Category: Podcast

Think jury instructions are where to start with getting ready for your jury trial? Think again.

Join Elizabeth Larrick as she shares key strategies for achieving courtroom success. Learn why understanding a judge’s rules and procedures is as important as knowing your case facts. Elizabeth delves into the specifics of voir dire, discussing time allocation and format variations to connect with jurors.

Elizabeth offers strategies for adapting trial preparations to meet the demands of any courtroom environment. Learn to manage expert witness schedules and align your presentation to the judge’s persona to avoid unexpected setbacks. Through real-life examples, this episode highlights the importance of meticulous planning and understanding a judge’s expectations to ensure effective execution of every trial element.

In this episode, you will hear:

• Maximizing trial success strategies
• Navigating trial preparations and judge persona
• Nuances of voir dire: time allocation and format variations
• Strategies for connecting with jurors
• Legal research and preparation for judge’s trial persona to avoid unexpected setbacks

Follow and Review:

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

Supporting Resources:

Are you interested in booking a free consultation call about focus groups or trial strategy?

Use this link to find a convenient time for you to talk with Elizabeth.

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.

Episode Transcript

Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick, and I’m excited that you’re here today for this episode.

Before we dive in to our episode, I just want to recognize that today, the release date for this episode will be September 11th. And knowing what [00:01:00] a crucial date that was for our history, I just want to take a quick moment to pause for silence.

Alright, thank you so much. And if you’re listening to this later on, which can happen for folks in their download, that’s totally fine. Uh, I always want to recognize we have a major technical issue. Date that comes through if it’s on my release date. All right, so let’s jump right in This is an episode for anybody who is going to trial at any point in their career Okay, because we have been taught as lawyers that the place to start you get a case in Where do you go is to get those jury instructions and figure out what you need to prove And that puts us all on our legal track about all the facts we need to go find, the investigation that we need to do, and we’re fully engaged in our lawyer brain, right?

And that’s where law school tells us that. A lot of times our first jobs will tell you that. Okay, well what do you need to prove? Go [00:02:00] find those jury instructions. But a smarter place to start would be to go find the judge’s rules and procedures for trial because that will tell you a whole lot more about how you can try your case.

Because in trying cases, it is much more important about the how versus the what. Almost every case that I get involved with, cases I see and hear about, the lawyers have the what. They have the facts. They go investigate. They get the depositions. They talk to the witnesses. It’s the how that we are all striving to work on.

How do we talk to the jury? How do we present this the best way possible? The delivery of the information here is key, which is why we have so many trial consultants, focus groups, data surveys, jury consultants, right? Books upon books, CLEs upon CLEs [00:03:00] that try to tell us, help us understand how we can talk to juries and how we can communicate our cases.

So, The reason why I think we need to start with looking at our judge’s rules and procedures is because that will significantly craft how we will put on our trial. And the number one thing you want to find out about your judge in their courtroom is how they conduct voir dire. How much time do you get And what is the format?

Very significant. Some folks come in and you may, you may give you all day. Some may give you three hours, some 45 minutes, some 20 minutes, right? That is a huge difference. 20 minutes to a whole day, cover a whole lot more things in a full day. So you really want to be able to know how much time do I have?

Because then that will help me hone in on what are the key questions, [00:04:00] right? What are the key things that I need to talk Um, and then also allowing you to practice that because sometimes we’re used to having a significant amount of time and when we don’t, we have 20 minutes, we even have 45 minutes compared to normally having a day, we really have to work on making that succinct, but still being true to who we are and making connections with our jury.

The other part about this is the format or the style of what deer. Some folks, it’s. You turn around and you face the whole jury panel because they’re sitting where the public, in the gallery, where they would normally sit. And you get to see all faces and you talk to everyone all at once. Other folks, other judges like to put 12 in the box, 14 in the box, and that’s who you talk to.

Right. And then they just replace them as they go along. And that kind of makes it a little difficult for like, where are we putting our body and who we’re talking to and knowing that everyone is listening to us. [00:05:00] Right. Same thing, right? How are we navigating that and what kind of questions that we want, because Jury selection is this place that we actually can talk to jurors, where we build our credibility and this is our golden time to talk to them.

So we really want to use it wisely and have it designed the best way we can for our case. And best example I could give you is thinking about how Nick Rowley does jury selection. His key thing about jury selection is Eye contact, right? And being fully present with the folks that are talking to him and engaging with them on a real personal level, even though you’ve just met.

Um, and he does that a lot through eye contact, knowing what he’s going to say, but also again, being very present in that. And if we find out last minute, [00:06:00] we find out 30 days out. Oh, hey, by the way, this is going to be your jury selection. That doesn’t give us a lot of time because we’re putting all the other pieces of trial together.

We really want to make sure that we show up and we’re not surprised and we’re not hurrying, right? We’re being as present as we can with those folks because that’s that golden time, right? To be one on one with them and ask them questions, right? And be present in their answers. No other time do we get to do that in trial.

Uh, you may think, oh, well, we get to do closing arguments. Honey, if you, if you’re waiting to close an argument to bond, like connect, build credibility, you just missed the whole window, right? Missed the whole trial there. So number one, we want to find out from our judge, how are they doing jury selection?

Now, this also includes the ability to plan if you need to use a questionnaire. If 20 minutes, Then let’s do a questionnaire. And now you have the whole case to be thinking through what goes on this questionnaire. [00:07:00] What are the key things? key factors that we could ask on a questionnaire. That’ll get through, right?

Because we’re just gonna be thinking about what the other side’s gonna object to and what the judge will allow, right? Same thing. We want to be able to think that through and really practice that out and use our focus group information to plan out our questionnaire. And same thing if you may You’ll be able to file a motion to extend, you’ll know what your stats about how that’s going to work out for you or not, but just to be able to plan for that as well.

Again, there are lots of balls in the air when we think about getting in that 30 day mark before trial. Motions in limine. deposition diagnosis, then cutting those depots, you know, getting on the phone with counsel, getting all our witness lines lined up, talking to our experts. There’s a lot going on. And so that’s why we want to get this out early so that we can plan for it ahead of time.

The second key thing that we want to get and learn about our judge Transcribed by https: otter. ai Is there trial procedure, literally [00:08:00] how they like to have their evidence presented? Do they allow a PowerPoint, right? Do you have, are there special rules they want so that you can make sure the jury gets a copy of everything?

And then also their daily schedule. Judges have other stuff to do, right? And so some like to start late to allow business before the jury gets started. And some like to block off extra time at lunch. Some want to end early, some skip an entire day, some skip two days in a week to be able to handle this extra stuff.

And that is really crucial in planning your order of proof, planning out your witnesses, who is going to go and how are they going to end and what happens if you end on cross exam one day, like what kind of witness will that be? And that really becomes significant when you’re thinking about playing videos versus live witnesses.

And if you have some shortened days and you can predict around those now, that will significantly help you maybe be able to [00:09:00] avoid extra fees with our experts having to stay over because we know that our opposing counsel will be watching that clock and seizing that moment if they can. And that’s just kind of one of those things.

Can we plan around that a hundred percent? No, things come up that we can’t plan around. However, we can know at least several months out or even right when we start how this judge is going to run that daily schedule that will really help us be able to shape our evidence. And also to know, like, have a plan, a backup.

Maybe we have extra before and after witnesses to fill in gaps, right? Most of the time, this is kind of an afterthought. Like, oh, well, if we have them, great. If not, no big deal. However, think of it as, okay, we could have a whole different, we could have a whole group, a whole gang of folks that there always will be somebody ready every single day if we run out of things or if we need to have a gap filler, right?

Nothing wrong with that. Is there? Of course not. And again, that just shows the judge you’re ready and you’re [00:10:00] ready to go and try the case and you’ve got people waiting outside no matter what happens. And that is a significant thing. You want to make sure the judge knows that and the defense counsel does too.

All right, our last piece we want to dig into here with our judge’s procedures and rules is we want to do some legal research and find out what is the judge’s trial persona. How do they act in a trial? Some judges are the same, same emotion, same with trials. Some of them become this larger than life character.

Right? And we’re all just taking our place and they’re telling us what to do. And some really love trials. They love having trials, letting lawyers do their thing, watching it. They give lots of room here. Others do not. So they’re not, maybe they’re not going to pay attention at all. Maybe they’re going to be working on other things they have to do.

And that makes it difficult, right? If you’ve got a really contentious opposing counsel. to get things done because it’s [00:11:00] really going to slow things down if you’ve got a judge who’s just not into it and not paying attention. And so you want to go out and you want to ask other lawyers. What their experience has been, uh, and then you really just want to go watch, right?

Go see how they act and go see how they like to have things done. When there is a trial, there is a huge difference for most judges between how they are regularly in a motion docket and how they are in trial, right? Having that juror in the room significantly changes things. And again, you also think about, at least for us here in Texas, our judges are elected, right?

And so. That’s their, that’s their electorate right there picking them. So they, again, it really depends on, I’ve had judges who just, they love it. They ham it up. They tell jokes and that really, you know, not that it’s a problem, but it can kind of be a little bit of like, okay, let’s, you know, or they, Like to plant themselves in the trial, right?

They’re very active. Like they ask their [00:12:00] own questions or some don’t. And so you really want to know what is their persona so that you can be prepared for that. The last thing you want to do is be surprised by judge behavior because that can really throw you off. And you know, basically we’re in a fishbowl here and the jury is watching and I’ve definitely had stories where judges can break your trial.

Where they have made up their minds already that this is not going to be a place where there’s going to be a big verdict. This is not going to be a place where we’re going to use the reptile. And you just don’t want to catch them off guard either. And you want to be prepared for surprising them, right?

Because they’re, some of them will do their research of you too, and some of them won’t. You know, and that’s kind of the place where you really want to make sure if you need to adjust what you’re doing, meaning you need to file trial briefs months out, you need to have research on hand, branded out, ready to go, as soon as there’s an objection, [00:13:00] and be prepared to ask for that proffer in the face of defeat.

Right. And just knowing, okay, I’m not going to be caught off guard. I don’t want to caught, catch the judge off guard. So how do we do that? How do we, you know, graciously do that and play along their rules in their sandbox. So where does this episode come from? I’m working with a lawyer doing some virtual focus groups for several months now, getting up ready for a trial that’s coming up and They brought me the judge’s rules and procedure, and it was kind of a, you know, a big blow to the case because it was such a limitation, specifically, let’s talk about the schedule.

So, they have half days. And every other day, there’s no Friday. So when they were looking at, we’re looking at, okay, how do we create this, this order of proof when before the plan [00:14:00] was, let’s be fast. Let’s be efficient. Let’s, let’s get this done in two weeks. Now it’s looking like this is four or five. This could be a six week trial with very disjointed.

attention, right? If you were just doing half days and then coming back and maybe missing a Friday here and there. And so the other thing too is like, oh my gosh, the, the time expense of being out of the office, the extra expert fees, right? If they get caught on the stand and cross exam keeps going and they got to come back the next day and then the next day.

You know, it can really significantly add up with that time expense. The other limitations were on jury selection and trial briefing. And there was a little bit of sliver lining with it with the questionnaire, but it really kind of was a blow for how they had been thinking about and planning already, right?

We’d been doing focus groups, how they’re planning to do this, and then [00:15:00] looking at how do we adjust. What, how do we adjust and work with this particular rules, procedures, and then also the persona. Because the persona was, this is one of the toughest, right, folks, cause they just don’t really like trying cases.

So they make it very, very difficult. That’s why a lot of these rules are here. They don’t, they want to rule the roost. And so how do you do that and prepare yourself, but also prepare them so they don’t feel like, Oh. You’re just like everybody else, right? Not gonna follow the rules. And that was one of the things that is that right at the top of the judge’s rules, know the rules.

And so, okay, you know, how do we learn more about this? But really, you know, you just don’t want to be in that place where you’ve been working really hard, pairing your case, you’re taking all these depositions, and then you just get a, like, just a gut punch with the procedures and just, oh my gosh, like, how are we going to do this?

In an efficient way and keep attention [00:16:00] and memory right thinking through how do we make this memorable for the jurors who may be here for six weeks, but they’re only getting a half day of information, you know, just really. Okay. How do we do that? And how do we design direct? You know, how do we kind of plan for cross?

Like, how do we make our depo videos? Like, how do we plan for jury selection, voir dire? So, you know, we always want to be thinking about these things. But the simple truth is, if you don’t start your trial preparation, when you file, with the judge’s rules and procedures, you can be left creating a case that you never get to put on.

And that’s not what you want to do, right? We want to make sure we want to be time efficient. with ourselves and budget efficient with our cases. And so, you know, number one, we need to learn our jury selection, how our judges like to run voir dire. We need to learn about what is their daily schedule? What is their procedure for admitting evidence?

What do they want to see and [00:17:00] hear? Right? It’s a print and paper kind of person. And what is the judge’s trial persona? Do they let you do visual aids? Do they not? You know, are they, uh, love trials or do they not? How is it going to be in that room? Everyone in there and how that judge is going to perceive the things that are going on.

And as trial lawyers, we must always, we must be thinking about how we will try our cases. How will we talk to the jurors? How will we deliver the case? The evidence? So, we need to know the rules of the playground. We need to know those early. We avoid extra expenses. Build our case, our evidence, the way that fits in with the rules of the playground, the ability.

To practice all those things and design your jury selection and really feel confident and not surprised by your judge and their persona that you may encounter. All right. I [00:18:00] hope that this episode was helpful. If you are curious about doing focus groups with me or even a trial strategy call, you can book a free consultation with the link in the show notes.

And until next time, thank you so much.

Client depositions in 2024 are still virtual, but how are you preparing your client? Virtual? In person? Equip yourself with strategies that ensure your client is not just ready but confident and composed. Join me as I dive into the essential practice of virtual deposition preparation. You’ll learn why it’s crucial to simulate the actual virtual environment during practice, helping clients handle technical hiccups and communicate effectively when things go awry.

In this episode, I share actionable tips drawn from real-life experiences. From practicing with Zoom to managing on-screen documents, discover how segmenting preparation sessions can vastly improve client performance. Tune in to understand why treating these practice sessions with the utmost seriousness can set your clients up for success, making those virtual depositions less daunting and more manageable.

In this episode, you will hear:

• Importance of simulating the virtual environment during practice
• Handling technical issues and communicating effectively online
• Benefits of segmenting preparation sessions for better client retention

Follow and Review:

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

Episode Transcript

Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick, and I’m really glad that you’re here today.

This is going to be a short episode, but very vital to what you do every day because we are talking about client deposition preparation, nearly any litigation case. your client is going to have to be deposed. It’s just part of the process. It’s how the other side does their calculations. And mostly like we’ve talked about before in other episodes, your client has got a really big target on their back.

So they want to get their bite at your client in a deposition. However, here we sit and it’s 2024 and a majority of client depositions are still being taken virtual. In my experience, what I have been seeing it in helping lawyers with deposition prep. A good chunk is still being taken virtually. And so I wanted to put this episode out to kind of a little bit of refresh, but also tell you what the experience has been that I have seen that really helps specifically with preparation.

And it comes out of a conversation that I had with a lawyer recently who asked me what my opinion was about preparing clients in person or virtually. And what I told him was, Hey, listen, here’s how I think of it, which is practice. Like you play, if your deposition is going to be taken virtually, you need to be doing the preparation, all of it, or a good chunk of it.

Most of it needs to be done virtually with your client because we want to give them the best preparation possible. So even if. You are going to just spend maybe an hour on one day and an hour on another day with your client. Again, we’ve talked about the extreme benefits of separating your prep file on two different days.

That little trick alone will significantly increase client success of retention of the information you’re giving them. But Again, going back to different days when we’re just going to have two hours, one hour on each day, having that preparation virtually, even if you have access to your client, you live in the same town, they want to drive down.

Like you still want to put them in a different room, put them in front of a computer and practice being on front of the zoom, because there are so many frustrations that to us now, we’re four years in. Okay. To doing a lot of things virtually. We, it’s now normal to us, but most of our clients have gone back to doing most of their things and their jobs back in person.

So they have forgotten about the frustration that can come when you can’t hear or the vigilance you have to have, that if that last part of that sentence cuts out or that question, you have to stop and say, can you start over? I didn’t hear that. And that can cause a lot of frustration. For the client in the deposition in the virtual depositions.

And so you just, you really want to give them a good head start with practicing in preparation on zoom. The other thing I find really helpful is that when you practice looking at documents. Because again, there is a lot of extra burden on the person being deposed to say, I can’t see that. Can you make it bigger?

Or I can’t hear you. Or I need you to repeat that, which wouldn’t happen if you were in person. So if you’re practicing, you’re preparing your client in person for virtual, They’re going to miss out on that whole practice they would have with the virtual. So again, this is a short but crucial tip in preparing clients for depositions when it’s going to be virtual and practice like you play.

I used to play a lot of team sports, soccer, basketball. And if we’re out there lollygagging or doing whatever our coach would be like, if you, this is how you practice, then this is how you’re going to play a game time. So we have to practice hard. Like it is a game time. And that’s exactly what I always say here.

People ask me like, well, what’s your preference? And I always say, well, we have a moment in time to prepare people to do their best In the step position where they may only have one, two, three hours to give everything they’ve got to this other side for evaluation for, you know, all these things, how they are perceived, what they say, how they say it.

And so we have so much to pack in, in the form of information, in the form of. Here’s how things are going to happen. And so doing this simple step of doing it on virtual, really, we’re covering that step. Instead of me explaining to somebody in person, Oh, you’re going to have to do this. They have the actual practice of Oh, I can’t hear you.

Oh, say that again. Oh, I can’t see that document. Or, you know, can you highlight that for me? Like being very proactive in being able to hear and see what’s going on. And again, just working through some of that frustration, not to mention the small things that we talked about originally when virtual came out.

Depositions came about, which is, do they have the right setup? Meaning do we need to get them somewhere where they can have good internet and good lighting? Do we need to change their background or teach them how to put the blurry background on so that that’s not even a problem with the deposition. You know, that way, again, we’re starting out on the best foot possible and giving the best practice.

Now, if our deposition is in person, then yes, all or most of your preparation should be in person. Again, for that same reason, being face to face. having that different emotional connection that you, that somebody may have or that pressure, right. Of being, you know, deposed with a bunch of strangers in a room.

Again, this is always why when we are preparing for deposition in person, we don’t prepare somebody at their home at a place where they are very comfortable. Like we prepare in a stale conference room, because that is how that deposition will be a stale. emotionless room versus being at home, right?

There’s a lot of comfort. And that’s the same thing with virtual, right? That is a huge benefit of being in a comfortable place, being at home versus, being in this, you know, stale environment where, you know, any emotions being sucked out of the room by the opposing counsel. And you want to be able to, again, practice that with folks they’re getting ready for deposition.

So this is a short episode of, I felt it was really important because in my conversation with this lawyer, where we talked about that, like, do we do it virtual or do we do it in person? And Oh, this is how I’ve always done it is go in person. And then it was like, he said, wow, I never thought of it that way.

And you should be telling people this because they’re probably thinking the same way I am, which is, Oh, it’s a deposition. I’m going to go in person and prepare this person and, you know, have a better connection and, uh, you know. Well, sure, but we’re missing out on that practice. So this is me telling all of y’all, uh, one of the easiest, smallest things to do is switch that preparation from in person to Zoom when you have that virtual deposition notice.

Okay. And also think of this too, when it comes to experts, which I think we are already doing this. Um, yeah. But if you’re not, same rule applies for our experts, right? Give them that practice. If they’re not used to it, give, especially with the documents. And that’s a whole different ballgame. Most of our clients don’t have to tackle a ton of documents, right?

We may have medical records, maybe some emails, text messages, uh, maybe some contracts, things we have to look at not nearly as much as our experts may. So remember practice like you play. Right. And this applies, you know, when I talk about this too, when we talk about focus groups, right? Practice like you play because you want it to feel as realistic as game time as possible.

Right. So that’s what we’re doing here today. Okay. I hope that this episode was helpful. If it was, please pass it on to somebody else. Click that little share button, text it to somebody, send an email to somebody who you know is possibly needs to hear That they could lift a burden off themselves, but also do this virtual preparation before depositions with clients to give them that added bonus, that added benefit of practicing with that platform before they get there.

Okay. Thank you so much for listening. I hope that you enjoyed it. If you would please leave a review. I got to tell you, it’s been a little while, almost a year. So somebody just reach down there, pick those five, hit the rating, but also leave a little review and it helps other people find this podcast. All right.

Until next time. Thank you so much.

Trial lawyers: Did you know that seeking feedback from friends and family might be sabotaging your trial preparation? Join me as I break down why this common practice can be a trap rather than a helpful shortcut. In this episode of Trial Lawyer Prep, you’ll uncover three fundamental reasons why feedback from close individuals is inherently unreliable. From the biased nature of their opinions to the undue credibility they grant you, and how these skewed perspectives can infiltrate your subconscious decision-making—understand why these pitfalls can negatively impact your case.

I’ll also shed light on the significance of impartial jury research, and how recruiting unbiased participants can make all the difference. Discover why feedback from neutral strangers offers a more accurate simulation of a real jury’s perspective and why cutting corners due to time, money, or fear of negative feedback could jeopardize your case’s success. Don’t miss this vital discussion on enhancing your trial strategies with reliable, unbiased feedback!

In this episode, you will hear:

• The dangers of relying on feedback from friends and family for trial preparation.
• Three main reasons why friendly feedback is unreliable: inherent bias, undue credibility, and non-representative sample.
• The subconscious influence of biased feedback on decision-making in trials.
• Importance of impartial jury research and recruiting unbiased participants for focus groups.

Follow and Review:

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

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.

Episode Transcript:

Hello, and welcome back to the podcast. I’m your host, Elizabeth Lyric, and I’m so glad that you’re here.

This is a podcast dedicated to helping you trial lawyers get your cases ready for trial, figure out maybe you need to settle, but really we try to dive into the minds [00:01:00] of the jury. And so this episode, we’re going to talk about a habit that I see many lawyers doing. I did the exact same thing until I realized why it was not a good idea because it was really messing with my head and my case preparation.

And this is a habit. You probably learned it from a mentor, maybe one of your first firms. And, um, This habit has been passed down where it’s perpetuated as like a sound practice for trial lawyers to use to get case feedback and it’s the focus group of the family or the friends, right? So this is normally how I hear it.

Oh, well, I asked my wife and she’s, you know what, she’s really, you know, she’s a teacher or she’s really conservative or she’s really neutral. Or I asked my seven year old and this is what they said. Um, I was golfing with my buddies. You know, they’re not lawyers. Here’s what they said. Or I took this [00:02:00] case to, you know, the church group.

All of these are examples. And here’s the simple truth. It’s unreliable and it’s unreliable. And you think, of course I know that Elizabeth, but here’s what happens. Like here’s the, here’s the danger. And we’ll talk a little bit more about the danger is that it’s those thoughts, those, that feedback, it still gets into your subconscious, right?

And it’s still then bouncing around in our brain. We start to keep working on the case. But let me tackle really quickly three kind of main points about why this is unreliable. Like we should not be doing this habit and it really creates a little bit of havoc on ourselves. But the first reason why is that these folks that you’re asking, these lovely people, right?

Who know you, they’ve been around you, right? You probably share some common beliefs and values. They have an underlying bias that’s in your favor. [00:03:00] Even if you try to tell him, well, not my wife or not my husband or not my kids. Like, of course, right? Like you, again, you’ve been around these people long enough, right?

Maybe they depend on you financially, right? There is an underlying bias that is going to be in your face. And the other part of that is. you as a speaker, a presenter, you actually have an automatic level of credibility with your audience, right? You know, these people, they know you, that’s not the actual real setting that we would have in a focus group or even a mock jury or real jurors, right?

They don’t know you. They do not automatically trust you. Right? So There is a little bit of credibility that has to be earned right before we give feedback or make decisions for other people. And then of course, the other thing is these folks are not going to be, you know, your sample size, if we’re going to talk that way is not representative of a jury, right?

They are people who you hang out with. They’re people who are just [00:04:00] pretty well going to be like you. And again, share your common beliefs and values. And that’s just not a, jury that we get, right? We get a jury of the community. And so here we are, you know, polling our audience and talking to them. And the other thing that happens too, is We don’t strive in our, you know, presentation to these folks to be unbiased ourselves about our cases, right?

We know we’re invested in them. We’re going to get information out of people. And so we may give more information. We may ask really biased questions or leading questions. Or do the whole like, well, what about this fact? Well, what if I say this thing? Or what if this person does this thing? Right? So we can, then we really begin to skew that the outcome or the feedback altogether.

And, you know, like I mentioned it, here’s the danger is. Okay. So you go and you ask your family, you go and you ask your group and you get some feedback, right? And it’s bias, [00:05:00] right? We’ve already tackled that. These folks have your underlying favorite in, in your best interests, right? They automatically give you credibility and they’re not really representative.

There’s a bias here, right? So you’re getting some bias feedback and that gets into your brain and it gets into your subconscious and you will rely on it when you make decisions. And you don’t want to make the serious case decisions, settling a case, value of a case, going to trial on unreliable data. And so that is the danger.

It will get in there and stick around, even if you’re thinking, Oh, I’m going to completely ignore this. That’s not the way that our brain works. It takes it all in. And so that’s why, you know, if you look at other examples, any kind of self help they talk about, like turn off the feed of the negative information into your brain because your brain will absorb it.

Whether you think, [00:06:00] Oh, well, I’m not going to, you know, I won’t absorb all that. It does. You really do absorb so much more information than you think. And that’s why we have to be so careful. When we go around and ask people, what do you think about this? Who we’re asking and how we’re presenting it. That’s why when we do focus groups, we work really hard on our presentation to make sure we’re nailing.

If it’s neutral, we’re going to be neutral. If it’s going to have advocacy, then we’re going to figure out, okay, who’s going to moderate, who’s going to present because. When we do research, when we do jury research, we want to make sure it is reliable because it’s going to get in your brain. It’s going to stick there and you’re going to use it to make decisions.

And so if we put things in there that are unreliable, that skew it in your favor, make you think, oh, well, this is great. Or, oh, no one else would think any different than my, me and, you know, my crew of, of personal focus group participants. Right. [00:07:00] You can really get yourself in a pickle because you’ve this unreliable information.

So, you know, one of the things that we really strive, you should strive for in your focus groups, or if you’re going to hire someone is you really want to reflect the real audience, right? You want to reflect the real setting, and then you want to try your best to present neutrally to ask neutral questions.

to really get at reliable feedback. And I know that this is important to everyone who’s listening, all my trial lawyers, because this is the number one question that I get. I get it when we do our webinars. I get it when we, uh, work together. I get it on my free calls, which is how do you recruit and who are you recruiting?

They want reliable feedback. They want to make sure is, are these people from the jury? Is this really going to be reliable? Because I don’t want to risk doing all this work and then not being able to rely on the information because I can tell this is not really the audience I [00:08:00] would see at a jury or we’ve skewed things in the presentation or we’re not really being realistic about our setting and this comes up fairly often where I try to tell people, Hey, you know, When we are going to run a focus group, we do these things very specifically for neutrality for to get the real setting, to get the real audience in there.

And what sometimes happen is I’ll be working with a lawyer and they’ll say, well, I already ran this past. You know, my friends or I ran this past, you know, my spouse and they’ve told me that, you know, this is not as big of a deal. And then I’m like, well, that’s not what we heard in our focus group, right?

So now you have competing thoughts in your mind and it’s like, okay, well. These folks don’t know you, right? This is just them off the basic facts of information, right? Versus having a group that obviously has some bias. And we really want to make sure, again, we really can’t even compare these two things, right?[00:09:00] 

Feedback from a group that’s really biased and then feedback from a complete group of strangers. That don’t know you are just looking at things. It’s like apples and pencils. Right? And so this habit that we have can really hurt us way more than we could probably ever detect it. And then stop, right? Like, Oh wait, you know, your brain doesn’t do that, right?

It processes, it runs through things. Even when we’re not actively thinking about it, our subconscious is still always trying to solve that problem for us. And so I always caution people, like, Okay. I hear that you’ve asked some other folks, but here’s the thing. Like how reliable really is that? And the other thing I always ask people too, is like, okay, when you went and told your client that that was the research you’d done, how did they feel about it?

Because again, we’re doing jury research, we’re doing focus groups, like. Most of the time clients are like, awesome. That’s great. I want to hear what other people have to say. And, you know, I want it to be trustworthy because they’re going to make decisions on it too. [00:10:00] So always keep that in mind as well, because they could easily question like, well, wait a second, you know, that’s not really reliable.

We’re asking, you know, your group of friends or your golf buddies, or even people you go to church with, right? Like that doesn’t make it more comforting for them because they’re thinking, wait a second. This can’t be what we’re relying on to make these decisions in our case. And you know, again, I think this habit comes from a place of it’s old hat.

Somebody taught us to do it. That’s the way it was done. You were, you know, the first firm that you did, people would go out and share fire. I mean, I’ve definitely heard people tell me all the time. And When I really see this happening is when people, when lawyers are running out of time, coming up on the big mediation, they’re coming up on trial and they haven’t taken the time to go do any jury research.

So they run their own personal focus groups. And I always ask them, well, how do you feel about that? Because you’re making a [00:11:00] 10, 000, 20, 000 trial prep decision here. Okay. Is that really going to, you know, you’re going to feel reliable about that. And we really just don’t want that to happen. The other thing too, I see is people just have a lot of cases, right?

And again, this can happen to any of us at any time we take on too much. And so then they take another lawyer to lunch. Let me just go pick your brain or they go home again. They, and they ask family, right? Because it’s just got so much going on. And also of course, I’ve seen people say, well, you know, I don’t have time or I don’t have money to even do a group.

So I’m just going to save some money or a lot of people. Don’t ask because they don’t want to hear, right. They’re out of just, you know, fear or just not really scared to hear what other people may say. And again, I get it. It is definitely a hundred percent scary. We are focused in like a laser beam on our case, representing these folks, doing it with our own risk, with our own money and time waiting until we can get paid [00:12:00] till the end.

It can get scary and it can definitely feel like I don’t want to step over that other line to find out what somebody else may say because I could be wrong. Sure. You know, we want to know though. And all of this tells me when I hear people saying like, well, I didn’t, I wouldn’t ask, You know, my friend down the street or ask my hairdresser and, and I, it just tells me that the case is on your mind and it is worrying you.

It’s in your thoughts. It’s taking you away from being present with your family, your friends, taking away a good night’s rest. And I know because I was that lawyer, right? I wasted so much time worrying and that really didn’t stop until I started going to focus groups, running focus groups. to really understand what was going on and know that this is just an integral piece of a case that I’m going to have and it’s going to help me guide everything.

And it’s [00:13:00] also hopefully going to help me stop worrying, uh, cause there’ll be things that you can control things you can’t, but most of the time focus groups are going to tell you, Hey, here’s how to fix this, right? Here’s what we want to see in here, right? Those magical words. And so if you are doing this habit, right?

If you’re in the habit of doing this, You know, just remember we’re planting seeds in our minds and we can plant good seeds or we can plant biased seeds, right? That can tip things one way or the other. And this is the same, you know, this habit of obviously going and, you know, using folks that, you know, as a focus group, it’s really can be very similar to when you do what your own focus group and you begin to put your finger on the scale, meaning.

You asked really biased questions. You present in a way that really skews things and they know that bias, unfortunately, when you do that, though, you’ve just spent time and money running a focus group versus, you know, these other ones are free, but they come at a cost. I will [00:14:00] tell you again, that danger is that that will still get into your mind.

and be something that your brain relies on to make decisions. So be very careful, right? This stuff is very concerning. I would say if this is a regular habit for you, just make sure and, and check and see, like, why am I doing this? Is this something that I’m just running out of time? And they just have too many cases.

It’s on my mind, right? I am worrying about it, but how can I maybe solve this problem in a way where I’m going to get reliable information and stop the worry so I can be present and have good night’s rest. All right. So the recommendation here, like, let’s stop this habit, right? Of, Asking our loved ones for her feedback, asking people that we know that know us really well, right?

It’s just going to end up being a situation where we don’t have an unbiased audience that reflects a jury in a setting that would be even remotely similar to what they were experiencing in a jury setting. [00:15:00] So. Get to a focus group. Stop the worry. You know, it may cost a little bit of money. However, right, it’s going to be way more reliable for you and your client to make decisions on.

All right. Thank you so much for tuning in. If this was helpful. Please share this episode with someone, you know, leave a good review. We’ve hadn’t had any good reviews in a while. So somebody reaches over there and on your favorite apps, you have the Apple podcast, Spotify, wherever you like to listen, just leave a review that helps other people find this podcast.

And until next time, have a good one. Thank you.

Ever wondered how focus groups could be the game-changer for navigating complex liability issues in civil litigation? Imagine unlocking jurors’ hidden perspectives and using these insights to your strategic advantage. This episode takes you through real-world applications, like contributory negligence in construction injuries or multiple defendants in medical malpractice cases. We dive into the nuances of a recent car crash case involving seatbelt usage to show you how a layered presentation strategy can yield invaluable insights.

We also discuss the crucial practice of conducting and recording debrief sessions right after focus groups. Learn why transcribing and creating memo reports can elevate your mediation preparation and case strategy. From clarifying responsibility to uncovering critical facts, we lay out how focus groups can help frame information for the best outcomes. Plus, we offer practical resources and invite you to join our email list for upcoming courses on running your own focus groups. Don’t miss out on these essential techniques that could transform your approach to complex liability cases.

In this episode, you will hear:

• Navigating a common challenge in civil litigation: problematic liability
• The value of a layered presentation strategy 
• The role of focus groups to uncover hidden factors in complex liability cases
• The importance of conducting and recording debrief sessions immediately

Follow and Review:

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

Supporting Resources:

In the episode, I mentioned Episode 112 where we look at a specific case example for flipping contested liability and expanded blog.

Are you interested in taking my online course: Virtual Focus Group Foundations Workshop?

Please register for my email list and you will receive the announcement when the course is offered again.

Register here: https://larricklawfirm.com/connect/

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.

Episode Transcript:

Elizabeth Larrick: Hello and welcome back to the podcast. I am your host, Elizabeth Larrick, and thanks so much for joining me. This podcast is dedicated to lawyers, folks going and civil litigating in front of jurors. And the purpose is to help you get into the minds of jurors. [00:01:00] We talk about things, focus groups, persuasion, communication skills, and I try to pass along things through our examples and our lawyer friends that come and talk with us.

Today’s episode, I want to talk about a really common problem that lawyers have, and that is difficult, problematic liability, right? Maybe you’ve got some contributory, maybe you’ve got some situation where you’re trying to pin down several defendants, right? So thinking like a construction or workplace injury, or even medical malpractice.

We’ve got several doctors, hospital nurses. So where it’s not so obvious about what is going on in the minds of jurors. And so this is where focus groups can really help. And I will tell you, this is a place where I get a lot of calls. Hey, I’ve got a problem. I’ve got this challenging liability, or like we heard from our episode [00:02:00] before.

episode 118 with John Prudhomme where they had a video and it looked really obvious as to who caused the crash. And this happened very recently as well, where we’ve got some, we keep getting more video evidence, right? People have ring cameras. We have cameras in our dashboards. and in all over buildings.

So there’s always some kind of recording somewhere. And while it may be obvious to us as lawyers, it’s not for those jurors. So that’s always a good place to do. The focus group is on those videos, but this episode is about going kind of deeper into focus groups to help you with liability, right? So the obvious would of course, people come and number one, they want to know what.

And how is the focus group or jury going to blame my client? How much responsibility are they going to put on our client? Again, great place to start with [00:03:00] focus groups. And this is, again, what normally people say, Hey, I just need to figure out what this is. Well, then number two, our next level, which is again, fighting, what are the hidden places, right?

Things that we are just not seeing with our lawyer eyes, but maybe really obvious to jurors. And that is what are the facts and what is really the context because facts are one thing, but sometimes we just need a little more context that can change the amount of responsibility on a client. And this is where our focus groups can get a little tricky.

And let me explain. So at first flush, it’s obvious. We take a focus group. We give them, here’s what happened. Here’s some pictures. Here’s a, what this person says, and here’s what the other person says, right? Analyze this and tell us, you know, who, if anyone is responsive, boom, obvious level one. Number two, though, is like, okay, we’ll.

What, like, what is it that led you to that decision? But then [00:04:00] also you want to know lawyer how to change it, right? What facts do I need? And this is where sometimes when I run focus groups with lawyers, we have this idea in our head. Well, if we just ask this question about what if the police gave a ticket to that person or what if the cell phone records showed the other person was on.

So we’re like adding facts, but we’re putting them into questions, right? This is really, really tricky because what can happen is we really run into showing some bias. And it may not be this, you know, bell that goes off inside our participants minds. But their little brains are like, wait a second, he’s adding more information.

He just said he didn’t have more information. Now he’s adding more information. Wait a second. Now I’ve got to analyze more information and there comes a level, a little bit of frustration. And I’ve even had participants who basically say like, I don’t know anymore. I need more facts. [00:05:00] That’s really not helpful for you as a lawyer because you want them to analyze the new information.

So from a presentation point of view, It’s just be very careful, very thoughtful about creating a presentation that is layered and that doesn’t just have like all this information and then you’re going to start dribbling out facts in questions because again, you’re going to start to see people not want to analyze the additional information or they get dug in and they won’t even take in the information like, no, nothing’s going to change my mind.

Well, We know that that’s really not true. Things can actually change people’s minds. This is where you want to make sure that you work with somebody who’s done focus groups, right? Because you want to dig in, you want to get that hidden stuff. You want to find what that facts and context is in that same focus group.

Because again, you want to make sure that you’re peeling back the onion and getting as much as you can out of a focus group. And so a [00:06:00] good example of this that recently came up and again, you may have a similar case, which is a situation where it’s a car crash and the injured person is not wearing a seatbelt.

Well, here in Texas, you get to now talk about that as a way, a mitigation of damages, right? So choices that the injured person takes. not wearing a seatbelt. So this was a really big factor in this case. So they said, Hey, we know that this is typically really terrible, but we still need to run a focus group and figure out how can we navigate this?

And more importantly, there was some evidence and obviously you name it experts, of course. And so what we did was we created a layered presentation in a way where it didn’t look like, Oh, we’re just adding more facts, right? We just add things in, in a different form, in a different sequence. And one thing too, if you listen to the podcast is when we talk about DIY, doing your own focus [00:07:00] groups, there are definitely some episodes back there and we’ll bring those back up and probably redo a few of those just to keep them fresh on our minds about how to do solid introduction so that there is a clear expectation about what information and more importantly, how it’s going to be delivered to our participants so that they understand, Oh, we’re just fitting into the model here.

You’re not just adding more information to me. And so we layered in an investigation with some of this information from the expert, right? And what they found Or what we got back really as feedback was what was critical to them was what other things were in the car, right? It’s a pretty violent crash that could have caused the seat belt to come unbuckled.

And also they really, we dive deep into the, into the evidence, right? So they, we went back through things and was this helpful? And was this, you know, like, tell me about this and what, you know, what, here’s this thought about this expert. And they were very good [00:08:00] about analyzing it and telling us about it versus me or someone just asking questions.

Well, what if there’s just an expert? What if there’s this, right? So it’s very much like, I’m going to show you and you tell me, okay. Versus like asking just a bunch of questions. Also, it’s, it’s very hard on our brains. to bring in information that way, right? We think that that works right as lawyers, but it’s very hard when you are an audience member to bring in new information through a question, right?

Because you’re asking me a question, you’re asking me to analyze. So just always keep that in mind as well. And we’ll, we’re going to talk a lot more about our cognitive, Bias, how we learn, it’s definitely one of the things that I want to dive into more in this podcast. And we’re going to be doing that and how we can do that as well.

But let me just stick on track for today, which is using our focus groups to get a little more out of our liability. [00:09:00] So The other thing, right? So, so far we’ve talked about number one, we get, we use focus groups for our challenging liability facts. Number one, we’re going to know the obvious, which is how much responsibility they’re going to put on our, and then number two, which is what facts or what context, right?

So sometimes facts help, but sometimes we just need to have more context. that can change that responsibility that’s going to be on our client. And then our third thing, which is what is the sequence? Like, what is the order that creates the most benefit for my clients? And then where do I need to point the audiences, the jurors attention, right?

Because we can sequence things. in the most beneficial way and it can still get completely lost, right? So that’s the other thing about, you know, having the sequence down, having that order that you like, that’s most beneficial, but then also how to then [00:10:00] intersperse pointing their attention, right? To those facts, right?

That context that re that reduces that responsibility on the client. Really, these are our persuasion points, right? Like, you know, we’re racking up those persuasion points. And my example of that is, last summer, there was, we did a series of focus groups on a medical malpractice case. this case had a sequence of events that went over three months.

So we were really honing in on creating a timeline that was most beneficial for the client, but also keeping the attention directed correctly. And because it seemed obvious, right? So here, you know, what happened, the, the medical injury caused blindness, right? And so that seems obvious. obvious that the client didn’t do anything wrong.

However, you know, like I said, there were three months of events. So there were things that were other things going on. We just need to make sure again, keep them pointed. And so that’s why we did [00:11:00] several different focus groups again, trying to then figure out what is the strongest sequence. What is the attention grabbers when and pointing it that way?

And that’s why we talked about, you know, we did some timelines, but then also we had interspersed other slides that to grab their attention. And so what that allowed then the lawyers to do is to go into trial and they had their What dear tied to opening as we do, but we really tied down some of the things about the client and what dear and then, you know, came back for opening and like we talked about, they had this, you know, very wonderful timeline that had been created with these interspersed slides pointing their attention right to the right places.

Now, ultimately they settled in the middle of trial and it was a very successful, I will say, although confidential settlement. But they, you know, the feedback was. that it was [00:12:00] so beneficial and helpful to have the focus groups really hone in on those facts that they needed to alleviate the responsibility on their client.

But then also that, that sequence, because again, they had so much information and they had multiple doctors and nurses, right? And so that also helped them know, okay, well, who then, if we’re, you know, who then is the main target. And that, again, that’s that pointing your attention to the right place, right?

That’s our deeper peeling back those onions. peeling back the layers of the onion. We can peel those onions too. And so that’s really where we can get even deeper into liability and what’s in the minds of the church. And that’s really what we want to be doing. So let’s put this a little more into context, which would be, so this is not something you can just run one focus group and it’s done.

Hooray, all done. The best example is that is when I, you know, that last episode where we talked to John Prudeholm and we’ve done one focus group and he said, you know, we wish we’d done [00:13:00] another one, right? Just to confirm some of those liability things, but then also test some of that, the damages things as well.

But here, you know, when we’re trying to peel back the onions, squeeze the orange, we’re trying to get deeper into understanding. What liability is, how to sequences, what are the facts that we need to alleviate things on our client? We really are looking at doing, you know, two or three short focus groups.

I’ve talked about this before. If you want to go back and listen to episode one, one 12, and also wrote a blog and those links will be in the, in the show notes as well, but basically. To, we want to have these little short focus groups where basically we’re testing different sequences, different presentations, and to see the differences in our feedback and very specifically.

So what needs to happen is you have to be able to synthesize the data that you get, right? Meaning the feedback, the answers that you get. And most helpfully, then you have to take that information and put it into a visual format. [00:14:00] It can be a chart. It can be so simple as a chart, but then that allows you then to, once you have that next focus group, you add in the data right next to it.

And that allows us And our brains to really compare quick, because then you’re going to be able to see patterns, right? So you’re going to be able to see, okay, our focus, our first focus group really looked at, it had to have been speed, right? Okay. Speed, speed, speed, speed, speed, right? But then the next one, it was more about route, route, route, route, route, route, right?

So, you know, seeing the shifts and being able to figure out, okay, well, this is what we presented. Was that the reason, or was it? So you really want to make sure that you are analyzing the feedback you get more than just on that day. And so we I’ve talked about using memos. It’s like a report. It’s the same thing, right?

That word could be interchangeable, but it’s basically, you want to make sure you take all the goodies that you get and you write them down. We will totally forget them. [00:15:00] And then we’ll come back and we’ll say, Oh no, do I have to go back to this whole thing? No, no, no. Please, please, please do these things right away so that they are down.

One of the things that I do with my clients here is when we have a debrief, right? Meaning. At a minimum, we have to do one right after folks, right? We want to brain dump. And so we just make sure we record that, right? What did you hear? What did you see? What stood out to you? And then it’s memorialized. Now, of course, what’s our next step?

We’ll go get it transcribed, right? And then. What I always encourage people to do is just take a piece of paper and write it down. And you were thinking, well, I should just type it up. Well, you need to do that too, but I really enjoy handwriting because I’m going to, I’m going to write the most important things versus the typing.

I’ll type a thousand things and that’s not helpful. I want the pop top one or two, three or four things. So that’s really where that memo report comes in because then you can go back. And again, when we’re doing two or three. Right. We’re comparing our liability and we’re comparing our [00:16:00] sequence. We’re looking for those facts in that context that’s changing the percentage on our clients going to be able to easily go back and look at all those things and and compare and then build what you need for your open or build what you need for mediation.

Right. You’re going to mediation. You want to make sure you have all this stuff lined up front and center, ready to go. Now, are you going to see, Oh, we’re going to show them my cards. Oh, no, you’re not giving them the full meal deal. Not the full razzle dazzle. But you are doing enough because it’s mediation here.

We’ve got to make sure we’re, we’re, you know, solidifying what we need for liability. But I think doing a memo, doing a report, even just writing down some notes is a really huge gold mine that a lot of it’s because they’re busy or they, Oh, I got what I need just by watching it. No, but do you know how much more.

Gold. There’s in there. There’s a lot more in there and you really want to get the most bang for your buck. Okay. This is [00:17:00] really what it’s about. It’s like squeeze our brains to make sure we got everything out of those focus groups. Right. So, and you can do all this on your own. Heard me talk about it in Keith Stover.

Come on. And he talked about running his own focus groups, right? We talk about that here on this podcast as well. These are things that you guys that you can do, right? With it, we’ve got a lot of how to episodes here on this podcast. But let’s just summarize this one and we’ll get you out the door here, which would be using focus groups to really dive deeper into difficult, challenging liabilities.

We’re talking about these contrib, contributory negligent situations, these situations where we’re trying to pin down, um, several defendants, right? The ones that we can actually recover from are the ones that are the worst. Or, or like we, with my example, with John Prudhomme, where it looks really obvious to us, but something’s missing here because we’re not getting this case settled.

So number one, of course, focus groups are going to give you [00:18:00] how much, how much responsibility is on your client compared to everybody else. Number two, what facts or context can change That amount of responsibility on your, on your client. And number three, going deeper, which would be the sequence, the order of facts, the framing that creates the most benefits for the client.

And then where to point their attention, right? This is that persuasion, like really where to get their attention and pointing in the right direction. And that can be done without being super obvious either. So hopefully this episode was helpful. I know that we have a lot of cases probably in our files that have some challenging liability.

Focus groups are a great place to help you get organized and again, feel more confident in the case that you are building. All right. If you are curious about learning to run your own focus groups, I do have a live course. If you’re interested, [00:19:00] just jump on the email list. There’ll be a link in the show notes for when the email is the only place that I actually release the, when the next opening will be.

So jump on that email list. I promise I won’t bombard your inbox. We have about one or two emails a month. I hope that this episode was helpful. If it was, please rate and review on your favorite podcast platform, share with other lawyers, or maybe somebody who is having a challenging liability situation so they can find the tool focus group to help them get ready.

All right. Until next time. Thank you.

Join us as we speak with John Prudhomme from CPM Injury Lawyers about a gripping case involving a fuel tanker rear-ending a dump truck on I-35. Despite undeniable footage and an outright admission from the tanker driver, the defense stood firm with no settlement offers. Find out how a virtual focus group became a game-changer in predicting jury perceptions and why the trial venue added layers of complexity to an already dramatic case.

John also shares insights from a case involving a veteran client whose trial took an unexpected turn. We discuss how the jury’s interest veered from medical details to family dynamics, revealing the nuanced way personal stories can sway verdicts. With veterans on the jury panel and collateral source issues lurking in the background, emphasizing the family impact became crucial. Tune in to hear how highway speed regulations and surveillance footage reshaped the narrative and influenced the jury’s decisions.

We also get into the nitty-gritty of trial strategies and financial considerations. From life care plans to the client’s lifestyle choices, find out how these elements played a crucial role in the jury’s perception. John emphasizes the unpredictable nature of trials, the importance of expert testimonies, and the critical role of pre-trial preparations. This episode is a goldmine of insights for any trial lawyer seeking to refine their skills and connect more effectively with juries

In this episode, you will hear:

• Case study: fuel tanker rear-ending a dump truck on I-35.
• Utilizing virtual focus groups to understand jury perceptions and defense strategies
• Adjusting trial tactics based on real-time feedback
• Challenges of dealing with surveillance evidence and unexpected jury reactions
• The critical role of life care plans and financial implications in influencing jury decisions
• Importance of pre-trial preparations and adapting to unpredictable trial elements

Follow and Review:

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

Supporting Resources:

Would you like to talk to John Prudhomme about his experience? Questions about his trial?

You can reach out to John by email: jprudhomme@caglefirm.com 

Learn more about John’s practice here: https://www.caglefirm.com/ 

If you are interested in working with me on a focus group, please book a free call using this link: www.calendly.com/elizabethlarrick

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.

Episode Transcript:

Elizabeth Larrick: [ Hi there. It’s Elizabeth. I wanted to jump in before we start this episode and tell you a little bit about my guest, John Prudhomme.

He is with CPM Injury Lawyers. He got his undergrad at the University of California, went to law school at SMU School of Law. [00:01:00] and has been in the Austin area for many years now. It has tried many cases of lots of variety. He and I have worked on a few and we will talk about that in the episode. If you have questions for John or want to get ahold of him, just know his contact information will be in the show notes.

Okay, let’s get to it. Hello and welcome back to the podcast, Trial Lawyer Prep. I am your host, Elizabeth Larrick. And today we have a guest joining us, a very good friend who’s local. I know we have a lot of folks that come, uh, in here recently, people from Montana come, but now we’ve got a nice local Austin lawyer joining us.

Hello, John, how are you? 

John Prudhomme: Doing well. How are you? 

Elizabeth Larrick: Doing great. Doing great. Trying to get through this heat, uh, a little bit. . If you’re just now listening to this episode, when it comes out, it’ll be July, I think it’s the week of almost July 4th. If not, you’re catching up. Hey, listen, it’s in Texas. We’re today.

I think they’re forecasting the first a hundred day. 100 degree weather day. So we got a [00:02:00] little warm for a while. Yeah. Yeah. But I wanted to bring John on because his firm has done focus groups with me before, but he has had one that’s come all the way to the gamut. They went to trial. And so I really wanted to bring him on to talk about it because he had a pretty interesting piece of evidence that we sometimes find in our cases, which is video footage.

And so we want to talk about that. I wanted him to talk about his experience and kind of give y’all kind of a backstage view of what happened and how the virtual folks group helped and kind of how we set it up. So, you know, that’s, we’re going to talk about. So John, tell me now, first of all, let me give a little background.

So I’m really not even sure how Chris and I. Got, I think Chris just remember how we ended up getting connected. I want to say it’s probably through BNI, but which is a networking business, networking thing. And he came to me and you guys had a super complicated medical device [00:03:00] and guys, this was complicated.

Like there were just drilled in the brain and had lasers. And so it was this super complicated. thing. And so we end up doing several really long ones, right? So we had these long ones and they end up having a very good result in that case. But we had a little different thing here. So tell us John, a little bit about the case and how come you wanted to do virtual focus group?

John Prudhomme: Sure. Yeah. So that was, yes, this was a very different case from that. That, uh, medical device case, that was a wild one. I think we focus grouped like four different theories of that case, trying to figure that one out. Yeah. So this one was much more straightforward. This is a fuel tanker, rear ending a dump truck on, on I 35, you know, seemed from our perspective to be pretty straightforward.

We had a video from the dash cam of the oil tanker that we thought made it pretty clear. Video showed our guy going pretty slow, but. The oil tanker essentially just plows [00:04:00] into the back of them. So it seemed pretty straightforward. And then we got two plus years into the case and we hadn’t gotten an offer and everyone seemed to be digging in on the other side that this was just the liability case.

And so while we thought it was pretty straightforward, I definitely started to get a little bit paranoid, especially as we started to get, I think maybe Three, four months out from trial and there didn’t seem to be any indication of the settlement coming at any point soon. So that’s when we reached out to you to see, you know, Hey, can we get, get a group of people in here to see, get another perspective on, on what, what the defense might be looking at from, from that side, what a jury might think of that video.

Elizabeth Larrick: Yes. And what john is being so polite about is it wasn’t just that it was a video. Okay. And it was a nice crisp video. By the way, this wasn’t like one of those crummy ones. And also his client was getting on the interstate. Y’all, it’s not just driving real slow on the end. It’s getting on. [00:05:00] And the fact was that turned out like, why did this happen?

Was the fuel tanker driver was sound asleep. Totally admitted he was sound asleep. So look like super clear liability. So John comes to me and he’s like, I must be missing something because There’s no offer feels like a super clear situation. We got video. So we said, okay, let’s throw it to a focus group.

But also I think the other thing that was a little bit precarious was the venue, right? So venue a little bit North of us, that’s just different, different venue. I will say it with some few different factors that we want, you guys want to make sure, because, you know, sometimes we can spot what. Defense is hanging their hat on and sometimes we can’t

And so this is one of those places where, you know, like you said, they litigated for two years and originally, of course, the position or originally was okay, dude says it’s a hundred percent his fault, he’s sleeping and now. It’s a 50, 50 situation. So a couple of [00:06:00] things just to test out. So we, we took it to the focus group and we did a pretty simple, straightforward, right?

Didn’t want to put our fingers on the scale when we’re the other, we just did pretty neutral, straightforward thing. So I had some people from the venue. What were you going to say, John? 

John Prudhomme: Oh, I was just going to say, yeah, we had a, you know, one of the first things, one of the first depositions on the case was a company rep for the oil tanker company saying that it was 50, which.

we thought was great for us. And then as, as we got a year and a year longer into the case, then all of a sudden nothing had changed as far as, as far as they were going, we were trying to figure out, wait, wait, so they were serious about the 50 50. 

Elizabeth Larrick: Yes. Yes. So we, we get in the focus group and you know, John, you’re watching, right?

What were some of the things going through your mind as you’re, as you’re watching these folks digress or digest, I should say, into the, into the video? 

John Prudhomme: Well, yeah. And so the way that the way that you did it was you showed the video and you asked them what they thought about it. And that had me [00:07:00] terrified because they were, they were willing to put a decent amount on on my client for what speed they were going at that point.

At that point, they didn’t have the knowledge that he was asleep. That did certainly change their mind a little bit. But I mean, even after we went through the different iterations as they learned more about the facts, they were still ready to put at least 5, 10 percent at a minimum on my guy, despite the fuel tanker driver falling asleep behind the wheel of a loaded truck.

So that was pretty surprising and a little discouraging, but it certainly gave us some insight as to at least where the defense was coming from, what to expect from a jury up there, because like you said, it was a group of people from that area. And most importantly, told us that we needed to change what our strategy was as far as approaching or dire opening and obviously our clinic direct and, and.

And I think [00:08:00] this, yeah, this was before we had taken liability expert depos in the case and so that allowed us at least a little bit of runway to change, change some of our, our theory on liability that we thought was just, we’d already checked that box. 

Elizabeth Larrick: Right, right. And, and mostly for liability, but we also did a little bit of damages work too.

So was it, what was it that were some takeaways about the damages that the focus group told you? Right. 

John Prudhomme: Yeah. And so for damages, I mean, when I, when I first reached out, reached out to you, I asked you purely about the video. I was just getting a little paranoid about, about liability. And I think we talked a little bit about the images then, but I wasn’t really thinking too much about, about focus grouping damages.

We had a veteran as a client who, Was, you know, I had a back surgery. He had been recommended for spinal cord simulators. He’d done the trials. He had been through quite a bit of medical treatment. So we weren’t terribly concerned about that, [00:09:00] but we, we decided to at least throw in a little bit at the end.

And that also was extremely helpful as far as figuring out where to focus. Cause they were less interested in the treatment that he had. And they, they ended up being far more interested in this is credit to you, the his family and how it was going to affect his family and kind of the change from being, you know, this guy was essentially Paul Bunyan before and the way that his family was going to be impacted as far as his inability to do things moving forward.

They were far more focused on that, which ended up being true of our, our jury in this case, than they really were as far as what he was dealing with on a day to day basis, which ended up being extremely helpful as far as, again, his, his direct, we shifted things around as far as what the plan was there.

Elizabeth Larrick: Yeah, we also, you bring it to the collateral source problem, 

John Prudhomme: which 

Elizabeth Larrick: with the military thing in here and just give you guys a little kind [00:10:00] of behind the curtain, this particular venue, it is a very good thing because you’re going to have veterans on the panel. You’re going to have people. So it was like, okay, like we want to make sure we talk about this.

And then of course the flip side of that as well, we got some collateral source. things pinging around in people’s brains. And of course it came up and naturally wasn’t even remotely true for the case, john. 

John Prudhomme: Yeah, there was no insurance coverage whatsoever, let alone the collateral source issues that they were concerned about.

It ended up getting worse when we got to trial, what most of our panel ended up being employees of the VA and the local hospitals around. So just kind of compounded itself. Yeah. Also 

Elizabeth Larrick: problem, right? So. Tell me a little bit about, I mean, you know, we ran this group, you know, anything else that like thinking at that time that you came up, you walked away with thinking, okay, we’re gonna need to move some things around.

Anything else that were takeaways from the focus group that you guys change things [00:11:00] for, for your trial approach? 

John Prudhomme: You know, the approach on liability, the approach on. I’m talking about his family as the one being impacted. I mean, obviously we get so caught in the weeds as far as we’re looking at a jury charge, which is what are his damages?

What is he dealing with as far as medical pain and suffering impairment? Those types of things. But that doesn’t mean that that’s necessarily all that they want to hear about. And so really, like, That was one of the biggest things that changed. I know I already mentioned that as far as new things, you know, honestly, the only on liability, just to kind of dig into that further, we shifted our liability approach to focusing on.

I think it was something that you brought up when you were talking to them that really it’s funny to watch them work in real time as they’re talking through the issues and the issue of the highway, not having a minimum speed was something that was pretty surprising to everyone. And [00:12:00] it became a huge deal for them and the focus group.

So we made it a huge part of our, we took it a little bit further. We, we pulled out the statute on obstructing the roadway and started and focused on that hard with the defense experts with our expert and, you know, really hammered it home throughout opening and pretty much every witness that we had related to liability.

It kind of shifted our entire approach to how we were, we were dealing with the liability aspect. The one thing, you know, I would say that I wish we had focus group more, we talked about it a little bit, but I wasn’t too worried about it as they had done surveillance. Which we definitely didn’t give as much attention to as we should have, and it ended up being a pretty big deal for the jury.

It’s bad rulings on that that we weren’t really expecting, but I wish we had spent a little bit more time getting people’s thoughts on that part of it. But yeah, I mean, those were the two big things, focusing on the impact on this family and then just really [00:13:00] shifting our liability focus beyond that. Hey guys, he was asleep.

Do you need any more than that? 

Elizabeth Larrick: And that’s what I was going to say. Like the other thing that was like super surprising was, and again, if you drive up and down 35 often and frequently, like it’s a blur. So we had one person plant this idea that there is a minimum and. Then everyone adopted it and it was like, and I had to say like, okay, there is no minimum.

Okay. Just so we’re clear, but people like, so that was a huge thing that like kind of caught traction. And it’s one of those things where it’s, it’s very, it’s like persuasion, right? Like that had so much credibility over, right? Like literally the video of like, this dump truck is getting up to speed to get on the highway.

And they, you know, so I think that was like, Okay. All right. This is good. This is something you could never have predicted that they were going to create. 

John Prudhomme: Yeah, right. 

Elizabeth Larrick: Create a law that was going to penalize your clients. 

John Prudhomme: They couldn’t have cared less that he was getting up to speed. [00:14:00] It didn’t matter to them at all.

I guess people have enough experience on on the highway, at least on this highway that they were so annoyed that he was going not close to the actual maximum speed limit that They put all that stuff out the window and they just, they just focused on the fact that he was going that speed. And yeah, really that minimum speed thing really got in their mind and took off for a while.

I think until you told them there was a speed limit, which is why we took it further when we saw the, when we, we went to the trial and said, this is the law on obstructing the roadway. This is the law on impeding traffic. He wasn’t doing any of these. We got their experts to agree that, okay. that he wasn’t violating any laws with how he was driving that day.

I think That helped turn it a little bit, but man, I will tell you, people do not like people driving. It’s apparently more offensive than falling asleep behind the wheel. 

Elizabeth Larrick: That was my other comment was, you know, when we, when we think [00:15:00] about doing an 18 wheeler case, a commercial vehicle case, like we kind of look for these distracted driving, are we fatigued?

And sometimes we get that out of people that say, Oh, well, was he over hours? It’s like, Very kind of rarely that it happens, but in this situation, there literally was 100 percent proof. The guy had signed on a statement. I fell asleep and they were not concerned. One iota about this guy and being over hours or, or anything.

And then they, no concern there, like more pissed about the guy. 

John Prudhomme: I know it’s like, we spend all this time digging into these facts. This is the best case, all that stuff, and I just feel stupid every time. Like we talk, we gotta talk to the jury afterwards. The focus group, the people that are making the decisions on these cases, they don’t care about that stuff at all.

everything that we get so excited about. 

Elizabeth Larrick: Yeah. I mean, the other thing too, that we really wanted to [00:16:00] test, which was the flip flop, meaning they were, I fell asleep. It’s written in my company, in the company policies or the, you know, the after documents that they fill out. And then we go to depositions two years later and it’s no, no, no.

This was definitely this guy’s fault. He had a mechanical error, which there was zero proof of any kind of mechanical error. But. Was that okay? And they were just like, yeah, we expect that. Like we expect companies to totally flip flop on you and say that. So it really wasn’t expected that kind of behavior.

And I see that often in focus groups where we’re trying to see, does this have traction? Like, does this make people upset? And they’ve now come to just. That’s accepted. 

John Prudhomme: And the focus group ended up being consistent with trial. You know, when we talked to the jury afterwards, they loved our guy. They thought he was credible.

There was nothing about what he was saying that they thought wasn’t truthful. And they hated the corporate rep for the other company, the [00:17:00] same guy that testified to 50 50, they didn’t like him at all. It didn’t change. Thought process as far as liability. Nothing at all. Thought he was asleep. They didn’t think for a second.

He wasn’t asleep, didn’t buy, came up with this theory that he had just dozed off and he wasn’t fully asleep. Didn’t buy that at all. But it still didn’t change. The, your guy was still driving too slow. 

Elizabeth Larrick: Mm-Hmm. . Mm-Hmm. . Yeah. Okay, so let’s flip to trial. You guys get to trial. You, you’ve got this panel and you’re thinking, okay.

We had a panel. This is on steroids. worst kind of panel we will. So tell me a little about and again, just for you guys, like, you know, don’t, you know, in anticipation, the jury actually didn’t get the case, right? They end up settling right before closing argument. So, and you know, we’re not gonna talk about that.

That’s confidential. However, we get to talk about everything else. And I’m so excited that you guys talk to the jurors to get their [00:18:00] feedback. So tell us a little about the makeup of the jury and kind of how it was, you know, this, The focus group panel on steroids. Basically. 

John Prudhomme: Yeah. Yeah. So it was, it was, you know, six men, six women really.

I think we had like four nurses. We had two hospital administrators. We had a, it was awful. We almost busted the panel and this was the good panel. This is the good, the good 12 that we ended up with. Not even joking, it was an insane panel, but yes, we ended up with, yeah, four nurses, two hospital administrators, a billing person at a medical practice, three VA administrators, one guy who just wouldn’t answer any questions and didn’t fill out his, his jury questionnaire.

Elizabeth Larrick: Oh my gosh. 

John Prudhomme: And I don’t know how he ended up on there. And then we had another, I think he was, oh, he worked at Tesla. It’s like a plant, a plant operator, a Tesla or something. Anyway, so, so 

Elizabeth Larrick: a great panel, so it sounds, sounds, sounds perfect. 

John Prudhomme: Yeah, [00:19:00] yeah, it was, it was pretty terrifying. We were, we were definitely scared of them the whole time.

We definitely were trying to, with all the nurses on there, we definitely tried to focus more on the severity of the injuries and the medical, maybe a little bit more than we had planned It wasn’t really a tug at your heartstrings type of group. Very one thing I will say for them is, man, they, they listened to everything.

They were intent. No one was dozing off. There was not a set. They were all. And when we talked to them afterwards, they were all fascinated by the case. a little bit more so than I would have hoped. I would have thought it would just be more outraged at the guy falling asleep behind the wheel, but we did not get that.

But yeah, just, just a brutally bad. 

Elizabeth Larrick: And then you mentioned kind of one of the, now there were a couple of less than desirable rulings that you guys got. And, and one of the, probably the, the bigger ones that probably couldn’t anticipate, because I feel like the law is really clear in Texas, which is The admission [00:20:00] of the full police report, which is like pretty much never happens.

And so that had some nuggets that planted some seeds that couldn’t really be overcome because there was literally no evidence anywhere. Right. 

John Prudhomme: I think that’s the thing that probably hurt us the most on our guy’s speed is there was a part of the police report that mentioned our guy having mechanical issues, which like you mentioned earlier, there’s zero evidence of mechanical of any mechanical issues and so that, that got in, that got in front of the jury.

Obviously once they finally, that was the other thing is we, we didn’t know it was getting in until the third day. And so we, we couldn’t plan for it. 

Elizabeth Larrick: Oh, 

John Prudhomme: just assumed it wasn’t 

Elizabeth Larrick: right. 

John Prudhomme: Right. But yeah, we, we couldn’t get a ruling. Based law and just he held it. He held it. He held it. And then the third day, we finally got that ruling and it was a little too late to do damage control or to do too much damage control.

So that was [00:21:00] pretty harmful. I think that’s probably what, what hurt us a decent amount as far as well. Obviously, I don’t know what the jury would have done, but at least in our minds, it hurt us a decent amount on the speed. So yeah, we had that one that was pretty bad. And then you mentioned collateral stores.

We had a pretty bad collateral source ruling where one of their experts was allowed to testify to what the, for example, an epidural steroid injection reimbursement from a health insurance company would be. just for the position, not for the facility. So the only evidence that they have is our bills and the reimbursement rate for those bills for a position would be 200 or something like that.

Elizabeth Larrick: They were speaking straight to that billing juror right there like, hey, hey, hey, nothing to me. Tell me a little bit about the surveillance because I know that this is an issue that [00:22:00] a lot of people face and it’s unfortunate that sometimes we get that surveillance literally on the doorstep of trial.

Like, oops, here it is. We, you know, surveillance them for two weeks. Like we didn’t see what was kind of the nature of the surveillance. 

John Prudhomme: You know, I’ll just kind of back up a little bit because our guy, like I said, he’s, he was basically Paul Bunyan, you know, army ranger, all this stuff. And so he doesn’t look hurt when he’s sitting there on a day to day basis.

Elizabeth Larrick: No, he, I mean, when he says Paul Bunyan, this person, 6’3 almost 6’4 and just, you know, a brick wall of muscle. And I did see pictures of him working out. He did like to do some muscles and do the weightlifting. So, okay, back to you, John. 

John Prudhomme: Yeah. And I mean, he hasn’t, you know, obviously he hasn’t worked out since the wreck, but I mean, when you’ve got 25 years of, of that type of intense routine going on, it doesn’t just go overnight.

So You know, so he doesn’t, [00:23:00] he didn’t look bad and he could still obviously do a lot of things that, you know, a lot of us can’t do now. So he, you know, the surveillance showed him, you know, lifting up bags of ice and bending over and picking up a nice chest. You know, the thing that we did have going for us is he did have a spinal cord simulator and at the time, and he was, I think, like, Five or six months post discectomy.

So, you know, we address the surveillance through his doctors. These are the things you would expect them to be doing that type of stuff. But, you know, he’s also a pretty successful guy. And so he’s got a boat and he’s got nice cars and he’s got an awesome family. And so the part that hurt us, I don’t think was necessarily what he was physically doing.

It was that this guy looks like he’s living the life. Why are we going to give him this much money? [00:24:00] And that was the biggest part that another ruling that we thought would, would go our way is that, you know, we didn’t expect them to show a picture of the boat. They even got to ask him how much the boat cost.

Do a couple of different things there that we, we just were never anticipating would actually get in and should have planned for better. Most likely. it’s, you know, certainly influenced the jury as far as what they would be willing to award. And so, you know, honestly, as we sit here today, I don’t even know how we would address those specific aspects of it.

I think we pivoted pretty well as far as addressing the physical limitations that he had and why he was doing some of the things he did versus what he was able to do before through his surgeon, through the life care planner, talking about those types of things, but I would have been a lot more comfortable if we had figured out through a focus group what Thank you.

Appreciate it. What, because when we talked to the jurors afterwards, it was, the surveillance was a pretty big [00:25:00] deal. It was meaningful to them. And I think at least I, a lot of times discounted because, you know, it’s sleazy, it’s shady. People see it that way and they did, but then they also actually watched it.

Elizabeth Larrick: But then they were also putting it in both categories. Like, well, that’s the 

John Prudhomme: best way to put it. There were so many things that I think we see sometimes as black and white. This is either good for us or bad for us. And they put it in both categories a lot of the time. 

Elizabeth Larrick: Yeah. And so I think one of the things that we talked about was you guys did get to talk to them afterwards.

We’ve talked a lot about that, but tell me a little bit about kind of the feed off of them that you guys were thinking as far as like verdict amount, which ended up probably being like, you know, trust your gut. That’s why you went ahead and went ahead and got it settled. So tell us a little bit about their feedback on numbers.

John Prudhomme: Yeah, I think we probably would have ended up maybe about half of what we settled for. As far as the verdict goes, very, very happy. We were able to get it done before it went out to [00:26:00] them. Yeah, they were, they just, they weren’t buying the numbers. We had a life care plan with a great life care planner. You know, the both categories thing.

They loved our life care planner. They thought he was the best witness of the entire case other than our client. But they, they just, they were not buying the amounts, you know, We talked about the nurses and the administrators and things like that. It may be it’s a county thing, but they, they just, they were not buying the full bill charges, you know, lateral source in injected into the case or not.

It just wasn’t something that they were going to be willing to go with. So let 

Elizabeth Larrick: me pause there, which was really important for your client because he had done these trials, spinal cord stimulators. He refused. I wouldn’t say refused. He made a choice. It’s not going to have narcotics. It’s never going to take narcotics because he had small kids, teenagers at the house.

So his thing was, I’ll try the spinal cord simulators, which worked. [00:27:00] However, by the time trial came, he had not gotten the permanent one. So the permanent ones were in there and that was really, really bad. Probably the most important thing I would say, yeah, for him, because, you know, he was, he was a nice guy, you know, didn’t want a lot for pain and suffering.

And we fashioned that with our focus group, by the way, we really looked at, okay, here is what he needs. And there really wasn’t in the focus group. There wasn’t a lot of like, right. Other than like, wait a second, he can go get this, you know, with the collateral source thing, like, Oh no. So anyhow, just wanted to like plant that in there because the life care planner was a really big piece of like.

This has to happen in order for him to have relief, you know, so 

John Prudhomme: it was, it was, I mean, it was the biggest part of our damage model by far, that’s, we put a lot of effort into that a lot, a lot of effort into, you know, kind of focusing on that and open and, and obviously through, through all the doctor’s testimony, as far as trying to prove up the life care plan, including the defense experts and, you know, [00:28:00] That was the crazy thing is we didn’t really have a whole lot of dispute as far as the actual treatment that was going to be needed in the future for him.

They had four medical experts, three of them agreed that he was going to need essentially everything that was in the life care plan. They came down to the cost and so they weren’t sitting there saying. The jury wasn’t saying they’re saying we don’t think he doesn’t need any of this treatment. It’s just he’s not going to have to pay this amount for this.

And so we’re not going to warn him that that really ended up being the biggest deal. We were never able to really get over that collateral source. in their mind. 

Elizabeth Larrick: Plus the boat. 

John Prudhomme: Yeah. Yeah. Going out and buying a boat while you’re getting all this treatment with a bunch of medical bills sitting out there probably ended up being.

Elizabeth Larrick: Well, and that’s also one of those things where, you know, when thinking now, now that you’ve gone through, you, you actually got to go to, you saw [00:29:00] their case, right? And then you got to hear what resonated like they were, had a lot of writing on your guy and him being super active and buying a boat and like the surveillance, which, you know, a lot of them do that, but you know, when they, all their experts agree, you’re not really with your experts.

There’s not like, well, is that really what they’re hanging their hat on? And it, and it was, and they did it. 

John Prudhomme: Yeah, it’s you know, it’s funny again. We get so caught up in all this stuff, you know We spend so much time trying to figure out how to get to all of their experts And really at the end of the day The jury didn’t care about any of the rest.

They cared about the boat. They cared about the cost. And they, they just cared about what he was physically still able to do for his family. That was, and they saw him moving around in those videos. And I, I think it hurt, it hurt our argument that, you know, he’s not going to be able to do these things.

He’s young to. And so they’re [00:30:00] not seeing what it’s going to look like in 15, 20 years. And, you know, we tried to hammer that home with, with all of our, our experts and doctors and, and even, even the client up there. But yeah, I definitely would say I’m guilty of focusing way too much on trying to get to their experts and what our guys are going to say and not really focusing on some of these things that ultimately matter to them more.

And the surveillance was one of those. Definitely. And 

Elizabeth Larrick: I think, you know, it, Like people are like right now. And in the past year, like people are very conscious about costs and expenses. And when they go to the grocery store, that goes up, like when they get the gas pump, not so much, but the groceries that it’s like, there’s so much more cost conscious, plus you had, unfortunately, a jury full of experts on that kind of stuff.

And then they, you know, they are not as empathetic, like, you know, like, you know, windfall or whatever. So the other question that I have, because again, you’ve got this. [00:31:00] Great experience of we talked about your client before we talked about the focus group and kind of what his perspective was, how did his perspective change like sitting through going through trial lists and everything like, you know, how does perspective change about his case?

John Prudhomme: You know, he was very, very involved in this case. Great guy. I’m one of the better clients I’ve ever had for sure. Very smart. Which sometimes can be difficult to manage expectations, especially because he knows exactly what’s going on. And so, we had talked about the focus group in pretty good detail. We picked the jury.

The jury, he didn’t really totally understand what was happening with the jury for the first couple days, though, I would say. He also gave one of the best directs that I’ve ever seen anyone give. It was incredible. And so, they really liked him, but I think he started to see as the end. His wife was very helpful in helping him get there [00:32:00] on this.

He finally got to the point where, you know, we didn’t really have any sort of offer to consider until so, you know, We started, we were going to close on the Monday after we started, and so we got back in the courtroom on Monday, and that was the first time it was going to go to the jury at 9 a. m. that we got our first real offer, and so he didn’t really have anything to consider before then.

That was the point, I think, where he, you know, finally, he was finally able to realize, like, oh, This jury is terrifying. We had talked about it a little bit on Friday. We had talked about it a little bit over the weekend, but you know, we didn’t really, we didn’t have a choice. So we, there wasn’t really much context to have that discussion.

And then when we sat down and we’re, we’re really talking about, you know, whether we want to put this in their hands or not, they were definitely both able to acknowledge, yeah, this, I don’t know what they’re going to do. And it could end pretty poorly. Uh, it could end significantly less than, you know, [00:33:00] they were never going to.

Yeah. But it might’ve been a lot less than we were talking about it as far as so, so yeah, he, he kind of saw the evolution and then he didn’t talk to them, but he overheard them talking to the defense attorneys afterwards. And I don’t think he could have ever been happier about a decision he’s made. 

Elizabeth Larrick: Yeah.

Again, you have this unique experience that if things do settle quite often, like in the middle of trial, but most of the time it’s at a different point, not right. So, I mean, it is sometimes happened right before closing, but when your client gets that experience and then the sitting as a fishbowl and like seeing how it’s all swirling around and thinking like, this is not at all what I thought was going to happen, you know, but again, You guys didn’t have even a single offer to consider.

So it wasn’t like you, you know, there was any kind of waffling because like, Hey, we’re going like, this is it. 

John Prudhomme: So yeah, no, absolutely. 

Elizabeth Larrick: Super helpful. Okay. [00:34:00] Awesome experience here. So, you know, you got to go all the way through, obviously thinking back now that we’re using hindsight probably would have done folks group on that surveillance to see how, how it would have nailed and how you kind of maybe have, because again, As we heard in your focus group, just on your video for liability, we had people on both sides of the coin, right?

And they’re tussling it out, you know, and hearing basically their strong points and why and all that good stuff. And so that’s, you know, helped you kind of shape where we had to go and what we had to lean into. And hopefully the surveillance would have provided you kind of the same thing, because normally they do, right?

You’re going to focus group, hopefully it’s good, you know, there’s a good mix that you’re going to have people on both sides and they’re going to be talking about their opinions. Either way. So anything else you feel like You would have focused grouped or maybe, 

John Prudhomme: you know, I’m wondering. Oh, on the surveillance funding.

Well, yeah, well, definitely on the 

Elizabeth Larrick: surveillance. I think you said, yeah, yeah, there’s been more time than you get. You would definitely would have done on the surveillance. 

John Prudhomme: So [00:35:00] just 11 notes. I also Learned at trial on that surveillance is so they brought the PI alive and he testified that he had done surveillance on our guy a week before trial.

No video shockingly produced, which is interesting, but yeah. So, you know, I think I talked to my client about, I doubt, I don’t think they’re going to probably not going to be any more surveillance at this point. I was wrong. Definitely need to note that in the future, as far as focus grouping stuff. Yeah, I mean, I think we’ve been trying to figure out different ways to address the, you know, the elephant in the room as far as health insurance or lack of health insurance and stuff.

I think that might be, you know, I don’t know if that’s a full half day focus group or worked into it. a damaged focus group, something like that. But there’s definitely to figure out some better way at least. I don’t, I don’t, and [00:36:00] maybe it’s just, maybe it’s just not possible with certain juries bars in particular, but you know, figuring out some way to better address that.

You can’t consider health insurance in this case. We did not consider it or however we need to get there from that perspective. You know, the method we tried was, was through some of our doctors, but it clearly did not land. 

Elizabeth Larrick: Well, and again, you had expert jurors, so that’s, you know, I think with a different panel, but again, you know, it’s kind of one of those things where, holy moly, I know you guys tried to bust the panel and the judge is not going to let you, but you know, that’s kind of the other things too, is one of these gambles that we have, especially with this.

And here in Texas, we have this, you know, like the war is on the bills right now. And like, Oh, everyone’s got a billing expert and Oh, it’s this, it’s that. And, you know, and that’s where the, you know, if you’re running a car wreck or any kind of like, that’s where they’re kind of staking a little bit of a claim, which makes a lot of people worried.

We do, we’ve done lots of [00:37:00] focus groups on these billing experts and like the challenges and stuff like that. And so, yeah, I think it’s a matter of. Figuring out how to talk to, talk to people. 

John Prudhomme: Yeah. And, you know, I think we’ve gotten decent, at least that, that attacking the billing experts and undermining their credibility.

And I don’t, you know, honestly, they’re, they’re billing experts didn’t have credibility with, with the jury when we talked to them. I don’t think that was meaningful to them. I think it’s just, You know, frankly, the defendants would have been better off not bringing billing experts because it was already in their mind.

It was something that was going to affect their result anyway. I don’t know exactly what the, the path is, but I think I’ve definitely spent way too much time trying to figure out how to attack their billing experts and less time focusing on how do we address That elephant in the room through our people because that seemed to be the much bigger issue for them, 

Elizabeth Larrick: right?

And that’s a lot of the results that we’ve seen is like, this is a side [00:38:00] issue. Like you’re trying to create, you’re kind of distracting me from, from this other thing. Cause anyone can come in and say, oh, it should be left, right? But ultimately, like who has the ability to negotiate, right? And that’s like, you’re asking your client, right?

Did you negotiate this? Like, as we sit here today, if you go get this in six months. Do you have any idea what it’s going to cost? No. What are you relying on? Well, the guidance that I’ve gotten from this guy who that’s his whole job, right? Like, and you know, if it’s more, if it’s less, like, you know, it’s kind of one of those things like, how do you like, where do the seeds plant?

And I think you’ve nailed it, which is, I think it’s almost everybody, right? It’s your doctors, it’s the life care planner. It’s even your client because he is fine now, but he’s a young guy and it could be, I mean, cause Could be he wakes up one morning and it’s different. That’s happened to him before.

John Prudhomme: Yeah, no, exactly. It’s happened a lot during this case. 

Elizabeth Larrick: Yes, awesome. Well, hey, I really appreciate you [00:39:00] coming on and sharing your experience. I know a lot of people are curious about virtual. You guys have been early adopters and I think, you know, thinking through this case and why you came to do one and, and just to be, you know, totally black and white here, like, what John did not do it all day.

We did two hours. That was it. And in those two hours, like this is all the nuggets that he got to really reframe liability. 

John Prudhomme: Yeah. I don’t, I don’t think frankly, cause we did, we did at least one in person focus group. And honestly, I don’t think it’s from the other case before, I don’t think it changed anything to have a virtual really.

Watching them work, thinking through these things and talking through these things is fascinating. You learn quite a bit about how we get lost in our little bubbles, our little legal bubbles. 

Elizabeth Larrick: Yes, yes. Well, I’m just thinking through, like, if we wanted to do one for in person, like, that would have been an exponential larger cost, because we all would have had to get in our cars and go up there and get a place and, [00:40:00] you know, versus having everybody tuning in on, on Zoom, which, You know, convenient for sure.

So awesome. Well, John, if there’s anybody out there’s listening who may be on the fence about virtual focus groups, like what advice would you give them? 

John Prudhomme: I would encourage you to do it. If you’ve got anything that, anything that you think is gonna be a potential issue in, in your case or you’re curious about how a jury is gonna think about it or step back for a minute because you think something is all locked in and maybe reconsider as far as the different ways that people might think of things outside of our, our lawyer world.

Yeah, I definitely encourage you to do it because it definitely changed our, our mindset on this one. And I’m not, if we had approached it kind of with the fastball, this guy fell asleep and through the rest of you approach that we were kind of going with it, I think it would have turned them off quite a bit.

So, yeah, I would definitely encourage, if nothing else, it’s fascinating to hear how they think about things. And it’ll certainly change at least one or [00:41:00] two things about the way how you approach things. 

Elizabeth Larrick: Awesome. All right. Well, thank you so much john for joining us today. I know it helps to hear other people’s experience and you had a pretty fun one here recently.

And this was, this was just in May, right? So I mean, we’re digging the gold out now before we move on to that next case. So thanks so much. Wild 

John Prudhomme: ride. Finish June one. That’s 

Elizabeth Larrick: right. All right. Well, Thank you all here for listening in to this episode. If you have questions about John and his case, maybe you have a similar case, which actually happens pretty often.

When I have my listeners email me and say, Ooh, Ooh, you talked about that. All of John’s contact information will be in the show notes. I know he is happy to talk about the case. And how they did approach things and what they use. So if you want to reach out to him, his contact will be in the show notes.

Also, if you’re curious about doing a virtual focus group and maybe want to dip your toe in the water, there’ll be a link there. You want to talk to me about doing one of those, like John mentioned, like I mentioned. Got all kinds of styles and [00:42:00] flavors for everybody out there. So if you have a question or you’re curious, please book a time to talk to me.

It’s for free. Other than that, if you like this podcast, please rate review on your favorite platform that helps other people find it and until then, thank you so much.

What if rethinking your approach to trial preparation could transform your outcomes in court? Join us as we uncover the journey of Keif Storrar, a partner at Doubek, Pyfer & Storrar, who revolutionized his firm’s use of focus groups after attending Don Keenan’s Edge Colleges in 2018. Keif walks us through the shift from using focus groups sporadically for catastrophic injury cases to a more systematic and frequent application. Learn how his firm navigated the transition to virtual formats during the pandemic, the logistics of consistent implementation, and the intriguing possibility of creating a dedicated business entity for managing focus groups. 

Keif also shares invaluable strategies on leveraging focus groups for witness credibility, case development, and testing deposition clips. This episode dives into the evolving landscape of online survey focus groups, offering a wider audience perspective on damages, and the critical importance of honing case themes early. We tackle the nuts and bolts of running virtual focus groups, emphasizing effective recruitment and fraud prevention. If you’re looking to refine your approach or start fresh with focus groups, we provide practical tips and strategies to streamline the implementation process. 

In this episode, you will hear:

• The logistics and benefits of implementing focus groups regularly
• Evaluating witness credibility and shaping case development
• The advantages of using focus groups to test deposition clips
• Virtual focus group recruitment strategies
• The differences between virtual and in-person recruitment

Follow and Review:

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

Supporting Resources:

Would you like to talk to Keif about his focus group experience? Have a case in Montana?

You can contact Keif by email: keif@lawyerinmontana.com 

Website: https://lawyerinmontana.com/keif-storrar/ 

Are you interested in taking my online course: Virtual Focus Group Foundations Workshop?

Please register for my email list and you will receive the announcement when the course is offered again.

Register here: https://larricklawfirm.com/connect/

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.

Episode Transcript:

Elizabeth Larrick: Hi there. It’s Elizabeth. I want to jump in real quick before this episode starts and tell you a little bit about my guest, Keif Storrar.

Keif practices at Dobeck, Pfeiffer, and Storrar in Helena, Montana. Now, Keefe is originally from Idaho, but he came to [00:01:00] Montana for college, end up getting a bachelor in science and wildlife. And of course, went to the university of Montana school of law and joined the environment law group there. He actually got to clerk, uh, with the honorable Kirk Krueger in the second judicial district court and eventually made his way to Dobeck, Idaho.

Fifer and Storrar where he serves as a partner, you’re going to hear a lot about Keif and his opinions on focus groups. If you want to reach him, his contact information will be in the show notes. All right. Enough of me. Yep. Yeah. And let’s get to the episode. Hello and welcome back to the podcast. Trial lawyer prep.

I’m your host, Elizabeth Larrick, and we are here to talk all things focus groups, trial prep, witness prep, to help you do better in your cases. And this episode, we have a guest joining us, Keif Storrar from [00:02:00] Helena, Montana. Hello, Keif. How are you? 

Keif Storrar: Good. How are you? 

Elizabeth Larrick: Awesome. Thank you so much for joining the podcast.

I want you us to have this great conversation about. focus groups and I wanted Keif to come on because I’ve known him for many years. If you haven’t known or you just started listening, I really love Montana and I had this awesome experience of being asked multiple times, I’m not sure how, to talk at the Montana Trial Lawyers Association, which is where I met Keif and have really been in contact with for several years.

So I thought, you know what, you guys are doing focus groups, come on and let’s tell people about your perspective. 

Keif Storrar: Well, I’m happy to be here and it’s always lovely to have you in Montana. I think everyone appreciates the insight you give to our trial errors group when you do speak at our events. So thanks again for coming.

Elizabeth Larrick: Absolutely. And I’m happy to always do that, which, you know, not to plug, but I’m always happy to talk to anyone’s TLA. If you’re out there and you need a, [00:03:00] you need a speaker fill in and you’re the CLE director, don’t give me a call. All right, let’s talk about the task at hand, which is focus groups. So, you know, keep, tell us a little bit about kind of your practice area and really when you kind of started doing focus groups.

Keif Storrar: Sure. Well, actually, I started with this firm in 2015, and at that point, they’d already started to do a few focus groups. I mean, not a lot. And obviously, the way that they’re done has changed dramatically since then. But, you know, it was when generally when we had a more catastrophic injury type case, we would do a focus group on damages and then show that to the adjuster to say, Look, you know, here’s what normal people are valuing this case and, you know, to try to get the value up and frankly, it worked, you know, on some of these cases, I think it worked.

I was really new to the to the entire thing. We eventually had our office wired up so we [00:04:00] could secretly watch focus groups in a separate room while someone else conducted it. So that was 2015. They maybe started a year prior to that. So that’s how long firms been doing it. Maybe 10 years with that. We weren’t doing them regularly.

You know, it might be once every. Six months or something like that when you have these bigger cases and these big issues you really wanted to figure out and then I first took the focus group course from Don keenan’s edge colleges Back in 2018 in atlanta. I flew back and took it there and it kind of revived Or change.

I guess I should say the way we did it. And at that point, I started conducting a more on, you know, sort of the smaller issues and things like that and trying them out. That way, you know, maybe doing two or three focus groups in a two hour session on different cases and on liability or things like that, but just like the general narrative type focus groups, [00:05:00] so it kind of evolved.

And then, frankly, the pandemic came along and we stopped the pandemic. We didn’t have a big list. We would kind of go to the job service. We post on some job boards, but locally to find people locally and have them come into our office. But we’ve had never run a virtual focus group. And frankly, I still have never personally run a virtual focus group through our firm, you know, organizing it.

I always end up tagging along to someone else that’s got the system in place to organize and, and that sort of thing. And so, um, that’s sort of our evolution of focus groups. And I’m still, At the point where we need to probably just get our firm on board to have our own business separate entity to help run them.

Because I think that’s the next step virtually to 

Elizabeth Larrick: right, right, right, right. Yeah, well, let’s unpack that. That was that was awesome. I appreciate that because I really feel like that perspective is very similar to most people because you don’t get, you know, you’re waiting for the [00:06:00] bigger cases. You’re not doing them regularly.

You’re doing them kind of sporadically. And I think that’s actually the norm, right? I don’t, I don’t think most people, unless they really had the mentor or came up with the, you know, through the system of whatever, you know, trial technique that kind of got you on board to doing those, whatever that may have been.

And I think it’s pretty normal. So that people kind of do them really leaning towards damages, unless you had like, You’re going to trial and you just really need to make sure you’ve got liability all pinned up. And then I think that, you know, having the flexibility that, you know, the focus groups kind of offer under the, the edge system is really where a lot of people are, are, Oh, okay.

There’s lots of ways to run these. And like you said, do three cases in two hours, right. And be kind of management on the time part of things. And then now we have this, new opportunity. Now, granted, it’s really not new. Like Zoom’s been around for a while. So, but I think it’s new to us. Right. And also, [00:07:00] you know, it’s new to everybody around us.

The pandemic really opened up that technology for everyone. Right. So 

Keif Storrar: you go 

Elizabeth Larrick: to the doctor on the, you get, you see your financial advisor, you, You know, pretty much anyone you can just zoom with instead of going in person. So it’s really helps. I think, like you said, post on job boards, find people, and most of people already have the technology cause they’ve been using it.

So tell me a little bit about, so creating your own systems. You guys had one, you know, what are the benefits of just having your own in house system? 

Keif Storrar: Well, I think the benefits are one it’s. It’s cost savings, you know, I mean, we’re not paying for someone else to, you know, pay their employees to do the tasks that our employees could do.

And so you can make the focus groups a little bit cheaper. And then, you know, I think it’s just having more control over the process. You can run ’em when you want. I think that’s probably the biggest thing, because I know [00:08:00] you can probably, I guess in Montana we’re probably more limited with our focus groups.

You know, we don’t have entire industry built up around it. There’s really only a couple people. Well, actually, probably one in the state that’s sort of the main focus group is Seventh Amendment productions, and they do a good job organizing and that sort of thing. But, you know, you’re limited to, you know, you can’t run one Quite as easily, you know, I, I guess what I’d like to do, and we were never at before, but what I’d like to do eventually, you know, I’m kind of like developing my, you know, business strategy, five year plans and what I want in two years and three years.

And, but what I’d like to do within the next. year or so is have to focus groups a month on various cases on various issues so that I can really help develop the issues within the case and find out what people care about so I can, you know, go down that road of the [00:09:00] discovery I need or the deposition type things I need to ask if people are interested in that, you know, as like case development stuff, which I really haven’t.

Just haven’t done on my focus groups, and I’m really wanting to move into that thing. So I think having them in house, it lets us plan. Okay, we’re on a regular basis. We’re gonna conduct focus groups. And so, yeah, that’s the reason we well, I want toe have that strategy is part of our firm policies and strategies or whatever.

Elizabeth Larrick: Sure. And I think the other thing that a lot of people talk about as a benefit is it makes you get back into your file and dig around and create that presentation versus giving it handing over to somebody else. Well, it’s, it’s great to do that to get another perspective, but most of the time when you’re doing it in house, you are taking a different look at it, no matter what, because you’re thinking, okay, I’ve seen this thing, you know.

Many, many months, right? But now I’m going to go talk to a brand new set of people who are not lawyers and I have to create [00:10:00] this presentation. So it really gives you right a whole nother dig into it. Especially if you’re, you’ve got some staff that are helping you too, right? Because they’ll, you know, once everybody kind of gets acclimated to doing focus groups there.

It’s much easier for them to say, oh, hey, you got plaintiff defended all over this thing. Don’t don’t forget to take that out. Right. Just just use names, you know, it’s like, oh, right. So it’s like little catches of things that when you do them on your own, you’re going to find. And the other thing that I always hear from folks as well, who like to do their own is like, you know, They want to be the ones to really get in there and get that feedback right to them because that helps them, you know, talk on their feet, get, you know, be, you know, really start to communicate well, but also there’s something about that interaction that really helps you as a trial lawyer, be on your feet, on your toes, right?

You’re ready, and you’re not really arguing with them, but you’re, it’s, it, you know, it’d be just like, You know, talking to judge or mediator, right? [00:11:00] You have to listen very well and then like turn, you know, ask for more, do whatever. So I know that people enjoy doing on their own so they can get the benefit of that, that residual, you know, skills benefit.

Keif Storrar: And that’s the one thing, I mean, I, I think I love the most about focus groups is you get to ask. You never really provide an answer. You know, I always just throw a question back at them or why is that important? Why do you need that? And then you like, just skip this. You unlock this sort of Pandora’s box of incredible information that he didn’t think of when I was looking at this aspect of my case going, Oh, my God, I missed this entire thing that they want to know about.

So, you know, then you can dive into it. And I think that’s just an incredible thing. Plus what you said, you know, thinking on your feet, all those skills transfer. Cause I get stuck behind my desk, like everyone freaking writing emails to insurance adjusters and other attorneys. And it’s just like. So monotonous, it really breaks that monotony and helps, you know, just polish your other skills, I [00:12:00] guess, 

Elizabeth Larrick: use them.

I mean, cause like you said, unless, you know, you’ve got a really high volume motion practice, which most people don’t, because that’s a whole drain and other self, you’re really not, there’s not a lot of opportunity, you know, to get on your feet on depositions or one place, but that’s very different than, you know, focus group presentation.

And I think that you, the thing too that you talked about that I want us to kind of dive in a little more is that whole opening of using little snippets, little pieces of focus groups to help you get on the right track for asking discovery, right? Questions and then getting, thinking through like depositions and what they want to hear.

And is this a good question or a bad question? So tell us a little bit about kind of like that process and what gets you excited about that? 

Keif Storrar: Yeah, I think it’s just. You know, everyone said you, you know, you think like a lawyer. You don’t think like normal people. And I’m always amazed when you sort of unpack a focus group and what they’re saying.

I mean, you get this incredible [00:13:00] information on, on like opinions or it’s like a bias that lives underneath. that you don’t know exists on your case until you start to, you know, dive into those questions and follow up with the focus group members. But I think the nice thing about using them in a more limited way is, you know, you can show them a witness.

You know, that you videotaped and say, what do you think about this guy ? And, and let them just unload. And you can find out if it’s a good witness, a bad witness. You can put your deposition of your plaintiff if you want your, your own client say, is this, you know, good testimony? Is this believable? I mean, what are your opinions?

And you can really just think about. I mean, as you’re developing your case, you’re also developing your case for trial. And so you want to know, you know, is what this guy said believable? You know, even though in your mind and all the paperwork you have, it’s what they say is a total lie. But how are you going to present that to a [00:14:00] jury?

And did it come across properly in the deposition questions you asked where you thought you nailed them? You know, did they really have a gut reaction of, Oh my God, that guy’s a liar. Or did they say, That’s just a normal excuse. Everyone says that and they’re going to give them a free pass. And so that’s the nice thing about sort of using them as a smaller sort of piece of your case.

Exactly. And say, well, let’s talk about this puzzle piece today. Honestly, I’ve never focused group the case 10 times prior to trial. You know, maybe I’ll get there someday, man. But you know, if you do it three or four times, even two times, you get incredible information on how people are going to think about your case.

Even if it’s just a piece or two of the case that are important for like liability facts, you really want to make sure it gets, gets people frustrated or mad about, you know, so that you can have, you know, get them on board for liability, you know, that sort of thing. So, and again, I haven’t really [00:15:00] gone back to the damages side for, for to, to develop that aspect of the case.

I have used Since the pandemic, some of these like online survey focus groups where they send it out to like a hundred people. And I found that those have been a little bit better for damages because it allows me to like you present both sides of the case and you can make it more defense oriented or less defense oriented however you want it but I usually try to make it more defense oriented with a survey of business the plaintiff’s attorney is asking for this much money is that appropriate and then you get a bunch of responses and kind of the easy summarized results from 50 to 100 people and I think that can be Maybe more useful on damages.

I haven’t found the smaller, you know, six to eight quite as useful because I, the live ones, because they start to play off each other. And, and then I kind of get [00:16:00] lost in the discussion on what’s, what’s reasonable, but I feel like the survey ones, which, you know, I don’t do, and I would probably never be able to do, you know, but those ones are just another interesting type of focus group that I think can be useful as, you know, your, you know, quiver of arrows there.

Elizabeth Larrick: Absolutely. And those are becoming so much more, I won’t say, like, I think they’ve been around again, zoom. We just didn’t like, you know, it’s, you know, us lawyers, sometimes we can get in our little cubby hole, you know, and like, oh, no, we can’t, we must go in person. No, no, we cannot, you know, judges don’t want to.

Yeah. And now, like, there’s, you know, oh, look at all this technology and availability, which means now that there’s, yeah. Oh, it’s a, it’s much more acceptable. There are a lot more companies now that are doing the, the data studies that are not, you know, this 5, 000, you know, person study. Like you said, they’re down to 100 or 50 people.

Um, it’s a lot more manageable for you as first, like deciphering and [00:17:00] figuring that stuff out. And those are a hundred percent, you know, helpful for, for damages. And one of the things that, you know, you mentioned for doing kind of like the puzzle piece, you know, kind of focus group is, you know, doing the depo clips.

And one of the things that I always find eye opening when we do them is like, they will totally sometimes just side with the, with the, with the witness because they’re like, well, I don’t like that lawyer’s question. You’re thinking, well, that was my question and that’s why I’m always like, okay, this is great because, you know, it’ll be a contested liability.

And this witness is not, you know, as from our lawyers eyes are not answering the question. They’re being evasive. But when you show the clip. It all goes back to, well, that lawyer’s just badgering them. That lawyer’s just being mean. That, you know, that question was not good. It’s just like, oh, right. And so, and most of the time they’ll say, hey, that lawyer should have asked this question.

And it’s like, okay, how, who else, you know, you get all [00:18:00] these questions that you’re like, okay, so can really help you kind of hone in for cross. Or when you go to that next witness, whether it be the 30B6 or the supervisor or the, you know, another. Somebody on the, on the defense side, like you could have some of these questions to ask, and it becomes very helpful for putting together that case theme or that frame that you’re trying to put together, you know, that’s the thing that I always tell people, like, you don’t really want to wait to the end to test your case frame.

Like you could get it kind of early on and keep the, you know, it’s like putting bumpers on the, when you’re bowling, right? 

Keif Storrar: Exactly. So you’re going to 

Elizabeth Larrick: hit the pins. 

Keif Storrar: Yeah, at the end, you know, I found also that there’s just a different way that, you know, you might speak to a jury about a legal issue. You have to address in your case for like, you know, what your jury instructions are going to say versus what a judge or defense attorney cares about.

So you can kind of say, okay, trial, I’m going to have to present this jury [00:19:00] instruction in this way. These are the facts or this is what they want, where it’s like the judge might want some sort of like three part test that you have to argue on summary judgment motion, which, you know, you have other evidence for, but you know, if you’re going to go to trial, you’re going to utilize what the focus group said on.

That particular jury instruction or a piece of evidence because you don’t connect with them in a different way than how it connects with the judge, you know, so 

Elizabeth Larrick: exactly. And that’s another really great use of. You’re doing a focus group is like, here’s the jury instruction. How do we make sense of this?

Right? Like, what’s how do we say this in a normal person way? That way, when you get up there, you’re speaking like, like you said, directly to them. Not to, you know, you’re, you’re checking the boxes for the judge and everything too, but, you know, you’re really being able to speak to them and. And read their minds, which, you know, blows people away for sure.

Well, the other thing that I had for us to talk about was, I know that you guys are kind of, you know, you’re getting [00:20:00] your system back online, if you will, since the pandemic and you came to my foundations course. So tell me a little bit, what made you decide to come to the foundations course? 

Keif Storrar: Well, I just, Well, I guess I found out maybe through one of your emails.

I’m not sure even how I found out about it. It must have been through one of your emails, but I wanted to do it because I want Our firm to start doing these more regularly and I want I know that that’s really the only way it’s going to happen is if we run it through the firm and I wanted to take the course because we’ve never run the virtual focus groups and I know there’s a whole recruitment side of it that you gotta learn and you know, even lots of great information in your course.

Like the how to prevent fraud. I mean, I didn’t even think about that until we had that as one of the workshop sections I don’t know maybe session two or three or something, but it was like talking about how to identify people because I didn’t even think about people from africa are going to try to freaking go to your [00:21:00] focus group or South america and you know get paid to you know, give an opinion on something that They’re going to have no connection to at all.

Elizabeth Larrick: They care. They’re living in a different 

Keif Storrar: country. And so, I mean, and then, plus they might not show up. I don’t know. I mean, there’s all sorts of things, but how to sort of identify those people. And I think there’s a lot of interesting things that you’ve obviously learned and probably struggled with for, I don’t know, maybe a couple of years before you kind of figured out, okay, how do we prevent these people from overwhelming us?

You know? So I just know there’s a different strategy. It’s just not kind of recruiting people locally on Facebook through late Facebook classifieds and not, you know, calling the A to Z staffing folks to round up, you know, 10 people for an in person focus group. It’s just different. And it’s more complicated in a lot of ways.

But you can also do it, you know, from, I guess, the comfort [00:22:00] of your own home or desk. And then, you know, I wanted to take it first to make sure that it was getting back to your, I guess, a question of why did I want to take it? I wanted to take it because I wanted to, you know, Figure out how to do it virtually, how to recruit virtually.

That’s my biggest question going into it is how the heck do I even start recruiting for this on the virtual space? Because, I mean, I know how to use all this stuff, but I’m not out there posting on Facebook and Instagram every day. So what are the sort of things we need to figure out how to recruit people for it?

And so I think that was the most important for me. And just sort of get the system back going and in place so that we can be up and running here, you know, within six, eight months or something. So that was the purpose. And then I, I liked what you said enough to kind of motivated me again to say, yeah, this is what we want to do.

And it was a great sort of reintroductory tutorial. And so actually my staff, I’m having them rewatch the workshops right now so they can go. [00:23:00] Understand what’s going on. Then I’m going to have them probably your next one. Take it from you in person so they can refine their questions because I think that’s the, you know, it’s going to take that to get us going.

You know, so 

Elizabeth Larrick: good. So find it beneficial. Did it help? 

Keif Storrar: Oh, very beneficial. Oh, it definitely helped. Yeah, I mean it. I mean, I gotta thank you for just putting it on because it’s. I don’t know. I guess I’m not out there searching the internet for these things. I get a lot of my like stuff so much promotions through the dream mail, but this is really only one that I feel like I don’t know if i’ve gotten another focus group promotion through email, but it’s definitely worth it Taking the course because I mean, if you’re interested in it and you want to do it because it’s a step by step outline and how to put these things together, which otherwise I know that I would just struggle through over and over and over.

And this puts me, you know, 10 steps ahead in the right direction. So, and that’s what I wanted. 

Elizabeth Larrick: Yeah, I don’t want people to struggle like I did, [00:24:00] because trust me, when I started running it was like, we had three 

Keif Storrar: people. I bet. I mean, I can’t imagine what you went through trying to figure out your strategy.

Elizabeth Larrick: Yeah, well, and it’s, you know, that’s the thing too, is like, you know, things, of course, I never anticipated that scammers would eventually, like, Oh, and then it was like, well, this is a new problem. I didn’t anticipate, you know, so I definitely want to pass that along to people because if the road gets bumpy, sometimes we just say, well, I’ve got so many other things that are difficult litigation like this.

Can’t, you know, all these other issues that we’re dealing with, like focus groups should be something that. Are, you know, manageable, pretty easy to put together. And then obviously, like you said, the fun part is like hearing them talk and being able to follow up, just like you said, and say, Hey, tell me more about that and just really being able to engage with them and just learn, you know, be a sponge and just learn from them and their point of view and just, you know, even if it’s different, even if it’s.

You know, completely off the [00:25:00] wall because even those one offs here and there, like does even that information and having that in your brain, when you do have to go to jury selection, you hear that person, you’re going to know, Oh, there was someone in my focus group. I know that this personality. Right. And so it’s like, you end up storing it back there.

It, you know, it, it’ll come back to you or someone on your team too. It was like, wait a second. We know this personality we’ve had before. 

Keif Storrar: Exactly. Yeah, no. And yeah, I mean, going back to just the program itself that you put together, though, I mean, I was just thinking, because you said you have so many other things going on.

I mean, I know that if I don’t sort of set a deadline, my task is going to get lost in the pushback, pushback, pushback. And I knew that I needed sort of a pushback. More of like a policy book on how to get these things moving because otherwise I, I wasn’t going to develop it on my own. And I think that’s the probably the most beneficial thing.

I printed them out, you know, your little workbooks because. It gives you kind of step by step. Here’s what you’re going to do, how you’re going to do it. [00:26:00] And, and now I can sort of, now I can set a timeline for me and my staff to start moving into that direction. So, but yeah, I mean, overall, the, what you said, the information you get is just incredible.

We just don’t get that information even from friends and family because the way we’re explaining our case is bias and and then they like us and you know, so it’s just great to be able to present it in a way that you can get some really honest feedback about if you’ve got a good case or not, you know, 

Elizabeth Larrick: yeah, that’s I mean, that’s half the battle too is just like they’re great for that that point to like, you know, Do I keep investing more money in this case?

Like, 

Keif Storrar: yeah, 

Elizabeth Larrick: that’s a lot of what people have to decide. And that’s so hard when you work on the plaintiff side, because you have to really manage that. And this is where I think people, we, we spend oodles and oodles and oodles and oodles and oodles of our time, but then we realize, oh crap, we’re just, we’re going to have to invest in that expert and we’re going to have to, but people just, you know, it’s really difficult because you’re, you’re on the line.

So [00:27:00] that’s where I love it in focus groups for them to kind of direct. What do you need? What do you not need? You know, and that’s another super helpful thing that just a very neutral focus group will tell you that people, they’re clueless about what the rules are for daycares, like, or whatever it may be, you know, whatever your case is.

So. Well, awesome. Well, Keif, do you have any advice? So we’re thinking about the listeners, folks who are listening, do you have any advice for any lawyers who may be on the fence about doing like these little small snippet focus groups or doing virtual? 

Keif Storrar: I guess my advice would be, try it, you know, and if you can’t do it yourself, hire another person, you know, pay for the hour slot to have someone else run your focus group so you can watch it and see if it was successful, see if it got you what you wanted, and you know, working with people like you or these other folks that do focus groups a lot, they often have success.

Thank you. I mean, a whole background of knowledge of here’s how you want to present. Here’s how you don’t want how to talk about this issue. What type of focus group [00:28:00] you want to run. So, you know, if you’re on the fence, meet with someone like you, you know, Elizabeth first and have her go through your case and tell you the A or an A to the types of questions you have and have her run it or, or, you know, Maybe if you want to run it too, if it’s one of those where you rent out like the hour space in front of the folks, but you know, see if it’s something that works for you in your case.

And I mean, I would imagine 90%. Yes, you know, 99%. I mean, and the other thing is now everything can get recorded so easily, like auto transcripts come in like an hour and then you can freaking look at it. What people were saying. I mean, everything is so much easier virtually before I had to go back and rewatch.

I still will rewatch the videos, but you know, you get the transcript. You can do these quick summary. You can look back to later and folks like Elizabeth can show you how to do that so that you’re not having to scramble. to try to watch a two [00:29:00] hour video, you know, the week before a trial, you can go back to the focus group breakdowns and say, here’s what these people who thought were important or here’s, you know, this type of person is terrible for our jury.

You know, it’s a someone that just who knows whatever the categories are for us. a slip and fall, you know, or whatever daycare person and that you’re going to find people by analyzing the results and where you can focus your voir dire and figure out, you know, what’s a good person, what’s a bad person.

And right away, before you even go into voir dire, you know, that these 10 people on your jury pool of 60 fit the criteria of a bad juror. So you’re going to be real skeptical of them right off the bat because of some of the things that you get out of focus groups. So, I think that’s, you know, if you haven’t done them, go work with someone that has like Elizabeth and, you know, try it out.

I think you’ll find it to be beneficial. 

Elizabeth Larrick: Yeah, try it out. I love that [00:30:00] because that’s really half the battle is Things change all the time for trial. Things change all the time for our, you know, plaintiff’s personal injury work. And it’s like, you have to be willing to kind of try something new that may be out there.

And there, like you said, there’s so many more pieces of technology that make it easier. Now, like you said, the transcript is immediate. I remember having to go and literally transcribe my own videos. Like, Oh my gosh, there’s gotta be a better way to do this. But now, like, you know, and even, you know.

Everything catches up eventually to kind of make it a little bit easier. So I do appreciate you. That’s some great advice. So just try it. Cause again, you know, there’s not been one where I haven’t run where somebody is not like, okay, all right, I got it. I learned, you know, even if it’s just like one nugget and sometimes the one nugget is, I got to sell this case.

Keif Storrar: You realize, I know, very helpful. 

Elizabeth Larrick: All right. Well, thank you so much for coming. And I appreciate that. And we’re going to have all of your contact. [00:31:00] In the show notes for people, you know, all that good stuff, but I just want to ask if they’re, you know, let people know just here. We’ll give you a couple seconds here.

Tell people, you know, I know you’re on linkedin so they can connect with you on linkedin if they have any questions, if they got, you know, something coming up in Montana, what is it that you and your firm are doing right now that you just say, Hey, we’re the best at this. Like, come talk to me. 

Keif Storrar: Yeah, well, we’re a full time plaintiff’s practice, personal injury.

And, uh, What we’re really specializing in now is more of the truck, larger truck cases. Montana, you get a fair number of those every year, as well as just car crash cases. I mean, I think a lot of plaintiff’s firms have their background car crash cases, but the truck litigation is what we’re specializing in now and going down that road a little bit more.

So if you ever have a case in Montana, you know, let us know. And we’d be happy to partner with you or, or help you out, you know, if you have some questions, certainly. 

Elizabeth Larrick: Yeah, and trust me, if [00:32:00] you don’t know this. Montana has a very, very small bar, and they all go to the same law school together. All the judges, everybody.

Yeah. So everybody knows everybody. So this is a place you really want to get local counsel. Okay. Yeah. That’s for sure. So awesome. Well, thank you again so much for joining us. And all right. If you enjoyed this podcast, please rate and review on your favorite podcast platform, and also push that little plus button to follow and get the episodes automatically downloaded to your phone or device.

All right. Until next time. Thank you. Oops. It’s Elizabeth. I forgot to mention something and I definitely want to make sure that I get it in here. And that is Keif talked about the online class, the virtual focus group foundation course. And I wanted to mention if you are interested or maybe, you know, somebody who’s interested, please share the episode, but also click in the show notes and find the contact form, fill it out and get on my email list.[00:33:00] 

Because that is when I will announce the opening for the next course. All right. Thanks so 

much.

Can you really trust your instincts when it comes to trial preparation? In this episode, we uncover the hidden pitfalls of overestimating evidence clarity and the transformative power of focus groups. Drawing from extensive experience with over a thousand focus groups, we reveal why lawyer assumptions often miss the mark and how understanding the jury’s perspective can be a game-changer in the courtroom.

Learn practical examples of cases where the evidence seemed crystal clear but proved to be surprisingly ambiguous. We’ll also discuss the importance of not relying solely on recent jury verdicts or seasoned instincts and explore how focus groups can offer invaluable insights into how jurors interpret evidence. Don’t miss this essential guide for trial lawyers aiming to refine their courtroom strategy and build stronger connections with juries.

In this episode, you will hear:

• Why you shouldn’t base your assumptions solely on experience or recent jury verdicts
• Video evidence revealing driver’s responsibility
• Challenges with video evidence in court
• Avoiding communication mistakes in legal strategy

Follow and Review:

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

Supporting Resources:

Want to learn more inside tips and tricks for jury research and focus groups?

Sign up for Elizabeth’s monthly email list by visiting: www.larricklawfirm.com/connect

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.

Episode Transcript:

Elizabeth Larrick: Hello, and welcome back to the podcast trial lawyer prep. I’m your host, Elizabeth Laird, and thanks for being here.

This is a podcast dedicated to lawyers building their cases, litigation cases, talking about personal injury, employment law, business litigation, and a lot of things we talk about [00:01:00] can apply to other areas of trial law, including criminal defense. And we’ve spent some time over the past couple of episodes talking about virtual focus groups.

And I want to just stop and point out, I would say, a mistake that I see lawyers make real often. And the reason why I see this is because people come to me for focus groups, for developing for trial, getting ready for trial, getting ready for maybe a big mediation. And Or when I’m talking to lawyers, just casually, you know, networking events or whatever, we talking about focus groups and what I will hear are these assumptions, right?

Oh, it’s all very straightforward. We don’t need a focus group. This is all very clear or this is all on video. So it’s very clear liability or, we have got, you know, those gross negligent facts, those punitive facts. We’ve got that in the bag. Not even worried about that. You know, jury’s going to give up just, Dumb money on this thing, [00:02:00] and I think that when we make those assumptions, we are really far from reality because unless you’ve done focus groups, we just don’t know what jurors think, and we’re taking this huge risk.

And what I don’t want you to do, listener, is to make the same mistake because what happens is we begin to overestimate pieces of evidence that we think make it all very clear. Oh, this is just super clear. Now, of course, we’re using our lawyer eyes and not non lawyer eyes, right? Focus groups, potential jurors to make the assumption.

So, and the objection that I hear a lot of times when I talk about this, like, well, you might not know 100 percent of that a straightforward is well, listen, we’re making an educated guess. I’m very experienced lawyer. And you know, there’s these recent jury verdicts that support all of this and. What I [00:03:00] always say is, you know, you can’t entirely base your assumptions based off of experience or recent jury verdicts unless it was yours, right?

Unless you were there every day to know what the jury heard, how they heard it, and how things happened every day at trial. I mean, it’s very difficult. There’s not a lot of research on how. jurors make their decisions. Okay. So that’s why we do jury research so that we don’t walk in knowing or overestimating.

And so in my experience over a thousand focus groups, it’s really never as clear as you think it is because we think like lawyers, right? So we’re thinking through the elements. We’re thinking through rules of evidence. Oh, this is super clear. However, non lawyers. We’ll think of a thousand other things that make it unclear.

And so what is happening more and more, when we think about overestimating on [00:04:00] pieces of evidence, like what I’m seeing more and more are we have things on video, right? We have our crashes on video, or we have surveillance video. We have some things that. Our video, and that’s, jurors expect that we should have all this, video stuff.

But so what I want to talk about are three really recent examples where it was not as clear. We, they, we came in, right? Lawyer came in thinking this seems really clear, but I’m going to trial. So it must not be that clear because they’re willing to roll the dice. I don’t want to take the risk of not knowing.

So in that particular case, we had a rear end collision where an 18 Wheeler. Going down the highway and last minute, you know, jerks the wheel, but hits the back end of a dump truck going 62 miles an hour. Of course, that’s all in the video, right? So let’s just, again, let’s take it back and just think if we just have a video, right?

And that’s all that we can see. We don’t hear anything. And just based on that video, right, people are, hey, [00:05:00] why didn’t that car get out of the way, right? Why didn’t they should have seen that huge dump, that 18 wheeler coming. Man, they were just going way too slow. What were they doing in there?

They must not been paying attention. So just based on this super clear video, they were still going to tag, right, some responsibility on the plaintiff. And once they had the additional facts, all in writing documented. That the 18 wheeler had actually fallen asleep driver had fallen asleep and totally admitted to it, by the way, that helped things.

But even when we got into further, you know, discussion, one of the things that is maybe obvious to us as a lawyer, which is, You know, this was inevitable, somebody’s sleeping, driving down the highway, they’re going to run into someone or something. It wasn’t to them though. And so that’s kind of one of those things where it’s like we may make an assumption, Oh, look at these facts.

They’re going to know where this is going to lead, right? I don’t need to lead them there. But [00:06:00] that’s one of the things I see often as well as we’re making that assumption that they’re going to get there, but they don’t. Then that’s kind of where it’s like, okay, hey, they’re never going to get to this place.

They’re never going to get to that conclusion. You have to get them there. And how can we get them there without basically forcing them down this road? What are the little breadcrumbs that we need to give them? And then knowing they’re not still maybe not going to get there and you have to actually say it.

So also another good point about making an assumption that they’re going to get there when they never do. Another example is. Had some body cam footage immediately after a multi car pile up on a highway and all the cars are still in the same spots, right? All the drivers are still there. We got some body cam footage and, police officers asking people what happened.

And in the video footage, even the, or the, main car vehicle responsible says, you know what? I was answering the phone. I was on a phone call. So I was doing two phone calls at once and, just, you know, didn’t stop in time. Tried to, and [00:07:00] then our plaintiff is like, yep, saw the 18 wheeler and they crashed right into me.

Couldn’t stop, ran right into me. And then the next vehicle they just had pictures of, and they just said, you know what? It’s just, it’s all of them. We’re not really sure. We’re just going to put fault on everybody. Even though we had it like, you know, basically a good confession, right? It was not clear to them, right?

They needed more information, more input. And again, last example here is recently again, we had some video footage of a collision at night. Now these are always a little bit more challenging because the videos themselves are difficult to see. Like you just really can’t see anything. And that’s really what happened was what felt like.

Fairly clear. And again, this is us, as a moderator pointing out, okay, look here on the screen, it still was not very clear to them. Of course, they blamed both when they’re confused. And even when we added information, meaning we gave them more facts about, okay, here’s what the computer data revealed [00:08:00] out of each vehicle, you know, 20 miles an hour over here.

85 miles an hour over here, right? We still had this, kind of confusion and blame all around. So it’s not as clear as you think it is. And so it’s, while it feels great, we have pictures, we have videos. It’s not necessarily this magic wand that we get to wave that makes it super. easy to meet what the jury wants to see.

So we may be meeting our evidentiary burden, maybe clear to the judge. Maybe we can make an assumption about that too, but really we don’t want to be assuming or overestimating what the jury is going to think. Again, going back into what is our non lawyer experience? Well, they’re watching videos and they’re short, right?

They’re all our videos are during longer than we ever want them to be, but You know, they’re watching TikTok videos or watching videos on Facebook, anywhere. I mean, even short news videos, right? They’re all very, very short, sweet to the point and they get there. And so they don’t have to do a lot of [00:09:00] heavy lifting.

And so when it’s not, it may be clear to our lawyer minds, it’s not always going to be super clear to them because that’s not their necessary background. And that’s why we say like, you know, while it feels very clear what the jury wants to hear and see is always a little bit of a moving target. So that’s why jury research is so important.

And. My three examples that we talked about, we didn’t talk about damages, right? And causation, which is another sometimes place where we can skip ahead. Like if the pictures look really gruesome, maybe they’re injury pictures, maybe they’re vehicle pictures, right? Then, we sometimes feel like, oh, they’re going to get there.

They’re you know, the causation won’t be a problem, but I’m still seeing, we still need to step by step that mechanism of injury because it’s not as clear as they think and they’ll hang their hat on something else, right? So again, When we have this risk, where I see it playing out is when I have the ability to see some of our demand letters or our mediations that we’re doing.[00:10:00] 

And we’re making a lot of assumptions in there. And that’s very easy then for the counterpart or the other side to be like, yeah, no, right? Because again, they’re seeing it from a different set of eyes. They’re like, yeah, no, this is not super clear, right? That’s why we’re willing to roll the dice and go to trial.

Like these three examples, right? These are all examples that. They’re going to trial. This was not a, Hey, this is a KPS prep. These were trial preparation focus groups because it was like, what? This seems so abundantly clear. What are we missing? And that’s what I want you to be thinking from the very early on, right?

What are we missing right now? Before we go take these depositions, let’s play these videos and figure out what is missing. What is unclear? What are they thinking? What are they taking away from these things? And what are this place where maybe we need to breadcrumb and get them to their conclusion, right, that we want them to, that’s there, but maybe, takes a couple extra leaps with more facts.

So I don’t want you to take this risk, right? I don’t want you to make this mistake because [00:11:00] we could spend some dollars now on jury research, right? Doing some virtual focus groups to avoid spending thousands. on our trial and losing, right? That huge risk when we could just figure out what’s missing, what overestimates am I making?

And we also can end up making a lot of communication mistakes when we do that, right? So the way we may talk about how clear it is, And then we’re overestimating and then they see it and it’s not as clear, there’s a huge mismatch and we really don’t want that for you when you go to jury and like, wait a second, that’s not clear, that allows them to pick you apart and that’s, we don’t want them to happen, right?

So we don’t want to overestimate, we want to have that, any language we’re using matching up. And connecting with where they are so you’re going to know what questions they’re going to have and then you can answer them and you can do that in your demand letters and your mediations, right? And you don’t have to say, Hey, we did jury research.

You just know it, right? You can just use it in a different way. [00:12:00] So. I love the fact that we can take virtual focus groups and test these things in pieces instead of feeling like we have to wait until the end to do large, heavy, cumbersome mock juries with the whole thing, right? Smaller focus groups, looking at things, we can do abbreviated versions, easy to target what we need and get targeted feedback so we can get what we need and move on and avoid any kind of assumptions that we may be making about what jurors think about are quote unquote very straightforward.

Okay. I hope that this was helpful. If you find yourself making assumptions, just, you know, hit the pause button, right? Okay. Wait a second. I’m making an assumption about how clear this is. How can I go and either prove myself right? If you want to make it that way, or just, figure out what the jury wants to hear.

Either way is fine by me. I just don’t want people to be making this assumption or overestimating on pieces of evidence [00:13:00] that are just not as straightforward. Anyhow, I hope that you enjoyed this episode. If you like it, please like and review on your favorite podcast platform. Follow it as well to get update episodes when they come out.

If you want more detailed information, like getting in the weeds with me, join my email newsletter list, which will come out once a month. But the ability to do that is in the show notes through a connection. And if you have any questions, please always feel free to email me as well. All right, until next time.

Can a one-hour virtual focus group transform your trial preparation? In this episode of Trial Lawyer Prep, we uncover the groundbreaking benefits of incorporating virtual focus groups into your litigation strategy. By pinpointing what juries truly want to know from the outset, you can streamline your discovery and deposition processes, ultimately saving time and resources. Whether you’re navigating personal injury, employment law, or criminal defense, learn how this innovative approach to case preparation can align your strategy with jury expectations, enhancing your courtroom success.

Join us as we break down the strategic advantages for different types of cases, from car crashes to medical malpractice. We also dive into the intricacies of using virtual focus groups to identify key testimony areas, sift through complex violations, and prioritize the most impactful issues. Plus, learn follow-up instructions to ensure you maximize the effectiveness of these sessions and be ready to revolutionize your litigation practice. 

In this episode, you will hear:

• The benefits of using virtual focus groups to refine case strategies
• Understanding key issues in car crash, trucking, and medical malpractice cases
• Efficient case preparation through third-party opinions

Follow and Review:

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

Supporting Resources:

Want to learn more inside tips and tricks for jury research and focus groups?

Sign up for Elizabeth’s monthly email list by visiting: www.larricklawfirm.com/connect 

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.

Episode Transcript:

Elizabeth Larrick: Hello and welcome to the podcast trial lawyer prep. I’m your host, Elizabeth Larrick, and I’m excited that you’re here with me.

This is a podcast dedicated to lawyers working through their litigation cases. Whether you may be personal injury, employment law, we [00:01:00] do a lot of plaintiff’s talk, and this also could be applicable to criminal defense lawyers as well. Busy in business litigation. We have a couple of examples as well, but this.

is dedicated to folks who are building their litigation cases. up to trial. So we talk a lot about trial preparation, but we also really focus on for me case preparation because when I worked as a lawyer and had my own law firm, we spend so much more time in case prep than we do in trial prep. So what we have been doing lately is talking about using virtual focus groups as case preparation.

And I’ve had some folks come on and talk about using virtual focus groups. I’ve talked about them here and today that is what we’re going to do as well. So we are going to talk about virtual focus groups from a standpoint of saving you time, right? Maybe this is a time management tool, possibly. Okay.

There are lots of great time management tools out [00:02:00] there. We are all have the same amount of time. It’s really how we use it. And so what I want to talk about is using a one hour virtual focus group to help you manage the time. You’re spending on a case because we all have a large caseload. Okay. There are maybe some folks listening in who have five or six, and that’s awesome.

I totally applaud you, but I think most folks listening probably have more like 20, 30, 40, and help you if you’ve got 60 to 70. So. But really, there’s always a baseline of time that we’re spending on all litigation cases, right? There’s always going to be time on discovery. There’s always going to be time on depositions, and there’s always going to be mediation time, and it’s not just time that we spend In those things, but also in the time creating and preparing and then reviewing all the information we actually get from discovery.

So a lot of times we use time [00:03:00] hacks already, like forms and discovery templates. And trust me, I was one of those people, too. Who just, hey, who has one of these and can I send it now? Ultimately, I don’t know if it really saves you time because you have to spend more time on the back end, reviewing all of that information, reviewing all those discovery documents that come through.

And then, you know, you spend a lot of time pursuing, getting those actual answers that you may need. So what I want to think about Put in your mind is what if we had a way to shortcut, right? Spend less time in that discovery deposition to really focus on what the jury wants versus what we think they may want, or kind of just going through the motions.

Now we’re talking about one hour here. Okay. And so we’ll talk about how that really fits in as a time saving device, but also You know, saving time will also save you money. So if we don’t know [00:04:00] what the jury wants, we end up sending our templates. We end up just kind of guessing. We want to see everything possible.

We spend extra hours in our depositions on all kinds of questions, which, you know, In the end, we’ll then spend, have us spending more time doing those page and line designations, going back through all of that to figure out, okay, where do we have more berries in the bucket? And we may actually spend more time doing focus groups because once we have all of this information, then we have to basically maybe take all this and then edit it down for focus groups.

So what if we could just do a virtual focus group early in litigation to help us Fine tune where we’re going to spend our time and our energy pursuing things that really light up the jury versus kind of trying to get everything. The objection that I normally get about [00:05:00] this is, well, I won’t have enough time.

I won’t have enough information to do a focus group yet. I want to get more information. And that may be true. I’m gonna put a maybe there, but. Remember, we’re just talking about one hour. So if we really look at how much information do we need for a one hour virtual focus group, we’re really just talking about needing 15 to max 20 minutes of information because we want to spend more time talking to them about just the facts.

Now even at this point in time, you would have filed or be ready to file. So you would know what possible positions that. is going to be taken in litigation. So you already know, Hey, this is the story that this person’s going to tell. And this is what this person’s going to say. So you can already kind of put some of those facts in there, but what it can do is just test those facts, right?

And. If we [00:06:00] wait, so let’s just think, okay, let’s just wait. Then we have, again, this huge job of editing down all this information and choosing what we’re going to take to the focus group. But no matter what, we still have to test those facts. They’re still going to gravitate towards those facts, but we’re going to have waited.

into the weeds, right? So it’s like, okay, so, you know, we can walk into the swimming pool and, and, you know, just wade in or people can just jump off the deep end. And what happens if we jump off the deep end and we give them too many facts, it’s too confusing way too quickly. And we never really get any good feedback on just the facts.

And those are super important because that’s where they’ll go, right? They can’t figure out where people are. There’s too much. It’s super confusing. We’re trying to lead them to this conclusion. And they’re just like, no, this fact over here. So we really want to make sure we know what our facts are. And that’s how that one hour virtual focus group can work because that will give you what the blink reaction people are having to the facts.[00:07:00] 

They will tell you what their immediate assumptions are. What are the inflammatory facts? What are issues that intrigue them? And what are ones to them that are already closed down? Closed and shut, like not even a discussion point. You want to know that. You want to know what expectations that they’re having immediately of the people involved.

Right. Think about a car crash like they have a lot of expectations about drivers and driving because they do it every day, right? So there’s a whole big, you know, pile of expectations that people are having when it comes to car wrecks. And trust me, you may think this is super clear. Elizabeth, we have a video.

We have a, we have a video perfectly of the crash and. It’s just never as clear as you think. Like they’re always going to find some kind of factor, some other things. So you, especially in a car crash case. Okay. Cause again, they do it all the time. So they have a lot of expectations around it. Other cases are different.

We’ll talk about those [00:08:00] examples, like trucking cases or bad mal or other things that they’re business litigation cases as well. So, but on this particular point, And we want to be doing these early in litigation so we can learn all these things. And then that will give us the direction that we need to go, right?

Where are good facts and how can we go in that direction? Where are the ones that are bad? And how do we, maybe we need to go into that direction, but in a different way than we thought, right? So a lot of times what’ll happen is. From this very basic one hour virtual focus group, we will really kind of figure out where are people lacking knowledge and is it something that can be educated through people we already have, right?

Like maybe it’s an education point that can be easily done through defense witnesses, right? Maybe it’s something that, no, we need to get an expert on this particular thing. One of the examples that I have for this is In a daycare case, done a couple of focus groups recently for a daycare case and what we kind of found after doing, [00:09:00] you know, two of these kind of shorter one hour was like, there’s this gap of information for how a daycare is supposed to be run.

There are some assumptions, but there are just, they’re pretty far off base. And then. You know, to the point where it’s like, okay, the defense is not going to talk about these facts or these regulations or, you know, whatever this particular piece of education is. So, okay, great. This is where we need this expert.

Okay. So that gives a lot of direction for what kind of expert that you may need to go find. And really, Also the personality of the expert. I mean, experts run the gamut. I’m sure we all know there are some that are just fantastic teachers and there are some that are really bad teachers, but they’re just, they’re very good at doing like this thing we need them to do, but the teaching part, maybe not so much.

Again, we want to get this direction before we jump in and go down our usual path. It also will help, you know, Hey, maybe I don’t need to ask all those questions of discovery. Maybe I can shortcut this piece of the [00:10:00] deposition, you know, my depth template that I always do, but also maybe I’ll build more over here where there were these inflammatory facts.

So let’s talk about a couple examples. We talked a little bit about a car crash and I think for a car crash, a one hour virtual focus group is going to be great to give you those expectations, which are really going to help with nailing down your depositions for your at fault driver, but also really knowing.

where your client needs to talk about in their deposition. That’s going to help you with preparation and where to focus. And because a lot of times for, especially with car crash cases, because again, we have this, all this experience driving, like you’re, your client may not see that they need to be talking about how they.

where they were looking exactly and having that seatbelt on and a couple of just really small things that make a big difference to folks and making it abundantly clear. And I think that’s where a lot of car crash cases get a little caught up in [00:11:00] litigation going farther because there’s Deposition testimony is so unclear, right?

And so it’s like, well, yeah, we’re going to roll the dice because this is not clear, right? And if this person can’t testify clearly about it, like we’ll roll the dice because car crash could be anybody’s ballgame at jury trial. So let’s talk a little bit about maybe a trucking case, right? These, those trucking cases, you know, we have lots of discovery because we want to know, we want to see these documents.

We really don’t know how are they running their business, these applications, these files, driver files. We really want to find out how many violations can we find now, most folks who do trucking cases, when it comes in the door, you have this whole level of investigation that you do, right? You’re going to do all the open records, your question, you can find, you’re going to go safer website, you can grab all this stuff, then you’re going to get even more and discovery.

And sometimes it’s really figuring out. which violations have the most bang for the [00:12:00] buck because you could have a trucking case that has 20 or more violations, but not all violations are equal. Right? So the example that I have is there was a case that I helped work on a couple of years back and the lawyer became very fixated on the application being wrong.

It didn’t follow the rules. And they always use the application. They didn’t fix it. And this guy filled out the wrong application and the actual facts, the case we’re about making this turn a jug turn versus not doing that. Anyhow, we don’t have to get into that part of it, but he got so fixated. He ended up building a very large piece of the case around this bad application.

And it was like, where is this coming from? And he’s like, Oh, it’s just so egregious. And it was just really built up about it. But I was like, but what, but focus groups don’t even mention this. And so it’s like, Oh, so you got to drop that, right? So he ended up having to edit all that out before they went to trial because.

It wasn’t anything that was inflammatory at all, right? [00:13:00] And so again, having a little bit of direction when you have, again, you may have all these violations and a lot of them you may know about before you even file, right? Again, thinking about trucking case and what we can find out about trucking companies and all the information that is available for open records and having them to kind of wade through.

But having that initial blush with the facts. With walking people through some of these violations to figure out like, okay, what’s your expectation here? Like, is this an issue that intrigues you? Like, would this be something you’d want to know more about? Like how is this even remotely tied to what happened on the day of the crash?

Right. So asking some really just open questions to figure out what people really want to see, know, and understand versus guessing at it. But also I think in a trucking case, you could have this flat, really a large gamut. And needing to know which is inflammatory and which is not. Cause again, you could spend hours and hours in that position going after.

And again, we’re setting aside the fact that you may obviously have [00:14:00] some opposition that doesn’t provide all the things and you have to go out and do all those anyhow. We’re just talking about finding kind of that inflammatory information early. Then you really can start having a direction, pushing things in the, you know, into the area that you want versus kind of again, running the gamut and trying to chase after everything.

Another example is a MedMal case. Typically, again, MedMal, you’re going to have the records before you file a lot of places, including Texas, have a requirement for a report even before you’re allowed to file. So you’re going to look through all these records, right? You’re going to find probably all several violations, right?

Nursing violations, doctor violations, like policy violations, like all these violations. And really, You want to know just on the basic facts, right? Like what makes people mad? Like, what is their blink reaction to this? If it’s an emergency room, is this just how it always is? And we’re just stuck with it because it’s an emergency and the doctors are just doing their best.

You want to [00:15:00] know all that before you get in there, because you want to know where to spend your time and what to pursue. This came up recently for a series of focus groups that I have done. In a med mal case, and we always start at the basics. We start with a one hour because we want to know just at a base level, let’s look at these facts.

Let’s check out this timeline. What happened to this patient and what, what makes them mad? What doesn’t make them mad? What would we assume, you know, Ms. Upsetting, but maybe it’s not to them. Like, so, And then we did it again, because, and again, in Mad Mal, we’ve got lots of facts to test out before we get into a little bit deeper of the medicine and causation and those kind of things.

But typically you always want to start out with a short one hour virtual focus group to figure out what do they think about the facts. What I’m encouraging you to do is do that early. Do that before you get dumped on with all these facts and all [00:16:00] these documents, right? Do that very early on. In the case, you can do it at filing, you can do it before filing, do it right after that first discovery, if that makes you feel more comfortable, and then just run it to see, again, what we’re looking for, expectations, immediate assumptions.

Issues that intrigue them, places they want to know more, inflammatory facts, and again, test your own assumptions, right? Please form it into a question that doesn’t reveal your bias. You know, ask those questions early on. Get that information early on to give yourself direction to know how do I spend my time.

Building up the theme, building up the story that the jury wants to hear. Not necessarily that I want to hear because if we don’t know, our lawyer brains will go after, all right. We want to know it all. That’s we, we do like that is we are very inquisitive. We’re taught to be that way. It could be this, it could be that.

Let’s go get all this information and that’s great. [00:17:00] Trust me, those are all good things. But if we had just a little bit of information, right, that will significantly give you more direction, which will then be able to save you time versus going after all of it. And of course we go, we should make a guess, right?

Based on Our past experience based on other people’s experience. We can make a guess about what the jury wants to know. But again, we’re just guessing and we don’t want to guess, right? Because we could go spend all this time pursuing this particular casing that we think is important and that doesn’t help because if they think it’s something else, right, you’re going to lose and you spend all this time and generally time equals money, right?

Experts, more depositions, longer depositions, extra questions, more discovery. Pursuing that discovery, you know, to get it if you need to have the other side, you know, it’s just a lot of time and energy and money that can go into that. Where if we had just a little bit of direction that will significantly help you.

And also it gives you a lot of confidence to know I’ve checked [00:18:00] in with non lawyers. And here’s where they are, and that’s great. And this is different than checking in with our family members, our church groups, our people that know us, right? We’re checking in with a group of non lawyer strangers. You’re just going to shoot to me straight because they’re here.

This is their whole purpose. They know they’re supposed to give me their opinion. That’s what we want to do. So, We want to save you time. We want to use these as an effective case preparation tool. Our one hour virtual focus groups. Okay, because we want, we don’t want you to send extra discovery. We don’t want you or your team to have to spend more time reviewing documents that don’t make any sense or that aren’t going to be used.

And we really want to, again, set you up for success when it comes down the road. If you do have to go to trial, you’ve got very easy depots to do page and line designations. Right. We might not have to have all those fights for completion to play all this boring stuff. It’s going to put everyone to sleep and they’re going to miss the good stuff.

Okay. So we want to [00:19:00] have a tool that is effective and efficient. It’s one hour here, a virtual focus group to help get you on the right path. And so that’s how it can save you time. We’re going to be better about sending discovery that’s pointed at what The jury wants better at asking questions that the jury wants to know.

And again, that’s just going to set you up for cleaner, smoother mediations. And again, easier transition into trial and more focus groups as well. So think about that saving you time when you’re going to do other focus groups, you’re going to kind of already know, okay, he will just set up the story the same way we did before.

We feel confident. We already know what people are going to say about that. We expect, we’re just going to hear that echo again, and we’re going to get deeper into the facts. deeper into deposition testimony than we could get if we had to wade back through those facts and then get into that deeper water with those documents and deposition clips.

Okay. I hope that this was helpful. If you have questions, please don’t ever hesitate to email me. My email will be in the show [00:20:00] notes. And if you are interested to learn more about, get deeper into the weeds here about virtual focus groups, please sign up for my monthly. Email list. The link will also be in the show notes.

And of course, if we’re not friends on LinkedIn, please follow me or connect with me. All right. Until next time, please rate review on your favorite podcast platform. Thank you.

Have you ever stepped into a focus group with the battle-ready mindset of a courtroom lawyer, only to realize it’s like bringing a sword to a tea party? Joins us to untangle the art of moderation, guiding attorneys through the key mindset shifts that can transform focus group feedback into pure gold for trial prep. 

Understand the nuanced dance between asking questions and listening intently – emphasizing the power of neutrality and curiosity to coax out the raw, genuine insights that are so crucial to understanding how a jury might think. From a checklist that strips away legal jargon and biases, to the delicate skill of presenting cases in everyday language, this episode is a masterclass in the subtleties of legal research. 

Whether you’re seasoned in the world of focus groups or stepping into this space for the first time, this conversation is a vital tool for any attorney looking to connect more deeply with clients and juries. Tune in and learn how to steer clear of confrontational instincts that can muddy the waters of valuable feedback, and how to lay the groundwork for focus groups that truly inform and enhance your trial strategies.

In this episode, you will hear:

• The need for lawyers to shift mindset to a neutral focus group moderator
• Techniques for bias-free legal focus group research
• Mock juries vs. focus groups in trial prep
• Using neutral language and open-ended questions for authentic feedback
• A detailed checklist for attorneys to organize and guide focus groups
• The value of focus groups in enhancing cases by understanding jury perspectives

Follow and Review:

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

Supporting Resources:

Want to learn more inside tips and tricks for jury research and focus groups?

Sign up for Elizabeth’s monthly email list by visiting: www.larricklawfirm.com/connect

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.

Episode Transcript:

Elizabeth Larrick: Hello, and welcome to the podcast trial lawyer prep. I’m your host, Elizabeth Larrick, and I’m glad that you’re here.

This episode, we are going to be talking about the mind set shift that needs to happen for focus groups. And what I’m really talking about and who I’m really talking [00:01:00] to is people who are running focus groups, and that’s different than mock juries and people who are interested. Maybe you’re going to get started doing a focus group.

You’re interested in doing virtual. This episode is for you. And we’re been doing a lot of episodes lately on virtual focus groups. So if you’ve just now listening in welcome, welcome, but also there’ve been several episodes that I’ve been doing lately, just to kind of talk about virtual and even as simple as doing a one hour virtual focus group.

So those are here pretty recently, just dropped in, I believe in March for that one or one. And then also just talking about with other lawyers here recently about doing virtual focus groups. And I think our last one had virtual plus. In person. So this episode is great for you if you’re just getting started, or maybe this episode is for you if you’ve been doing them, but maybe you’re just not getting enough information.

And so I do a lot of focus groups. Been doing [00:02:00] them for over eight years. I’ve got over a thousand hours a thou more than a thousand hours of focus group time under my belt. And what I see time and time again are some snafus, some things that maybe are holding us back as lawyers to get as much as we need out of focus groups.

So I thought this would be a really good episode to share some thoughts on it, but also I’ve got a little checklist for you, and we’re going to throw that in the show notes as well. But really, why is this important? And that’s because how we approach our focus group with our mindset really impacts how we present, what we present, and really how we’re moderating, asking questions, trying to get that discussion going.

And I see these really small, subtle things that happen because I have focus groups that I lead. But then I also focus groups that I put together that other lawyers lead and I’m there just as backup. [00:03:00] And so these are, you know, things that obviously I’ve made these mistakes before, but, you know, have been able to watch and correct.

And then also have other folks that I help and kind of coach along the way to help them do better focus groups. And I just want to pause. right here to say, this is different than a mock jury. Okay. If you’ve been listening to the podcast, looking at some of the things on my, on my website, you would see like, my goal is focus groups.

Okay. Because that’s the way that I have been taught, but also what I’ve seen really work well is the smaller size focus groups to basically research versus doing At end all be all, all day, six hour, one side versus the other side openings, fake judge, the whole thing. That’s a mock jury. And if you want to know more about the differences, I put together an episode that’s episode one Oh one, but also there’s a blog on my website as well.

So what we’re really talking about today though, is that focus group, and this is virtual. Or this is in [00:04:00] person. So either way, this mindset that we need to kind of shift into as lawyers, right? Or staff. I just don’t want to also say that too, because a lot of lawyers that I work with have staff members that either set them up or they’re a part of watching or even presenting.

And people do that because they know sometimes they’re just too passionate. And so having staff help and present is always a great way to do it. You know, if we have great staff, they also get impassioned and emboldened. And so sometimes this can happen. For us as well, we have a little bit of a mind shift and that’s kind of where I want to spend time today talking about because the key element of a focus group is that, you know, we remain neutral, open, curious, right?

We want to know more and we really want to make sure that we’re not exposing our preference or our bias. Unless that is the style of the focus group. But even so, thinking about moderating, asking questions, right? This is a really, again, key element. We want to make sure that we are remaining neutral and open to [00:05:00] make sure we get everybody’s thoughts.

Because we don’t want to immediately influence our group. When we do, right, we’re already queuing things one way or the other, and we really don’t want to try and influence folks that way if we’re trying to remain open and neutral and get more action. And that is a lot of what I use focus groups for, right?

We’re talking about doing just a neutral set of facts. What do you think? Maybe it’s just a concept, right? Stroke. What does that mean to you? Or maybe we’re talking about what, what kind of rules apply in a daycare? Right. Who goes to a daycare? Right. What age kids? And just to kind of get information and sometimes people like to practice.

What do you write? And other times we’re doing focus groups where we maybe we do have a slanted presentation. However, our moderation, right? Our questioning should be very neutral, right? So, yeah. There’s still going to be a mindset shift in here, okay? Because our goal is always to find and create the best case for the [00:06:00] jury, the folks that make the decision.

We can keep in our mindset the whole way, build the case up, thinking about what we think is safe. true, what we think will win. And it could be the complete opposite to the jury members. And then we just miss it. We don’t really understand it. And then we lose. And then they tell us in the hallway afterward.

So we want to avoid that. And that’s kind of why I’ve always used, when I read my own practice, I use focus groups for this exact thing. If I saw something that looked like red flag, right, then I’m like, okay, let me go take it to the folks group to see, is it a really a red flag? Do I need to work more on this?

Or is it not as bad? Right? Maybe there’s some facts in there that alleviate it. But either way, those focus groups were always a huge guideline for me for putting cases together. So let’s talk about our lawyer mindset, right? So when we talk about shifting our mindset, I’m talking about our lawyer mindset to a focus group research mindset.

So thinking about our lawyer minds and where they’re all created, right? Law school. [00:07:00] And that really has, makes a huge influence on our brains, including the language that we use, how we talk about things, and then we move into practice and everyone around us, right? Other lawyers, judges, the court, we’re all using the same kind of legalese.

talking about things that way. And then we kind of get also in another mindset of thinking about it very differently than regular people, but also thinking about like myself. And of course, other people who like personal injury work, plaintiff’s personal injury work, employment work, criminal law defense, right?

Your job is really to win and you’ve got a client who depends on you, but also you’re running a practice that needs to make me. And there’s always a little bit of, of risk. Right. Because we are on a contingency fee. So there is a lot of pressure going on to win to put together, you know, make the most money, you know, make the client happy.

And there’s also a lot of confrontation that goes in really at any level, right? [00:08:00] Lawyering confrontation comes in and kind of cross exam style. And that’s pretty normal to us, right? I mean, people are gonna, you get into the courtroom and guess what? You’ve got to stand up and state your side, right? Who you are, what are the claims, what are your, you know, so it’s always kind of this confrontational setup when you’re walking in to a presentation like that, either emotion or mediation or, you know, Even getting on the phone with opposing counsel, you’re constantly confronting somebody who’s is on the opposite side, or you’re having to basically pick your side out there.

When we talk about a focus group or research mindset, we’re really turning that to an non confrontational, neutral learning, right? Whereas the lawyer mindset is to win, right? Our research, our focus group mindset is just to learn, right? So we’re most researchers, if you go and Google focus group, right, there’s tons of stuff out there about setting up focus groups.

And they’re talking about the research style, right? [00:09:00] Marketing style. So You’re going to get a lot of information on that. Most of the time, though, it’s all the same. Use plain language, uh, be neutral, use open ended questions, right? And that’s because the whole purpose is to learn, learn everything there is to learn, right?

And then get behind that, figure out what’s backing up all those things. So two very different mindsets. And what happens is sometimes if we go into a focus group, And we don’t really even realize we’ve got this lawyer mindset going, right? We’re going to try and win, even though we know, oh, I can’t reveal my bias.

We do really very subtle things. And it could be just be things like saying my clients or my case, or a lot of times what I see is people will get. They’ll get argumentative, right? If you have a participant who has an opposite point of view to what you want to win the case, there can get a little, little argumentative, also kind of confrontational.

And this kind of comes in where, [00:10:00] you know, in doing a deposition, one of the best questions you can ask defendant or the corporate rep or you guys, why, why, why, why best one word question, right? That is not great for focus groups. And you may be thinking, well, how come? Well, a lot of this has to do with thinking about our size of our groups here.

You may like them small. I know lawyers who like six people in there. Nothing wrong with that. I know people who want 14 people in there. Nothing wrong with that. However, you now have small group dynamics, even if you are on zoom, asking people why it is a confrontational question, right? It also asks people, our brains actually go to a different side, right?

Instead of sticking with our thought, we can go over to kind of getting into it. Whoa, okay, now I’ve got to actually analyze it and give a little different response. So we really want people to keep in that train of mind, and a lot of, a lot of people talk about this, this is not anything new, asking, well, tell me more about, instead [00:11:00] of asking why.

The other thing that I see sometimes is people. And again, we do it as lawyers, agree, disagree, right? And the way that it works out in this small group dynamics of a focus group, someone will give an opinion. Oh, the light was green. Or, oh, it’s the purple. And then the follow up is, who disagrees? Now you’re asking, you’re pitting them against each other.

In a small group, it’s very, very difficult. As strangers, it’s really hard to get people to do that. Now, we may do that in jury where we’ve got 40 people. Sometimes we even have to manage 60 people or more, right? That’s a good way to cull the whole audience, right? People like, you know, somebody in the front rows, you know, disagreeing with the person in the back row, they can’t even see each other, right?

It’s very much more anonymous versus here, it’s very different. Confrontation is very different and what ends up happening is when you kind of start to create this a little more confrontational moment. It’s very hard for people to feel like [00:12:00] they can actually give honest opinions. And a lot of times people will start to reduce their participation now.

This also lets other people who have a big personality to take over the group. Now at this point, now we’re not really getting all the information that we need from these folks. We’re kind of now stifling our group. We’re stifling to get that information. And here’s the thing. These are very subtle things that can happen, but basically it’s just a little bit of an unnerving thing in us.

It’s like, Oh, kind of our gut telling us like, Hmm, this doesn’t really feel safe to share anymore. Or If the person, the lawyer reveals their bias, even on accident, like it’s still going to end up coloring the group. Some people will want to support and, and go with you, whether they like you or not, they agree with the position or not just because you’re the one paying them.

So a lot of really kind of subtle things that can happen. We’re just walking in being our lawyer minds, right? That’s, [00:13:00] you know, what we’ve been trained to do for years. So But if we flip it around and we think about going into a focus group with our research mindset, our learning mindset, right? We’re going to work really hard to be neutral.

We’re going to set up open ended questions. We’re going to get questions that maybe scaling questions, right? And we’re going to set up that agree, disagree differently. Now, a lot of times people say, well, I like that question. Let me very subtle, but very different. It’s easy for the moderator say, who agrees with this statement or who disagrees with this statement?

Then I give a statement. Uber driver was distracted and therefore is responsible. Who agrees with that? Who disagrees with that? I’m the one who’s standing in the center asking questions, but I’m asking both sides. And I’m not trying to pit each other against one another. Maybe I’m pitting them against me, and that’s okay as a moderator.

But again, I’m keeping it neutral. Like, do you agree or disagree? Right? Versus saying, okay, Susie, [00:14:00] you said purple. You know, Johnny, you said brown. Who’s right? You know, okay, now we’re just kind of like who disagrees, who agrees, you’re rarely going to get a lot of participation out of those style of questions, which is another reason not to use them, use them.

But there’s other ways to ask questions again, to keep it open, keep it neutral, but still gauge people’s, Is it yes or no? That’s also thinking it’s always black and white, right? That’s why I love a scaling question to give people options and then be able to ask them about their scale. Going back to our research mindset here, where instead of asking why we’re going to say, tell me more.

And what you’re going to find is you’re going to have a much more open discussion. You’re going to hear people disagree with one another in a very polite way. But they’re going to do it right. Even though it’s a small group dynamic, but also what you’re really going to be able to get is people are going to feel safe giving you that deeper explanation, whatever they’re, maybe it’s an inner bias.

They’re going to [00:15:00] feel safe enough to give when you do that follow up to give you more than that initial first blush, yes or no. You know, I’m a six out of 10 and they won’t do that if they feel like it’s confrontational or argumentative or, you know, like, Oh, this doesn’t feel safe, but having that open.

Oh yes, of course. Tell me being neutral. Yes. Tell me this. Okay. Go ahead. Go ahead. Thanking everybody. Right. And I know that’s a whole thing about moderating. that we could talk about for a whole nother session. But I always just tell people if you’re new to moderating, like just the key is open ended questions, asking everyone the open ended questions, right?

And then not following up. I think that’s probably one of the other things too, that happens when we think about a very different between a lawyer mindset and a focus group researcher mindset is kind of sometimes the follow up. We have a tendency to. Oh, yeah. Oh, I agree with that, too. Right now. You just imputed your bias, right?

Versus somebody else in the group who maybe hasn’t given their opinion yet, and they know. Oh, [00:16:00] no, I’m disagreeing with you. Okay. Maybe I’ll just agree just to go along to get along, right? Get over with this focus group versus, you know, a very open opinion. Yeah. Neutral researcher mindset would just say, okay, and next and next and next because your job is to direct traffic, right?

You’re just making sure everybody’s getting their opinions in there. You’re getting here from everybody, right? You’re not actually right trying to tell people where to go Right, that’s kind of the difference between like, oh, no, no, we’re not gonna listen to that anymore. We’re gonna go over here But I’m going to say thank you so much for that.

And then I’m not going to say thank you over here, right? So that also cues people in very subtle, small things that can happen. So obviously the encouragement from this episode is to shift your mindset when you are moving into doing a focus be very aware that’s half the battle. Sometimes it’s just looking at what we’re going to do and being aware of, Oh, that actually is showing my bias.

That’s showing my preference. If I say it that way. And if [00:17:00] you do, right, the whole goal of focus groups is to get new information, get out of your point of view, find other points of view that you can’t get on your own. Go try and ask them a lawyer. Guess what? They got the same mindset as you, right? Oh, well, I’ll just go ask my family.

No, wrong. They’re just biased, right? Because they depend on you, right? I’ll just go ask the church group. Now, again, they know you, right? We need some strangers, some non lawyer people to ask and get information out of to build your case for the jury, right? We got to get out of our, out of our way. And listen.

So that’s always the goal with our focus groups and so I’ve made a little checklist for you and don’t worry this is going to be in the show notes if you are driving or working out or walking down the street listening to this. These are going to be in the show notes and I’ve divided it up into kind of a presentation slash planning and then moderating.

Now, I will [00:18:00] say from one of the best things you can do is write everything out. Write out everything you’re going to say, write out all your questions. Now, I know you’re thinking, gosh, that is so tedious. That’s not how I do anything in my practice, Elizabeth. I understand, but what we’re doing in this focus group is so very specific and it’s just so easy to tee off right and reveal your bias if we don’t really pay Attention and be really aware of it.

Now, as you keep doing them, it’s going to be second nature to you. All right. So, okay. Well, hold on. If I say it that way, that’s actually going to reveal a bias or that’s actually giving a little pretext. Okay. So, that’s the best thing I can say is be able to write it out, leave it, come back, look at it, be able to say, Oh, okay.

That’s a lot of legalese, but we’re just looking at our checklist and thinking about so let’s talk about our planning and our presentation checklist, right? So we’re putting together a presentation and maybe you’re going to write it all out. Maybe you’re just going [00:19:00] to do a really heavy outline. It’s also a really great way to do it.

And so here are five things on my checklist that I would say, Hey, have this checklist out to look at your presentation. When you’re thinking about planning your presentation or the case you’re going to do, you know, put this checklist there. And number one is remove legalese. There is always another way to say negligence, to say malpractice.

There’s always another way. We are in a focus group. We’re not in a courtroom. Okay. When you put in legalese, it’s confusing to people. Some people won’t even ask you what it means. They’ll just make assumptions. Or what I see sometimes is we spend so much extra time explaining the legalese when we could have just used that language to begin with.

Okay. So think about that legalese. Think about that plaintiff defendant. They may not know what the word plaintiff is, but they do know the word defendant. So again, we’re already charging things up a little bit for confrontation wise, so easy ways to remove those. Think of other ways to say it, [00:20:00] right? So number one, remove legalese.

Number two, you want to give context, not pretext. Okay, so let me give an example of this. Let’s talk about a car wreck because that’s generally pretty easy. Generally, we always all have one, but this works for almost any kind of case you may have. So context is in a car wreck cases. The weather is clear.

We are on Burnet and Jones Road. There’s two lanes on Burnet. There’s four lanes on Jones. At this intersection, there is a three light traffic signal. I’m just giving context. Pretext is, this is a presentation about a car crash. This is a presentation about a surgery gone wrong. Now, I’ve just, I’m pre, I’ve put you, wherever your mind goes.

I’ve gone ahead and planted you there, right? Versus giving context. So always be thinking about when we’re putting out our presentation, am I already setting people on a direction by what I’m saying? Or do I just need to give context, right? And sometimes we give context to remove [00:21:00] questions later down the road.

Always be thinking about, am I doing one versus the other? Maybe I just need to give context. If you can’t, you find that like, I just, I don’t know how to do that, Elizabeth. Just Line through that sentence all together. Just don’t say it, right? Just don’t say it. Because if you can’t think of a way around it, then maybe you just don’t need to say it.

And what happens is, this is one tip I would say is, for me, when I am putting together a presentation or I’m thinking about how do I say this, I love to create my outline and walk away from it, come back the next day and look at it. Because what’ll happen is I’ll be like, Oh, you’re not going to know what bad faith is.

Well, here’s the other way to say this. So I love putting things down and coming back to them. Even for a day will help your brain be able to refresh and look at it. Checklist for the presentation number three is the way to remain neutral is to have both sides. And it’s again, it could be, this is the point of view of the red car.

This is the point of view of the blue car. [00:22:00] This is the point of view of the doctor. This is the point of view of the patient. neutral language that goes along with this in our checklist here that we’re using neutral language. We’re not jazzing up our language. And if you’re not sure what that means, right, this is when we say, you know, crashed into versus, you know, four force flew right into the side of that car, getting a little bit excited about that.

Right. Our fourth checklist is just going through and removing very language that’s subtle, my case, removing those words altogether, your logo. A lot of people have kind of a sample PowerPoint that always has their logo on it. Take that out of there. The caption. Some people always want to put the caption in their presentation.

People don’t know what that is. So it’s one, it just starts off on a confusing, and it’s also a little bit of pretext too. So just remove it. People don’t know what it is. You’re not, you’re just basically starting off on a confusing point. And our last one would be thinking again about looking at our presentation [00:23:00] and if you’ve outlined it, you’ve created a PowerPoint, going back through and looking at it and saying, am I repeating myself?

And lawyers are really notorious. If there’s a point that they really, really love, they say it multiple times. I understand. You’re right. An opening statement. You’re going to go in the courtroom. You’re going to get a closing statement. You’re going to want to repeat yourself. The rule of threes. That’s great.

But we’re in a focus group. So we don’t need to do that. We really want to make sure that we’re not repeating ourselves too many times on the same point. Okay. So that’s our checklist for presentation. Let’s talk about our moderating checklist. And again, we’ve got five things on this checklist. Thank you.

Number one, most important to make sure we are staying in our research mindset is open ended question. Who, what, when, where, how come? Those are easy questions, right? People can take them anywhere they want and that’s what we want. We just want to make sure we get on those, get what’s in their brains.

Number two, ask everyone the big questions, right? So I typically have, here are three issues that [00:24:00] we need to make sure and ask questions about. So, I got to get everyone on that question. What can happen is sometimes we get stuck and we ask one or two people and then we end up following up and we don’t finish the round with everybody.

Well, that’s a very easy way to expose bias is because you’re only listening to people that you like and you’re skipping everybody else. So that’s a really easy one. Ask everyone the big questions before you follow up. That’s right. Ask everyone the big question before you go back and follow up. Super easy to do.

Super easy to forget to do. Number three, it’s always, tell me more, not why, just write, tell me more, just, you know, write it on your sheet in front of you, tell me more, right, instead of why. And it’s just a very easy, subtle thing, use this in choice selection, lots of people would agree with me, right, tell me more.

Number four, this one again is huge for a research mindset, [00:25:00] is don’t give more facts. Number Lawyers love to do that. They love it. Focus groups are always going to ask more questions, right? They’re inquisitive people. They want to know more. We don’t give them more. Why? Because give them what you gave them.

You want to get what they think about this information just as it lies. If it was important enough for you, you should have put it in the main one. But a lot of times what people want to do is they want to dribble facts out. Well, I want to see how this influences them. Well, no, that is influencing them.

Let me withhold this fact and then tell you, right? Couple things happen. Number one, people start to realize you’re withholding information. So they start to withhold their information. Oh, you’ve got more. Number two, people start to say, well, it depends. Well, it depends. You have more. It depends. Now, does that, it depends help you with any?

No, that doesn’t help you with your case at all. And then number three, people, most of the time when they do it, everyone asks about speed. So the speed of the cars was 35. [00:26:00] You know, why is that important to you? Now I’ve asked why, and now I’ve just implied that it’s important to you. So it just gets us in a hairy, hairy mess.

So if you’re starting out or even you’ve been this whole dribbling facts out, right? It’s not great. Even if you put it in a question. So what would you think if the police officer gave this car ticket? Okay, so they already know. What else do you have? So if it’s important, put it in the presentation. Also, if that comes into evidence, put it in the presentation.

Okay, so anyhow, If you’re just starting out or you’ve been maybe doing this for a little while and you’re getting stumped in the discussion, that’s a very, very good reason why the faucet turns off of information and you get this. Well, it depends. Well, it depends. Or you just get people who just don’t talk anymore.

So that could be a big one. So put facts in your presentation and then hold your guns. Great. That’s information you’d like to know. Okay. Tell me how that would help you or not. So now I’m following [00:27:00] up. I’m getting what you want. Some people say, Oh, I just wanted to know, right? Versus you may think an opal.

You don’t know. So that’s the followup to getting a question about, Oh, well, I want to know if the doctor said this to the patient. Okay. Well, tell me a little bit more about that. You know, tell me how, like, how is that fitting in? Again, I’m just trying to get more information about how. All right, last one, moderating mindset number five is don’t pit your participants against one another.

We talked about this earlier, trying to pit people against one another takes a very, very skilled moderator to do that. And also just generally just don’t do it. If you want to pit people against one another, pit them against you, right? Play devil’s advocate, put them against you and make them take the opposite side, right?

I’m going to take the opposite side or of what they think. So you want to pit somebody against another person, pit them against you as the moderator, right? Okay. This episode was a little bit longer, but I appreciate you guys hanging in there. And don’t forget the checklist for presentation, planning, and for moderating to keep our research mindset will be in the show notes [00:28:00] for you.

Ultimately. Y’all, the goal is always to get more information to build a better case for the jury. That is what we’re doing here. We don’t want to stifle getting that information in our focus groups. We work so hard to put them together to get these people here. We take our time present and create. We really want you to get that feedback and learn from your cases instead of getting that one set of feedback.

So that’s what this episode was about. I hope that you enjoyed it. If you did, please like review on your favorite podcast platform. That way more people can find it, follow it so you can download the new episodes when they come in. Also, just so that you know, please join the email list. There’ll also be a link in the show notes.

There are other new things that I release checklist downloads, even some new courses that are coming out about helping lawyers create their own focus groups, run focus groups better to learn more. So. Join that email list. The link is in the show notes and [00:29:00] until next time, thank you.