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

elarrickbrand on July 2, 2025

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

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

In this episode, you will hear:

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

Supporting Resources:

Learn more about the Forgetting Curve

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

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

Episode Transcript:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

elarrickbrand on June 19, 2025

Explore the potential of focus groups to elevate your mediation success with insights from Elizabeth Larrick. This episode is a must-listen for trial lawyers looking to refine their negotiation strategies. Elizabeth shares the strategic advantages of conducting focus groups two to three months before mediation to influence insurance company figures effectively. She distinguishes between focus groups for trial preparation and those tailored specifically for mediation, offering techniques to maintain confidentiality while utilizing focus group findings to drive better settlements.

Elizabeth emphasizes the critical importance of early preparation, providing ample time to share insights with the opposing side ahead of mediation. This proactive approach enhances negotiation effectiveness and informs decision-making.

In this episode, you will hear:

Strategic use of focus groups to enhance mediation success
Importance of conducting focus groups 2-3 months prior to mediation
Differentiating focus groups for mediation from those for trial preparation
Techniques for maintaining confidentiality while sharing focus group insights
Leveraging mediators to communicate focus group findings effectively

Supporting Resources:

In case you missed it, here is Episode 139 that talks about using focus groups in discovery. Listen here.

Curious about doing a focus group for your upcoming mediation? Schedule a free call to see how Elizabeth can help.

Episode Transcripts:

Elizabeth Larrick (00:02.592)
Are you gearing up for that big mediation and ready to take those persuasive focus group clips? Or are you contemplating taking your case to a focus group before mediation? Before you do, tune into this episode to avoid

a huge mistake that you may not even know is waiting for you. Hello and welcome back to the podcast. I’m your host, Elizabeth Lerick, and we’re here to talk all things PrEP, focus groups, trial strategy, witness PrEP. And in today’s episode, I want to talk about a really common mistake that we may be making when we take focus groups clips into mediation. Now, you may be a lawyer who

is thinking about doing this and this is a great episode for you or you may have been trying this in the past and maybe can’t understand why the clips were not landing the way that you thought they were. So let’s talk a little bit about the setup here. You’ve worked this case up really hard. You’ve pushed for written discovery, taken those hard depositions, developed the damages, got the stories, got the doctors in line, and now you’ve got mediation set and you’re preparing. Maybe

you’re in a place where you make presentations or maybe you’re putting together a packet to send over the opposing side and you think, Hey, you know what? We’ve got mediation set. Let’s now do a focus group so we can take some clips in there. Yes, this is an awesome thought. It makes me super excited. However, I want to tell you there’s one big red flag that is sticking out and it’s the timing. I mean, when you’re choosing to do this focus group for the mediation because

Elizabeth Larrick (02:18.138)
The insurance industry already has their numbers, their figures set 30 to 45 days out, sometimes even longer than that before your mediation. So anything you bring to mediation, it’s not going to move the needle really at all. So I want you to avoid this pitfall and to be prepared. And let’s talk about the three things that we can be doing to make our focus group clips for mediation.

kick the can down the road, meaning increase that number that they may be bringing to the table. Where did this come from? Well, I recently attended the Arkansas trial lawyers annual meeting. Shout out was a wonderful CLE. I encourage you to do it. And I sat down to listen to a panel of two lawyers who now work on the plaintiff’s side, but for an extensive period of time and career, they worked on the defense side in the trucking industry.

So they were there to present several different myths or just plain facts that plaintiff lawyers may not even know about the other side. And one of those things was the number for mediation is set 30 to 45 days out. And to get that number to move, the information needs to be funneled into the file into the other side very early on so that the processing can go all the way up.

and come back down to the file because there are many different layers and decision makers when it comes to these larger cases. Now, again, let’s really talk about what kind of cases are we talking about? I’m not talking about our policy limit car wreck of 30,000. That’s the limit here in Texas. I don’t know where you may be listening. It may be different. However, we’re talking about our larger cases where we have significant injuries and you want to be running these focus groups and you want to be

squeezing as much as you can from that feedback. So we don’t only running focus groups in the 30 days before mediation for mediation. Now, let me just clarify that a little bit. There are focus groups that we run to learn about our cases, to find blind spots, just to do general research about themes and attitudes. That’s not what I’m talking about here. Here, focus groups for mediation are done in a very specific way so you can create clips

Elizabeth Larrick (04:37.894)
that specifically target either defenses that you know are out there that you’ve heard, or maybe to clarify a piece of damages. Either way, they’re very persuasive. They’re very different than focus groups for trial, or like I mentioned, focus groups for research. Or if you didn’t tune in, focus groups before you even start discovery. The link to that episode will be in the show notes. So.

There will be a follow-up episode to distinguish between a focus groups for mediation and focus groups for trial. But the main ones are they’re extremely persuasive for the specific purpose of talking directly to the other side and for mediation. So let’s talk about three things that we can be doing to avoid the pitfall of bringing focus group clips to mediation and them falling flat. And number one is our timing. We need to be doing these focus groups

two to three months out before our mediation date so we can decide, is this a clip that I want to send over? Now, the other part of this is, and a lot of times people have a big pause because you want your focus groups to remain confidential. So how then do you translate them over, send them over to the other side? And that would be step number two, which would be, you gotta prime the pump with the mediator. You’ve gotta get in some conversations with our mediator and figure out,

Okay, are they going to help you with this? Are they not? And the other thing is you can always be talking to opposing counsel about focus group clips. Now, to protect your confidentiality, this is step number three, we always have to make sure that we’re sending things through the mediator, right? Because here in Texas and in many states, you have the confidentiality, the settlement privilege, if you will, that anything exchanged for the purpose of settlement during mediation or even follow up after mediation.

right is confidential. want to make sure that stays that way because I know not everything we do in our focus groups needs to be disclosed in mediation. So this takes quite a bit of planning because you want to make sure that you’re getting all the information that you need in order to run the focus group and keeping in mind that date for mediation. So this will take a little bit of planning on your part, but I know that you can do it because we want to take

Elizabeth Larrick (06:58.159)
the best shot we can at mediation. And you want to make sure you’re giving the information over to the other side so they can have things adjusted. Remember, we talked about those layers. Decision makers, it’s got to go up and then it got to come back down so that when that day comes for mediation, their right number is available, right? They have to be able to do their analysis. And this may be where you’re thinking, wait a second, hey, I don’t want to

Give all my secret sauce away, Elizabeth. Again, let’s go back to what we talked about. Focus groups for mediation, very different than focus groups for trial, right? We talked about two main purposes that you would wanna bring clips to mediation. Number one is to knock out a defense that they’re hanging their hat on. Maybe it’s a fact, maybe it’s a specific kind of thing that they’re, hey, this is where we’re winning the case. And sometimes it’s just an attack on your client. And the other thing is maybe there’s something that they don’t understand.

that you can provide context or have the jury or the focus group members provide context to after it could be a piece of damages. It could be something else that’s quirky about liability. Either way, you’re the purpose is to have these clips speak directly to the other side. Okay, so we’re not giving away our secret sauce, but we are going to knock some of those things out for mediation. Purpose would be to move the money. Okay.

So we know we gotta start early, get these things ready. And again, you gotta give yourself time to even make the clips themselves or send it out for someone else to make the clips. Always delegation is good. Number two, we gotta use our mediator. We gotta prime the pump, make sure that they’re open to it and there’s a good purpose there, right? Keep the communication open. And number three, make sure you’re always protecting yourself through confidentiality, sending things through to mediator or again, label everything for the purposes of confidentiality.

All right. I hope that this episode was helpful and also putting a little seed in your mind. If you’re going to use focus groups for mediation, you got to start early, right? You got to get those things created, make them clip down and well in advance of mediation. So you can get that information over to the other side so they can make better decisions before that mediation day. All right. This is a short and sweet one. I hope you enjoyed the episode.

Elizabeth Larrick (09:20.291)
If you are curious about doing focus groups for mediation and would like to do them with me, there’ll be a link in the show notes to schedule a free consultation call. All right. Until next time. Thank you so much.

Hey Lawyers, You Don’t Need a Psych Degree to Run a Focus Group! [Ep 141]

elarrickbrand on June 4, 2025

In this episode of Trial Lawyer Prep, Elizabeth Larrick discusses the importance of focus groups for lawyers and dispels the myth that a psychology degree is necessary to conduct them. She outlines three key steps to running effective focus groups: having a clear goal, making a plan, and doing a test run of the presentation. Larrick emphasizes the need for lawyers to prepare adequately to avoid confusion and ensure they receive valuable feedback. She also addresses the issue of bias and encourages lawyers to seek help if they feel too biased to run a focus group themselves.

Takeaways:

You don’t need a psych degree to run a focus group.
Having a clear goal is essential for focus groups.
Planning is crucial to avoid confusion during focus groups.
A test run can help identify issues in your presentation.
Lawyers often talk too much and don’t listen enough.

Check out my detailed blog about planning and moderating your own virtual focus groups.

Episode Transcript

Elizabeth Larrick (00:25.016)
Are you putting barriers to starting your own focus groups? Maybe you think you need to be qualified or have some kind of certification before you start? Well tune into this episode and we’ll give you the answer so you can get going right away.

Hello and welcome to Trial Lawyer Prep. I’m your host, Elizabeth Larrick, and we are here to talk all things preparation. That would be trial prep, trial strategy, focus groups, witness prep, persuasion, courtroom tactics. We are glad that you are here. In this episode, I wanna bust down a myth that you don’t need to have a psych degree in order to run your own focus groups.

Because I want every lawyer to be running their own focus groups to make better decisions in their cases. If we run focus groups, we can have better direction for where we’re taking our claims. We can have a better understanding of how jurors think about things, because guess what? Lawyers don’t think the same way as jurors. And also I want you to have the confidence that people gain from hearing others talk about their case. So.

I don’t want you to place any extra barriers in your way. And what I have heard many times talking to folks, talking to lawyers about doing focus groups and really specifically, it’s a question people always ask me. Well, do you have a psych degree? I don’t, but I do have training and that’s what we talk about a lot here to be able to do focus groups in a way.

So I want to use this episode to give you the three things that you can do right now so you can get over that hurdle that you don’t necessarily have a psych degree, you don’t have any special thoughts or training. Listen, the purpose of a focus group is to get an outside perspective. So there are three things you can do before you begin to help you prepare yourself for a positive and successful focus group.

Elizabeth Larrick (02:32.008)
So number one, you want to make sure you have a clear goal in mind. Many times lawyers come to me and they’re not really sure the case has several different issues, but we always want to be able to prioritize what is the thing you need to know right now. What is the decision that you’re having to make right now? Maybe it’s about settlement. Maybe it’s about moving towards spending extra money on experts or trial, or maybe it’s about taking more depositions.

or pursuing a specific kind of claim, either way, you wanna be able to have a goal in mind. I want feedback on this issue. I want feedback on that issue. When we run virtual focus groups, we look at the collective amount of time that we have, and I tell lawyers point blank, you only have time for one issue, or you only have time for two issues. Or if you’re really just looking for general feedback, like that’s fine, but.

I think it’s much better if we have a goal in mind. Because once we have our goal in mind, that will then set us up to be able to prepare and plan better. Which is number two thing that you need when you’re starting to do focus groups, or if you’re already doing focus groups, having number one, a clear goal, and number two, having a plan. Now, I see too many lawyers come in and just completely wing it. And let me tell ya.

It is not helpful because what ends up happening is you, the lawyer, talk way more than our participants. You end up bombarding them with tons of information. Sometimes it’s organized, sometimes it’s not, but really you spend most of the time just talking and not listening. And so a plan can really help us understand we have our goal in mind. Let’s take an example. Let’s say it’s liability. Let’s say it’s a red light.

he said, she said, she said, he said kind of situation. And you really need to figure out who are they gonna believe. Okay, well that’s our one, our goal is to figure out what are we do on liability here with our swearing match? And so we have a plan. Do we approach it neutrally? Do we approach it from one side only? Do we approach it from two sides? Having that plan and knowing, okay, here’s where we’re gonna go. We’re gonna be neutral, Elizabeth, okay.

Elizabeth Larrick (04:54.654)
So let’s get all of our facts and let’s put them in a neutral light. Okay, now that may be difficult for you to do and that’s okay, but what we wanna make sure that we’re doing is we have a plan with how much information we’re gonna give, what we’re gonna stay away from, which is super important, because many times people wanna add in that extra fact that maybe it’s not even allowed into evidence. My example in a liability case is people always wanna talk about in a regular.

car crash case, people not having a driver’s license, which is not admissible in Texas. And it, I’ve seen it happen and it just tanks the whole focus group, okay, which means it makes it unreliable feedback. You always wanna have reliable feedback. And if you have got a clear goal in mind, you’re making a plan, and then finally, before you even get started, you do a test run of your presentation.

So I want to give a good example here where I had a younger lawyer who’s coming to me. He’s got two hours to go He’s got a pretty complicated electrocution case With a couple of holes in the facts. They’re just not ever able to fill there were no eyewitnesses And so he creates PowerPoint we walk through it together And I give some ideas I tell him hands a little too much information and to go fix a few of these things Well, he comes to the focus group and it was very clear he had not run through the PowerPoint before he turned on the Zoom to join with people because he just rambled and rambled and went on. And unfortunately, it became very confusing for the group. And so it was difficult to get good feedback when people are just confused. It’s kind of a, I’ll just say it, it’s a cop out. Like, I don’t understand, I’m confused. Or the other one is, well, I have so many more questions.

I wouldn’t be able to answer how I feel or what I think about it because I have so many questions, right? I don’t want that to happen to you, okay? Psych degree or not, that’s just kinda what happens when we get into a place where we’re not really sure. We just end up talking a little more, lawyer or not, it just happens. So, I want you to be able to do a test run before you jump into that focus group because we don’t wanna miss anything.

Elizabeth Larrick (07:10.562)
but also we wanna make sure that we fix anything in our presentation that may need to be fixed. There are plenty of times where I put together a PowerPoint, get going, and I do a test run and I realize, whoa, all these animations are off or there is no animation so they can’t see everything. A test run is a great way and it doesn’t take long. You could just go through your slide deck and then you’re done, right? Just print out your materials and read through it. That is what I mean by a test run. It doesn’t have to be difficult. But what you will find is, I could say that

with a little more clarity. I can see that we need to add a little more information here or look at me, I’m adding in an extra issue that I may be worried about that we didn’t put into our plan. So it’s really helpful also to avoid wasting any time in a focus group. If you have all of your visuals ready, then you don’t waste any time going to find them or making sure that they work. I’ve seen this happen, unfortunately, too many times where people say, well, I have this picture I want to show you.

but they don’t have it ready. Or they realize, oh wait, I have another one I wanna show you and they have to go find it, right? Well, all that time that they’re just sitting there staring, right? That’s time that we’re not getting feedback. So I really want you to do a test run to avoid wasting time. So we’ve got our three things that you need to make you feel a little better, get over that barrier of starting a focused group. Number one, have a clear goal in mind. Number two, make a plan. And number three, do a test run.

Okay, now that’s all gonna get you over that hump of getting that thing started and then that feedback is just gonna roll on in. And from there, it’s just making sure that we don’t pull ourselves back into a place of arguing with others. And that’s a real common pitfall I wanna talk about. Many lawyers come to me and they say, oh, I’m fine, I know this case forward and backwards, I don’t really need to plan, it’ll just come out naturally. Well, what ends up happening is again, you bombard them with so many facts.

and there’s not a lot of clear organization, because your brain’s jumping around to all the different issues that ends up getting so confusing that you don’t really get any good feedback. I also remind people, you would never walk into court without having a clear plan, a clear opening statement, even at a minimum, an outline, because you don’t have an unlimited amount of time.

Elizabeth Larrick (09:32.782)
to talk to these jurors so you always have a plan in mind, an organization. So why would you walk in a folks group without a plan? Okay, the other thing that I hear or a common pitfall that I see is assuming people are a natural presenter. Oh, it’s very natural for me. I don’t really need to do a test run. Again, we run into rambling and also a little bit of a hitch in the get up. If there is a problem, then a little bit of panic sets in.

And again, I don’t want you to worry about wasting the time when you could be getting feedback. So having that test run solves that whole problem. So you may be thinking though, Elizabeth, if we do all of this, what if you realized, you know what, at the end of the day, I am just way too biased. Like I’m gonna end up arguing with somebody or I’m so entrenched that I’m gonna start asking questions like.

Well, what if you knew about this fact? Or what if hypothetically this thing happened, right? All those questions are you putting your finger on the scale and weighing them down to bias it. So that is an excellent question to be asking yourself, is am I too biased to even do a focus group? Because, again, the purpose is to find the information, not argue with the people. You don’t always wanna win, sometimes you just need to do the research.

then you can always find somebody else in your office that can run the focus group or you can hire someone. I don’t know if you know this, but this is something that I do. But also I help people, for example, in some of my focus groups, I help people be able to get through that bias and teach themselves how to get information without revealing their bias. Again, this is where it goes back to our whole theme here. You don’t need a psychic degree to run a focus group. You need a plan.

You need a clear goal and you need to do a test run just to double check yourself and make sure that you’re giving them all the information in the correct way. All right, if you are curious about more information on planning and preparing for a focus group, I’ve written an in-detail blog that I will put a link to in the show notes if you want more information. And of course, naturally, if you need more help,

Elizabeth Larrick (11:48.14)
Don’t hesitate to book a call with me about focus groups. I’m always here and generous with my time to make sure that you can get what you need from a focus group. All right, I hope this episode was helpful and until next time, thank you.

Replay: Guest Joseph Rosenfeld, Image Consultant, on Personal Image for Lawyers [Ep 140]

elarrickbrand on May 22, 2025

Learn more about Joseph Rosenfeld

Website for Lawyers & Experts

Email: Joseph@Josephrosenfeld.com

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Episode Transcript:

Hello, Elizabeth here. I wanted to jump in before this episode and do a little mini introduction. So this is going to be a replay of a guest episode with Joseph Rosenfeld. Now Joseph joined the podcast back in episode 90 to talk about image consulting and how trial lawyers can embody their image in a way that will reflect credibility. Now I’ve asked Joseph to come back for a webinar

coming up on May 29th and the link to register for that webinar will be in the show notes. And what we want to talk about in this webinar is how are you trial lawyer showing up to tell your story in the courtroom? And so Joseph and I will talk about how to align those things from my perspective as a trial consultant and his perspective as an image consultant.

I hope that you’ll join us on May 29th and that link will be in the show notes. But for now, enjoy this episode with Joseph Rosenfeld, which is one of the most popular episodes on this podcast.

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 Leric Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now here’s Elizabeth. Hello and welcome back to the podcast. I’m your host Elizabeth Leric, and today we have a guest with us. I was super excited to have this guest come on. We met on LinkedIn.

speaker-0 (02:00.75)
Probably one of my first exchanges on LinkedIn, but I was super intrigued. I watched his content and I said, Joseph, you need to come on. So Joseph Rosenfeld is here to talk to us. He is an image consultant for Litigators. So welcome to the podcast.

Thank you so much. It’s really wonderful to be with you, Elizabeth, and to share some cool stuff with your listeners.

when you first reached out, I was intrigued, but I was also, I’m not gonna lie, I was put back because sometimes we get told what to wear and told how to look and it can be so frustrating. And then I listened to you and your video and I was like, this is totally my jam because like you talked about the inside reflecting outside and I was like, this is it.

I’m excited and I know my audience is going to appreciate this. So stick around here folks, but Joseph, tell us how did you get into this?

That’s a whole other podcast episode, but in brief, I was 15 years old and discovered the official preppy handbook. So if you’re carbon dating me, that puts me back to being a teenager in the mid 1980s. I suffered a tremendous amount of bullying. Kids used to tell me how ugly I was and I believed it for all my childhood.

speaker-1 (03:27.902)
And rather than try to do something dire and irreversible, the official preppy handbook became my odd salvation. From that, I really had an epiphany, which was I may never be hot or sexy or tall or gorgeous or whatever, but I could have style. And if I could show people what my style was, I wouldn’t only look stylish. I would reveal who I truly am from the inside out.

And it worked. The first thing that I, where I knew it definitely was working and I was onto something was people immediately almost stopped telling me how ugly they thought I was. They were wrong, but they just, kids can be cruel. It’s amazing that you could turn off their cruelty. And the rest from that point of being 15 and all these years later is history. I’ve just been

Working on my hypothesis ever since and every single client who I work with is another experiment and is another teacher of mine. In many ways, I’m the student and my clients are constantly teaching me who they are. And internally, I’m constantly learning more about myself and who I am to become. And those are the things that come together and make me a sought after expert in my field.

It sounds like then we could say your passion started early.

very.

speaker-0 (05:00.782)
So when did you really make the turn of, a second, like I can help people with this or was this something people said they just looked at you you were like, I need your help. You’ve got your style down. Help me with mine.

Back in the day, I quit college and got a job working at Neiman Marcus in Chicago. I was the youngest sales associate that they had put out on the selling floor in 1989. And I was not even quite 20 years old at that time. The store was open for seven years. The types of folks who came into my department, I was stationed in the men’s sportswear department at the time. So I worked with men.

chiefly at that point. It was remarkable who they were because Chicago is a big law town and I had lots of lawyers and scions of wealthy families and traders from the mercantile exchange, board of options, board of trade, you name it, all kinds of people with money coming in and out and so on and coming into the store. I

developed a clientele that was very loyal very early on. And it shocked me because I was green. I’m wearing an olive jacket today. I guess I’ve stayed green all my life. There was so much that I didn’t know, but I had taste in the beginning. And then that was innate. But then the knowledge that really took me into making a difference with people came shortly thereafter. And it really came by.

learning about people and who they told me that they were and who they wanted to be and how they wanted to position themselves, which is a personal branding statement there, positioning themselves. But it was very much also about who they wanted to be for themselves in their life. What kind of person of integrity did they want to be? And I worked with lots of lawyers all through that.

speaker-1 (07:09.858)
dozen years of my early career. And that continued on once I hung a shingle and said, okay, I’m an image consultant and I’m working independently. So all told, I’ve been working in this way for over 30 years now. And it’s been an incredible journey and a ride because people have opened up so much to share a lot about who they are and how they want to show up in all different settings and contexts.

And the lawyers that I’ve worked with have been some of my greatest teachers, honestly, because they could be in so many different places, all kinds of different scenarios. Is it a courtroom trial? Is it an arbitration meeting? Is it a settlement meeting? Is it a client meeting? Is there something going on with colleagues? What’s happening at networking and bar association activities?

so many different things. And then just being out socially and social networking and just having private time with loved ones and dear friends. And how does all of that kind of showing up in the world impact a person’s image and brand and style? And it just goes on and on. that’s a

a long explanation, but it just goes to show how deep things can be in terms of the interactions that we have.

Absolutely. And I’m sure 30 years is a long time, but even just looking at that 30 years, there’s been so many leaps and changes with professions and with style and with social media, just people are seen. Whereas before it was like you said, especially for litigators, it’s we’re showing up to the courthouse and now it’s, have a lot of.

speaker-0 (08:58.862)
lawyer, litigator friends who like anytime they go to the courthouse, they’re snapping that selfie or they’re walking out of there. So there’s so many more opportunities to quote unquote be seen now than before.

Very true. think that’s the thing about the digital age. And it’s a warning as much as it can be a joy. It’s also a warning. How are you showing up? If there are all these other opportunities to put yourself out there, even some in some jurisdictions court appearances are still also taking place on zooms. Not everything is back to being in person. So the context of how you show up and how often

you may put yourself out there to promote what you’re doing or to showcase not really as a promotional thing, but just to say, hey, I’m doing this today and it feels really good to be out doing this, which I think is a slightly different context than something overtly self-promotional. How you put yourself out there for all those different experiences matters and it matters more than ever. You think it’s ephemeral. if I just put this little ha selfie,

moment on Instagram, for example, it will go away. But people have a way of remembering these images. They’re maybe more indelible than they are throw away. It’s important to contemplate what kind of lasting impression an impression of the moment may give a person. So just to tell you one thing that I think is so important about this, in my world, people are always talking about the first impression.

What about the hundredth impression nowadays? The first impression is so far in the way back machine, but we’re able to make so many impressions today that we wouldn’t have made at any other time before more recent times. So the hundredth impression, the 500th impression, I’m not even exaggerating, the 1000th impression matters and perhaps

speaker-1 (11:01.258)
More so than ever, the most recent impression matters more than anything previous.

Unless it’s something super sticky, right? And it could be something that you don’t want to be stuck in someone’s.

For sure. Because something that happened a couple hundred impressions ago really left some indelible impression that is unshakable. maybe it’s something that your good friends will razz you about. my gosh, when you were showing up like this and your makeup ran or something like that. just, you have to laugh about it. But then you also want to be able to.

perhaps not have that happen because then that will be the only thing you’re known or remembered for instead of your great skills, your heart, how hard you really work for people, what your work really means to you, what your clients really mean to you, just how far will you actually go for your clients? Those are very deeply personal things and they should be reflected on the outside of you. Not only those wackadooey

silly moments that people can’t let you live down.

speaker-0 (12:13.012)
Sure. Tell me, you mentioned working with lawyers and have done that for a long time, being a lawyer. Is there anything so special about us that you just like working with?

I think that the work that you do is consequential and it’s personal. I also think for the litigators that I work with, there’s a little bit of a theatrical element to what it’s like to go to court and to think about how you want to show up to tell stories. I think every lawyer tells stories. I don’t mean fibs.

It’s real storytelling. Even if you’re a work a day lawyer working in an office and a law practice or in a corporate setting, the stories that you have to tell to get buy in. The arc of the story has to do so much with the consequence of taking an action. Storytelling is very important and how you show up to tell that story.

matters a lot. It matters similarly to all the thought and preparation and research that goes into preparing for the actual story. For litigators, when you go to court and you have a story to tell, you have to tell it to the judge, you have to tell it to the jury, and everyone in the courtroom is listening.

who’s the better storyteller? The facts will play out, but if the facts can be malleable to some degree, and it’s about believability beyond a reasonable doubt, who’s got the better story? Who’s the better relator? So I love being able to do that kind of work with my clients. I find it joyful. And most people that I’ve worked with in the law find

speaker-1 (14:21.73)
that storytelling and those theatrics is actually enjoyable for them too. So I love being with people who find the joy in what they’re doing and also take it drop dead seriously. It’s consequential. And I know that the work I do is consequential. So the energies really meet up nicely between the folks I work with and my own energy.

And of course, think trial lawyers sometimes take themselves too seriously, but it’s so true because most trial lawyers, litigators are very passionate about being in the courtroom and passionate about their clients. And so when you had that video about matching, right. Inside the outside and having that presentation come all together, I was like, that’s exactly what I think so many lawyers struggle with because

There’s so much old advice out there about how we should be showing up in the courtroom, very conservative wear, if you will. And then the changes in the struggles that we have with, I will say just from my point of view, like it is sometimes a super struggle to go and be like, okay, I want to get a new suit or a new dress and I show up and it’s all these things that are quote unquote in style or fashionable. can’t wear these things. Like, so tell me a little bit about as far as helping

Let’s take it like for sure, like the old advice, like what is some of the things that you hear? I’ll share for me some of the old advice that I’m like, can we please get away from this old advice? So what have you heard lawyers come to you and say, well, I have to do this.

Ladies always tell me lots of the same things that gentlemen are somehow off the hook from, but here are some. Jewelry, curls, quiet jewelry. When you move, they can’t make noise. Closed toed shoes, heels, specific types of hemlines of which there are so many, I won’t waste time even.

speaker-0 (16:27.726)
It baffles the mind.

Full body coverage. are so many things. Cosmetics. How heavy or how bare is a red lip salacious? These kinds of things really come up all the time and they still come up and I have to welcome the questions because when people have to ask these questions, I know that people are definitely struggling with what is acceptable today. Now,

I should say for men, the question now comes in around what about jewelry? Can a man wear an earring? Can a man wear two earrings? What about tattoos being visible? Do I have to wear a necktie? Can I have facial hair? It’s 2023, these types of questions still arise. And I think in large part, a lot of the answer has to do with

the type of law you practice, the type of clients you have, the type of judge who hears your case, and what the judge’s values are. Because it’s that person’s courtroom, if you will. And that creates a culture. That culture may or may not have anything to do with your firm’s culture or your corporation’s culture.

but you’re stepping into that environment and that is that culture. So there’s always research to be done. I, as a non-lawyer, often find myself asking my lawyer clients, what kind of research have you done? What do you know firsthand about that kind of culture? Do I need to go and do some research and then I will do some stuff. It’s really interesting to try to figure those

speaker-1 (18:25.336)
things out, you might consider, since we’re talking about a lot of storytelling, that’s the backstory and you need that. That’s the foundational basis for how to show up and do things right. And then I think in terms of current mores and values and how people can show up, everything to me is about in the end dressing appropriately and that casts a broader net than ever.

Years ago, Mary Barra, who’s the CEO of General Motors, basically threw out an entire multi-page dress code and said, the answer is dress appropriately, which then left every employee up to deciding what is that? And then for employees and their managers to have to hash out, what is appropriate dress?

And within different subcultures, and we’ll stick to the law here since that’s what we’re talking about, different subcultures even within law have different kinds of acceptability levels. And so there are times when still more conservative dress is required. I still think a tie is required for men in court basically anywhere. Why would it be wise to

a shoe wearing a tie only to have a judge toss you out and say, this is continued, go home and put a tie on or go to the restroom and pull that tie out of your briefcase and put it on. To use a pun, it’s not a good luck to have to stop a proceeding because someone isn’t attired correctly. And that’s just for the lawyers, of course. Then you have witnesses.

your clients if they have to take the stand in the case of personal injury cases and things like that, or you may have for employment lawyers, there could be an employee that needs to take the stand. How do they need to show up? It’s all part of the story and how they can really represent themselves in a strong way that is good for the case and helps to really get their truth out. So there’s so many rungs to this now.

speaker-1 (20:46.454)
And I think when it comes to trends, Elizabeth, there isn’t necessarily one right answer. That’s probably the crux of the whole thing is that as I started off with the story of pearls, quiet jewelry, closed toed heels, these things are like everyone is to do the same thing. Everything is about complete conformity. There’s no room for anything.

personal about who you are as an individual, as a human, something that also differentiates you from any other lawyer within earshot of that courtroom at least. I think that’s been what was wrong with all of those old rules. And by the way, there are still a lot of people in my field who think that those rules rule. And I think they suck because they don’t allow for a person to really

stand in their power. Imagine feeling like this is my job. I am a litigator and I’m a rock star litigator and I have to dress this exact way that makes me conform to some old world standard of being. And I actually feel held back. If you put clothes on and it starts to cost you things like your voice.

your ability to move around and use your body and your body language to help communicate points that you feel absolutely sure of, true to the letter of the law about, passionate about, and you feel like you have to hold back because you’re in some suit or dress that may as well have been a straight jacket. It’s a horrible feeling, right?

Yeah.

speaker-1 (22:40.45)
So that’s why I think it’s so important to put all these pieces together and then come up with a look that is a signature for you that allows you to really be exactly who you are supposed to be. It should be emancipating and freeing and unleash your inner beast of a lawyer, if you will, in the good way and really represent your case and your client.

And I think those rules are helpful because when you’re coming out of law school, okay, those are the rules. that makes it easy to think, okay, then I know exactly what I’m going to get access to the variety of now at your fingertips, just going on Amazon. There’s so many choices now that we have, it’s almost, it is overwhelming. And so going back to those rules is okay.

Okay. This is comfortable. Okay. I tried to step out, but no, I’m just going to go back to the rules. Cause that’s one of things I think is always helpful when I walk into a store and I have an idea of this is what I like and I’ll get someone to help me because one, I hope that they know like what’s in the store. Otherwise I’ll be there way too long, but looking for something. But is that kind of, cause there’s so many choices and it’s like, there’s no way we would know all of that. job is to know what the laws and the cases am I hitting what you can help with or tell us about that.

Yes, I think what’s different about what I do versus what you can experience in a store is yes, people in stores know the merchandise and perhaps because they know the current merchandise, they know the trends and that’s helpful when you’re shopping. But what’s more helpful and what store associates don’t really take the time to do and I just have to say it’s what

They’re not really paid to do. I used to be one, so I know, but I was a different kind of a person and that’s why I got into my business. I’m in the business of really getting to know people so that I can match with great precision what someone should wear. There’s a reason why I wore an olive jacket to sit on Zoom with you. I knew that

speaker-1 (25:00.662)
we were recording this, for example. So this gives you a little background context into why we would make decisions. Now my eyes, which only you can see right now, and then whomever watches this when you put it up online, will also be able to see, perhaps, my eyes are hazel and my eyeglasses and my jacket are an olive tone that play off my hazel eyes.

People tell me that I have this incredible gift of being able to see into a person that I can really take a good look at somebody and know them, that I’m very interested in studying them. The color psychology behind Hazel has a lot to do with healing. Like Sage, you burn Sage when you are looking to heal a space, heal yourself, and there’s color psychology involved in everything.

So I love to wear this kind of a color as a signature because it helps to tell that story. Now, I told the quiet part out loud just now. I want people to be able to see you and feel you, really feel you and see you for exactly what you stand for. It’s like I’m making a value statement, only now I cheated.

because I told you what it is. But if I didn’t say something, you would probably be able to absorb from looking at me and hearing me, how I’m using my body language, even my hands on a Zoom, my vocal intonation, the way that I use words, the sound of my voice matches everything. So I want to do that for…

anybody that I’m working with. That’s super important and it’s detailed and subtle and sometimes painstaking. For me, it comes more easily though, because it’s my gift, but try to explain this to anybody. And they’ll be like, I’m just going to go like chop my closet or I’ll just go on Amazon and click on the first thing I find and buy it and be done with it or whatever. think that being able to put

speaker-1 (27:20.216)
thought and intentionality into what you wear is transformative. And this is what I am really here to do with people. If you’re a lawyer and you’re listening to this, I think what’s important is how do you stand out and be the better lawyer? Not only to be competitive with literally other lawyers that you practice with or are competing for the same

clients or business with, how do you better yourself as a lawyer? If you could compete with yourself and be the better lawyer and you have all the competence and all the skills and the degrees and the JD stuff from all the right law schools and universities. After you have all those things and you probably are on the bell curve with lots of people at your caliber.

Being on the bell curve, by the way, is A-OK. That means you’re alive, you’re on that curve. I just have to say. But then what happens, how do you actually differentiate yourself even in some subtle way that allows people to see that your energy and the way you are as a human, which infuses the way you practice law, how does all of that come into play?

That’s right.

speaker-1 (28:46.126)
and make me want to come to you? Why would I, as the client in need of a lawyer, come to you? What are you gonna do for me and how are you gonna do it for me that matters? And what’s amazing is that it’s not just the clothes. I’m not bypassing the personal style and the appearance of things. It’s the entire self image. The self images, the parts of self

from deep within that really make you who you are and who you wanna become. And then the clothing aspect and other parts of your outer image, like your nonverbal communication, in addition to your appearance, all those things come together to paint this very rich picture for everyone who needs to be in your presence. So when I’m thinking about the apparel part of

a person’s image, I’m thinking about all the colors and the styles that are right for a person. How strong or how gentle does a person need to come across? How trustworthy and businesslike does someone need to be? How laid back does someone need to be? How poised and perfectly positioned does someone need to be? Or how much of a maverick or an avant-garde

personality needs to come through. All of these play into different archetypes that I work with and people can be a blend of these different archetypes. No one is a monolith. We’re all multi-dimensional people. So by studying who a person is through their personality and understanding what colors best support that person, every lawyer that I work with ends up really having

their own unique principles around their appearance and their style that is custom for that person. So each lawyer really deserves to honor themselves. And in doing that, they can stand up in a better way to support their clients and the cases they have and all the business matters that are before them.

speaker-0 (31:09.632)
And I think something that you hit on too was lawyers, especially personal injury lawyers have a little bit of a tarnished reputation. So credibility is really important for us. I think, like you said, part of that blink reaction that people have sometimes is if things are cohesive, then you have a little more credibility. But if something is off or it’s just a little bit like in that blink reaction, people have a pause or they try to label you.

Like I said, sometimes our old school stuff comes where we just don’t know, or it’s like, oh yeah. If I could have picked a different color instead of just wearing that same black suit or some, some variety of black would have been a little bit better.

Right. Well, if you think about it, black is a color that can create distance between you and the people who are looking at you. It can also be the color of someone who is in service, but that could be like the maitre d at a Michelin starred restaurant or a server, literally, or it could be a perfume spritzer in a department store, which you’re probably trying to avoid at all costs.

So black has its place. Black can be very powerful though when you are practicing law and you have a point to make and you mean to be absolutely direct. The question then becomes what do you augment that black suit or black dress with in order to communicate that you’re not just all that, that there’s more.

Can I share a little story about that?

speaker-0 (32:57.849)
yeah, sure, that’d be helpful.

Okay, so I had a, this is a cool story. I had a client who reached out to me one evening before going away on a business trip. And I remember this inside my head thinking this is a really funny story to recall because I was sitting in the hot tub at the time when she called. It was in the evening and I knew to take the call. So here we are, I’m in the hot tub on my cell phone and she’s in her closet saying,

I am taking a trip tomorrow to try to settle a case. What do I wear? And I asked her to tell me some information about the situation without giving away anything that I shouldn’t know, which I’m always careful about. And I have NDAs with lots of my clients anyway. So sometimes they need to tell me more than perhaps I might like to know, but I have to know, or they think I should know. We all cover our tushes that way.

So she told me that she knew that they could litigate this case and win it, but she could also be a hero in that they could settle the case and it would save them a huge amount of time and money. Yes, they would still have a payout, but it would come out better for them in the long run anyway. And then that would free up their resources to move on. Sometimes these decisions are very much about business.

I’m sure I’m not telling you anything you don’t know, but for me as the non-lawyer, this was important context for me. There was even more to it than that. She also inherited this case from a predecessor. And when she learned about it, she felt badly about it, to be honest. She was honest with me to tell me, so I’m honest to share that. And I said, okay.

speaker-1 (34:55.916)
I think I know exactly what you need to do. I asked her one question though, before giving her my advice. I said, is there anything that you really want to tell this ex-employee that you’re going to try to negotiate the settlement with? And she said, yeah, I want to say, I’m sorry. Like in a kind of a personal way. And I said, okay, here’s what you’re going to do.

And I knew exactly everything she had in her closet. So it sounds easy peasy because it was, because I knew and I had procured her wardrobe for her. So based on what I knew she had, I said, I want you to pull out this black suit, pantsuit. It’s got peak lapels and underneath of it, I want you to pull out this teal silk blouse. And I want you to wear black heels.

and want you to pull out the specific jewelry. And I told her exactly what it was and she pulled it all together and she said, huh, that looks great. Why did you tell me to pull this out? Here’s the foil. This is the crux of the whole thing. The black suit in wool basically says, I’m here to do some business and I am serious and I’m not

F’ing around.

Yeah.

speaker-1 (36:25.678)
but underneath, so there was a sternness to the whole thing. And the lapel as an expression is also important because it conveys authority and confidence. Any garment with a lapel creates a sense of authority, but a peak lapel in particular shows more boldness than a notch lapel like what I’m wearing right now. She had that. Then I told her about wearing this teal blouse. I said,

This color plays off your eyes. This ex-employee is going to look at you saying something sincere and he’s going to see sincerity. The other thing is it’s a silk blouse. There’s a softness there. It’s closest to your skin, by the way. It tells an onlooker that you have a soft ins…

side, even if your suit represents a hard shell exterior. You’re never going to tell this to somebody. But if you can show up looking that way, we are so conditioned in Western society to pick up on these cues. Like it’s a language that we’re not fluent in, but somehow we understand contextually what’s going on. And she said, I would never put it that way. But when you

describe it that way and I know that’s exactly how I’m going to wear it. That’s genius. And then of course she had the jewelry that also complimented her dark brown hair color and her eye color and it just put a really good focal point on her. Guys, if you’re doing the same kind of thing and you’re not really going to do a necklace and earrings like this, it’s all about what you do in your necktie.

there’s so much symbolism that is the same. Whether it’s a solid tie, there are messages that come across in a solid tie. If you’re wearing a patterned tie, there are a bajillion messages that come across in patterns. But if you’re wearing something that’s multi-hued, just like this jewelry is multi-toned that I’m describing that she wore, it can be an ideal compliment to standing in your truth

speaker-1 (38:48.544)
standing in your power, standing in your sincerity, standing in your earnestness and standing in your, am here to do business, take me seriously. This is serious. And the teal and the jewelry and everything offset the black suit and the seriousness of the peak lapel, as I was describing. And it created this kind of push pull about

These are my walls, but inside my walls is also another aspect of the real me. I’m not that difficult to deal with. Let’s do it. And you know what? The whole thing flew and they settled. And after she called her husband to say, babe, I’m coming home and it was a good day. She called me to tell me what happened.

And I was really flattered that she reached out to me to tell me what kind of success she had. The reason why the story I think is so powerful is yes, it was about what she wore and what that gave her, but it supported her story. It supported the messages that she wanted to deliver. And if she had to go to trial to do the same thing and not to settle this in an arbitration setting,

We would have had similar conversations about exactly the very same thing, only it would have been a trial of maybe a few days. And we would have had more to strategize on over who are the witnesses? What’s the arc of the story? When you’re not presenting your side and you have to sit back and listen for objections and things like that, what do you wear when you’re going to behave like that?

What do you wear for cross-examining? There are so many things that I think about. We didn’t have to do that in this case because she arbitrated and it went exactly like clockwork the way she wanted. So that was great. I loved that for her.

speaker-0 (41:02.702)
Well, I love the story. Like that makes a lot of sense. Some people might say, Joseph, that’s a whole lot of thought into what I’m going to wear. I don’t have time to put all that thought into what I’m going to wear. Ever heard that whole.

Sometimes I do, but what’s interesting is when my clients are working with me, we make it a lot more simple. clients like this one knew she can pick up the phone and call me and I’ll have an answer for her because that’s just the way I work with people. Imagine though that she was leaving the next day and she called me up that night, completely panicked.

I don’t have the right thing to wear. And that then we have to go through what she does have and try to come up with something that she would have settled on. And I feel like that notion of settling for something less than what it could have been is costly when the consequences of your presence in a setting is high.

So in this case, she didn’t have to settle because she actually had the thing. Because when I build a wardrobe for my clients, I’m often thinking about, you’re going to need different things for different scenarios, different audiences, different purposes. And how can we be as fulsome? Even if you’re a bit of a minimalist in how much of a wardrobe you might want to have. I love the idea of own

less but better and do more with it. That’s my mantra. Secretly I’m a maximalist. I’m a collector.

speaker-0 (42:56.883)
pictures of your closet.

I love the idea that for people who can’t have a big closet like I have that, and if you don’t want to spend your entire salary on clothing, which I don’t recommend anyway, how do you make more with fewer things? I think in her case, she had all the right things. And when you make the right investment in that way, then it negates this

pushback that you suggested that people could have and yeah, people do have it. People do have it, but it dissipates once you realize the power that your wardrobe can give you. If you think about it, not as a lawyer and just as a lay person, you have a social gathering to go to, but you don’t have the right thing to wear. It’s almost, that’s nice. I got invited to go to something, but

I don’t have the right thing. The right thing or the lack of having the right thing is almost like someone outside me gave me this invitation, which is a form of permission. I’m invited. I can cross the red velvet rope and get into this thing. But without the right thing that you don’t treat yourself to or don’t invest in, not everything is about treating in a luxury way. Some things you just really need.

without having the very things that you need, you deny yourself permission to gain entry. As a lawyer, you pass the bar, you have a case, you have a right to be in that courtroom. Do you have a right to win? If you got the right case, yes. But I think that how you show up enhances not only your right to be there, but your right and your ability to win. That’s what I firmly believe in. And so I’m trying to…

speaker-1 (44:52.366)
pass that message along to more folks because it doesn’t have to be as complex for you to do it. You don’t have to hire somebody to get help. You have to be mindful at least. And if you could incorporate a touch more mindfulness at least than what you have gifted yourself with at any time in the past, you’ll set yourself on a better path for success.

through your wardrobe selections and how you show up to all your proceedings and client meetings, you’ll do better. And if you want to do better than that, that’s where help is definitely.

Yes. Well, and I think that we should be thoughtful about how we’re showing up because one the we always, I definitely tell folks who are going to go up on the stand is the moment you walk into that courtroom, you are being watched and you’re being judged and they’re making decisions about you before you even get to open your mouth. And that’s everybody. And sometimes when I walk into a courtroom and I size up the other lawyer and I notice things about what they’re wearing,

I make immediate judgments that they’re not prepared. They don’t know what this case is about. And I know, you know, what I’ve done, but I’ve definitely had that blink reaction and totally judged people. I know that I’ve had judges look at me and make blink reactions about who I am and who I’m showing up to be. And of course it’s based on what I’m wearing, what I look like. So tell us, okay, we’ve got folks listening here, mostly, know, our personally trial lawyers and some employment lawyers as well.

What are a couple of one or two tips or strategies that you would suggest to folks who are listening?

speaker-1 (46:34.614)
When in doubt, take a look at your eye color. As I referenced earlier, it’s something so obvious, but people often ignore whatever your eye color is represents a deep inner knowing of the truth of who you are as a person. If you can repeat that color on your body in a way that provides a focal point back to your face.

people will see your earnestness. I think every lawyer has a baseline of being fairly earnest in their work. Sometimes though, it needs to show. You aren’t ever going to carry a picket sign into a courtroom with the letters on it that say, am earnest. They may think your name is earnest, I don’t know, but seriously, this is a very important thing because

It’s the thing that you want people to know about you without you ever saying the saying it out loud. Cause to say it out loud sounds ridiculous, except that you’re being earnest is far from being ridiculous. And I think as you mentioned a little earlier, Elizabeth talking about in the case of personal injury attorneys, how some have sullied the reputation of the whole and

That may be true, but that does not have to be true of you. And a lot of that comes through your earnestness, quite frankly. Eye color is really huge. I also think that making sure that you’re wearing garments that fit you well is very important. And I have to say this in kind of the new post pandemic world. I don’t care if your weight went up

down, if you stayed the same. I’m a body positive person and I just have to say that because you don’t know me. Find something that fits your body beautifully. It needs to flatter your body. It does not have to be skin tight, no matter what your size is. What you want is to make yourself look tall. If you could wear a monochromatic ensemble,

speaker-1 (48:59.49)
whether it’s a suit or a dress that automatically makes you look more monochromatic. If you are very traditional in terms of your dress style and you’re female and or male and you want to wear a skirt with a jacket, still going monochromatic is helpful in that case. I think being able to stand tall and powerful is important.

And then to understand for yourself, okay, I got my strong and powerful part on how do I show my human side? Because I’m not a monolith. I’m using first person here because I want you to be able to think about this for yourself. Like I am not a monolith. I’m not only about being strong and tough because what you want to be careful of, and I can say this without trying to

insult anybody. I’ve worked with a lot of lawyers, right? So you want to avoid the pretense of arrogance. It’s important to try to find ways where there’s a win out of the situation. There’s any opportunity, even in the middle of a trial where it’s possible to still settle something. And you’re usually looking for some kind of good common ground. If you show like you’re, I’ll

say this with air quotes, a good guy, meaning really just a good person, one of the good guys, if you will, a good person, judge, jury members, opposition counsel, even the people that you’re up against. Oftentimes people are willing to see the good in somebody if you will let it show. So always try to find a way to bring that good part of you in.

And of course, being strong and powerful is also part of good, but that is that outer confidence piece. That’s what your suit is about or your dress is about. As a funny thing that also I think is serious as well, this is for the ladies. If you’re in a dress and it’s opaque and nobody can see anything that you’re wearing underneath,

speaker-1 (51:18.722)
There is a time and a place when you may need to bring a little bit extra energy that no one is going to know that’s there except for you. And I can’t tell you how many female lawyers I’ve worked with where giving them lingerie that makes them feel absolutely powerful underneath helps them bring their power. Now I can’t say that any man has ever asked me to do underwear with them, but I will say that

Everybody has to wear something. that, by the way, I that’s also extremely important. Always wear underwear, for sure. And I have to say, because that’s come up a time or two, believe it or not. It’s also important to think through what it is for you as a man, those of you gentlemen who are listening in, what as a man you would wear that makes you feel powerful.

That’s a tip right there, always wear something.

speaker-1 (52:17.534)
as a whole person that you are still that soft, where’s your core? What are your values? And just spend five minutes. You don’t need more than five minutes to really think about this. You may even know it instantly. A favorite item that you have that might not be something that you’d wear to court, but might be something that could inspire what you could wear.

That way people also get to know a little bit more about the real you. Those are some of my favorite tips and often have to do with color because it’s what people who have the ability to see, which is still most people can see, and they can infer a lot of messaging directly from that because again, we are so deeply socialized into understanding what those messages are.

Yeah. And I think, you know, undergarments for ladies can be challenging. So for sure. And just from personal experience, I don’t want to overshare here with some might, but you can be, it can be all off and totally wrong and switching around those undergarments and getting things correct. Can really truly being supported the correct way, but that way can really change how you’re feeling and showing up and.

You don’t even know you’re doing it wrong. That’s sometimes what happens as well.

It’s so true when you finally get it right though, it’s whoa. It’s important to feel confident in your body. You can do so many exercises about confidence, about your voice and about your body language and about how you move. There is something to be said about being truly at one and at peace with your body. For women, I always tell my clients every six months it’s time to go get

speaker-1 (54:14.88)
re-measured because your size will change. It just happens to be that way. And if it doesn’t, great, then you’re fine. But it doesn’t get you off the hook that you shouldn’t replace because the garments get used and which is important that you should use them. They get used and then they are less effective. Let’s just say, and what you want is something that positions your body in just the right place.

and where your garments fit beautifully and that when you see yourself, you can take pride in who you are and in how you’re showing up. And there is a kind of an inner self-assurance that’s just for you. That’s why I have to discern this. The inner self-assurance is just for you and it can come through in outer confidence, which is

from you through you that you want to project in a setting where you want everyone to know you’re good. It’s gotta start from within though. So I’m glad that I brought up the undergarment thing because it’s a thing and.

Mm-hmm.

speaker-0 (55:29.23)
And you just, again, from personal experience, you just, you totally make an assumption and you just assume and you walk in there and I just bless this salesperson who helped me because it’s just, it’s so easy to just again, go in there, get the same thing you always do. And it’s simple, it’s easy. don’t have time, but it really does make a huge difference hands down. And especially if you’re saying like, if you’re going to buy and

invest in some clothing. Like it’s definitely worth like step one, get that right. And then be able to have those things with you when you go to get the next wardrobe piece. have one quick question and it’s like a burning question in my mind. Panty house. are we still doing this? Is this still a thing? Are you still, do a lot of your lady lawyers still wear pantyhose? Okay. Okay.

some

Now I would say in fall, it becomes a little bit more acceptable. In summer, nobody really wants to do that. What sometimes, what does happen though in summer or hot months, I know you’re in Texas, it’s H-O-T. I think what’s important is that perhaps if a dress, if you want to wear a dress, maybe

The hemline antithetically goes longer, but you’re in a lighter material, like a Jersey type of a material. Yeah. Because it helps make things more comfortable, but you’re a little bit more covered where you feel like, okay, my legs are not so bare and I don’t have to wear nylons. And then that’s, and then that’s okay. Then of course, sometimes people will ask me, I, I want to wear dresses.

speaker-0 (57:03.416)
you

speaker-1 (57:23.406)
I would wear nylons, but it’s just so hot. I’m not going to do it. But what else can I do? And I have to probe a little bit more. I find out sometimes what happens is sometimes women are very self-conscious of their legs, not even that it’s their shapeliness of their legs, if you will. It has to do with the color of their legs. And so sometimes I will say, if you’re not putting yourself out there under the sun, which I’m not,

saying that you should do that. It’s cancer risk, obviously. What about wearing a safe bronzer and at least getting some color on your legs? Would that perhaps give you a little bit more confidence to wear a dress where some of your leg will be visible? I will make those kinds of recommendations to people because that matters and that usually resolves most of these.

Yeah. And I think it just for us, for a lot of times when I’m having this conversation with people, it’s where are you going? And for us it’s July and good luck. Cause it’s 109, no matter where you go. And adding another layer just sounds like, but yeah, I’m always curious. yeah, of course, depending on the weather, sometimes you just want to like, that’s an extra layer of warmth that makes it better for you.

Correct. And then the fall and winter, not only are nylons okay, but then you have the chance to wear tights. You can wear something more opaque that can also be more shapely to the leg. And I would use the word more containing in a way it’s if you could wear a leg or opaque tights, it’s very interesting what that can do, especially opaque tights, how that can really give very, very definite shape and darkening to the legs.

can also make a person feel very powerful. And sometimes that’s also what a woman would tend to wear with a boot and not really just with a regular old heel at that point. And sometimes the feeling that you get when you’re wearing a boot versus a heel changes. It’s probably similar for the guys. If you’re wearing a loafer versus a lace-up, it’s not that you can’t wear a loafer, but a lace-up definitely looks a little bit more all about business.

speaker-1 (59:39.15)
You can do both, but it also means that your demeanor and disposition can change in the context of where you are wearing it and when you’re wearing it and who you’re wearing the stuff in front of. So being able to change things around is it’s good to know that you have choices and then it’s about what choice are you making and why are you making it and when are you making it and for whom are you making it.

Lots of things to think about, but I do appreciate that fit is always so important. No matter what it is you wear or where you buy it from fit is always key. And then I love that eye color. That’s an easy thing to do. We can all look in the mirror and figure out, figure that out. Does it has been a delight to have you. I’ve learned so much about what I need to be thinking about when I get dressed. If folks want to get to know you more or connect with you, what’s the best way they can do that?

Exactly.

speaker-1 (01:00:29.874)
I really enjoy making connections on LinkedIn because LinkedIn is where you can create community. And I have a nice little community of lawyers that I chat with and create programming with for you on LinkedIn. So that’s my favorite preferred place to meet up with me.

And I would highly recommend that. Like I said, that’s where we connected and I got to see some of your posts and some of your videos and really enjoyed just being thoughtful, being mindful and connecting those inner and outer parts to do a better job with who I am. And then also, like you said, I’m just just naturally going to reflect on the work that I do. Thank you so much again for joining us. And if you enjoyed the podcast, please rate and review it on your favorite.

podcast platform, follow on any of those to get the downloads every Wednesday. And until next time, thank you so much for joining us. We will have all of Joseph’s contact information, including the LinkedIn, to be able to connect with him as soon as this podcast gets out. Thanks again.

Start Your Case on the Right Path: Using a Focus Group Before Discovery [Ep 139]

elarrickbrand on May 13, 2025

In this episode, Elizabeth Larrick discusses the importance of using Zoom focus groups before discovery in trial preparation. She outlines the benefits of these focus groups, including setting the right direction for a case, avoiding wasted time on irrelevant claims, and utilizing feedback effectively. Through a case study involving a school district, she illustrates how focus groups can help identify critical information and prevent surprises during the discovery process.

Takeaways

Using Zoom focus groups can set the right direction for a case.
Focus groups help avoid wasting time on irrelevant claims.
Even minimal information can yield valuable feedback from focus groups.
Feedback from focus groups can be reused throughout the case.

Follow and Review:

Supporting Resources:

Have questions about Zoom Focus groups? Set up a Free call with Elizabeth here.

Depositions Are Trial by Sach Oliver

Episode Transcript:

Elizabeth Larrick (00:02.604)
Want to get ahead in case planning and expenses? Tired of chasing rabbits, claims that jurors just don’t even care about? Let’s jumpstart your case with a Zoom focus group right out of the gate. Hello and welcome back.

podcast. I’m your host Elizabeth Larrick and this is a new episode about starting your case on the right path with a Zoom focus group before discovery. So you know we talk about Zoom focus groups here and I want to encourage you to do them before you are neck deep in trial prep because when that happens you don’t have the ability to change

or really move very much with the case that you have in front of you. You can maybe do a little wiggle, maybe do a little shimmy, but what I really want you to be able to do is conduct jury research, zoom focus groups, and be able to use that feedback to maneuver, right? Take that extra deposition if you need it. Go after that written discovery and know which way the jury wants to hear the case.

Don’t forget, if you’re ever curious about Zoom focus groups or trial strategy, that there’s a link in the show notes to connect with Time with Me. We can go find that witness, take that deposition, find that expert, but really we are able to implement our case themes in our depositions, which if you haven’t noticed is kind of a thing now. Two really big books out there right now on those, and I’ll have them linked in the show notes for you. That deposition is now kind of your trial.

Elizabeth Larrick (02:22.784)
So I really want us to be looking at as trial lawyers using focus groups before discovery. Now you may be thinking, Elizabeth, I don’t have enough information. It’s not going to be a fruitful focus group. Not true. People watch 60 second TikTok videos all the time and make plenty of life decisions based on those 60 seconds. So if you have 10 minutes of facts, that is more than enough for these people to give you feedback on what you have, what more they want to know.

And if you have a theory or a theme, you could throw it out there and they’ll tell you what they think about it. Now, you may have a case where you truly don’t have enough information and you’ll know that because if you don’t even have 10 minutes of the facts, then you should probably wait until you get more information. However, most lawyers are good investigators. They’re going to go and run down and get the information, get all the reports.

talk to some folks and at least get a good rounded picture before they even file a lawsuit. That’s because most petitions, complaints if you will, will require some factual basis. Not all states require that, however most will. So knowing you’re gonna have that information, you can then go first and foremost in the right direction, right out of the gate. So I know many of us may have some form templates that we use for discovery, but that can just lead us in a very general direction. And the first

Benefit of using a focus group before you get discovery is to send you in the direction that the jury wants you to go. There is no point in trying to force claims that the jury doesn’t even care about. And trust me, they will tell you what they care about and what they don’t care about, even if all you have is 10 minutes of facts and the rest you use to talk to them. So using a focus group before even discovery puts you in the right direction.

And leads me to the second good point of using a focus group before discovery, is avoid wasting time. We don’t want to chase the wrong avenues, the wrong claims, or even the wrong documents. There are plenty of times where we may have a case where we really, really, really, really want the documents and you spend months. I know people who spend years doing motion to compel over and over again to try and get documents, but do you need them? Right?

Elizabeth Larrick (04:40.753)
Go ask a focus group. They will let you know. Okay. But we don’t want you to waste time and energy because longer it takes sometimes the less enthusiasm that we have. So we want to avoid you wasting time after claims that just jurors don’t even care about. The next benefit of doing a zoom focus group before discovery is you can actually start with a frame in mind. Yes, we know we want to start with the defendant’s conduct, but many times there are lots of different

pieces of that conduct. And it’s important to know which one is the one that the jury wants to know about or frame first. So there could be lots of different things. We want to make sure that we go after the right things. And also it’s significantly helpful. We’re going to go take questions, do depositions. So the other bonus that we have, and we do zoom focus groups before discovery is that we can use this feedback in the case over and over again.

Now these zoom focus groups that we’re doing before discovery, again, they’re neutral setups. Again, like I said, 10 minutes of facts and then just talking to them about the rest. Naturally, you may have some photographs or some videos, focus group folks love videos, that will also help you again, go in the right direction or be able to at least know if you need to go create something, what direction it’ll need to be. But you can use that feedback over and over again in the case and of course tag it as a case expense. So,

Let’s talk about an example. Here recently I had a virtual focus group, again just one hour, that was a case against a school district. And what we really wanted to find out was is the school really on the hook? Because in situations where there may be a liability law that allows you to sue the school, it doesn’t necessarily mean that the jurors are going to buy in on it. So before spending an extreme amount of time and expenses pursuing the matter,

lawyer wanted to know, is there anything even here? So again, remember it’s before discovery. So what do we even have? Well, first of course, we have our school policies, right? Our school documents. So we want to make sure, all right, what do the jurors think about? What are their focus group participants think about these policies? Are they good policies? Are they hard policies? Is it too much for the school? Are teachers a burden? Are they good, right? And then of course we had our facts. And so,

Elizabeth Larrick (07:07.259)
What ended up coming out of our focus group was of course we learned that there were some missing critical pieces that the potential jurors wanted to see. And specifically there were some events during a timeframe that we just didn’t have any information. We truly didn’t know what was happening. And so it became like, okay, when you’re going in discovery, you’ve got to find out what happened during that particular week in school. And what we also…

kind of decided from a strategy standpoint is you had to close the door to any surprises. Now, good trial lawyers, experienced trial lawyers have probably had this happen where you hunt down this case, you do a great job getting all the documents, getting all the information, work on those depositions, you’re getting ready for trial and ring ring, you get a call. we seem to have found another witness and this is what they’re going to say, which is something, a story you’ve never heard and doesn’t fit anything else. And so,

You know, when we look at cases very early on, we just want to make sure how do we close the door to any surprises? Again, specifically testimony that may come in from witnesses in a case like this. There are hundreds of witnesses. Also, we decided or rather the focus group told us about the documents that they wanted to see. Now, knowing that there may not even be these documents, it also became one of those things. Let’s prevent a surprise document coming later on knowing, OK,

What are the goals then for the discovery of this case? One, make sure you get all the possible documents and then close the door. Is this everything? Sign of verification. This is everything. Nothing else is going to come out. And then also of course, finding the missing facts and pieces and elements of that timeframe that they really wanted to know about. Knowing we should close the door, make sure there’s nobody else is going to have information about these events that may surprise and pop up later.

The lawyer now has a focus group that she can go back to and reread the information, reread those first impressions, go back through that transcript, watch the video again as she is proceeding through her discovery, knowing she’s not going to waste her time chasing some claims. She’s going to start with a good frame in mind, meaning let’s look at our policies and then what’s missing from that standpoint of our school. And then there were a few things that we learned too, that were just good things that we heard about school.

Elizabeth Larrick (09:29.94)
The school steps into the place of the parent, right? Safety is number one while these kids are there. And it was very important to be able to rule out some other things that may be happening with the student during the timeframe. All right. So we have three very clear benefits of using Zoom focus groups before discovery. Number one, let’s set us off on the right direction instead of the wrong direction. Number two, avoid wasting time going after claims, documents, depositions that just don’t matter the jury.

and also finally starting with a frame in mind. And so we can go ahead and implement that while we’re going through depositions. The bonus being that we can learn early on and reuse that focus group feedback as we continue through the case. And it becomes kind of a comparison, if you will. If you have questions about how to use a Zoom focus group before discovery,

Don’t hesitate to book a call with me. can find the link in the show notes. And yes, of course, the call is free. Okay. Thank you so much for listening to this episode. I hope that you found it helpful and until next time. Thank you.

Guest Ben Gideon on Helping Trial Lawyers Assess Risk Better [Ep 138]

elarrickbrand on April 23, 2025

Guest Ben Gideon explores the complex world of risk assessment in trial law. Despite their bold reputations, trial lawyers often lean towards risk-averse strategies, favoring settlements over trials. Ben reflects on his recent trial loss to analyze cognitive biases in decision-making and emphasizes the importance of embracing risk to secure significant verdicts.

Drawing parallels between trial law and high-stakes poker, Ben discusses how both fields rely on probabilistic thinking and expected value calculations. He shares strategies for managing risk across multiple cases, similar to a poker player handling various hands, and highlights the differing risk levels faced by lawyers and their clients.

In this episode, you will hear:

Insights from Ben Gideon on risk assessment in trial law
Exploration of trial lawyers’ risk-averse tendencies and the impact of cognitive biases
Importance of data-driven approaches and probabilistic thinking in legal decision-making
Balancing client emotions and cognitive biases during negotiations and mediations

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Supporting Resources:

Guest Ben Gideon of Gideon Asen

Email: bgideon@gideonasenlaw.com

Website: https://www.gideonasen.com/our-team/benjamin-gideon/

Podcast: https://www.elawvate.fm/

Books referenced in the episode:

On Edge: The Are of Risking Everything by Nate Silver

Thinking, Fast and Slow by Daniel Kahneman

Episode Transcript:

Elizabeth Larrick (00:02.592)
Want to learn what cognitive biases you have as a trial lawyer that could be holding you back? Want to learn to assess risk better? Well, buckle up because our guest, Ben Gideon, is here to share his approach

in this episode. Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and we have a wonderful guest here today. Ben Gideon is joining us all the way from Maine. Good morning. Hello, Ben. Morning, Elizabeth. I’m thrilled that you invited me to episode 140 or 141. That’s incredibly impressive. well, thank you so much. And I appreciate letting me come on your podcast. I recently got to guess.

on Elevate and it was wonderful and I’m glad to do that. And I’m excited that my audience gets to have you here today and talk about risk. So you have an amazing career, thoughtful, well put together, running your own office, many, many successful trials. So I know the folks listening are excited to hear your take on risk and how we can do better as trial lawyers at assessing risk. So let’s jump right in. Okay. Like

I know, I already know. You think that most trial lawyers say, you know what, I can handle the risk, I can do the big talk and the walk, but in fact, we’re really risk-verse as trial lawyers. So tell me a little bit about that. Yeah. So I started thinking a lot about the concept of risk after a recent trial that I’d lost. There’s nothing like having a devastating defeat to start to frame things for you and force you to think critically about issues that maybe you hadn’t thought as much about before.

Elizabeth Larrick (02:23.316)
And of course the idea of risk is elevated in center of mind when you’ve just lost a lot of money and turned down a big offer and received a defense verdict. So I started thinking about my own decision-making, about the decision-making that the client had to go through to make that choice, to roll the dice with the jury. And then thinking back on my career and also about other great trial lawyers that I’ve come to know who have had a lot of great

verdicts and just thinking about what, where the right balance is between taking risks for yourself as the trial lawyer, for your client, for your law firm. So what you said about that, it was one of the first observations I came to, which is in my career of doing this, which is now 25 years or so. One thing that strikes me is that as trial lawyers, we tend to be too risk averse that we

settle too many cases that we probably should be trying, that we take too many low dollar offers, that we don’t put it on the line as often as we should. And when you look at the lawyers that have had repeated high level success with the significant verdicts that we all hear about that are reported across the country, first of all, one of the observations that I think is

obvious to most people is that it’s the same lawyers that get the verdicts time and again. And you’d think, well, if everybody was doing the same thing over time, that would spread out and everybody would have, you know, their share of those verdicts, but they don’t. And one of the reasons for that is that, I mean, it seems quite obvious, but one reason is that the lawyers who get those verdicts are willing to take risks that other people don’t take. And they take those risks repeatedly.

over time and that has a kind of self-reinforcing mechanism over a career in terms of what that does to their mindset that allows them to take on that kind of risk. Whereas if you get into the reverse spiral of not taking those risks, then your formative experiences are all teaching you that you shouldn’t take the risk and you should take a lower offer and walk away. So then the question I came to about it is, what is it about us that

Elizabeth Larrick (04:47.535)
that causes us not to take really intelligent risks or risks that if you were to do the just pure rational data-based analysis, that the right decision would be to take the risk. The right decision for yourself, many cases also for your client would be to take the risk, but you still don’t do it. Why is that? And I started looking and reading up on some of the cognitive research that

kind of underlies a lot of the modern thinking about it. I don’t know how much you want me to get into all this. When it starts to get into No, no, I think it’s fascinating. Well, let me just say real quickly, because I think when a lot of times when people are risk averse as trial lawyers, we take kind of a riskier path. We do contingency fees, we get to hold onto the expenses. And one of the thoughts that I think hams up for people when you hear-

so and so just got 21 million. so and so just got eight for me. that guy or that gal, she just got the multimillion. It’s, that’s just luck. They’re just so lucky. They get that. So that’s one of those thoughts I think that sometimes gets reinforced, which then goes back into our mindset or the brain science behind the paths that we make in our brain. And then trying to make a new path of taking risk is challenging. So talk a little through the brain science.

Yeah. So again, after that, that recent loss, I was feeling terrible about it and trying to think through how we, how I came to that decision and whether that was a smart decision or a dumb decision. Of course, the decision to take a risk always looks dumb when you’ve lost. So, but I was trying to go back in real time and decide if I had to do it again, would I do the same thing or would I do something different? Because what lesson am going to learn for the next case? So.

My partner actually had just finished a book by an author named Nate Silver, who somebody, many of your listeners may know from the FiveThirtyEight website. He did a lot of political statistical analysis and prognostications. So this book by Nate Silver, who wrote a book about risk, again, I highly recommend it. And what he does in the book is he compares

Elizabeth Larrick (07:08.294)
people that are in professions where they’re highly skilled at analyzing and making decisions on risks, such as venture capitalists, such as poker players, versus people in the mainstream, doctors, lawyers, other people who aren’t as accustomed to making risk-based decisions. And what people in those industries do is they employ what they call probabilistic thinking, which is essentially figuring out what the expected value of a decision is.

and then making the one that’s optimal. So in poker, if you have a particular hand and you can see the cards on the table and you’re experienced poker player, you can assess what the odds of winning that hand are based on what the likelihood of you having the best hand would be, you know, just based on statistical odds and really good poker players do that. And the expected value is their odds of winning multiplied by what’s in the pot. So.

Now, if there’s $10 in the pot and you have 50 % odds of winning, the expected value is $5, right? So as a trial lawyer, you can do the same thing. If you know what the expected verdict value is and the likelihood of winning, can figure out, well, this case is the expected value is $10 million and I have a 50 % chance of winning. So the EV or the expected value for this case is $5 million. If they offer you $1 million, that’s

really not a great offer. I’m assuming all of those, that data is correct, right? And one of the challenges of doing what we do is getting data that you can rely on. One way to do that is focus groups, which is what you do and helping people to have at least a more quantitative understanding of risk for their case, which, you know, in the old days, you just made decisions based on your own quote unquote intuition or experience.

or what your most recent experience might have been. So you tried a case and you did really well. That case was a rear end collision. Now you have another rear end collision. So you may assume, well, I’m going to do the same in this case. But of course, every case is very different and we all know that, right? Even one little difference can change an entire case. But assuming you could figure out, and it’s a big assumption, what the expected value of the case is, then you can make smart decisions for yourself and your clients in each case.

Elizabeth Larrick (09:30.631)
subtle cases where they’re offering more than what the expected value would be, and going to trial in cases where they offer less. It’s my hypothesis that trial lawyers that you hear about getting the big verdicts routinely, even though they haven’t overtly stated that that’s their process, having gotten to know many of those lawyers, I believe that’s essentially what they’re doing. They’re making

decisions that are much more closely aligned to actual expected value, which if you do that, and this is part of the Nate Silver book, if you do that over a long term, you’re going to be far better off, right? It’s like in any individual case, you might get it wrong because if you a 50 % chance of winning, it’s 10 million and you turn down 3 million.

and you lose, obviously in that one case, you’re going to be worse off. You would have been better off taking the three. But if you have 10 of those cases and you always make the decision based on expected value over the course of your career, you’re going to be far better off making the analytically correct decision about risk. and I think also too, but what goes into that is when you’re thinking about these folks that are going over and over again.

and having expected value and using big data to understand all of those things. You still have that person, that brain that has accumulated the risks of going to trial like this on these kinds of numbers, these kinds of cases, that person, that brain is way more accustomed to risk than the lawyer who is just stepping into the arena and they’re taking their first million dollar or two million, three million dollars.

you know, so I do think it’s a combination of that getting used to that risk, you know, stepping into that place, but then also again, like you’re saying, have some of these expected value and be able to compare and have that a little bit of that data to make the decision. Right. Absolutely. It’s self reinforcing in that if you, so for one, one thing is if you’re a lawyer who only gets an occasional, you know, seven or eight figure case, maybe once a

Elizabeth Larrick (11:43.567)
year, or even once a decade, you don’t have a diversity of those cases to balance out that risk. So you’re not in the same position as a poker player playing a thousand hands. You’re actually much more like the client who only has one case. And that’s another point I wanted to cover, which is that the risk to the lawyer is actually quite different than the risk to the client. So the lawyers who are trying

repeatedly trying seven and eight figure cases to verdicts, they have an entire docket of those cases. So they’re similar to the poker player who’s playing a thousand hands of Texas Hold’em, right? Their expected value is going to even out over the long term and it’s going to trend toward the mean of what the actual value is. Whereas if you only have one case as the lawyer, you’re putting all of your eggs into that basket and

you know, if it’s a 50-50 chance of 5 million or zero, you may not be in a position with your practice to be able to diversify the risk of that loss across other cases, right? And the client can never do that because our clients always only have one case. I mean, for the most part. Right. We’ve multiple times, but for the most part, they only have one case. And so then you’re in the position of advising your client about

the risks where for you as the trial lawyer, if you are fortunate enough to have a lot of high value cases, you can afford and you probably should rationally take the risk to insist on getting expected value in your case. Whereas for your client, each marginal dollar is less valuable because the risk is so much greater for them once they get over whatever that threshold number is that they need to be secure and protected.

from the risk of loss, right? And so that’s just a really difficult dilemma. And I think that part of dealing with that issue is just recognizing it to begin with, that you as a lawyer do have a different tolerance, potentially a different tolerance for risk than the client is. Also the lawyers, mean, frankly, different lawyers, as we’ve discussed, do also have different tolerances for risk. And if you have that case that’s worth $50 million,

Elizabeth Larrick (14:05.867)
but you only have one of those in your practice, can you realistically take that risk, the appropriate risk that you should be taking? The answer is probably not, and you probably can’t afford to invest in the case as you should, which is also a risk, which is why a lot of those cases do get referred to the, you know, the small number of lawyers who routinely handle and try those kinds of cases. So there’s a certain logic to it. It’s pretty interesting stuff to, you know,

drilled down on it. It definitely will. And it is one of those things where I think people, whether you say that it is risk assessment or whether you say it is, they, this is in their wheelhouse. They have the, the war chest to invest in something that I don’t. Right. I think it’s still a matter of risk assessment. Like can I take this? You know, do I have, you know, the, it takes it to go invest the right way, but also take the risk all the way knowing

you know, I can go in because the value of the case. think most people say, well, that person’s done this before. And also they’ve got the war chest to invest in ways that I may not even know about and don’t have time to teach myself. Whereas I do think there are people out there who have that one and they say, you know what, I got this. And they do their own investment, meaning invest in themselves and then invest in learning. And then basically find a way to build the case.

with help or alone or whatever it may be and then really do try to take it all the way. But I think those are pretty rare. Those are the most amazing stories. And then those are the people that end up generally moving into that rarefied crowd and doing it repeatedly. I you have to start somewhere. That’s right. Yeah, exactly. I think no one’s going to hand you a 58 figure cases when you start your career. So you have to build that up. Yeah. Well, you know, take some risks to get over that hurdle. But

Right. And then like you said, I think there are people who do, and then if you have a bad outcome, even if you have one or two, but like they just, they notch down their risk level, right. And then they do end up being referrals and, working on things that they feel comfortable with. This is what I like the data so much. And I like the focus group practice so much because I think it’s a way for us to rationally think about and manage risk. I mean, I’m sure one of the

Elizabeth Larrick (16:28.258)
things that you talk about a lot in your podcast is the way focus groups are used to help refine your case and to make it stronger and to make it better for trial present, get the right case frames, the right themes, troubleshoot problems, overcome obstacles on all of those things, which are incredibly important uses of focus groups. But there’s also another use of a focus group, which is to in combination, I think with some quantitative data, more on a big data level, but.

But it starts with the qualitative data on the focus group is that you start to get more of an objective sense for the actual case value, win loss rate and risks that are independent from your own kind of subjective biases. And I think it’s really important to do that because we all bring a bias, our own bias. And of course, when we’re very deep into the weeds of cases and feel connected with our clients and the cause, it can be very hard for us to see the difficult

challenges in the case or to do it the way an ordinary juror might look at it. So as part of this kind of risk analysis, I was reading up on the literature, which I’m sure a lot of listeners are familiar with, the Kahneman-Tversky model, which is exploring why people often make irrational decisions based on cognitive bias. And when you read that in the context of being a trial lawyer, a lot of it really rings true and also…

you can see what the defense and insurance companies are doing to us routinely. So just to highlight a couple, some of the things they found when they did their research and how people make decisions is that people tend to perceive the risk of loss with greater value than the equivalent amount of gain, actually almost two to one, because you’re so worried about risk of losing that that elevates

in importance in your mind. losing $100 is much more impactful to you than the possibility of gaining an equivalent $100, even though rationally it should be the same, right? Right, right. That’s one of the things they found. Another one was that people will pay extra for certainty because people don’t like uncertainty. So going back to the expected value, if you have a certain 3 million,

Elizabeth Larrick (18:49.24)
but the expected value of your case is 5 million because 50 % of 10, people perceive the three as being much more, as more than three relative to the five because it’s certain, whereas the five is contingent. But that again is irrational because the expected value of 50 % of 10 million at five has a substantially higher value than 3 million, right? But still people perceive that differently. And then there’s the final thing, Nate.

they found, which is that people value things that they own much more than things that they don’t yet own. So it costs more to force somebody to give something up than what someone is willing to pay to acquire the same thing if they never owned it. And when you think about those different cognitive biases, think about how negotiations happen and mediations in a plaintiff’s case, right? They want to put enough money out there that

they are triggering your client and the lawyers for those cognitive biases to kick in. When they put the three million out there on the table, it’s very different than you sitting down with your client and saying, would you take three million? Well, I don’t think so because the expected value in this case is five million. But now it’s on the table. In a sense, you have it, you own it, it’s yours. And now in order to try your case, you have to give that up. So that endowment effect,

of people perceiving the value of something they own greater than something they don’t yet own, or the value of certainty over uncertainty, or the value of the risk of loss versus the equivalent amount of gain. All of those biases factor in. And I don’t know if insurance companies have studied this in terms of human cognitive decision-making as to why they negotiate the way they do. But I think some do, some don’t.

It doesn’t matter. They’re employing these techniques and they’re very effective because we all know exactly how that works, right? Your client says, no, no, no, never, never, never. But as soon as that money is on the table, that whole discussion changes. I’ve always thought about that as well. Our clients sort of being disingenuous, you know, maybe they they’re always saying no, no, no, no, but they actually don’t really mean it. But actually, that’s not really the case. It’s that that cognitive effect has not yet occurred.

Elizabeth Larrick (21:11.734)
which is a real, very real thing. And when it happens, it has an actual impact. Probably at some deep level of brain chemistry that I don’t understand. If you recognize that that’s what’s happening, even if it’s still going to happen and still has a powerful impact, I think it’s useful both as the lawyer and in advising your client to think about those things and why you’re doing what you’re doing. And then going back to focus groups, you can, to some extent, I think, counterbalance those forces with actual data.

because now you’re saying, well, you know, okay, that’s on the table. But we know from, you know, the 10 focus groups we did that the mean verdict about was this, and you had a 90 % win rate in this case. And so, yeah, that number kind of might sound good, but actually that’s offensively low for what this case is actually worth. Sure. At least it’s something to talk to your client about to counterbalance that. Sure. And I think that that definitely

Absolutely. As far as being able to have some kind of risk assessment tool besides yourself. I think when it’s just you assessing it and telling your client, like it’s very difficult for them to counterbalance it versus if you have some focus groups or you know, if you have the ability to do that big data study, then it significantly helps them balance things out in their minds. Especially if you get there beforehand and you know, before you get to that mediation, that pressure point that they’re going to feel and it’s

harder for them, I think in the long run, because if you, again, like you’ve pointed out, and you always have to remember that this is their one thing, their one thing. So the risk is going to be magnified versus for us who do it often frequently. And I think we tend to forget about that perception that they’re going to have versus us, even if we’re not one of the ones that always goes to trial, we still have that, this is just how it works.

you know, okay, that’s okay. That’s going to work. You know, here we go, but just move along because we just don’t want to risk anything. But when you have the focus groups there, it’s definitely harder for you to say, Oh, we should just go against what they said and just settle now because you know a little bit more in your brain about the risk and what, what they’re saying. And the other thing about the focus groups is they find risk you completely missed. I mean, that’s why I enjoy when folks, even if you just do one issue spotting, like

Elizabeth Larrick (23:35.449)
it’s going to find risks you may not have known was there. And then you can assess it or you can say, this is not something that we could probably overcome given the evidence we have and what I know and what I can talk about or do another focus group to assess more risk. Yeah, I agree. And we started this new law firm about four years ago and we just revisited our sort of core values as a firm. And one of the core values we came up with is that we are going to make decisions based on science.

and data, not fear or ego. So that’s, that is one of our firm core values now. And we’re very committed to in every case that’s moving forward to trial. Now we do multiple focus groups because we like the qualitative response from actual people. And then we, we do a big data study, at least one, and we’re committed to recommending settlement. If the case values come in above what the expected value is in the data study and to recommend trying cases of

the expected value is less. But that’s when we have the conversation with the client about that they only get one case. And so there needs to be some adjustment there for that extra risk. That’s not just a case specific risk, but is the risk of having all of your eggs in one basket. It would be like investing in the stock market by only buying one stock, right? Which nobody would ever do. So a differential is going to be different based on their own life circumstances and

tolerance for risk, but at least we can have that discussion with them. But we don’t recommend settling for our benefit unless it’s expected value or above. At that point, it becomes the client’s choice. If it’s less than expected value, then we talk about how much less would be reasonable to give them the discount there for that extra risk. it’s just a really great way to have an intelligent conversation with your client about this subject and to take your own ego out of it.

to take these cognitive biases out, to take fear out of it and just try to make the best decisions we can based on the information available to us. Sure. Well, let me throw a scenario at you because this has happened multiple times with folks I know that are listening. And that is, let’s say you’ve assessed the risk. You’ve done maybe, maybe one or two focus groups. Maybe you’ve got 20 trials, 30 trials under your belt. You’ve got some, you know, multimillion dollar verdicts.

Elizabeth Larrick (26:00.981)
And the risk assessment comes back on a case and lo and behold, they get a settlement offer that’s more than that. The client says, no way, I want to risk it all. So how do you, in that scenario, have you have basically a completely risk averse client? How do you navigate that? I mean, there are clients who truly want their day in court and they want the catharsis of having justice done. And personally, I believe that that has great value and

I would be thrilled to have clients that wanted, that pushed us to try cases that, you know, where we could take a chance that even went beyond what the risks says. However, I think my experience and probably yours too, that’s pretty rare. Our clients don’t tend to be highly risk averse. I find the opposite is much more true that most clients are very worried about going to court. They don’t want to.

have to be in a courtroom and testify. For our clients, everybody who does plaintiff’s work for the most part, our clients are not. They don’t have resources that allow them to take risks at a high level. And they probably, for the most part, should not be doing so. I find it’s much more the opposite that when you start to get multiple seven figures on the table, clients are very wary to put that at risk to go to court.

And I totally agree that most people fall into the category of being high. You know, they don’t want to do it, but most people don’t have multi million dollar cases. Most of them have, you know, smaller cases. And what I find when you actually kind of dig into this person who has this absolutely not, there’s absolutely no amount of money that can ever cause nothing’s ever going to fix this. You know, typically there’s something else emotionally that is going on. And that’s where

you know, yes, we can have all this intelligent conversation, but at the end of the day, I think we have to really think about the emotional things that are going on because there are times where we may get a verdict one way or the other and we talk to the jury and what has happened is something that’s emotional and subconscious and like, you know, all they can tell us is, I didn’t like your tie been in your thinking. Okay. Well, that really probably wasn’t the thing that made you decide.

Elizabeth Larrick (28:22.493)
Yeah. No, I mean, I just had a client in the office two days ago and this was a case we did a data study on. And what I found is actually most of the time, the data studies come back with numbers that are higher than what I would have expected. Back in the days before we did data, my intuition would have valued them below what actually juries are valuing them. So that’s been a nice revelation for me.

I think that’s part of the culture and climate we’re in right now with a lot of the nuclear verdicts and that people are willing to see value in other humanity. And also just there’s a lot of anger out there and people are expressing that in verdicts. But in this particular case, the results came back considerably worse than we would have expected. And there’s some atmospheric reasons why that’s probably the case. So we settled with one of two defendants for what was what I think beyond expected value for the entire case.

And our client, just like what you said, she is not, she was not particularly thrilled with the settlement, but for the party that settled, they also agreed to do something, a non-economic thing beyond the settlement. And this case involved a death of a child and they’re willing to do something to recognize that probably didn’t cost a lot of money, but it was very meaningful to our client and made her feel like they took the claim seriously.

that they were taking responsibility for it. so, yeah, there are definitely cases where there are things beyond money that are very meaningful, whether it’s a day in court, just having that jury say, you know, the other side was wrong and you didn’t do anything wrong. Well, and that’s still pretty rare that most, but you anything will non-economic would come through. But I just think, you know, most of the time when you have somebody who has something else emotionally that they want to be satisfied.

for what it be to be, it is to be heard. Maybe it is to be, you know, you know, acknowledged in the sense of, and many of the times it never happens, right? Even if you have a jury of like that doesn’t give an acknowledgement by the defendant, but that’s just kind of one of those things where we are on the other side, right? Of where we’re trying to convince somebody else of the risk knowing we’ve done, you know, the research and, it is pretty rare that those happen, but they’re out there. I mean, I, clients are

Elizabeth Larrick (30:44.177)
They’re complex humans, just like everyone is, and people are have, they’re going to be different motives and lots of layers, probably in every case. But what I’m trying to focus on in terms of thinking about the risk here is more that I don’t want to be making decisions based on my own ego or fear. If I can take that out of the equation, at least that’s one big factor to remove. Now my client’s going to have fear. My client has an ego. My client has many desires and are not necessarily driven by

know, crunching numbers and expected value of cases based on focus groups and big data. I get that, but I don’t want to be making decisions on that because I’m the professional here, right? And I should be trying to make smart decisions, not take dumb risks because it would serve my ego to get a verdict, but on the flip side, not caving into these cognitive biases that might be impacting me because, I’m afraid of the risk of loss or I’m valuing the certainty of

dollars in my pocket over the greater value of going forward, which I shouldn’t be doing those things as the professional in the relationship. So the reality is, as you know from doing all these focus groups is, first of all, none of these are precise science. It’s not in poker, you can look at a hand and say, if I have this hand, I have the third best hand you can have, and my odds of winning are 72.5%.

You can never get to that. don’t think we’re ever going to get to that in our business. There’s not enough human nature and jury decision making is too unpredictable to be subscribed to that kind of analysis. But the reality is when you do big data and combine that with a qualitative focus group where I think you can get pretty close, I think you can get within a range that gives you a pretty good sense. You know, are you at a 70 % win rate or are you at a 30 % win rate?

You you definitely can get a lot closer than you could with your gut without it. So, yeah. So obviously, Ben, I think I can hear that you really like big data. I think I can hear that. And we talked about some of wrong ways to assess risk, which would be ego or fear. So what’s another way that maybe would be the wrong way to assess risk? Well, I think one way is to is to use a small sample size to

Elizabeth Larrick (33:05.917)
have large scale extrapolation. So if you do one focus group and you had a great result, that doesn’t mean you’re going to win your trial. And if you had a bad result, it doesn’t mean you’re going to lose your trial because we all know as long as it’s a small sample size, it’s highly influenced by individual people or just like you said, maybe what you wore in your tie that day or some other factor. Sure. Well, and I think if you’re just going to do one focus group, you shouldn’t be targeting, is it a win or a loss? You should be targeting.

what are they saying, how are they saying it, you know, that kind of stuff. you know, totally agree. The one shot doesn’t get… Yeah. And also, I mean, I think you can always stack your presentations to dictate your outcome in your favor. So, I mean, if you’re not honestly confronting the real difficult arguments that the other side has, whether it’s in focus groups or doing data studies, you might get very favorable results and you might feel good about that. But that it would be a big mistake to use that to

make decisions or to advise your client because you’re not really, you know, honestly presenting the case. And I think having that discipline to try to honestly confront the difficult problems in your case, even if you didn’t use the data for predictive quality or anything is worth it alone because that exercise is going to make you a much better lawyer and make you much better prepared for trial because

It’s not fun, but you’re dealing with the difficult issues before you get in the courtroom and you figuring out solutions to them. So, right. And you definitely don’t want to be doing that in the courtroom. But I think another way that we often and frequent do this, and it’s not just that we just as trial lawyers, but we go down the hall or we call somebody up when we ask them to give us their risk assessment and then really rely on our neighbors or our, you know, our colleagues assessment of things we do. And we also, I think,

And this is one of the Kahneman and Tversky points as they call it availability bias. But basically you tend to put greater emphasis on things that are easily accessible or right in your face at the moment. So if there was a big verdict in a similar kind of case, you would tend to say, well, I’m likely to get a big verdict in this case, even though maybe that same kind of case, was nine bad verdicts before that, that you didn’t hear about.

Elizabeth Larrick (35:26.063)
It’s the concept that, you know, when people are at the beach, they’re worried about shark attacks, even though that happens, at least in Maine, that’s happened once in the last century. But it did happen a couple of years ago and everybody’s afraid of shark attacks now just because of the recency and, kind of that being front and center in someone’s mind, which I think is why people that start getting verdicts to that becomes their recent experience. Well, I just had a great verdict. So now the next case, what are you thinking about? I’m thinking about my last case and

that gives you that extra confidence that things are going to go well the next time. And you know, the reality is we’re also in somewhat of a confidence game. So there’s a value in just having the confidence, which, you know, when you do the focus group and you do your data and you’re if you’re doing it with robust process and thinking critically about the difficult issues and the other side and you’re still winning and feeling good about it. Yeah, you get some extra confidence going in the courtroom as you feel like you’ve got the win in your sales and

that itself, I think has great value. Absolutely. And I do think you can gain some certainty out of your case, you know, running them and figuring out the case frames and the sequencing of evidence, which is again, brain science, right? Primacy, recency, you know, all the things that we can take advantage of because we get to go first. And again, knowing that things are working at the focus groups, that definitely gives you that confidence and certainty. So, okay. So what’s a key takeaway that we need to give folks before we end our episode?

What I’d like to see people do is just step back and reflect on the idea of risk and think about where you are in that, in the process of arbitrating that both internally in your own mind and trying to confront your own biases and egos and fears and also the perspective of your client and where they’re coming to you from this. I think if you can step back and even just

thoughtfully consider those things, you’re going to make better decisions for yourself and for your client. And whether you decide the way to do that is with more focus groups, more data, or just thinking more critically about your case and not falling prey to those biases that may affect us otherwise if we’re not aware of them. I think that would have a lot of value for folks. I know it has for me. Absolutely. Absolutely.

Elizabeth Larrick (37:43.165)
Just to give people a little bit more of a reference point, Thinking Fast and Slow is probably the best book you could recommend as far as learning Daniel Kahneman and their work they’ve done. Yes. Yeah, I would start there. And then Nate Silver, his book is Thinking in Bets. No. It’s On the Edge. On the Edge. He’s got a couple of books, but that’s the one I was referring to. Okay. Okay. Awesome. Well,

Ben, thank you so much for joining us. If you guys want to talk to Ben more, and I know he loves to talk folks about big data. He actually wrote the preface for jury ball that just came out. So, you know, if you have questions about big data, please, we’re going to have Ben’s contact information, the show notes, along with the links to those books. If you’re interested in that, Ben, thank you so much for joining us. You have given us lots of wonderful gems here about assessing risk and cognitive bias and things to be aware of. So thank you so much.

Thanks so much for having me. I appreciate the opportunity and thanks for coming on my podcast, Elizabeth. It’s great. Of course, of course, of course. Thank you so much for tuning into this episode with Ben Gideon. You can find his contact information in the show notes along with the two books that were recommended during our episode. And if you want to learn more, you can join the trial lawyer prep newsletter. Thank you.

How to Work in Your Trial Strategy with Your Client’s Testimony [Ep 137]

elarrickbrand on April 9, 2025

In this episode, Elizabeth goes into crafting authentic client testimonies to enhance courtroom success. She emphasizes avoiding scripted testimonies that erode credibility and offers strategies to naturally integrate case themes into client testimonies. Elizabeth outlines three key steps: avoid making clients memorize phrases, review their past statements, and conduct prep sessions to help them organize thoughts on damages or liability. This approach ensures that testimonies subtly echo case themes, maintaining authenticity and strengthening trial strategies.

In this episode, you will hear:

Crafting authentic and impactful client testimonies for courtroom success
Avoiding pitfalls of scripted testimonies to maintain credibility
Integrating case themes into all trial stages, from jury selection to opening statements
Strategies for making client testimonies resonate with jurors
Emphasizing authenticity and emotional connection in witness preparation

Follow and Review:

Supporting Resources:

Have a challenging client or up-coming trial that you want to polish client testimony?

Book a free call: https://calendly.com/elizabethlarrick

Episode 131: What is Trial Strategy and What it is NOT

Episode Transcript:

Elizabeth Larrick (00:02.604) Do you ever wish your client would give testimony at trial that echoed your case themes? You are not alone. Most trial lawyers want every piece of their trial to echo or repeat

the case themes and trial strategy. Welcome to Trial Lawyer Prep. I’m your host, Elizabeth Larrick, and thank you for joining me today. This episode combines two of my favorite topics, witness prep and trial strategy, which by the way, if you are struggling with a client who is having difficulty, having clear testimony for deposition or trial, book a chat with me and let’s see if how I can help. Now,

You want your client to echo those case themes, give some great testimony that also kind of assists the lift in the case for those things. And trust me, there is a right way and a wrong way to do this. So let’s talk a little bit about the wrong way, which would be having your client memorize language or phrases.

So they’re echoing back the exact same thing or scripting questions and having them answer in a very scripted way. Let’s give an example, which would be if you are a follower of the edge or reptile mantra, one of the questions that’s asked in voir dire is what is your passion? Now, I don’t have any problem with this question. It’s great. But what ends up happening sometimes is lawyers can get a little lazy.

Elizabeth Larrick (02:19.713)
And instead of coming up with a different way to ask that question, they have the exact same question to their client to try and like weave that theme in there. It is really obvious to the jurors what you are trying to do. So why would that not maybe work? And that would be number one, it’s very robotic. It’s very scripted. It’s very mechanical.

And what happens is number two, the jury just doesn’t believe it at all. They know that it’s scripted and not persuasive, which then leads me to the last point of losing credibility, which is huge for your clients. They already have the opposite end of the belief in them because they’re bringing this lawsuit. They’re taking people away from their lives. And most jurors are a little upset about that. And so they judge our clients scrupulously.

And so we go for these kinds of low level hanging fruit, it really causes them to lose credibility, which is extremely difficult for them to get back. So let’s talk about the right way to weave trial themes, trial strategy into your client testimony. Number one, we gotta have a trial strategy or case theme. So if you don’t have one of those, that’s okay. Jump back to episode 131, where we talk about what

trial strategy is and is not. And hopefully that will help clarify some things. So once you get that in order and you know, all right, here’s where the order of proof is going to be. Here’s how we’re going to weave this theme into opening and jury selection and through these witnesses. And so you want to ask yourself right out the gate, where does the client fit in? What is a topic that they can actually take on their plate, testify about?

and do so in a way that actually does echo your case themes. So thinking about, let’s take liability first. There are cases out there where it would be really difficult for the client to add to a case theme or trial strategy when it came to liability because liability requires expert testimony. Maybe it’s a product liability case, maybe it’s medical malpractice. However, a place where I find it is helpful for clients to testify when it comes to strategy,

Elizabeth Larrick (04:39.297)
on liability is rules. So car wrecks are a great example here. We have rules of the road, but there are rules pretty much in every case. And there are things which I would call expectations that our jurors will have of our clients. so liability and rules are a great way to pair those things together when the client gets on the stand. Let’s turn then to damages. Typically people will have a damages theme. You’ll have before and after witnesses along with your client who are gonna testify.

And there are things definitely that the client must tackle on damages. However, sometimes it can be done in a way that will echo your theme. My example would be if betrayal is one of the themes that you have in your case and having your client testify about the trust and examples of that trust and how it led to blind trust. And then again, having the rug pulled off underneath them.

There are great ways to weave in your case themes, thinking about liability and damages. But what you want to do on this first step is just see where is it possible? Where do they fit in? And maybe they’re not the best witness for fitting in the theme, either on liability or damages. So think about that. Get your little bucket. Okay, where can they help on liability and where can they help on damages? And the next thing to do is to step two, which would be, let’s go see what they say.

meaning let’s check the deposition. How did they testify already around these themes? If at all, sometimes they don’t at all. And then where in our prep sessions can I designate some time is to sit and listen to them talk through some questions that you may have for them. And so in this second part of just really seeing what they’ve said and then listening to them, like learning their language and how they actually explain and have stories,

I like to use an organizational chart. I find it really helpful because it helps me be able to listen, right? And they have the knowledge that they’ve got to fill this chart out together. But basically we just take a giant notepad, we divide it into four different squares and we walk through each square looking at, okay, what are examples of either it’s the physical injuries or maybe the mental injuries that have

Elizabeth Larrick (07:00.239)
kind of change things, examples of that. And the four squares, which would be home and family, social, work and me. And as we go through and your job is a lawyer’s just to ask questions again, how has this impacted? And just listening and writing up those examples. The hope is that you’ll have a great page that is filled full of lots of examples. And then you can in that last step, right? Step number three of trying to work in

the case themes through the client testimony, is to sit down and really craft those questions very well. And sometimes they’re very simple questions. They’re not long-winded questions, they’re not kind of the wind up questions. They’re just really simple questions. And most of the time it’s really about signposting to help the client know where you’re going, but also have the jury follow you. But having done the work of listening to them in that second step,

they will feel very comfortable knowing about what you want them to say. That’s generally the number one thing people always tell me, what do want me to say on the stand? You want it to be normal, natural, you want to be very conversational. And that’s why doing this, working in your case theme does take some time because you want to feel really confident in your case theme and your trial strategy.

So timing of this preparation really comes very close to the time of actual trial. Because at that point, maybe emotions and limiting have been ruled on. You’ve heard a lot of the themes that will be coming out of the defense. You know really well what your other testimony is and your opening statement. And then being able to do this work with your client will really help you be very clear about what place that they may take on their testimony as far as helping the theme or echoing.

and where they won’t help. Maybe you have other witnesses that can help and tell different stories or fit in different ways with your case themes. So you may be thinking, well, what if I go through these three steps and it doesn’t work? Meaning there’s nothing that I can get the client to, you know, testify along with my case theme. Well, sometimes I always say, let’s go back to the drawing board then and let’s think about it. What does the jury need to hear? What does a client already have to say?

Elizabeth Larrick (09:23.567)
It’s not a bad thing if there can’t be any overlap between case themes and case strategies. Typically there is, it’s just having to go back through and think about it in a different way, either through the jury’s perspective or working a little more on your questions. Or one the things I always suggest too is looking to other witnesses that maybe are testifying more clearly or have a better memory. There’s lots of memory issues sometimes with our injury clients. And so that significantly helps go back and rework

but also, I would say two main tips here, which was number one, try to avoid putting a lot of pressure on your client when it comes to case themes and strategy. Typically, I don’t even mention any of those things to a client because the thought of even walking to a courtroom and testifying for a group of people is terrifying. The risk that they are already taking in bringing their case to trial is already overwhelming to them. To try and add another thing that they must

understand, educate themselves, and then feel pressure to fit in is too much, right? So again, this is why my second tip is subtlety here. We don’t want to be hitting anybody over the head with our case themes over and over and over again. And so you have to be very subtle in how you work these things through and making sure that it works very naturally with your client and how they think and how the information is stored in their minds. But yet you’re pulling out in a way so the jury understands. All right. So

If you’re thinking, have this trial coming up, but I’ve got somebody who I don’t communicate well with, or maybe they would be challenging to try and understand where they could actually add on a case theme, the link in the show notes to book a free call with me and see if I can help with that. All right, let’s recap really quickly. Number one, please don’t make your client memorize words or phrases in order to echo the themes you have in your case. Number two, figure out what they’ve already said.

and then listen to them in a prep session and help them organize some of the things for damage and disreliability where you can then craft questions that subtly echo the themes that you have in your case. And again, if you’re thinking, I’m not even sure I have a theme or a trial strategy, visit that episode 131, link will be in the show notes. All right, thanks so much for tuning in.

Why Zoom Focus Groups Should Be Your First Thought Compared to In Person [Ep 136]

elarrickbrand on March 24, 2025

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

Follow and Review:

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.

Trial Preparation: Zooming out to see the Jury’s Perspective [Ep 135]

elarrickbrand on March 12, 2025

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:

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.

Your Trial Strategy Shouldn’t Be an Afterthought: Make the Jury’s Job Easy [Ep 134]

elarrickbrand on February 26, 2025

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:

Supporting Resources:

Jump to Episode 131 to get an overview of trial strategy.

Books to Kickstart your Trial Strategy Planning:

Trial by Human by Nick Rowley & Steven Halteman

Rules of the Road by Rick Friedman & Patrick Malone

Polarizing the Case by Rick Friedman

From Hostage to Hero by Sari de la Motte

Damages 3 by David Ball

Trial by Woman by Courtney Rowley & Theresa Bowen Hatch

The Keenan Edge Anthology by Don Keenan and various contributors (including me)

Winning Case Preparation by Bozart, Cusimano, Lazarus and Wenner

Learn more about how Elizabeth helps trial lawyer here.

Connect with Elizabeth on LinkedIn.

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 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.

Category: Podcast

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Your Trial Strategy Shouldn’t Be an Afterthought: Make the Jury’s Job Easy [Ep 134]

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