talk about?
And then, of course, taking another step of reflection within the seven days to really look at what they actually typed or wrote down for us, in response to directed questions and looking back at that transcript, looking at our presentations, and then putting everything into one document, being either a memo or report, whatever you want to title it, and then being able to go back and compare our initial thoughts with what was actually typed in or said in the transcript.
And of course, that last point, which is taking those immediate steps, we’re making a list, of steps and actions that need to be taken to get the focus group, those folks, what they needed to hear or see or talk to your experts [00:16:00] or your witnesses, even to make sure that that testimony is not lost, but it’s going to be given over to the focus group.
All right. I hope that you enjoyed this episode and take a little more time to do reflection after your focus groups and jury research until next time. Thank you so much. And don’t forget, I do have a monthly trial lawyer prep newsletter. If you’d like to join, check the show notes for the link. All right.
In this episode of Trial Lawyer Prep, we delve into the role that focus groups can play in legal trials. This episode explores whether focus groups are worth the investment, as we continue our conversation with Michelle Gessner. Through a case study involving Wells Fargo, Michelle shares her experience in utilizing focus groups to anticipate juror reactions and refine legal strategies, ultimately providing an edge in the courtroom. This episode underscores the financial considerations and potential rewards of employing focus groups, highlighting how they can reveal juror perceptions and help counteract defense tactics.
Moreover, the episode sheds light on the applications of focus groups in trial preparation, particularly in determining the order of witnesses and enhancing witness preparation. Michelle emphasizes the importance of using focus groups to establish a sequence for presenting evidence, which can significantly influence juror understanding and case outcomes. The discussion also highlights the value of having an external perspective during witness prep to identify potential communication breakdowns. With these insights, trial lawyers can enhance their strategies and increase their chances of achieving favorable outcomes in court. Listeners are encouraged to stay informed by joining the Trial Lawyer Prep newsletter and leveraging the expertise shared in this episode to elevate their trial game.
In this episode, you will hear:
Strategic witness preparation and sequencing based on focus group feedback
Managing financial risks versus benefits of focus group insights
Role of focus groups in shaping depositions, summary judgment briefs, and evidence presentation
Techniques for refining opening statements and trial strategies with focus group feedback
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Supporting Resources:
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To learn more about Michelle, please visit her website: Gessner Law PLLC
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Episode Credits
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Episode Transcript:
Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick. I wanted to step in before we continue the conversation with my guest, Michelle Gessner, the interview where she details The information that she gained from focus groups preparing for her verdict against Wells [00:01:00] Fargo.
Don’t forget, Michelle’s information will be in the show notes if you want to reach out to her. And we will step into this episode right during the interview where I asked Michelle about are focus groups worth it? Okay. I hope you enjoy the rest of the interview. They tried the case. on things that didn’t matter and the tax things that didn’t matter had nothing to do with the actual request for accommodation.
And obviously the jury saw right through that. So many things you had to tackle in this case. And I know again, we’re here, we’re recording in September, you’ve got more appeals coming in this particular file. And again, I think People who deal with Wells Fargo get it. Like, oh yeah, other cases I’ve done too.
Like, this is just the way that they roll their dice. But what advice would you give folks who are maybe on the fence about doing these focus groups or, or wondering about them? Like, is it worth it? Yeah, that’s a great
Michelle: question. Absolutely. You know, when you do plaintiff’s work, The costs sometimes come out of your pocket until you [00:02:00] get to the end.
And so you have to make sure that everything you do is worth it. And there has to be some reward. But the most valuable thing that I did in this case was the focus groups. And my client would tell you that too if he was here. He didn’t participate in the focus groups. He didn’t, he wasn’t there, but he heard about what happened and what we needed to work on when we received the results from those focus groups.
But he absolutely supported knowing that in the end, when and if he gets paid, that would be a cost to the file in which that we would charge him. So I was eyes wide open and told him what they cost and what we were going to get out of them. And of course we pay the money up front. And so, and it’s not just this case.
Yes. Can he afford to pay for a cut focus group? Sure. Anybody who reads the record and knows what’s public information will know that, but there are other cases that people can’t. So I have to make a decision along with them. Am I willing to invest my own money into the case? In order to get what I need out of it in order to hopefully get the desired result.
And so it is the best money we spent in [00:03:00] this case. And let me pair it with something you just said. They tried this case attacking the plaintiff. They attacked his wealth. They attacked how he used the bathroom on the ski slope. They attacked the fact that he had a concierge health doctor, which he needs given his financial situation.
disabilities because he sees the doctor way more than most of us. They attacked every single thing about who he is investment properties. He has things his Children do for hobbies that he’s able to pay for even going and having a drink with his friends or even if he had more than one drink, they attacked him personally.
And so Knowing that that attack would really alienate the jury invaluable for this case, because it’s exactly what we thought they might do. And how would somebody respond? How is somebody who makes 7. 25 an hour and works at Bojangles, for example, which is a local restaurant, going to respond to somebody who made 7.
A lot millions of [00:04:00] dollars for Wells Fargo. Can they relate? Can they put aside what their own life circumstances are in order to fairly judge this case? And we only knew the answer to that because we had people from all walks of life. Who listened to the facts of this case, that we gave them very blunt and clear information about who this person was and what happened here, and was able to get the feedback we needed.
Again, you know, if I have to choose between spending the money and taking the risk or not doing it and just going to trial and winging it. I’m always going to choose the focus group. I’m going to find a way you’ll find a way. There’s ways that you can hire great people like Elizabeth who it’s invaluable.
And I’ll tell you why that minute that let me come back to that for something I’ve written down to say to you among many reasons, but you can also do them on your own. You can do them on your own. And there’s still a cost. You still have to pay to get people to show up because their time is valuable too.
[00:05:00] But you have to be able to know before you go in what’s going to happen with your case. And if you don’t know, then you’re leaving it to chance. And that’s a problem. You know, when Elizabeth does it, you can’t help in a case like this particularly. And if you’re passionate about anything in life and having the jury to really see through you, you know, it’s really hard to be stoic.
And to be not put your finger on the scale and want them to say what you want them to say during a focus group. I mean, I think I’m decent at it, mainly because I put on my defense hat and I try to have a, but I wear my emotion on my sleeve sometimes with the case and, and no matter what I say, they know who I represent, right?
Or they know kind of what we want them to say, and that’s not a good thing in a focus group. We want them to be real and tell us what they’re really thinking. So having Elizabeth do it and just getting out of the way, you get every single penny worth of [00:06:00] information. I mean, I can’t tell you how many times I’ve done my own and then said, man, you know, I think they just told me what I wanted to hear on this piece.
And I wish I hadn’t asked this question because It seemed to be too much of a softball, right? Or they saw my emotion in the case and so therefore they felt sorry for me, right? Because I couldn’t get through it without showing some emotion. But if you let Elizabeth do it and you get out, not only does she care about your case, she does.
But she can get every ounce out of that focus group that you’ve paid for. Because she’s done so many, right? You’ve done so many. I’m talking about you in the third person, right? You’ve done so many that you understand how to really push and push and push and get somebody maybe who isn’t talking or somebody who hasn’t said anything or somebody who said something that was negative and I didn’t follow up on it Right that you want to know why they thought what they thought so If I had a lot of money, I’d hire Elizabeth for every single one.
And that’s always the goal, but find a way to do [00:07:00] them is the critical. Yeah.
And thank you. Of course, it’s always lovely to help folks and get that outside perspective is something that we as lawyers have a real struggle doing because we get so ingrained, like. This is our case. It’s our babe. We’ve already invested a lot of time and money.
But I think also these focus groups that you’re doing, you did them one hours, maybe an hour and a half. Like we’re not talking about a full day commitment or a four, you know what I mean? You’re doing them in a very efficient way. And that’s why you can go do them on your own. I’ve got lots of episodes to talk about.
Like, how do you DIY your own virtual focus groups? And. It’s just sometimes, okay, we’re going to do it. Go find some folks and get them on the zoom and ask them some questions. And really it’s so amazing what you get out of just hearing someone else’s perspective, especially when it comes to an opening statement, because you think you’ve got it down, you’ve nailed it, you’ve worked on it.
And you tell them your opening statement and they go, they have any clue what the case is about. And it’s just, so there’s so many facets of doing an opening [00:08:00] statement that I so helpful for any, if you’re going to do a new one, you’ve never done them run an opening statement because it will open your eyes tremendously to what your evidence is, but also your themes.
And like you mentioned so importantly, the sequence of the
Michelle: absolutely. But as you said, I’ve listened to your podcasts and I’m a huge fan, but have an objective for what your focus group, what do you want to get out of this focus group? But I assure you, you aren’t, you’re going to get way more than just that one thing.
There’s going to be something else that you get out of it. And as long as you have that objective and you meet that objective, whether that’s your opening or if it’s jury selection, or what do you think of this demonstrative? You know, for example, the notes were a big demonstrative, but they were like tiny little print 25 pages.
How do we get them to actually pay attention to that piece of evidence when it goes back into the jury box into the jury room? You know, all of those things are things we tested, but tested it. In addition to whatever the primary objective was of that focus group, you know, nobody knows this. This is [00:09:00] sort of, I haven’t talked about the case, but during opening statement, defendants objected, Wells Fargo’s lawyers objected, and I didn’t get to use all of the things I wanted to use during opening that I had spent time and money testing, but it was such a gift because I was still able to get out what I needed.
And what did I know was the most important thing? I needed the jury to understand what the basic rules, the basic law was that they were going to be asked to think about and a timeline. And I got those things out right in the beginning. And so when they started objecting, I knew that the most critical things I needed the jury to hear at that point in time before I had earned any trust from them were those two things.
And so it was very short and I got most of the things I wanted to say in, but I had to shuck and jive and move around a little bit and try to figure it out on the fly because of the way that the objections were coming in. Now, in closing argument, I got to use it to say, folks, now I get to tell you and show you.
What they didn’t want you to see in the [00:10:00] beginning. And then use the things that I had developed for demonstratives. But if I hadn’t tested it, and if I hadn’t done focus groups on it, I wouldn’t feel as confident knowing that just those two things were enough. The timeline being most critical.
Mm-hmm
Michelle: Yeah. Which would help me do . .
Well, it’s just like one of those things where, you know, sometimes we get super excited, we jump in there and we forget like, Ooh, we need a little context in a very good, succinct way that makes sense with how our brains work. With receiving gobs of information. I mean, as a juror, they just get so much information in a very short period of time.
So awesome. Well, is there anything else? I know there’s so many things we could talk about this trial and just so many awesome things that, that you did and the shucking and jiving that you did. And I know that we can come and have you back once we get past all these appeals and really talk about the nuts and bolts of trial.
And I would say the only thing that to talk about would be the sequence of. Witnesses and witnesses and how focus groups helps [00:11:00] you kind of decide that.
Michelle: Sure. So kind of great segue knowing that the timeline was so critical. We knew that the minute that the jurors would see some of the evidence that backed up the timeline that they almost didn’t get past it once they saw it.
One of the most critical things were the notes, right? So once you got the HR person’s notes where she’s dip deep helling every event that happened, including the they said no and delaying the inevitable. The jurors couldn’t believe it, right? They couldn’t believe what they were seeing. So, we put her up first.
You know, got what we knew was important in the case in as quickly as we could get her in. I shouldn’t say first, she was our second witness. We put up the doctor first. So, we had a doctor who established what his disability was, And what he needed. And so that way again, we’re not speculating he has a disability and we’re not speculating what he actually needs.
His medical provider is who we put on the stand first to describe it and they had a chance to cross [00:12:00] examine him. And so we knew that through focus groups, explaining what did he really need? Was the work from home a want or was it a need? And how did that help him? So given that to them first, that took it out of their mind.
And then of course, the next witness was their own human resources person and getting them the notes because that was part of the timeline. So the thing that we’d put up in the timeline and opening, we immediately gave them the evidence that they saw with their own two eyes. really the history timeline in real time as what was going on at the time that she was trying to get an accommodation for him.
We then ended up using focus groups as to when did we need to put up the plaintiff? You know, what was his bucket to carry? Think about your putting your evidence in buckets. Which bucket did we need him in? Did the jury need to hear from him early? Or did they need to hear from him in the middle or toward the end?
When did we need him to be able to tell his truth and for them to hear and see him on the stand? [00:13:00] It ended up being in the middle and we knew that from focus groups. And did it change over time? Oh my gosh, for sure. I did a focus group the Saturday before trial. I think you know that, right? I think you know that I had a focus group at 11 o’clock on the Saturday before we started trial on Monday and I was testing damages in order of proof at that point in time.
So you never really sort of stop refining and you have objectives, but we changed the order of proof. We also Wells Fargo. There were lots of things that happened. We didn’t know which witnesses that were under their control. We’re going to show up on the day that we wanted to call them. So for example, there was a witness.
We wanted to call day one. They claimed he could not show up until day two. So we had to rearrange the order of proof on the basis of when they were going to control their witnesses to show. But again, we had focus group when in the timeline, yeah. Did the jury need to receive the evidence in order for it to make the most [00:14:00] sense and for them to get what was actually happening?
And when did Wells Fargo first have the time not to violate the law? Like when did they, when could they first have avoided all this? All of that came really from focus groups because the natural tendency is to want to just put your client up there first and tell the story, but they might not believe them.
Right. And I think you guys, when we kind of got down and it was like, well, there are actually kind of two timelines. There’s the, the perspective of the plaintiff in that timeline. And then there’s actually what’s happening with HR and what’s happening with HR is what’s going to win. Cause that’s, and it was like, we need that to be the right, the timeline of the case.
He’s the byproduct of their process. So
Michelle: we had done some focus groups again, just smattering on what do we need in depositions? What should we focus on in depositions? What do we need as far as even the judge with our summary judgment brief, we created good timelines for those. Those are all publicly filed as part of the file.
But the timelines help the judge to see what was happening. And if you read his summary judgment [00:15:00] order, he followed them. There was a timeline on the request for the accommodation and what happened. And then there was another timeline on the true quote layoff or the reduction of force and what was really happening.
And when you overlaid those two, it was almost like a big red light flashing, you know, big, huge red flag flashing saying. Warning, something bad’s going on here. And we knew that from testing it and doing it and having that type of reaction from focus groups.
Yeah. Yeah. And I know we’re harping on focus groups.
Y’all we really liked them, but that was really like how Michelle and I worked together was like, okay, give me what you’ve done. We’ll get ready for the next one. And then we’ll basically interpret what’s going on. What are consistent patterns to try and keep working on that opening statement.
Michelle: Can I say one more thing?
Of course I heard about this, but I’d be happy. I definitely wanna make sure we don’t stop witness prep. So I had the privilege of bringing in Elizabeth Larrick the best, the very best to [00:16:00] help me to prep the plaintiff. And can I do it? Sure. But I also had a lot of cross-examination to prepare for because we knew the most critical witnesses for us were not our own.
It was theirs. So most, we called defense witnesses in our case in chief. So I focused a lot on that. So I called in Elizabeth and she came to Charlotte and we spent a lot of time together with Mr. Billiston and it was incredibly invaluable. And so Mr. Billiston spent four hours on the stand in cross examination.
His direct examination was roughly 35 40 minutes. For Four hours over two days of cross examination Is how long wells fargo’s lawyers cross examine him and the first thing he said when he was completely done Was I can’t wait to call elizabeth larrick. I can’t wait to tell elizabeth how I did he was like a student Who wanted to tell the [00:17:00] teacher how well she had prepared him.
So Again, thank you so much the anticipation of the cross The how to not let them get under your skin in such a way that would cause a negative reaction and really just being so truthful that the jury could see the truth coming out of you, both in your body language and what you said. And it’s great when the truth is on your side, it’s easy, but it’s never easy to be on the hot seat, even when you’re telling the truth.
So if he were here with me right now, he would be saying exactly the same thing I’m saying, having you come and help to prepare him and being committed and dedicated to him in that regard is really was the secret sauce to his success when he was on the stand for those four hours. So again, can you help prepare witnesses?
You’re the person. I appreciate that. And he’s not here. So let’s talk about him. Uh, because we all have, we have witnesses that are just, they’re intelligent, smart people, but my gosh, it just does not serve them. [00:18:00] They overthink and they just, I mean, he just is. Was driving himself crazy with worry and we really tried to help it be an organized and then of course he would also say if he were here I put him through a lot of cross examination and he said this mine was worse than what they did actually on on the stands.
Work together too. And I think when you have somebody else in the room helping that gave Michelle a chance to really see, Oh, this is not what I need you to say on this point. And we were not woodshedding him. It was just more like Michelle was like, okay. So what happened was we would work, we’d work a good part of the day.
And then we let him go. And then it was like, okay, we need to marinate because we’re not hitting the points. We need to figure out where the loss of communication is. He’s got the information. So we work together on how do we create a direct exam that works for what’s in his brain, but also how he has [00:19:00] it in his brain.
Things were getting crosswise. We’re not coming out very clear. It was very confusing. And I think just because communication wise, the way we store things as humans and the way lawyers store things is very different. So we were trying to put two different hats on. Michelle and I worked really together on direct so that she would feel really comfortable and then they would be able to continue working.
Right. And then once opening came out, they’d be able to tweak again without him being completely thrown back into that worry circle.
Michelle: Exactly. And again, to your point, he’s so smart, but he also worked there 25 years, and he was aware of the way that Wells Fargo handled problems. You know, handled anybody who challenged him and acutely aware of potentially coming after him and attacking things that had nothing to do with the case, which is exactly what happened.
And so having someone sit there and endure being personally attacked on the stand in front of the jury about things that have nothing to [00:20:00] do with this case required incredible restraint from anybody. Anybody who would be on the stand who would have to say, what does that have to do with this case? or why are you asking me that?
It took a credible amount of restraint and self dignity and self worth, but to get there, we had to prepare him in a way to say, it’s okay for you to feel the way you’re feeling. And if you feel yourself even getting mad to describe that, look, I’m getting upset about this and here’s why. So the jury understands.
And again, I think the jury Lots of people have given lots of commentary. You just got to get on LinkedIn or Google it and lots of commentary. But attacking a plane of someone with a disability who asked for an accommodation went off like a lead balloon. It just didn’t work. And I think in my own personal opinion, it was to attempt to try to incite the jury against him.
Here’s somebody who’s got a lot of money who goes on extravagant vacations. Here’s [00:21:00] somebody who has multiple homes and you are not like him. So therefore you should, you should find against him and it just backfired. Yeah.
Yeah. They sent their message. I mean, that verdict, there’s 22 million, 20 million, right.
Is all in wages. back pay and front pay. And I know you said that earlier, but I just want to reiterate that is truly a jury that listened and said, you know what, this man needs to get paid because that’s a job he, he did love. I mean, he really loved that job. And by golly, we could not get him to explain that job because we’d all be lost in what he does.
But we didn’t have to, thank goodness, right, right. You know, we had to learn about all this. Michelle did all the heavy lifting and just letting them know like billions and billions people, this guy doing the thing for Wells Fargo.
Michelle: And they were a smart jury. They understood that he made the cut bank a lot of money.
Again, he made a lot of money. They paid him. Yes. It was a bonus for predominantly, but he made the bank a lot of money. And so the two things did not match. Why would you get rid of somebody [00:22:00] who’s making a lot of money? And they heard. a lot of evidence and saw a lot of evidence that they didn’t follow their own policies when they chose to fire him.
So again, we had a very smart jury. They were very attentive. They were from all walks of life and our foreman was a lawyer. So that’s another whole story. Oh, that’s
right. Yeah. Okay. We’ll have to have you come on. Cause I remember there, we had got little sidebars on that too. So we’ll have you come back and talk about the jury and, and the interaction and some of those cross exams.
Cause they had some surprise witnesses. So again, I’ll just go leave it at that. We’ll have you come back. We’ll talk about our surprise witnesses. Once you guys get through all these appeals. Absolutely. All right. Thank you so much for having me. Thanks so much, Michelle. I appreciate it. Wow. I hope you enjoyed that interview with Michelle and I will definitely be sure to let everybody know when she will be coming back on the podcast to finish out our conversation.
Okay. So we’re going to start with cross examination and a few details about trial. But before we close out this episode, I just want [00:23:00] to recap a couple of great things that we heard in this episode. Number one, are focus groups worth it? And Michelle’s take on that, but also really the specific details about using focus groups to determine your order of witnesses.
to help with depositions and even to help with your summary judgment responses. And naturally, we finished out with witness prep and having an outside perspective while your witness is being prepared so that you as a lawyer can watch and really be able to understand where there could be maybe a communication breakdown.
All right. Thank you again so much for listening to this episode. If you don’t want to miss an episode and you would like to be on the trial lawyer prep newsletter, please check out the show notes for the link to connect. And also don’t forget Michelle’s information will be in the show notes if you want to connect with her.
Join us as we delve into the remarkable $22 million verdict achieved by trial lawyer Michelle Gessner against Wells Fargo. Michelle shares her strategic approach to a high-stakes case involving the wrongful termination of a Wells Fargo employee who requested a work-from-home accommodation under the ADA. This episode is packed with insights for trial lawyers, highlighting the value of focus groups in shaping trial strategy and boosting confidence. Discover how focus groups can refine your opening statements and jury selection, even when limited to a 20-minute voir dire. Michelle also discusses the challenges of maintaining focus group confidentiality when faced with aggressive tactics from opposing counsel. Gain valuable knowledge on navigating complex litigation and learn how meticulous preparation can make a significant difference in your courtroom success.
In this episode, you will hear:
Lessons learned from Michelle Gessner’s landmark $22 million verdict against Wells Fargo.
Leveraging focus groups to build confidence in trial strategies and understand juror perceptions.
Utilizing focus groups to refine opening statements and determine the most impactful evidence presentation.
Protecting focus group footage from opposing counsel’s access attempts and maintaining its confidentiality.
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Episode Credits
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Episode Transcript:
Hello, Elizabeth here. I wanna jump in really quickly before we begin this episode. To let you know it will be broken into two parts. Michelle Gesner and I had a wonderful discussion about her $22 million. Verdict against Wells Fargo and it got a little lengthy, so [00:01:00] we’d broke it into two parts.
I hope you enjoy both of those, Michelle Gesner practices out of Charlotte, North Carolina, and her contact information and bio will be linked in the show notes of both episodes. Hope you enjoy. Hello and welcome back to the podcast. I’m your host, Elizabeth Lyric, and we have a special guest today and she’s special because I got to work alongside with her.
And Michelle Gesner is here to talk about her. Very impressive $22 million verdict. So Michelle, welcome to the podcast. Thank you so much for having me. Of course. We are all dying to know more about this verdict, but before we get there, let’s talk and give everybody a little bit of context about the case so that when we start talking about focus groups and other things, we get a little bit more understanding of what’s happening.
Give us a couple sentences about what this case was about. Sure. So I had the privilege of representing a long tenured employee who [00:02:00] worked for Wells Fargo for 25 years. In which that when he was right outta high school, had suffered a horrific accident where he had fallen off of a balcony and broken his back and compressed his spine.
Fortunately, he was able to regain use of his legs, and so to look at him, you do not see a disability, but he definitely has a disability. He has a paralyzed colon and a paralyzed bladder, which requires medical assistance in order to relieve himself. So the case is about that. He had asked for an accommodation from Wells Fargo formally asked using their formal internal processes in to be allowed to work from home 75% of the time in order to mitigate his disability.
And some might say why 75% of the time his job required at least 25% of travel. He was a salesman. He not for the lighthearted, was able to self mitigate for short periods of time in [00:03:00] order to travel or to be away from home or order to do business. But day to day he needed some an accommodation in order to help him to be able to go to the bathroom with dignity.
So he asked for an accommodation. While everyone was working at home during COVID, he was asking to continue to do 75% of the time when everybody else had to go back to the office and Wells Fargo said no. The human resources notes were critical in this case in which that they management told her no.
When she suggested that they at least try an accommodation management told her that would be delaying the inevitable. As a result, Wells Fargo terminated this employee and they did it using a reduction in force, so another word for a layoff. So they had a policy that required them to have five months lead time in order to add someone to a layoff or a reduction in force.
And when they found out he needed an accommodation. They [00:04:00] slid him in in eight days and fired him. And so that was the facts that the jury heard in this case and the evidence that they saw in the human resources notes leading to the verdict that you just described. Gotcha. And I know because I have a little behind the scenes knowledge that you guys had a total tug of war on this litigation back and forth with Wells Fargo.
Is that true? Absolutely. Again, another thing not for the faint of heart is Wells Fargo Foss tooth and nail on every single thing. It doesn’t take much. You can do a search of all the law, 360 articles, and you’ll see every battle along the way. And because it was Wells Fargo, it was not only played out in the court, but it also was played out in the news.
And we should also say this is happening in Charlotte, so this is where the headquarters, if you will, for Wells Fargo. There’s lots of folks in the community as well. So it got a lot swirling going along in Charlotte. [00:05:00] And so you decided somewhere along the way to use focus groups for this case. So walk us through like that process of why, and then really then we’ll dive into when you started to use them.
Sure. And if anybody knows anything about Elizabeth Lyric, she knows focus groups. And so luckily I have been a student and have learned along the way how valuable focus groups are. So in this case, and in most all of my cases, we start focus groups early. And to just start at the beginning, the first focus group I did was just a, a narrative to find out how’s the jury gonna respond to this neutral set of facts.
Here is a gentleman who had worked his way up the ranks, if you will. He made a lot of money in bonus money because he made a lot of money for Wells Fargo. And under the facts and circumstances of this case, how is a jury gonna respond? So we just did a test, the water focus group, to begin and learned so much.
[00:06:00] Learned about. How are they gonna react to somebody at his level? How are they gonna react to this disability? How do they react generally to Wells Fargo? We’re not talking about a small mom and pop, we’re talking about a Fortune 35 company that’s very well known. And what are their expectations of a company of that size, particularly one that is, provides a a service, they’re service oriented, a bank.
And people choose where they bank and so how are they gonna react? So we learned a lot from the beginning, just doing a narrative focus group and ended up doing roughly 10 to 12 focus groups before we went to trial. Mm-hmm. And I know also, again, I got a behind the scenes look here that you guys had, what some people would.
Be like, why would you start early? And what I’m trying to get to is you guys had a big stall in getting a lot of documentation, so you guys really didn’t know a hundred percent of really the facts of what happened until well into [00:07:00] deposition. Why would you go ahead and do a focus group before getting all kind of the documents?
That’s a great question. So part of it was just to test what we did know and to test what we knew from the plaintiff and the plaintiff himself. How are people gonna respond to him? And some of the things that we did know, but to your point, Wells Fargo strategically. Chose to take the plaintiff’s deposition to take my client’s deposition before they turned over any of what I would call some of the most critical documents, including the notes from the A DA coordinator who had documented every conversation that she had.
Some would say that was intentional. They didn’t want him to have the benefit of what they already knew in their own files before he was deposed. So certainly the perspective even preparing. My client for his deposition and any focus group that we did before his deposition, we were in the dark. He obviously had.
A hunch that more was [00:08:00] going on behind the scenes because of how everything unfolded. But like all employees, we don’t know what’s going on behind the curtains unless we sue and get discovery. And even then you have to fight often to get everything. So starting early, there was more of what we had to carry.
Again, think about how is the jury gonna respond to this person? How is the jury gonna respond to this set of facts? How is the jury gonna respond because it’s Wells Fargo? How are they gonna respond because of where the case will get tried In Charlotte, where Wells Fargo is a large employer, how are all of those things going to be impacted at trial?
All of which don’t necessarily have anything to do with what we’re gonna get from them in discovery. Mm-hmm. Did it change? Absolutely. And so again, we can talk about it, why we did so many different focus groups, but initially being able to structure the case and to know what to ask for, and to know where to focus.[00:09:00]
The focus groups helped us tremendously because those are the people who are gonna be sitting in the box and who are gonna be our jurors and our perspective really doesn’t matter. It’s their perspective that matters. You’re doing ’em all virtual too, right? Yes. A hundred percent virtual. Yeah. Yeah. And so you guys get this big dump of information and makes things, uh, a lot better case.
What? 10 to 12 focus groups? That’s a wholly moly lot. For, I would say any case, however, we got a $22 million case. Okay. Walk us through what do you, after you, some narratives, you get all this information. Sure. Where do you go next with your focus groups? Sure. I’m a little bit of a novice when it comes to focus groups, so I enlisted help when I could, such as yourself, and when you change one thing in a focus group.
You can see right away how it changes their response. And I only know that from doing 10 to 12. So lemme give you an example. I think I tested my opening maybe six or seven [00:10:00] times and I tested some other things along the way. Part of that was testing how did I need to give them the facts of this case?
What needed to come first? What perspective did I need to focus on? Was it from the standpoint or the viewpoint of. The plaintiff, my client, or was it from the human resources’ perspective, the person who really was leading the charge here in trying to help Wells Fargo that they ignored. And so just those small changes in the opening made a difference.
The what kind of timeline did the jury wanna hear about? What did they need to see? From the get go in order to get the facts that we wanted them to get in the order in which we wanted to get it. And you might ask me this, but let me give you another example. This employee didn’t get where he was at Wells Fargo without being an exceptionally good performer.
He just was really at the top of his game. He made a lot of money for Wells Fargo, billions of dollars, and his [00:11:00] performance was never a question. In my mind, and it certainly wasn’t even a question in Wells Fargo’s mind, because remember, they claimed they fired him because they needed to do a layoff, a reduction in force.
So performance was not something that was top of mind as a fact necessary in this case. But without fail, no matter what I twisted or turn, or however I gave it to the focus group, the jurors wanted to know. Was he a good performer? And my lawyer brain said, the law applies even if you’re not a good performer, if you’re there, you get an a combination.
But it was important for this jury to know that he was a good performer and that it was proven in his performance evaluations. And so I only learned that through focus groups and in every focus group, no matter what I changed, it was part of the conversation was what kind of a performer was he? You only get that information.
That has to be something you give this jury jury early and let them [00:12:00] know and let them see it with their own eyes that the performance is where it needed to be in order for him to get an accommodation or for him to get to be worthy, if you will, of the credence of facts that we’re trying to share with them early on.
We don’t want them sitting there thinking. This guy must have been a poor performer. That’s why they fired him. It has nothing to do with his disability. And as I said, we would’ve never had really focused on getting that upfront as quickly and as early as possible. But for having heard it repeatedly from the focus groups, and I think the other kind of issue that you guys.
We’re worried about. But then also this was like a combo pack, which was, there were a lot of people who said, oh, he just wants to work from home because he is lazy. Because we’d all experienced like this work from home and having to go back. A lot of people didn’t want to, and there were some managers, so they were thinking, oh, this guy’s lazy wants to work at home and be lazy.
And so, you know, using the performance reviews was like, okay, we can. Counterbalance some of these other internal arguments people are having with themselves. Oh, he is lazy. [00:13:00] Oh, he, he, he maybe should have been fired anyhow. He wasn’t a good performer. Right. But yeah, there were all kinds of little negative attribute, negative defensive things going on in, in people’s minds.
And to that end, that’s a great comment because one of the things we tested every time was how receptive, if at all. Is the jury gonna be to request an accommodation that is work from home? Um, certainly there are legitimate disabilities such as my clients that working from home is a reasonable accommodation that would mitigate, in fact, their own HR person said it was reasonable after she reviewed all his medical records.
Concluded on Wells Fargo’s behalf that working from home was a reasonable ask and should have at least been tried. Okay, so take that aside. Some people, everybody knows somebody who just wants to stay home to take care of their pets, or they just don’t wanna put on makeup for the day, or they wanna be able to go on a walk at lunchtime around their neighborhood.
That’s what makes the world go round. [00:14:00] That’s what people want. But are those going to be. True accommodations for a true disability, there has to be a back and forth. That’s why it’s called the interactive process in the a DA, to go back and forth and see what works. But in this case, we needed to test were, was a jury going to be dismissive simply because the ask was work from home.
Was there gonna be some negative, uh, viewpoint that he just wants to ’cause he wants to, or is this a legitimate. Need in which that his disability is alleviated to make him equal. That’s why the a DA exists, it exists to make other, if we who have disabilities, equal to those who don’t. And so could this make him equal?
And so what we found is it depended. It depended a lot on the jury. It depended on their. Their viewpoints and their life experiences, if they had been taken advantage of somebody who just wanted to work from home. ’cause they just wanted it. Some [00:15:00] people didn’t think it was a reasonable ask. Mm-hmm. Other people thought that, again, this company, Wells Fargo, they really needed to consider the ask and they certainly should have followed their own HR person’s advice.
Yeah. How was it doing? Working from home? And of course it was like, we got this when he was knocking outta the park. And so I think. The other thing that you said that I wanna just repeat was she said she did 10 to 12 and she did six to seven on her, your opening statement and specifically to figure out what facts did they have to get first.
So a lot of what you did in your opening statement was, call it down, remove. We worked so hard to remove so many things, and that’s just from the opening. You put them somewhere else. They did come into trial, but they weren’t that front and center. What do they need to know immediately to be able to be on your side when you sat down after for opening?
Sure. Are you asking me what did they need to know, or, no, that’s kind of part of the equation for doing opening so many times was to continue, like you said, [00:16:00] tweak a little more, remove some things, put some things in a different way, and that was one of the things that we worked together on, was like, okay.
Let’s listen to what they said about this one, and then let’s try and put something else first or eliminate this thing and put this other thing first. And I think what one of the things that I remember coming out so clearly that was like, what can we do to solidify these HR notes? ’cause they were the, the golden ticket.
For the whole trial. ’cause wis, we realized like, oh, once they started to hear that, they were like, wait a second, we don’t really care. HR knows these. There are HR notes here. And so that was something that was like, okay, how many times can we remind them in the opening about these notes? Yep. Notes. Exactly.
And so to that end, somebody might hear this and think, wow, six to seven on just opening, were you just saying the same thing? No, we were saying different things, but in addition to that, it allowed us to test some of the evidence. When you’re testing your opening, you’re able to test some of those [00:17:00] critical pieces of evidence.
You know, you’re gonna get in like the notes, when do they need to hear it? What portions of those notes do they need to hear early? And what gives the biggest bang, like biggest punch. When they hear or saw they said no is a quote in her notes when she asked the company to just try the accommodation for six months when they see the, they said no.
That was very powerful. And it said, we need to get that upfront. And certainly it drove our order of proof in the case, which witnesses to put up first. Mm-hmm. And so we get a lot from the focus groups, um, at every phase. And sometimes you get multiple faceted pieces. Another example would be every focus group helped us to determine what kind of juror did we need on this case?
What did we want? So for purposes of jury selection, we were able to really look at. What were the world experiences of the people in the focus groups and who were [00:18:00] good jurors for this case compared with those jurors maybe we didn’t want. And so creating a little bit of a profile on what is a good juror for this case certainly helped during jury selection.
And was I doing that during opening focus groups that were tailored for opening? Sure. Because we were able to really see who understood. The case who got the points quickly, who understood the law to the extent that the court was gonna give him the law at the end, and who understood exactly what was being asked for here.
So while it was an opening statement, focus group, there are lots of pieces that come out of it, such as jury selection, testing your evidence, the order of witnesses you wanna put forth at trial. All of those baked into some of those. Now, I did do other focus groups that were designated, as I said, for a narrative early on before we even know what we are gonna put in our focus groups.
How did we need to communicate what the rules or the law is to this jury in order for them to understand it from our perspective early? And then [00:19:00] we did damage as focus groups as well, how, as you said, it’s a $22 million verdict. A large portion of that verdict is back pay and front pay because this person was a high earner, but it’s a lot of money.
So how is a jury going to react to an ask of that amount of money and when to ask for it? Do I ask for it during voir dire? Do I ask for, not ask for it, but do I allow the jury to know how much we’re gonna ask for during voir dire, or do I do it during opening so that they’re not sitting there wondering the entire time, how much money is she gonna ask us for in the end?
Or do I wait until the end? So all of that I was able to feel very comfortable doing at trial because I tested it in focus groups. Mm-hmm. And that was one a thing I was gonna say too, two things. First. In your case you had, how long was jury selection for you? Oh, so I’m in federal court and it is judge specific, but this particular judge allowed 10 minutes for the first eight [00:20:00] people in the box, and you have three peremptory strikes.
So how many ever people get struck once you go through your first 10 minutes per side would be the remaining minutes you had left. So let me give you what happened. After the first eight people were in the box and each side got 10 minutes, five people were excused from the jury. So five new people from the galley were pulled into the chairs and each side had five minutes.
So then there were, uh, two more strikes. So then two more people came in and each side had two minutes. So. That’s it. That’s it. So creating a juror profile, at least the people that you know like this, these are some characteristics. Again, when you’re doing virtual and you’re doing these over and over, and again, you’re, you’re getting a lot of like qualitative things, not just, oh, no one in their thirties is good.
Oh, no one who has a BA in arts and science thing. You had the experience wise, but then you also had, okay, what do I have to ask in 10 [00:21:00] minutes to get to know some of these things in here? ’cause. And you have to make your decision lightning fast, right? Absolute. So that gave you a lot of confidence to make that decision.
Lightning fast. Lightning fast. That is the best way. I think we described it NASCAR fast, right? We’re here to scarlet, and so it was so fast. So you have to really have a good idea and something you can’t learn without doing. Is to trust your instincts and trusting your instincts is really practicing jury selection over and over.
And the best place to do that is focus groups, right? So with every focus group that we did, I spent almost every, I spent some time doing a. Even longer voir dire section or jury selection than I got in real trial. But it allowed me to feel comfortable with the questions I wanted to ask to get real time responses from people that were focus group and be able to see what maybe people thinking about when I do ask those questions.
So [00:22:00] those instincts of trusting your gut, but also trusting your research that you have done through focus groups is really all you can do when you get 10 minutes. Yeah, and this is where you knew your judge. You knew you are gonna have this NASCAR fast, voir dire. So you knew how important that opening statement was to be able to nail it.
If you get somebody on there who’s not gonna fit that profile, okay, what do we need to have in this opening statement? ’cause you did it so many times to be able to retrofit some things like, okay. What you gotta do when you know how important that opening statement’s gonna be. As an employment lawyer, we don’t get to try a lot of cases.
99% of all employment cases settle and even though I’ve been practicing for 25 years. I have not tried a lot of cases, and so the other thing that focus groups give you amongst many is the confidence. So because I had tested it and because I knew how fast it had to be, I was really confident that the [00:23:00] questions I was going to ask would give me some information that I knew what to do with it in that quick period of time.
So again, that lack of confidence going in on what do I do with what they do say. You spinning your wheels at that point, you get nothing out of it. So if anything, for purposes of jury selection, not only do you get a bit of a profile, but you get the confidence to know that the questions you’re asking are going to serve the purpose you need them to serve in that time that you have, there’s no other way.
You’re just winging it otherwise. And if to wing it, you gotta have a lot of trials under your belt. And then that’s still research, so That’s right. That’s right. That’s exactly right. It’s still a form of research there. Yeah, exactly. Trial and error there. Well, to be truthful about this, 98% of things settle.
So trials are few and far between. They’re very hard to get. And I was talking with a lawyer who. He had several coming up and he’s been practicing for some time and he said, I love going to trial. That’s my favorite part. But trials now are so [00:24:00] different than they used to be. Used to file something and in six months you’re doing a trial on it and everybody’s getting up and going.
He is like, but now you get so bogged in the mere of the motions and once you finally get there, you’re exhausted. ’cause it’s just been this whole battle over these very small, minor things. It gets even more treasury. Once you get closer to trucks, they’re gonna throw more and more stuff. And that’s what you saw too, is they just kept throwing more and more stuff.
But for sure. I wanna stick a little sidebar here ’cause I want you to talk about, ’cause a lot of people worry, a lot of lawyers worry if I do focus groups. If there’s a chance, they’re gonna find out and there’s a chance they’re gonna try and get ’em. So that happened to you here, so, so walk us through where this was going on and tell, give us some background about using those clips and what happened.
Sure. So as mentioned, we started early. We started with the narrative, so it was before I even knew what discovery we’re gonna do. We can talk a little bit more about how we used it along the way, but we certainly used our focus group clips in mediation. [00:25:00] So the sanctity of mediation is supposed to be, it’s confidential.
The parties are supposed to come to the table in good faith, and they’re supposed to try to get the case settled. The mediators will tell you it’s the only day that you have complete control over the outcome of what happens in your case, mediation. So we had used some of our video clips. Some of the focus group members on what they really thought about what Wells Fargo did here about the A DA.
What is the expectation of the jury as to what the company should have done? What do they think of Wells Fargo generally and certainly. What is their viewpoint of what happened here? So we had some focus group members from across various. We didn’t just pick one that was really good for us. We showed Wells Fargo that we had conducted multiple focus groups, and we took clips from those focus groups and played them during the mediation in true good faith.
They pick the mediator, they pick the day, they pick the how. And I typically [00:26:00] don’t do a lot of presentations for mediation, but this one was so important that we wanted the Wells Fargo to see this is what the jury’s gonna think about these facts because nobody really wants to go to trial. Trial is something that’s forced upon a plaintiff.
’cause they have no other choice. The company didn’t settle and the case has, you get past summary judgment. In a plaintiff’s case, I mean, I’m sorry, in an employment case that’s hard enough to do and you actually get to trial. Settlement is a sure thing and so nobody comes into a case and says, I’m never gonna take a settlement.
We’re going to trial here. But I most jurors know that. I believe that they know that if it gets to them, it’s important and something along the way didn’t happen. And so anyhow, we showed the video clips. It was a silent presentation. I said nothing. I simply showed a PowerPoint presentation that had some video clips in it, and the next thing we got was a motion.
From Wells Fargo’s Lawyers, which is public, that says, give us all your video clips, give us [00:27:00] all of your videos from all of your focus groups. You have waived privilege because you shared these with us during mediation, and therefore we’re entitled to them all. In addition to that, and this is important, we had a protective order.
This particular judge has a standing protective order and anything marked confidential that you share with anybody, not just your expert, you have to have them sign an acknowledgement form that it’s confidential. So they, in addition to wanting the clips, wanted proof that all of these focus group people they saw had signed that form because we had shared with them some of the quotes from the human resources notes.
Now, we didn’t give them documents, we just shared the content of it. We had to brief it. This is again, part of the file, and fortunately we had a fantastic magistrate judge who immediately got it, and she said during an open hearing, well, wait a minute. Why do you get her focus groups? That’s attorney work product, but it’s also in a mediation.
Surely you’re doing your own [00:28:00] focus groups. Wells Fargo, you wanna turn over all yours to her too. I don’t know whether they did ’em or they’re not. There was a little bit of a deer in a headlight look from counsel’s table when she said that, but needless to say, the court did the right thing. And ordered that they were not gonna get these focus group clips, that they are attorney work product, and certainly anything provided in the sanctity of mediation is expected to be confidential.
And so, you’re right, lots of people are afraid of it. It can be really impactful to the opposite party if they’re open and they’re in good faith. Again, my opinion only is they really didn’t listen to what those focus group members had to say. They were more concerned about filing another motion and trying to make life very difficult in hopes that they’d get the whole of what we had recorded for each and every one, um, as opposed to.
Really using it as a tool or as a medium and to try to get the case resolved. And obviously it didn’t [00:29:00] resolve. No, it did not. And that, that motion is like one example. Tell me if this is wrong, but they tried to get you off the case. Three or four separate motions and one during trial. Right? Sure. So that’s very, this is all public.
So from the get go and what is the lesson? Lemme go back two lessons. One is, what’s the saying? And I’m gonna get it wrong. Somebody help me. It’s he who do protests too much. Yeah. So, or she who dosed does too much. Litigation is an all out fight. We get it. A lot of opposing lawyers. ’cause I was once a defense lawyer.
It’s, show me your cards, I’ll show you mine and let’s just see what happens. But some cases it’s an all out war. And so from the very beginning, Wells Fargo in their answer listed me as one of the lawyers who had helped this particular employee through the accommodation process. Let me back up. Mr. Billon, the plaintiff in this case, hired a lawyer.[00:30:00]
To help him navigate Wells Fargo’s accommodation process, he did it because he didn’t wanna get it wrong, and he wanted to follow the letter of their handbook to the T and submit things the way that they required them to be done. He’s busy making sales, making money for Wells Fargo. He needed help. That lawyer wasn’t me.
It was somebody completely different. She was an a d, a advocate, but when I filed the lawsuit in their answer, they named me personally as the a DA advocate, even though their own records said otherwise. So I had to write ’em a letter and say, help me understand what due diligence you did before you told the court that I was the a DA advocate.
Clearly, you know better. And so they amended their answer, but it was an an immediate, Hey, we’re gonna try to conflict you. We’re gonna put you in here by name. We’re gonna make this difficult because all lawyers are supposed to do some amount of due diligence. Have actual evidence, even if it’s a [00:31:00] sworn declaration, before they file anything with the court that they know potentially is not true.
So anyway, they fixed that, and then later on, which is also public, one of the line managers above Mr. Billon had contacted my office for a consultation. Now I would never be telling anybody about that, but this particular person chose to disclose that to Wells Fargo’s lawyers. And we had noticed him up for a deposition and they immediately found a motion to disqualify me from taking his deposition because two years prior to this case, I had done a consultation with him.
So we had to brief that. And it went back and forth and finally the court again did the right thing and said no again. There’s no evidence here that has one, has anything to do with the other, and she can take his deposition. What does that do for the receiving lawyer? The [00:32:00] duties we have to our clients are the client that we do have, so it required a lot of disclosure.
It required a lot of, I got an ethics council opinion. I knew I was in the right. But because it’s Wells Fargo and the attack is on in such a way that had nothing to do with the case. It was a total deflection. I had to make sure we were on the right side of that and that I had everything in order in the event that the court somehow bought what they were saying.
And then, as you said, on the Friday before trial at 7:00 PM. The oldest trick in the book that might rattle a less senior, a less seasoned, we call it seasoned at my age lawyer, they file a motion claiming fraud on the court that I had committed fraud on the court and that all of my exhibits. That had been filed, my exhibit list that had been filed STR should be disallowed and should be struck.
And the basis for this is we had amended our exhibit lists between April 15th and July [00:33:00] 22nd. When trial actually was set to start, we’d amended our exhibit list. We’d added some exhibits to it, and they claim that because the deadline had passed, we were not allowed to amend our exhibit list. In addition to that.
We had some objections. They had some objections to our exhibits, and then we were working in Excel and they were working in Word, and we had to cut and paste and so on. Three innocuous exhibits. Some of their objections had been cut off on one of the versions we had filed. They claimed that was fraud on the court.
What was so troubling about it too is not a call, not an email, not anything. There was no communication with me whatsoever to claim any kind of. What’s the word? Any kind of prejudice confer. Yeah, yeah, yeah. And they just followed at seven o’clock before we’re set to go to trial Monday. Now I have to say, and this is part of the transcript, so when we get the final transcript, the court was having nothing to do with that.
And back in January when we had this big [00:34:00] hearing with the magistrate on the focus group, the court said to both parties, said, I’ve never seen a case. So many motions have been filed. Now I hadn’t filed any, so it was, she was talking to us like children in the sense of making sure we all were covered by it.
But it was directed at Wells Fargo’s lawyers for filing so many motions. And I reminded the court of that in my response to the 7:00 PM Monday, uh, 7:00 PM Friday. And so we go in what Judge Whitney said. Look, so what people amend their exhibit lists up until trial and sometimes even during trial. And cautioned that they had been warned about filing frivolous sanctions, motions, and.
I would not have liked that type of admonishment from the court if I had done what they did, but I don’t know how Wells Fargo’s lawyers received it. All I know is I have been in front of this judge many times, and to hear him be that upset to really say, I’m gonna turn the gun back on you, which was his quote, it was serious.
And so [00:35:00] again. The tactics, the antics, the deflection during this litigation to be anything but about what actually happened here is what we had to go through in order to get to the jury. Mm-hmm. I hope that you are enjoying the interview so far with Michelle Gesner. I’m stepping in as this is where we’re gonna end this episode, and you’ll have to wait for part two for the remaining part of that.
Interview, but I do wanna just talk really quickly about a few things we’ve heard so far, gaining confidence from focus groups, learning how focus groups can help you when your voir dire is 20 minutes or less. And also what happens if opposing counsel tries to get access to your focus group footage. All right.
Thank you so much for tuning in. Michelle Gassner’s Contact information will be in the show notes along with the link to join the email list trial lawyer prep newsletter. And until next time, thank you so much.[00:36:00]
This episode join Elizabeth Larrick as she explores the decision-making process of whether to settle a case or proceed to a jury trial. This episode provides trial lawyers with actionable insights into evaluating jury trials by examining recent verdicts and settlements and leveraging the experience of attorneys familiar with key players in the case. Elizabeth shares how focus groups composed of non-lawyers can offer valuable perspectives, helping to understand jurors’ mindsets.
Look into trial preparation and risk assessment, focusing on the importance of evaluating evidence from a juror’s viewpoint. Elizabeth discusses the strategic use of focus groups in refining opening statements and provides a comprehensive view of weighing the risks and rewards of settling versus going to trial.
In this episode, you will hear:
Decision-making between settling a case and going to a jury trial
Importance of researching recent verdicts, settlements, and consulting experienced attorneys.
Utilizing focus groups to understand jurors’ perspectives and attitudes.
Trial preparation, risk assessment, and evaluating evidence from a juror’s viewpoint.
Assessing trial costs, time commitments, and potential outcomes to guide clients effectively.
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Episode Transcript:
Hello and welcome back to the podcast. I’m your host, Elizabeth Ric, and I’m glad that you’re joining me Today. We are back on our regular programming and tackling a pretty common situation, and that is having to [00:01:00] evaluate whether to settle or go to jury trial and using focus groups to help you, or at a minimum, right, getting into the point of view of the juror.
So let’s dive in a little bit into what kind of situation are we talking about to get specific, because this is a situation where you’ve got a case that has a decent, or what you might call an okay offer. You are coming up to trial. This is gonna be the setting where it actually goes. If you practice, even in many places, there are several settings before you actually have the official, okay, this is gonna be it.
So you’re coming up on this official, it’s gonna be it. Maybe you’re 60 days down the road, maybe you’re 90 days down the road. You’ve done all the mediations and you know you’ve got this okay offer. You’re getting a little bit of pressure from your opposing counsel. Your client’s really looking to you for a lot of guidance here because they’re not really sure, [00:02:00] but they’re not totally opposed to going to trial, right?
So you are like in this total middle position here, and you need to help your client make this decision, okay? But what we are not talking about. Is the case where you have no offer, right? So we’re not making a decision. We’re going, there’s not an offer here. Or the offer is just so low, it makes you laugh, right?
Like, okay, like that’s laughable. Like, we’re going to trial. That’s not what we’re really talking about here. Really sitting down to help make that decision about whether to settle or go to jury trial when you’ve kinda really got this middle position going on. And number one thing I encourage people to do when you’re in this situation is number one, do what we love to do most as lawyers, which is research.
Go and look at a verdict and settlement database and go look and see what’s happened right in the past year or two years. I’m always very cautious of people going like, behind the pandemic. Don’t do that. [00:03:00] Try to get things that are recent. And then of course, in your jurisdiction, right? So that’s gonna gather, right?
What’s kind of been going on in your jurisdiction or in the general area for your specific type of case, and what are the ranges of verdicts and settlements that you can find? The next piece of research I suggest that people do is go find lawyers who have been in trial with the same judge or the same defense counsel.
Now, we talked a little bit about this. Like how do we really get ready for trial prep in an episode? And I will put that link in the show notes where we talk about, okay, jury instructions are an okay place to start, but let’s really look at what are the judges’ rules. So really get set about what is actually gonna happen.
And, and in that particular episode, we talked about kind of. Like those rules can kind of sneak up on you, and that judge persona can really change the dynamic of your trial preparation and what you [00:04:00] can actually do in the courtroom. So that’s really important to know. If you’re gonna evaluate whether to settle or go to jury trial, what is your judge persona?
And then also what is your. Defense counsel, right? Like, do they let things go? Do they jump up and down and object every, you know, five minutes? And so that’s also really helpful just to get, again, we want to get things into your brain because what’s gonna happen is we’re gonna eventually turn to evaluating, but we need to put that information into our supercomputers.
And then, you know, always be a little leery of folks who haven’t been to trial in a couple years, like 10 years or more, right? We really need to have fresh information this day and age, especially knowing how quickly life changes and how quickly information is, is flooded into jurors. Lay people, right.
And things change so quickly compared comparative, especially before the pandemic. Okay. So keeping that in mind when we’re going and doing our research, and of course that’s [00:05:00] our, our, our other piece of research is asking, right? Non-lawyers going to our focus groups and asking, what do you think? Right?
Here’s the facts. And what do you think? Because in this particular space, we are getting outside of our lawyer bubble. Which is where we need to be because looking at evaluating jury trial, we want to make sure we’re looking and talking to juror Ro. So this is where we’re getting out of our bubble. And again, we’re talking about something short and sweet and just looking at what do they think about the facts?
What are their attitudes? About the situation. What are their assumptions they’re making about what’s happening to the people you know in the story that they hear? What are the main facts that they like? What are the main facts they don’t like? And I think one of the most important pieces we gather from focus groups, which is confusion.
Where is there confusion? And where are we maybe putting too [00:06:00] much information in and we need to pull it back? Or the opposite. We don’t have enough. We’re making this assumption. They understand a situation where we need to go in and explain it. And again, all this virtual focus groups are a place where we can go do this short and sweet and get that really that blink reaction.
Is that what you want? Because. Thinking about jurors who’re gonna get that blink reaction to your information, to that case statement that’s read by the judge. Where do they immediately go? Right. Are they immediately put off? You want to know that because that’s gonna significantly help. You know, what is it the burden that I had to get over?
Right? It. It’s not just a preponderance of the evidence, by the way, y’all we’re talking about what is already in the juror’s mind that I have to get them to go around or change. And there are a lot of times you cannot. Right. Like you can’t, right? There’s not gonna be anything, right? So you wanna know that before you take down that path and, you know, go to jury trial.
[00:07:00] So you’ve got this extra research right in your brain. And what I always suggest people do is number two is line it out, right? This specifically this, you know, line it out and make a list of good facts. Make a list of bad facts. Make a list of neutral facts, right? Mark Lanier here. Okay. So that’s what he does.
He sits down and he literally lines it up and, and literally writes it on a piece of paper. If you wanna use computer, type it out to compare. Okay? I also like to have kind of a list of what I call iffy evidence, and this is like if it comes in and it may not, right? So it’s very iffy. You’re not sure whether that piece of evidence is going to come in or not, and.
Will it be snuck in, right? If it’s negative, will it, will the, will the defense somehow sneak it in? And you really wanna make sure you, when you have a piece of iffy evidence that you write, you know, what’s your best case scenario and your worst case scenario, right? If the fact [00:08:00] comes in, what’s worst case scenario?
Is it that you lose or is it that you got some damage control? What’s best case scenario, it doesn’t come in or maybe it’s something you really wanna come in. Right. And how does that really significantly help you in your case with the juror? So having that kind of lining it out, and I really even say go as far as writing your order of proof, right?
Just make a list again, of witnesses and what will they cover. Right. And I always like to do this because it shows me where are the holes I may have, right? So thinking through where are my liability witnesses, where are my damages witnesses, do I have enough and what are they gonna cover specifically?
And does somebody need to do extra lifting for me, right? Because maybe. You can’t add any more witnesses. And that’s the other thing too, is like if we put our experts on there, right, what kinda lifting are they gonna do for us? When it comes down to filling in that? Jury [00:09:00] instruction, are we covering all of our bases?
You just wanna make sure that you’ve got that and don’t have any holes in there. And again, making sure, like with my list of bad facts, can I move any of those into the neutral or the good bucket? Now let me give you an example. So let’s say you have a case situation where you’ve got your safety rules.
Maybe you like to use your safety rules, but you got rule breakers on both sides of the aisle. You got a rule breaker on your client is a rule breaker and your defendant is also a rule breaker. Now you kinda got, okay, how do I switch that into a good fact? And even, can I or do I just, how do I neutralize that?
Because when we then have, both sides are rule breaking, it’s almost like they start to compare it and it’s not an easy slam dunk, right? There’s gonna be something that comes on your client and it’s like, hmm, okay, but how can I. Really either make this, these are two totally different things, or just neutralize it.
[00:10:00] And that’s one of those things you gotta figure out, okay, what kinda ding are we gonna take on that and how can we maybe possibly fix it? Now what’s important here is as well as go back and kinda look at, okay. Deposition wise, how do we fare in some of our stuff? Do we have any holes based on our testimony?
And again, always looking at, at this point too, looking at our jury instructions. Some of the claims that we have. Are we making everything? Do we have enough to get all the blanks filled in? Or whatever it may, maybe it’s clear and convincing that you need to have, but, and you, maybe you need to look at the law on that too, to make sure you’re actually going to meet.
What is happening, right. And you’re not just making a leap because many a times we will believe, oh, I got that deposition, I got that transcript. It’s super clear. What the defendant said is definitely going to be, you know, clear and convincing evidence that they disregarded right what was, and it’s like, eh, [00:11:00] it’s really not.
It’s pretty tenuous. Most judges are not gonna give that to you. And again, thinking through, you’ve already learned about your judge, so you can actually at this point, look at and evaluate, is this gonna come in or not? Am I gonna actually get this? Jury instruction, or should I just go ahead and like, no, in my mind, I’m gonna let that go.
And the other piece here that we do when we think about lining it up and you know, starting to evaluate is what are the costs? Like what time cost is gonna be to me in my office expert? Literally the expenses, right? What are expenses gonna be for a trial like this, depending on how long it is? And of course, at this point, now that you’ve really dived.
Into the evidence. Maybe you even outlined your opening statement, which I think is extremely helpful at this stage. So you’ve got your research in your mind, you’ve gotten the evidence, you’re lining things out. You’ve got a good grasp on what’s going on. Now is also a great time to do a second focus group because now.[00:12:00]
You’ve got that first one layered in, and you’ve got a really good grasp on how you’re gonna lay this out. With advocacy, with the persuasion, with the sequencing the way you want it. Now go to that second focus group with that opening statement and see what they think. Right? Are you getting there? And again, I always caution people, you know, when we have iffy evidence, we don’t take that to a focus group because we don’t want.
We wanna make sure we’re testing worst case scenario. We don’t wanna test best case scenario. We’re not doing focus groups to confirm what you already know. I mean, we’re testing our worst case scenario here, but again, thinking through like just be safe. Test what you know is gonna come in. But in this second focus group, again, we’re still talking about maybe even an hour, just doing that opening statement to see are they shuck and jivan with what you’re laying down, or are they not?
It is not, it’s just not, not the whole thing. So step one, research. Step two, line it out, evaluate, think [00:13:00] about it. Okay, and finally, step three, which is the point of view of the juror, which is stepping into their shoes, right? Putting on your juror hat and thinking, okay, if I’m sitting here and I’m hearing these facts for the first time.
Do I care? And don’t try to play the sympathy card here because it may be sad, but that does not make them move the needle when it comes to an amount of money. Sad doesn’t do it. Okay. Sympathy does not do it. And so be very careful about putting your finger on that sympathy button and thinking that that is actually going to persuade jurors it does not.
They we see sad. Terrible things happen all the time as a juror in a juror’s life on tv. So we don’t have a lot of sympathy. Okay? Bad things happen all the time. So if you’re hearing this for the first time as a juror, do I care about what happened here? Because most of the time jurors are sitting there thinking, how do I get out [00:14:00] of this?
I would much rather even be at work than doing this. Okay, so why would they care about it? And. If they do, are they going to give the amount of money you are going to ask for? This is kind of the hardest question. When I go and I help people get ready for trial, what is the number? And it’s always a challenge to think about what number.
Because you’ve got, you’ve been talking settlement, right? But now we’re talking about jury trial, and that’s a really important piece for you to figure out and go through this evaluation of, okay, if I’m a juror sitting here, and if it’s best case scenario, right? If it’s worst case scenario, what is that number that they may put in the blank?
And then is it worth rolling the dice? Because we think about it, and again, we get stuck in our lawyer bubble. And throw around some really large numbers and sometimes it’s just not gonna get there. And the reason why I stress thinking about it in the sense of you’re sitting in [00:15:00] this courtroom, you don’t really wanna be there, you’re hearing the facts.
You’re sitting with a bunch of strangers. What’s going through your mind and do you care? And this is not about asking your partner or your spouse or your friend or the knitting circle down at the church, right? It’s about thinking about really getting into that point of view of a juror not biased opinion of people that know it’s okay.
And being really honest about what that juror may be thinking about while they’re sitting there. Okay. And what distractions may be going on their heads too. Okay. ’cause we gotta fight all those things while we’re in jury trial. So let’s go back. And let’s walk back through this very quickly. You’ve gotten an okay, maybe a decent offer, but it’s not your number, the client’s on the fence about it, but they would go to trial if you asked ’em to, right?
You’ve got some decent facts, but you’re not really sure. What would be the rocket fuel? What would really drive a verdict here, you’re not really [00:16:00] sure. And you need to help that client decide. So step one, put on your research hat, right? Go out there, look at our verdict and settlement databases. Talk to lawyers who’ve been.
With this judge in trial recently and lawyers who have been against this defense counsel in trial recently, get that research and then go and do a virtual focus groups, spend an hour with some folks filling out the facts. Filling out what do they think? Well, they care about what assumptions do they make.
Number two then is with that move into lining up. What you got. Write out that order of proof. What are these witnesses gonna provide? Look at your evidence. Make your good, your bad, and your neutral list of facts. What can you move around, right? And again, what’s our iffy evidence? Maybe it’s coming in, maybe it’s not, but you really wanna look at.
Best case scenario, what my evidence looks like and a worst case scenario. What my evidence looks like and what are literally the expenses that I would have, the expense of [00:17:00] time and money to go to trial. Very important. You gotta be able to predict that and let your client know that they’re not surprised.
Another great place to run a virtual focus group where you are putting in your opening statement, you’re ordering things, you’re sequencing it, you’re putting in your best foot forward here. Not reaching for that iffy evidence in there, but putting in that best case. Scenario as far as sequencing and persuasion.
And then our last step, which would be sitting and thinking about what the point of view of a juror would be sitting in that courtroom, hearing your voice, talk about it. And the opening statement, and now you’ve gone through those three steps and they are time consuming, I will tell you. But you’re making a big decision here, right?
You’re going, this is going to trial, or you’re gonna settle the case. You need to have a good set of research before you can make that decision, because you’ve gotta get into the mind of the juror. You have to, because [00:18:00] that’s the one that actually makes the decision. Once you walk in that courtroom, you turn it over to them.
And do you have the tools, you have the evidence to help them reach the decision that you would like them to? And you know, once you have all this information, you can realistically evaluate what is the risk? Is this a case that they’re not gonna care about? Is this a case that they’re maybe gonna give a hundred grand?
Maybe they’re gonna give 30 grand. And we got an offer that’s better than that. But you can now properly advise the client and help them make the decision, but also give them the tools too. What are the expenses? What’s the time? What have other cases done? Which is what people always ask. So I hope that you found this episode helpful if you were on your journey of whether to settle or go to a jury trial.
And of course, right now. I am offering the [00:19:00] on demand. Set up your own DIY Virtual Focus group course. The link for that will be in the show notes, so please don’t try to drive and write this down, which is elizabeth larrick.com/online focus groups. Okay. Also, don’t forget to check the show notes for the other episode that we have about doing research for trial.
Okay. I hope you found this episode helpful, and until next time, thank you.
