Category: Podcast

Imagine walking into the courtroom armed with insider knowledge that guarantees a powerful impact on the jury – that’s the kind of edge you can bring to the table with virtual focus groups. 

Just one hour can dramatically reshape your trial preparation. This episode is a deep dive into using virtual focus groups to gauge juror impressions, assess client credibility, and polish your visual aids for the courtroom stage. Learn the ways and the way you approach trials, mediations, and depositions will never be the same again. 

Stepping into our virtual conference room, we dissect the advantages of conducting one-hour virtual focus groups, a practice that has become a cornerstone of successful legal strategies. Learn how you can harness the chat feature to glean unfiltered juror perceptions and refine your opening statements to ensure they strike true when it counts. But it’s not just about the prep work – I’ll reveal how to use focus group feedback to prepare your clients for the spotlight, safeguarding them from the jarring impact of raw critiques. 

In this episode, you will hear:

• Virtual focus groups assessing client credibility
• Client credibility and virtual focus groups
• Exploring alternative legal solutions

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:

Curious about working together? Send me an email elizabeth@larricklawfirm.com or click to schedule a quick call. 

Want to inside tips & resources? Sign up to be on my email list.

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. I’m your host, Elizabeth Larrick. And today we are going to tackle how a one hour virtual focus group can help you in your case right now.

Now, who really is this episode for? My podcast is designed for lawyers who are working through [00:01:00] litigation in personal injury, employment law, business litigation, but really for folks who are in litigation, who may be going to trial, having to prepare for mediations, take depositions. So somebody who’s at a pre lit position might find some of the things that I talk about a little bit abstract, and that’s fine.

But today, I’m really trying to tackle those folks who maybe are really curious about virtual focus groups, and they’re thinking, how can I try this out without wasting a bunch of time, money, and effort? Or maybe you’re running virtual focus groups, and you’re doing them in a longer format. Maybe you are doing in person focus groups and you’re still thinking virtual.

I am just not sure that actually works. Tune in. We’re here to give you all of those answers. It’s 2024. And at this point I have run over a thousand focus groups. Specifically, over [00:02:00] 500 of those are a one hour virtual focus group format. We’re going to talk through things that people have learned, but I realize at this point your lawyer brain may be saying, that’s really not enough time to cover all the things that need to be covered.

Or that’s really not enough time for having a good discussion with people about the things that may be covered. All in all the juice just ain’t worth the squeeze. When I started doing virtual focus groups, I’d never done one. The pandemic hit. I was against doing things virtually, but pretty soon I realized we were not going to be able to go back in person for months.

And then in reality for years in a group where people would be comfortable coming in person, right? Sitting next to that person without being six feet away. Which we tried to do, don’t worry, I can tell you my experience on that, but that, that is another episode. So with this one hour focus group, what we’re looking at is a very [00:03:00] focused, meaning a very purposeful, intentful presentation that really is just going to cover one or two issues.

We’re just trying to grasp what is that first impression that the potential jurors are going to have to the simplified facts of your case. You wouldn’t, nor should you, give every single detail of a case in any kind of format for a focus group, because not every single detail is as important as the next.

We really have to funnel down what are just the nuts and the bolts, because Every detail you give a juror has to fit into a place. If it does not, their brain is still trying to figure out where does this go? Why didn’t they say that? With the one hour, we can be extremely localized on an issue, on a problem.

We can be really focused on the first impressions that a juror may have. [00:04:00] So what are some of the ways you can use just that one hour? A really good way to use a one hour virtual focus group is to look at client credibility or client likability. A lot of the lawyers that I work with come to me and that’s one of their main concerns.

A jury is not going to like my client. Say, okay, let’s do it. And so the format is pretty simple. We just get a couple of clips of the client. You may be thinking, I didn’t get the video of my client’s deposition. That’s totally okay. You can create one with Zoom. Just get somebody else’s voice on there to ask questions just so the jurors can hear.

So we’re really looking for open ended questions, short format, about five to seven minutes. You could even splice them up, do some questions, and then just have discussion. You’re going to get a lot of feedback on your client and whether they’re credible, whether they’re likable, and probably a lot of extra [00:05:00] information about your client as well.

Another good format for the one hour would be a general neutral narrative or short snapshot where we’re putting together the facts of what happened in a case. We’re looking for those first impressions. What are the assumptions that people are having? What are the attitudes that they’re having? What is it that’s missing for them that would be vital?

That’s a really great conversation to have right off the bat. When you’re filing a lawsuit or even before you file, because you want to know what do I need to go get? What are the assumptions I need to disprove or reinforce? There may be good assumptions that you have or that they have about your case.

Another good use of a one hour virtual focus group is just putting your visual aids or your demonstrative aids in front of them or your timelines. What are visuals that you think you may use even if you think you have a photograph? That tells the perfect story of the damages test that out because I have [00:06:00] a lot of times where we And so I have some photographs that go into virtual focus groups.

And the feedback is, I don’t want to see that. That’s too gory for me. I don’t like to look at that kind of stuff. And so they literally don’t look, you don’t want that to happen to you. Right? So there are ways to work around that. But you want to know that before you step into a courtroom that, Hey, this could be too much for some people.

It may be okay. But do you really want to risk turning off one or two or even three jurors? And a lot of times what happens is a lot of people put a lot of emphasis into a photograph because they believe it tells so much of the story when it doesn’t. That’s where that one hour focus group can help you.

Another great style for a one hour virtual focus group is just picking either just liability, Or just damages and walking through liability. You can even throw in some snippets of videos of the at fault and your client in there as well, just to [00:07:00] see whose story fits, what questions they still have.

Damage is the same thing. You may think you have a great damages story. Can we put it in front of a set of potential jurors? And just from the learning standpoint, it can be very confusing for them to look at that. And a lot of speculation comes in when they think, wait a second, what about this? What about that?

So there ends up being a lot of questions. And that’s so helpful when you are going to have your expert come live or you’re about to take them live in a deposition, right? You want to make sure that you’re answering those questions because when it comes time for the jurors, you want to make sure you answer those questions, especially when those are your big numbers.

Another great. Um, and I’m going to talk a little bit more about that in a minute, but I’m going to talk a little bit more about how you can use this style for a one hour virtual focus group is just running your opening statement. You may be thinking, Elizabeth, my opening statement is an hour. Don’t run that one.

Okay. Maybe focus it in on just doing the liability or just doing the damages or just doing a mini opening. Either way, what [00:08:00] you’re doing with this is you’re obviously putting in some advocacy. You’re putting in your case theme. Do you like to use rules? You’re going to have to test some rules, right, if you’re using a statistic or using some other hook, right?

While you’re testing all those things, that first chunk of time, right, the beginning of your opening statement, what they’re hearing first, is it hitting them correctly? You want to know that. Virtual focus group for one hour is a great way to do that. Now, knowing that we’re having a really narrow, or rather, a very purposeful presentation, that means we’re going to get very detailed discussions, we’re going to get detailed feedback.

And with the time that we have, we can actually dive deeper into those responses. Because we want to be able to know if your impression is that they’re a 2 out of 10 on a credibility scale, 2 being low, 10 being the high, you want to know, okay, what was it? Was it the body language? Was it the words? Was there something else going on?

You want to be able to dive into that. And that allows you to do that. The other cool thing for virtual [00:09:00] focus groups is the chat is a great tool to gather more data while you have them in front of you. And it eliminates any crosstalk or cross persuasion from people inside the room. So when I do client credibility or likability.

Um, we generally will do the presentation and we’ll ask for feedback first in the chat. I like to scale it, scale a one to 10 credibility. I like to ask them one or two words that they would use to describe and one question they would ask this particular witness. That gives you a lot of what are their first impressions and then discussion is easy.

Just go back through. Hey. Thank you. Susie, you gave an eight out of 10. Tell me about that. They’re going to answer, go wherever it is, but you’re going to get a lot of information about that. And then what questions they want to know. Then you get to say, okay, you asked this question. Tell me more about that.

Boom, easy. And again, if you have extra time, you can go back in and say, okay, we heard from this witness. And in this situation, they’re asking the responsible [00:10:00] party for. X amount of dollars. And here’s why. Okay, so tell me your impression about that. So you have a way to actually go back in and test when you’re just using that one hour.

You can really focus in, get really detailed questions. Or really detailed points that you want to cover and get that feedback that you need on that particular pain point for you. Client likability is a big pain point for people. A lot of lawyers worry excessively about client likability when it comes to jury trials.

Solve the problem, get some answers. Here’s the other thing that will give you some solutions too. If you don’t like this person, who else could you hear from that would help? And so you can dive more and learn so much more. Now let’s just take that client credibility. Let’s just put it on some steroids.

So we have done this before where we’ve done a one hour virtual focus group before their deposition. Now we went back and created a zoom video. [00:11:00] All right. Somebody else’s voice, easy questions, open ended with a reasonable amount of time. Don’t let people go on 10, 15, 20 minutes. It’s too much, right? Five, seven minutes, eight minutes tops.

But what you’ll hear back from that focus group is what to say, what not to say, how they’re appearing. If there’s some kind of body language tick or some other thing that maybe you don’t see because you spend so much time with that person, but they see it right off the bat. Explanations to give, things that may be missing.

It’s a great way to prepare you to then prepare the client. I do not allow clients to watch live focus groups, especially personal injury clients. I’m not advising you to use this tape and then show the person, okay? Because that can be so detrimental to someone. That’s not a good thing to do unless you are extremely well versed.

And being able to navigate that, which most of us just think, Oh, if I show this to you, you will [00:12:00] automatically understand. Promise you that is not what will happen. It is much better for you to take the information and translate it to them one on one versus having them just watch the video. You can use client credibility before mediation.

So then, if there is a chance for the client to speak to the mediator, you know what they need to be saying to that mediator. You know what they don’t need to be saying to that mediator. And of course, before trial, right, we want to know how they’re going to be perceived when they step up on that stand.

One format, three different spots to use it, but lots of information you’re going to learn on client credibility. From a big picture standpoint, we just honed in on one really big element of a case, client credibility, client likability, but let’s take it from a big picture standpoint and thinking about how a one hour virtual focus group can tell you about whether you should file a case or not.

We’ve had this happen. It’s been a couple of years where a lawyer came to me [00:13:00] and she had horrific damages. A woman who was a paraplegic was paralyzed. I want to say it was from the neck down. I was going to have. A lifetime of care and needs. And of course, not able to work. She was cleaning a construction site and fell into a pit that had not been Barricaded or there were no boundaries around it.

And they wanted to, of course, go after the construction company, go after the property owner. So there were a couple people that would have been on the hook. But a lot of case expenses into going after all these people. The experts that would be needed, because It’s not common. They would need some experts to explain why this would be necessary, what happens at the construction site.

It wasn’t just a regular building. It was a specific building for a specific purpose. Ran a virtual focus group, and despite all the questions that I had [00:14:00] for them, despite trying to see how The construction company or the building owner, or would even be a remotely, even a couple of percentages of liability.

And there was nothing there and they knew if focus group has given us zeros on this, the chances of us being able to sway a jury are pretty low and the expenses would be extremely high on a case. So that was one of the big things that they factored into their decision about whether to file or not. It can also tell you.

Whether you should settle something or go to trial. Now I know that’s a big question a lot of people always have when it comes to a case. When somebody’s just not 100 percent sure, I say put together the best possible. With all your best stuff, opening statement or mini opening statement. And just see where liability falls or just see where damages fall.

They’re going to help you with that. They’re going to say, Hey, this is still 51 percent on this client, or this is only going to be 40%. [00:15:00] And then at least you have the ability to know you can always run another one. One hour virtual is simple to do. We could run a longer one, but it’s going to give you extra information that jurors impressions to help make that decision.

Now you still may be saying this juice ain’t worth the squeeze. I got my time. I got my case expense money. I got my energy. All these things are limited. It’s just still doesn’t seem worth it to me. So what would be your alternative as a lawyer? I’ve used nearly every alternative possible, but I just want to talk about the main one that I’ve used many times, which would be just take a lawyer colleague to lunch and pick their brain.

Obviously, you’re going to pick somebody who has more experience than you, hopefully, or you’re going to pick somebody who had a really similar case, or this person had a jury trial on this Um, and then you’re going to get a lawyer’s opinion on this particular style of facts. Great. However, you’re still going to be stuck with a lawyer’s opinion, meaning you’re not going to get a potential juror’s [00:16:00] opinion.

So the lawyer’s opinion is going to be using the lawyer brain. Any feedback that you get from them is really going to be tailored to their experience. And at the end of the day, the solutions that they have are going to be, I guess you’re going to have to try it or settle it. That’s your decision. Again, they’re going to come back to you.

And sometimes I’ve had happen where I show up and I just get this laundry list of things that need to be done. And that laundry list means more experts or more depositions or more case expenses that I’m not even sure will actually even have an impact on how an insurance company is going to view the case or how a juror is going to.

This one hour virtual focus group can teach you more. They will teach you what jurors think about your case. The format is extremely approachable. It’s quick. It’s just one hour. The time that it takes you to prepare will probably be less than an [00:17:00] hour, right? The feedback you get is going to be precise on the issue that’s troubling you.

You can ask for solutions. What are ways to help or fix this particular issue? They are so quick and easy to set up. that you could find out the information that you need now so that you could even craft a solution or be able to know, okay, so that’s actually going to swing me a little bit closer to settlement.

So I’m going to focus on doing some things that will enhance Or I’m going to have a bit more certainty in my path or clarity about how to pursue the case in general. So I hope that you have seen that a one hour virtual focus group can significantly help you in your case. You can learn. Client likability, liability, damages, opening statement, visual demonstratives, any little case issue that may be bothering you.

And that’s a lot of times what lawyers come to me and they say, I have this kind of unusual [00:18:00] fact, and I’m not really sure what it is. Gonna think about it. Great. Let’s just run a one hour and really see what they do. Think about it, what they don’t think about it, right? . So I hope this episode has helped open the door to this one hour simple virtual focus group to help get you some answers in your case.

Now you may not know, but I actually offer virtual focus groups each month. So if you’re interested, be sure to reach out. Also, I am starting an email list. This year about one to two emails a month where they’re going to have tools, downloads, things that prepare your cases better, tidbits, resources that I can pass along.

If you want to join that email list, the link will be in the show notes. I greatly appreciate it. All right, until next time, thank [00:19:00] you.

Every legal case reads like a distinct narrative, and within these stories are the lives of real people bearing their truths. Enter Amanda, a plaintiff’s attorney with a history as a paralegal, who brings that very understanding to the forefront of her practice. 

Our conversation with her peels back the layers of the intricate relationship between attorney and client, exploring how deep trust is cultivated, especially when guiding clients through the stormy seas of recalling traumatic experiences. Amanda’s transition into the legal field amid a pandemic, and her innovative use of Zoom to bridge the client-communication gap, offers a glimpse into the evolving landscape where technology meets empathy. 

The courtroom is more than a battleground of wits; it’s a space where human emotions are laid bare. As we unpack the emotional breadth of deposition preparation, Amanda walks us through the careful balance lawyers must strike – acting as legal counsel while providing emotional support. Her candid recounting of a young sexual assault survivor’s case shines a light on the profound influence an attorney’s belief in their client’s story can have. 

In this episode, you will hear:

• Learning the ropes of plaintiffs’ depositions
• Building confidence and validating client experiences
• The emotional toll of legal work
• Building trust in client depositions
• Connecting with clients and juries

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:

To learn more about Amanda and connect with her go here. 

Want inside tips & resources? Sign up to be on my email list.

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 there. It’s Elizabeth. I wanted to pop in really quickly before we begin this episode to talk a little bit about my guest, Amanda.

She is. She’s going to come to us from Washington, however, by way of New Mexico. What I loved about our interview was her perspective as [00:01:00] a new lawyer on deposition preparation. She’s got some wonderful insights. We had a great time recording this episode and I hope that you enjoy it. If you want to reach Amanda for anything in Washington or depo prep related, her contact information will be in the show notes.

Enjoy. Hello, and welcome back to the podcast trial lawyer prep with me, your host, Elizabeth Larrick. I am excited to kick off 2024 with a bunch of really wonderful interviews with amazing, powerful trial lawyer women. And today I have one of those. Amanda is joining the podcast. Hello, Amanda. Hi Elizabeth.

Amanda’s coming all the way from Seattle, Washington. And I met Amanda. She reached out to me about depo prep. And we had this amazing conversation and it was like, she was reading my mind. And so I said, Hey, come on and let’s talk. Let’s come on the podcast because that’s what this [00:02:00] podcast is about.

Helping people prepare cases better with a fine tune, looking at using focus groups, deposition prep of clients and of yourself. And so Amanda, just start us off. Tell us a little bit about your journey and then what made that depo prep part of your passion. 

Amanda Carmody: Thank you so much for inviting me to be on the podcast.

I’m super excited. It’s my first time ever being on any podcast ever. I don’t mean to go so far back in time, but I discovered that I wanted to be a plaintiff’s attorney when I was a paralegal working in a plaintiff’s firm and saw the impact that getting a settlement had on one of our clients who was catastrophically injured.

It really connected dots for me. It’s not just about making claims against insurance companies. It’s about people and helping them improve their lives and seeing the change that this person went through when somebody finally took responsibility. Set something off in my brain and I was like, Oh my gosh, I need to [00:03:00] do this.

I need to be the person running the show. And got to law school and just have worked towards that ever since. It’s been my second job out of law school. I worked for an amazing attorney named Molly McGraw in Las Cruces, New Mexico. And she is who really planted the seeds of plaintiff’s depositions are not awful.

We never even talked about it. Like we just went in to prep our clients and she showed me the ropes and I learned so much and it just has been a journey about getting to know people and figuring out how to help them tell their story. Absolutely. 

Elizabeth Larrick: And so, again, this is why we were talking and I was like, yep, hello, she’s my person here.

We’re going to have so much fun on this podcast. But what I also love is your perspective. And I think a lot of people who listen to the podcast, a lot of people that I work with, we’re not at the place where you are, which is like you’re fresh out and you had this total challenge of beginning [00:04:00] your kind of quote unquote legal career.

In the middle of a pandemic where you basically have only zoomed court. And so that’s a whole other challenge of learning the ropes. Learning to connect with people, but you just started off in zoom, right? You just started off doing everything over the phone or video. And it’s hard for us to be like, so what’s that like, what’s that perspective?

Cause you’re like, I don’t know the other side because I didn’t start that way. How has that been thinking about people who still struggle with using zoom to help people prepare or talk to people or really coach them through getting ready for mediation, like. Give us a little bit of that perspective of how, for you, using Zoom is second nature.

Amanda Carmody: Sure. So definitely there is a benefit of being in real life with people. There’s physical touch, you can take physical cues. I like Zoom, which is, you’re right, how I started, because you are in the person’s face. And I appreciate we’re a podcast, but I have my hands like horse blinders. They have to look at you.

They [00:05:00] can’t look anywhere else. And if you, Position your camera so that you are looking into the camera when you are talking to the person you’re talking to. Like, they’ll look at you. We all look at ourselves, I think, a little bit on Zoom. You want to make sure. Like, I have a huge pimple today. And I want to make sure that it’s not showing.

But if you can make it so your little image is right under your camera, no one will ever know. And if you have that dialed in, blinders on, connection, it’s a lot easier to talk to your client and get them to trust the process and trust you. I also take as much time as I need to. Thank you. If I have a client who is older, they are not comfortable with Zoom.

And sometimes I will actually go help them get set up the first time and make sure we can do that process together. But you’re right, it’s hard to think of it because I’ve never been into a courtroom for a hearing. But no, I think there are definite benefits of being on Zoom that you don’t get in real life.[00:06:00] 

Elizabeth Larrick: And I think you nailed it. It’s time one on one with people that really ends up being the most like, of course, it’s great to be in person and it is, but I think it’s that one on one time. And like you said, you are face to face and you normally wouldn’t be that, you wouldn’t be that close to somebody sitting, even if they’re a client that you have a really strong connection with, or you’re super friendly, or you just really jived really well.

You still wouldn’t sit that close. 

Amanda Carmody: That is 

Elizabeth Larrick: zoom. Zoom. 

Amanda Carmody: And it goes both ways. I know we’re talking about plaintiffs, but deposing a defendant, you can get right up in the camera looking at them and be like, can you see me? I’m looking into your soul, sir. And so it’s fun. 

Elizabeth Larrick: See, this is how I know you’re supposed to be a plaintiff’s attorney because that’s exactly right.

I didn’t even think about that, like getting right up super close when you’re deposing an expert or whoever, maybe somebody on the other side. Let’s talk about thinking through client deposition and you’re [00:07:00] talking about helping them tell their stories. Walk us through your perspective on what is a struggle for clients and what kind of battles they may be having that a more timely, more structured depo prep helps with.

Amanda Carmody: Yeah. I, I always start at zero with my clients. I pretend that I am hearing about their case for the first time. I tell them. to start talking to me. Like I don’t know anything about what has happened to them. And I try to structure my sessions, depends on how big the case is or how complex the events are that you’re talking about, but typically.

I have one prep session to go over the facts of the case and the event. I have another session to go over what I would call general damages and the impact it’s had on the person’s life. And after that, I decide if we need a third session, which is usually short, to tie anything up or to get them ready for their actual [00:08:00] deposition.

But in that first session, we started just zero. What were you doing before X happened? Whether it’s Slip and fall, car crash, sexual harassment, just get us started. And we really break it down bit by bit. And I found that it’s really intimate. Nobody prepares you in law school for this type of exposure you get into somebody’s life.

They’re oftentimes telling you about the worst thing that has ever happened to them. Something really traumatic. And that is, I think, an honor and a privilege. They don’t share that with very many people. Usually. Usually it’s none. 

Elizabeth Larrick: Usually 

Amanda Carmody: you’re 

Elizabeth Larrick: the only 

Amanda Carmody: one who they’re talking to. Exactly. Especially if you catch them early and you say, don’t talk to anybody about this.

You and I have attorney client privilege. You can’t talk to anybody. Sometimes people have therapists, a lot of times they don’t, but you as their attorney have to, while you are not their therapist, treat them with the [00:09:00] gentleness and kindness that a therapist would while you walk them through this event.

Elizabeth Larrick: And I think even most people who have therapists don’t talk about it in the way that clients that come in the door, we have to dive into both sides, the facts and the logic and the emotion and the impact, they are totally gnarled up together. I love starting from ground zero because Do you take nothing for granted?

And they don’t either. That really helps because that’s how the defense is gonna come in, or opposing counsel’s gonna come in, is at ground zero, and sometimes that tension and frustration alone for a client can really throw them off because they think you already have discovery. Well, you already have all this information.

Like, why are you asking me again? That emotion can derail our thinking brain because we’re just. Frustrated trying to figure that out versus just like, okay, let’s just be in the moment. I have that expectation of going through it bit by bit. Lawyers, especially in larger firms, like cases are, I’m not going to say pass along, but that’s just the chain of custody.

It’s like it comes in and then [00:10:00] it goes to one team and it goes to the next team. Sometimes you have the same lawyer. Once you sit down for that one on one depo prep, you really are getting way more one on one time than you would have at any other point up to 

Amanda Carmody: that. Oh yeah. Yeah. Yeah. I enjoy DevoPrep so much because I really like bonding with people, and that’s what it is.

And that’s why I think I’ve seen people be successful in their own depositions, is you’re giving them the confidence to sit there and tell their story. And when you have that connection and the trust in this person, you’re holding their hand through this, right? You can’t tell the story for them, but you can figuratively help them walk through it, and it’s just so nice.

To not only have that feeling myself, but to see somebody really own in to their own story and start believing themselves. I think that’s one of the most shocking things to me in prepping people is people doubt themselves so much and it’s not because what they’re saying isn’t [00:11:00] true. It’s because they’re in a system that is constantly telling them they’re wrong and that they aren’t that hurt and that what happened to them isn’t that bad.

I If you have that floating around in your head, even a little bit, you start to feel a little hopeless. Oh, yeah, 

Elizabeth Larrick: absolutely. And I think a lot of that that helps that is saying it out loud. You know, that’s a very big part of making it true is saying out loud and they live in their heads. You know, without you want to talk to about it.

So coming into depo prep with a very focused purpose, like you’re saying, it’s very structured and there’s a purpose behind it all versus just going in and just being like, all right, they’re going to ask some questions and here’s your discovery answers. I want to make a little note because you mentioned bonding.

Um, there’s a lot of stuff on bonding and I’m going to guess, but I think you’ll correct me. You’re not talking about, Hey, how are your kids? Let’s talk about going to the softball game. You’re talking about the intimate bond. Of a relationship of trust. 

Amanda Carmody: Yeah, definitely. I know my [00:12:00] clients in a very bubbled but detailed way.

A lot of them, I know their kids names and things like that. I have no idea what they’re doing that afternoon. Or something like a friend would know. But you start to know the deepest insecurities. that your clients have, that’s something they probably don’t talk about with anybody. And so that is the bond I’m talking about.

It’s a caring type of relationship. And I think making your clients feel like it’s a two way road is also really important. They depend on you in a certain way. You do not depend on them in that same way. But when you show enthusiasm for their case and show compassion, They can see when that affects you.

They can see it in your face. If you’re just sitting there checking the box, they’ll know that you’re not tuned in and you will not get them to open up in the same way you will as if you’re present and truly invested in what they have going on. [00:13:00] 

Elizabeth Larrick: Absolutely. And I think you’ve nailed it. It’s not the same two way road, but it is in the sense of attention and questions.

And. Thoughts, one of the things that I think people always glaringly miss in deposition prep is we are building confidence, but you have to tell them what you are saying is 100 percent true. 

Amanda Carmody: Yes, I didn’t appreciate this. One of the first clients that I helped prep was a young woman who was a sexual assault survivor, who was assaulted when she was a high schooler, and part of her claim was that all of the students were didn’t believe her.

This teacher got removed from the school, and she was called a liar, she was called much worse. Her own parents didn’t believe her. And we did our normal depo prep. That was just an element of it. And in her deposition, when opposing counsel was saying, what do you mean people didn’t believe you? Our client sat there and said, the first time I felt like somebody believed me [00:14:00] when I was talking was when I was talking to my attorneys.

And I didn’t realize it until that moment, and it was just like, my stomach, my heart just seized up. And I was like, oh my gosh, this young woman has walked around for years carrying this. Feeling like she wasn’t believed until we talked to her, like that isn’t right. But again, it goes into that privilege of you aren’t necessarily aware of the impact you’re having on your client’s life.

And so you have to be so careful and so gentle in the way you interact with them. 

Elizabeth Larrick: Absolutely. And like you said, you got to encourage them out loud. You may be the only person who is saying this is real, what you’re feeling is real, this is real pain, you know, because a lot of times they’re walking around with a lot of doubt because the system has basically said you’re a liar, a cheat, and a fraud.

Amanda Carmody: Yeah, I took a mediation course in law school. That was not the mediation most of us are used to. I was expecting it’s going to be mediation how you sit in separate rooms and how you have tactics [00:15:00] negotiating with the mediator on the other side, not that. It was like touchy feely going into alternative dispute resolution, sitting, finding out what the parties really want, because sometimes it’s not always money.

It was that type of mediation. And in the moment, I was like, nope, don’t care. It’s always about money. It’s about. Reaching that ultimate goal. I have come back to what I learned in that class so much because it’s about validation of concerns and wants and then being able to reflect and reframe and so Sitting and listening to your client and telling them things like oh my gosh I can’t believe you’ve been through that that’s so hard or that is such a real thing that you are experiencing that Encourages them to open up more but it also helps them Hold on to it and own it and when they’re sitting in their deposition if they have the confidence to believe what happened to them is Real and true.

They will do so much better than if they think they’re trying to convince you [00:16:00] Somebody. 

Elizabeth Larrick: Absolutely. Yeah. And I think you nailed it with the reflection, which is why you want to have multiple meetings because then you allow them the opportunity to reflect. One of the things I always hear back from clients after our first session is I was exhausted.

I was so tired and we did a lot of just emotional heavy stuff. They did all the talking, you know, and they said I was so exhausted, but then I felt so good because I just never gotten to talk that much about it. 

Amanda Carmody: Yeah, I try to let my clients know it’s going to be exhausting because that’s another thing people don’t appreciate about asking your client to sit for their deposition.

It is so emotionally and mentally hard to sit and talk through that stuff. And so I use the word gentle a lot. I tell my clients to be gentle with themselves because a lot of times they say, I don’t know why I can’t get over this. I don’t know why it’s so hard for me to talk about this. I don’t know why I was so tired after a meeting.

And that’s another great opportunity to be like, Because what you’re [00:17:00] talking about is awful and hard to talk about. So be gentle with yourself. 

Elizabeth Larrick: And you’re bombarded with pictures and images everywhere else that say, you should be done. This is over. I always tell people it’s going to take much longer than this, but standing up for yourself, speaking the story in your own words and how you want to say it uninterrupted, will significantly help you in this journey.

This is a battle. This is a journey. This is not the final end all be all. It’s just going to take more time and nobody talks about that. And I always get really frustrated too, because I always ask people, especially depending on what kind of their injuries are like, what has the doctor told you about how long this is going to be?

Well, they just said, it just takes time and I’m just like, Oh my gosh, like please let people know. I see X patients with the exact same situation. Here’s generally how long it takes. Up to two years, because people think, Oh, six weeks, I’ll be fine. You know, it’s just like, you have to sometimes be that extra voice of, listen, this is what I do for a living.

And I’m [00:18:00] letting you know, it’s going to take longer. So be gentle with yourself. That’s a great way of putting it. Be gentle with yourself. It’s going to take longer. 

Amanda Carmody: Yeah, it’s always surprising to me how much pressure, not only our clients, but we put on ourselves to get over things. And another thing people don’t really talk much about is how it affects you, the attorney, to hear about these horrible things that happen to your clients every day.

Those details are swimming in your head, whether you’re consciously thinking of them or not. And hearing about traumatic events. It’s going to affect you too, so it’s just a, like, big bundle of be so soft and gentle and kind when you’re in this process because it will affect you too. It will be exhausting for you too.

I could sit and talk with some of my clients for four hours, but I try really hard to keep it to an hour and a half or two hours when we talk because I [00:19:00] know that it is going to be mentally and emotionally draining for both of us. And usually. Both you and your client have work you have to do afterwards, right?

Like you can’t just sit and curl up even if you feel like it. 

Elizabeth Larrick: Exactly. And I think Because being a plaintiff’s personal injury attorney for a lawyer for a period of time, like it wears on you and we don’t give ourselves enough rest when it comes to that. That’s why we have 30 minute prep meetings because it’s difficult.

It’s really hard. There are definitely times where I talk with lawyers and they just say, I feel so horrible knowing what they’ve gone through or feeling like in a similar situation, like my kid was the same age and it was just a really difficult time. Having a longer one on one conversation because it’s going to hit me so emotionally.

I want to be professional. I don’t want to get upset and to cry. And so it definitely, I think, comes into a shortened prep session because they think they’ll be fine. They can tell their story. Opposing counsel will be fine. We’ll do our [00:20:00] normal prep stuff because I do find the more horrendous Tragic injuries cases assume that they’re going to get a light touch when it comes to opposing counsel, but that’s missing 50 percent of the whole thing.

The other 50 percent is them showing up and the emotional burden just for them to show up and talk. 

Amanda Carmody: Exactly, and you’re asking them to relive something awful, and I’ll be a little, like, sidetracked squirrel for a minute. The amount of people that I went to law school with that sat there and said, It’s supposed to be Law is supposed to be logical.

Where is the answer? Where is the reason? Juries should be removed from emotions, and judges should be removed from emotions, and make decisions based on just the black letter law and the facts in front of them. And, yeah, that would be a really interesting way to practice, but [00:21:00] it misses emotional pain and suffering.

It misses the human experience of what somebody has gone through, and you will never get those damages accounted for if you are not comfortable sitting with them. Your client, in their emotions, in those horrible places. And if you don’t have the capacity to sit, like you’re saying, attorneys who sit for 30 minutes and can’t handle it because it makes them feel awful, that’s okay.

Identifying that you do not have the capacity to sit through that is really smart, but then you have to do something to make up for that, whether Calling in a person like you to come in and help them handle that, or even changing their practice to do a pellet work. It doesn’t have to be drastic, it can be manageable.

But if you can’t handle sitting with emotions with somebody, then yeah, their deposition is not going to go the way you want it to. And you’re going to really expose your client to being super vulnerable when they [00:22:00] already are so exposed. 

Elizabeth Larrick: Or just know that they’re not going to be vulnerable. They’re going to keep it all inside.

And then the next thing that I always hear is we’re just going to save it for trial. And I’m always like, gosh, 98 percent of stuff doesn’t go to trial. So you’re really missing the whole mark. A lot of people still have that mantra in their minds, like my day in court. And you watch it in TV or whatever, like such a different game working with a client.

And she was really wanting to get like, Big picture. Give me some big picture. Give me 30, 000 foot view. It’s depo. But normally I do that in trial to help them kind of get the big picture. But we literally drew a diagram of the courtroom and the big picture of, okay, it can come down to two questions. And she just was like, I never knew.

I’m like, yeah, you would never know like that. And here’s where you fit. Here’s your part. And it’s so important because you speak directly to the jury. They don’t want to hear lawyers. They want to hear [00:23:00] you, your experience, because emotion is the human experience. We decide everything on emotion. So in my focus group, people say, well, I just need to know the law.

We need to see the past. Where’s the law in the past? 

Amanda Carmody: Oh, it’s so cute. Yeah, it’s the part I really enjoy about what we do and it’s what makes me feel like I’m doing the right thing. I always tell my clients I’m on the right side of the V because I want to make their best argument. I don’t want to tear them down.

I don’t have any. I don’t mean to get on a rant about insurance defense attorneys, but it would make me so sad to think about, okay, my job instead of building a person up is tearing them down. And I get that’s a very biased perspective. But when you’re sitting with a person, a human being who’s trying to Who’s hurt.

It breaks my heart to think that there’s anybody out there who would make them question what they’re going through is valid and real. 

Elizabeth Larrick: Yeah. And I think that’s the [00:24:00] terrifying part that most clients are absolutely positively just terrified because now it’s like the interrogation room. Like, that’s where the emotional warfare comes in.

They know they’re going to get grilled. What I always say is, Most lawyers say you’ll be fine. Just tell the truth. It’s just so silly. It’s telling a little kid who’s learning to tie his shoes. Just use your laces. It’s obvious we tell the truth. It’s obvious you use, but how do I tell the truth? And that’s where that prep comes in to help them know what the how is.

You’ve already got it. Let’s just. Tell me about it. Let’s just organize it. Where are you at and how can we help manage those expectations and get everything in order for you to feel confident? 

Amanda Carmody: One thing that I tell everybody to do that I learned from Molly is notice your own client’s deposition. Which is a really weird thing, but send the email to defense counsel, say, Hey, I want to [00:25:00] schedule plaintiff’s deposition.

Can you give me dates? And that gives you the ability to start their deposition. And you know, the right questions to ask, you know, how to get them to open up. Not only that, it shows your client that you believe in them and you’re confident in them, but it also sets them up for success when you pass them.

And it’s the defense attorney’s turn. Getting to go first and ask your client questions first is unbelievable. And it’s what you do in trial. I don’t know why we don’t do it in deposition more, but when you pass them and the defense attorney starts asking them questions, they get to say, I already talked about this.

They already know where the questions go because they’ve talked about it and sitting and learning what they’re going to say and learning what questions you need to ask to help them open up and then doing it and asking those questions. It all comes together beautifully. And you have a client who, yeah, when they get their day in court and you go to [00:26:00] trial, trust the process and know that you’re going to take care of them.

Elizabeth Larrick: Yeah. I think one of the biggest things that when I talk to folks about doing a structured witness prep and depo prep, they just said, wow, they felt so good about what they did. And then it was like, we went to mediation. And they were like, Nope. They still had that same confidence. And when we got to trial, they were confident to know, okay, I know that you guys are going to make the right decision.

So there’s so much more trust and I see a huge shift when there’s not trust and there’s a lot of infighting and struggle when it comes to even little things with the client. And I always just say, you’re worried about the jury liking. The client, but do you, because the jury is going to pick that up in a heartbeat.

And I can tell you there’s people who say, I want to make them likable. I’m like, well, if you don’t 

Amanda Carmody: like them, how are you going to convince people [00:27:00] to like somebody that you don’t like? That’s right. No, and it all is like, all these words are tied in so many ways into what we do. I do tell my clients, your job is not to convince anybody.

Let that go. Set that free. That person across the table from you is going to tear down every argument we make. They are going to look for the weak spots. They are going to judge you. And that’s scary, but just telling them right up front, don’t try to change that. Do not try to overcome that. I’m on your side.

I am with you. I believe you, and as long as we’re sitting there together, you’re going to do well. As long as you get that we are a team, we’re going to do just fine. It’s when your client thinks that they’ll convince the other team to help them score a touchdown, that they get in their head and wrapped up and trying so hard to show something.

No, we’re going to work on it ourselves. We are the offensive. We are pushing forward. We [00:28:00] will make our own touchdowns. Ignore them. Set it free. 

Elizabeth Larrick: Yeah, exactly. And I was just telling them, they’re just a mechanism. They’re asking questions. They’re just giving you opportunities. This is what this is about.

Literally opportunities. The minute you try to think of it as convincing or getting defensive, you’re working your brain in the wrong direction. 

Amanda Carmody: Yeah. I love that. I love telling them it’s an opportunity. It’s not a question. It’s an opportunity. I really love that. 

Elizabeth Larrick: Yeah. And I was like, you have the opportunity also to disagree.

And I was like, what do you mean? I’m like. How easy is it just to say, I disagree, that’s easy. And I’m like, is it true? It’s true. Like, okay. Did we just solve a really huge problem? Yes, because I want to disagree with him. Great. Does that mean you have to argue or be defensive or, and I was like, absolutely not.

Literally the simplest thing is just to say, I disagree. 

Amanda Carmody: I disagree. 

Elizabeth Larrick: And then like, they think they have to convince and do all this. And I’m like, no. And that’s why we always try to take it back to the most simplest form of what are we doing here? [00:29:00] And sometimes I literally get like a visual aid out to help them show like, okay, here are all the things that go into this case.

But here’s this little perfect puzzle piece that only you can fill. So we really need to hone in on what is it that you can fill and because we can get doctors to come talk, we can get the police officer to come talk or we can go get, so you got to give what your perspective is, the facts that you know, right?

But there’s going to be something in here that you can just let go of because like you don’t have to do that heavy lifting job. We’ve got other people to do that for you. And that’s it, 

Amanda Carmody: right? Yeah, I love the analogy of the puzzle piece, because another thing I’ve noticed is people feel super helpless through the whole process.

They feel helpless in the event that brought them to litigation, and then they feel helpless throughout litigation because it is something they don’t know anything about. Most people don’t know how to even deal with property damage when they’ve been in a crash, and so they feel [00:30:00] super helpless. And giving them that purpose of the book, we have the whole picture, except this missing piece, and that’s you, is such a remarkable thing to give your client that power, because they had probably felt powerless through years of living through this.

Elizabeth Larrick: Oh, yeah. Just going through the beginning stages of getting it started, like, before they hire lawyers so frustrating, like even just a simple car wreck becomes, Oh my gosh, I have spent every day calling these people and it feels so disempowering. And then it’s, Oh, we’ll take care of everything. Lawyers will file the lawsuit.

There’s only just two or three things that you have to do. And that’s where I’m like, I say, okay, this is the thing we talked about. This is the place. Are you ready to rumble? We got to get you ready. That’s why we take so much time to get ready because it’s one of those things. And I added something to my list of things I always tell people, which is you got the right to understand the question, you need to take a break.

But then I haven’t yet gotten good wording on it, but it’s like. [00:31:00] The coolest thing and I do think it’s the coolest thing about deposition is you can’t be interrupted. Like how cool is that? A lawyer does not get to interrupt you. Like how cool is that? Of course, I’m a lawyer so I think that is cool because we get interrupted constantly by each other.

It’s just oh, it’s so frustrating, but literally they have to listen to you. That’s the opposite of it. It’s in black and white and it never goes away. Okay, that’s what people think. What’s the big deal about transcript? I’m like, oh, let me tell you because it. We don’t like as lawyers, we, Oh, it’s client deposition.

No big deal. But we like poor over deposit, I mean, of transcripts, like experts and like how we make our cross, like whatever else, why wouldn’t we really take that to the next level of explaining it and like how cool that is. Employer cool. But, wow, here’s another place that you’ve got some power. Alright, let’s take it, let’s do this.

Amanda Carmody: Yeah, it is really cool. I have a question for you. In between prep sessions, what do you do for your client to help them be able to [00:32:00] step away and give themselves a little break, but hold on to what you’ve talked about and not be starting fresh every time you leave? 

Elizabeth Larrick: I’m a huge fan of doing something visual and then you have to write something.

And a lot of times we use these giant notepads, right? So we’re organizing around what happened. We’re organizing around like maybe a piece of the damages. Or maybe we just do a timeline. I have them take a picture with their phones because generally we are creating it together. Make sure we walk through that, but that gives them something if they need to refresh, they can just take a quick look at it.

The other thing I like to do is I really like to give homework, but it’s just thinking homework. That’s why I tell people, okay, I’m going to give you some homework. I don’t want you to write anything down. I just want you to think about it and give it to your brain and your brain will start working on it for you.

The only thing sometimes I’m like, okay, we’re going to. Dig deeper on the impact and what’s going on. So it’s sometimes it’s helpful to go like whoever you’ve been living with, right? Maybe it’s parents, maybe it’s friends, maybe it’s [00:33:00] spouses and just say, Hey, do you remember, itty refresh my memory on some of that stuff.

Right. And then say, Oh yeah, like that’s generally the hardest part is just refreshing that memory of like. With so much time that’s passed. So that’s what I really like to do. Not give them anything super heavy, but just back of the brain thinking stuff or talk to somebody or take a picture and just take a look at it.

Amanda Carmody: Yeah. I think the visual aids is a very good idea because it keeps it simple, but it’ll trigger that memory of sitting there. I give my clients homework. I give them a sheet of homework that is, like you said, we make it clear. This is our communication. This is something we’re working on together. But I try to keep it light until a week before their deposition.

And actually have it be some of the heavy stuff because I want them to practice thinking through these things we talked about because it helps them when a defense attorney asks a question that maybe we haven’t practiced verbatim, [00:34:00] they know what to respond with because they’ve just sat with what they’ve said.

So I make the homework based off of our conversations. Which is another opportunity to show your client. I am listening. I care about what you’re saying. These are important things, but from practice or a prep session to prep session, it can be a little tricky I think because you finish the first one and your client wants you to shake it off get over it get moving and then you Come back and it’s okay.

We got to get heavy again 

Elizabeth Larrick: Yeah, I’ve started to do like a mini meeting, like just to give them the guideposts, like here’s where we’re going and what’s going to happen. And then I remind them of that constantly. Here’s where we’re going next. So they’re like, okay. So that it’s always, we’re going to keep moving through.

And there are times where I’ve definitely worked with people and I put it pretty close to the deposition because I know literally our brains forget like an instant, like we, we are literally, so 10 [00:35:00] days goes by, we got nothing left and I’ve had it to where we do a piece of work and then I noodle on it.

And then I come back to him and I’m like, we got to do that again. Like it did not feel like it was right for you. And they’re like, I’m so glad that you said that because it just didn’t feel like me either. And I was like, great. Look at this. Let’s go back. And sometimes it happens that we, it really depends on the person, but you may not know that until you get in there and you start working through and you can, working with enough people and talking with enough people, you get a little bit of a spidey sense of, Oh, Oh, that’s a sensitive area.

Let me make a little mental note. Like we’ll get back to that. Maybe this session, maybe another session. And what I also love about the approach of literally asking questions and just listening and going through is so many lawyers have trepidation about I’m going to have to confront them about a B or C.

And I’m like, If you literally just sit down and [00:36:00] start talking to someone, she’s nodding her head. Yes, it will come out naturally. And if it doesn’t, you’ve spent all that time talking and listening, you can still say and bring up, I have this concern, or what about this thing? There’s no quote unquote confrontation.

Amanda Carmody: I am a big Ted Lasso fan. And there’s the whole line of be curious, not judgmental. And that is just the nail on the head to me. If you approach your client’s step prep as Okay, we need to figure out what problems we have so that we can fix them. That’s not a right way to talk to somebody about something that They went through, that’s horrible.

And it’s super confrontational, and they’re already in a confrontational system. If you approach it with, just start talking to me, let’s just work through this. And really try to learn where that person’s coming from. With curiosity and not sitting there thinking like, oh my gosh, this is a huge problem, we gotta fix it.

It just goes so much smoother for me. Everybody, for you, for your [00:37:00] client, like, you don’t have to make the process so exhausting. You can just take the easy road, which is, 

Elizabeth Larrick: And you’ll hear something, it’s like you talked about that mediation course, and there’s a book that I read, Never Split the Difference, and if you just sit and listen, it will solve your problems.

I’m like, it’s so true, like mediation, like if you will just listen, you will find something that will solve the problem versus you having to come up with the solution. And again, we as lawyers, we’re problem solvers, we want to have solutions, we really want to help people. And this is a place where I’m just like, Other places, yes, you’ve got to go find that solution.

You need to put your thinking cap on. You need to do that. This place with your client, though, like listening will solve so 

Amanda Carmody: many problems. I had a client who would say things like, 100 percent absolutely all the time, things that you tell your clients, stay out of those extreme areas. Never and always. It was killing me.

And [00:38:00] I could not figure out how to get this person to stop saying that. I said, if you say that, this is what they will interpret it to me and tried to explain it and then just let him keep talking. And it turned out he worked in restaurants for a really long time. And that’s the lingo. Think about going through the drive thru.

Okay. Chick fil a. And they say, absolutely, my pleasure. And you just are trying to be accommodating. And so by learning he worked in a restaurant, learning that was the vernacular he had picked up, we could start breaking that apart. You are not in a restaurant. You do not need to be accommodating with this person.

You are not here to please them and say, yes, sir. No, sir. Yes, ma’am. No, ma’am. Let that go. And it was just a real aha moment that his experience in a restaurant was totally irrelevant. It was. Decades ago, it just was a habitual thing he had picked up. 

Elizabeth Larrick: What I always find when you point something out like that, you’ve listened long enough to say, Hey, if you notice that you didn’t, they’re like, no, they don’t even know.

It’s totally subconscious. And it becomes like that thing. [00:39:00] I want to fix that problem. But I always say like, you just wait a little bit, give a little space, ask some questions. Again, you’re still going to listen in and find, oh, That’s where it’s from. Now I know the route to go because sometimes we give that explanation of when you say X defense says things Y, or they’re going to ask now all these cross exam questions because they’ve never been in that situation.

That’s not scary to them. That’s the, there’s still no, it’s a complete disconnect. And so that’s why it’s. Just like you said, get back in there a little bit, get a little more in there. And then, Oh, like it’s a people pleasing thing. And how can we get out of that mode and have a little bit of presence about, Oh yeah, I don’t need to be a people pleaser when it comes to this deposition or really ever, but that’s a whole other podcast we could, 

Amanda Carmody: there’s so many tangents we could run with for like a whole series of podcasts.

Yes. 

Elizabeth Larrick: So I want to bring us back before we started recording. I was [00:40:00] talking to Amanda about being passionate about helping clients prepare for deposition, being passionate about client testimony. It’s not that it’s rare, but it is a little bit rare and trying to talk to people sometimes about this amazing thing happened or the helping part of it.

Going on a total tangent about like people, lawyers totally blaze over, they’re so gay. And so I was trying to come up with an analogy because we all get taught like how to prepare somebody for deposition. Just depends on what point in your career, normally early on. Sometimes you maybe you don’t do litigation, then you do and you just basically follow somebody else’s outline or you watch somebody like, okay, I guess that’s it.

We meet, we do discovery responses and good luck and send them all through the deposition and Good day. Amanda, tell me we had a good analogy. So we’ll talk through our analogy about what depo prep can sometimes look like. 

Amanda Carmody: Yeah, I’ve been watching a lot of Great British Bake Off. And so I immediately thought of cakes and just starting with all of the ingredients for a cake and dumping them into a [00:41:00] bowl and then expecting it to come out as a cake is not going to work very well.

Most of us just. using the analogy, are past the point of dumping all of the ingredients into a bowl and pulling out a cake. We can get to a point where you mix them in the right order and then you bake it, but that cake is probably not going to be super great. It might be from a box. It might even be the kind you take out of the freezer and thaw for 30 minutes before company comes over.

But the more You read your cookbooks, and the more you talk to other people who are baking cakes, and the more you The more you bake, though! The more that you bake, the more depositions you take and defend, the more you see what works. To the point where you’re getting to a place where you have something you can be proud of can be your showstopper.

But even when you get to the point of having like your beautiful cake that everybody agrees looks beautiful, tastes beautiful, there’s still a better cake out there for you to bake [00:42:00] and you can still get there. And so have your cake, eat it. I don’t know how far we can push this down. Yeah. As lost. Yeah,

Elizabeth Larrick: Because I think a lot of times, because it is something we do in every case, generally there’s some kind of, oh, this is how somebody else did it. And that’s why I said it’s like Duncan Hinz like, oh, it’s client deposition. All right. Here, let just do the same thing. I’ve always done egg oil go. That’s good enough.

Because yeah, it’s a client deposition. What differences does it really make? Once you really start to dive into like human emotion, human psychology, you don’t need a degree. I don’t have a degree in that. I just started listening and watching and paying attention to, Oh, if we order it this way, people There’s so much more that people grasp.

They’re so much better that they do. And that’s the same way with baking a cake. Okay. There’s a difference between baking soda and baking powder. Big learning moment. That’s right. And you get better [00:43:00] tools. And so you can help so many different people. And I think. You nailed it very early on, which is type of prep, the amount of time is very much fashioned around the person and the case.

You get so much better at doing that when you have built up your tools and your toolbox and know what it takes when you have resistance from somebody. Oh, I’ve got somebody who talks way too much, or, oh, I’ve got somebody who’s really defensive. You have this experience of like, okay, but what I always know and can always go back to is listening questions one on one time.

That’s always going to be a part of it. And same thing with baking a cake. There’s always going to be specific ingredients, a specific order. It changes up a little bit, but there’s such a huge difference between that cake you pull out of the freezer and the cake that you bake yourself. I mean, we were trying to think of an analogy.

Like 

Amanda Carmody: it’s such a good one. I’m sitting here thinking of more ways. It’s like cake. Some people don’t like vanilla cake. Some people are [00:44:00] allergic to gluten. It still is the same general idea. You’re making something that looks like a cake, but there’s certain. Frostings you wouldn’t put on certain cakes and certain cakes can’t handle weight.

Heavy things and heavy toppings. You have to be delicate and that’s just how people are too. And as long as you’re like, you’re saying to try to wrap this up nicely, as long as you’re approaching it with kindness and curiosity and just openness, you’ll be able to figure out what type of cake you’re baking and how to make your client.

feel like they did something good that they can be proud of. 

Elizabeth Larrick: And if you do it, if you just try a different one, one time, you will see phenomenally the difference. It may not feel like it. You may think, oh, it’s still the same, but that connection that you have with that client has completely changed. And final thought on our analogy here is a huge difference between a Martha’s story.

Stuart cake and Duncan Hines. And once you’ve had one, you don’t ever want to go back. Yeah. You don’t want the box [00:45:00] cake anymore. That’s right. That’s because you’ve seen, like, you see the change. You sometimes you actually feel the change and you may say, but Elizabeth, Amanda, it didn’t get the case a little quicker and we still had to keep doing all these things.

Think about the client. Like how much more happy were they to deal with you? How much more happy were they to get you whatever you want and turn down that low ball offer and not be. Emotionally tied up personally and thinking I’m not worthy because I got this low ball offer because that is a total thing.

You nailed it. Like people feel hopeless and worthless because that’s what they’ve been told the whole time. So 

Amanda Carmody: yeah, no, I think that’s 

Elizabeth Larrick: exactly it. Elizabeth. Oh my gosh, we have tackled so many things, but I’m really mostly proud of our cake analogy. 

Amanda Carmody: It might have gone a little too far in time, but I think I’m going to go get cake.

I don’t know that I’m going to bake it. I have a holiday party to go to, and I really hope there’s cake. 

Elizabeth Larrick: Oh, Amanda, thank you so much for coming on the podcast. I really enjoyed having [00:46:00] you. so much, Elizabeth. I appreciate you. Awesome. Hey, if anybody has questions for Amanda or you’re up in her area, I know she would probably love to grab a zoom with you or an actual real live person, coffee and talk about depo prep.

All of her contacts will be in the show notes. If you want to reach out to her, thank you all so much for tuning in. If you enjoyed this podcast, please rate and review on your favorite podcast platform. And if we are not connected on LinkedIn, please go and follow and connect with me so that we can continue this conversation.

All right. Until next time. Thank [00:47:00] you.

Have you ever witnessed the courtroom magic that a well-prepared lawyer can weave? Imagine the edge a legal team could have by understanding a jury’s mind before even stepping into the courtroom. That’s exactly what Florida attorney Brooke Grogan and I peel back the layers of in our insightful conversation. Brooke brings to the table her experiences with focus groups, revealing how these mock juries can drastically alter the trajectory of a trial. From honing opening statements to fine-tuning courtroom tactics, this episode is a masterclass for any trial lawyer eager to absorb the tactical know-how of leveraging focus groups for legal victories. 

Picture this: a tool so powerful it could swing a $3 million verdict in your favor. That’s the story Brooke recounts as we delve into how early focus group feedback reshaped her case strategy. We also tackle the virtual evolution of focus groups, discussing the conveniences and complexities of platforms like Zoom. Whether you’re a seasoned attorney or just legally curious, our exchange is packed with practical insights that underscore the transformative effects of blending technology with trial preparation. Join us to unearth the art of legal strategy through the lens of focus groups – a truly eye-opening dialogue for the courtroom tactician in all of us.

In this episode, you will hear:

• Brooke’s first focus group experience
• Focus group evaluation
• Importance of focus groups in evaluation
• Value of focus groups and input
• Adjustments and progress in 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.

Supporting Resources:

To learn more about Brooke Grogan & her practice: https://www.injurylawyers.com/attorney-brooke-grogan/

 To follow me on LinkedIn: https://www.linkedin.com/in/elizabeth-larrick-942447101/

 If you have a question or suggestion for the podcast, please email Elizabeth: elizabeth@larricklawfirm.com 

 

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

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hi there. It’s Elizabeth. I want to stop really quickly before we get into this episode and tell you about my guest today.

Brooke Grogan is joining us today. She’s an attorney at the West Palm Beach office of Stanger Green and Finer. She is a native of Florida and she enjoys using her platform as [00:01:00] an attorney to help others, especially those without a voice or Without sufficient monetary means or knowledge of the legal system.

I met Brooke through my very good friend, Neil Anthony, who also works at the same firm. And they actually teamed up recently and went to trial and secured a 3 million verdict. So way to go, Brooke and Neil. Anyhow, let’s jump into this episode because I think you’re really going to find it interesting what Brooke has to say about her first focus group experience.

Hello and welcome to the trial lawyer prep. Podcast. I am your host, Elizabeth Larrick, and we are here to talk all things case preparation. This is a podcast that’s really been set up for lawyers who are litigating cases in employment law and personal injury and work injury and business litigation as well.

Sometimes we talk about other stuff too, but mainly those are our main focus. And we talk about all other kinds of things that help people get ready for cases [00:02:00] and really how to’s. Today’s episode, I have brought on a wonderful guest who is going to talk about her experience doing her first focus group.

Brooke comes to us all the way from Florida. So welcome to the podcast, Brooke. Thank you. I’m excited to have Brooke because they came to me to do some focus groups. And after we did them, Brooke had some wonderful feedback for me. And I thought, you know what? This is what a lot of people out there are thinking and feeling about doing a focus group and what may be something that’s holding them back.

So I loved, and I always appreciate people giving me feedback, but Brooke also agreed to come on the podcast, which is the second hurdle. So Brooke. Let’s walk through this. Tell me what you were thinking. You guys are gearing up this case and that always helps people too. Like I know what I need to talk about.

Like we don’t really even talk about the facts actually, but just tell us like where you guys were in the case. Cause a lot of people have questions and we talk a lot about when to run a [00:03:00] focus group, like what point in a case and what case really would need one. So talk me through, tell us all about that kind of thought process when you guys were approaching doing a focus group for this case.

Brooke Grogan: All right. So thank you for having me. And I should just say first and foremost, I don’t know whether it’s right or wrong, but we brought you on early on in the case. We knew early on, we had a case with big damages and we were high valuation of the case. So I brought you on early on. And I think that really benefited the case in the long run.

Cause we got the feedback early on throughout those sessions. So there was a lot of really positive things that came from your involvement early on in the case. 

Elizabeth Larrick: Good. And I think, and you tell me, you guys approached once you guys got the trial date, but the trial date was still six to eight months away.

Is that sound about right? 

Brooke Grogan: Yes. So we decided we were going to do three sessions. focus group sessions. And that kind of put me at ease because in my mind, [00:04:00] having never done one before, I always envisioned a focus group, like a mediation where it’s like you go in and you present everything from A to Z and everything in between.

And the only difference between mediation and a focus group is you’re getting feedback at the end of it from complete strangers. That was What I was expecting and I was kind of a daunting thought thinking I’m going to have to really tackle an entire case throughout maybe a couple hours of a session.

So I was really happy when on our first call, you explained to me, we’re actually going to dissect the case. So we decided we were just going to tackle the opening in the first session. We were just going to tackle the liability and damages in the second session. And then the third session we decided we would use for one deer.

And that really put me at ease and knowing that I was going to have an opportunity to really focus on each really critical. Piece of the case, but over time, not all at once. So my case had a lot of moving [00:05:00] parts and I feel like the focus group your timeline. Our first session was, I think, 5 months before calendar call even and.

It forced me to prepare. It forced me to write my opening statement and deliver it five months before I was even supposed to be in court. So in the moment, I was thinking this is going to be a big commitment. But looking back, I’m so glad I prepared. I’m so glad I banged out my opening statement because I had so much time to make adjustments.

After that, and it really helped me frame the case as well. As far as file management, time management, the focus group really kept me accountable on making sure I was preparing the case in segments. So I really appreciated that. 

Elizabeth Larrick: Yeah. Awesome. And that’s a lot of times people just, you know, that same thing, the trepidation is there’s going to be so much work that’s required to do the focus group.

And it’s really not, especially like the format that we decided on, which was virtual. One of the things that. I always encourage [00:06:00] people to listen. We don’t really want to do a super long virtual focus group. Like people will lose interest. Here’s the sweet spot. Two hours, three hours, get a lot done still in one hour, but that makes you then choose.

We really have to hone in on these particular things. We can’t do everything. So I appreciate you pointing that out. What I want to ask. So let’s go back. Let’s take it back. Okay. Approaching this as you’ve never done a focus group before. What was in your mind? What were your worries? And you talked about one, the amount of work that would be acquired, like thinking, Oh my gosh, it’s going to be so much work I got to do.

What were some other things, concerns that you had about running a focus group? 

Brooke Grogan: So I think initially, the concern was the cost, and when I say cost, to make sure that the file justified the cost, but also that the client was okay with it, because ultimately it comes out of the case. And I realized pretty early on in speaking with the client, they were happy, they were excited, they were so supportive of us focus grouping the case, and I think it actually helped us build [00:07:00] trust, because They realized I was willing to do whatever was necessary to understand the hard issues in the case, the complexity of the case.

And I was really trying to understand it. And I don’t know for sure, but I would guess just based on my experience in this, that most clients, if their attorneys call them and say, Hey, we’re going to be focus grouping your case. They would all have a positive reaction because number one, the attorney seeing the value in the case and number two, the case is important.

So when the attorney is taking the case and making it an important case, I think that really builds trust with the client and it means something. I think they appreciate it. So in my case, I’m sure. Probably many other attorneys may say this, but the client was so supportive of it. And so cost really, it became a non issue pretty early on.

I realized, wow, the client wants to do this just as bad as I do. He’s just as interested as I am in the feedback. So that was a surprise for me that it was received so [00:08:00] well. 

Elizabeth Larrick: Yeah, you didn’t have to work hard to convince him he was no. Yeah, 

Brooke Grogan: not at all. 

Elizabeth Larrick: Yeah. And that’s been my experience too. When I ran litigation cases, and I told people, this is what I did.

They’re like, wow, that’s really cool. What a great idea. Instead of just trying to rely on your own thoughts, your own experience, you can go ask other people. Absolutely. And I think cost is important. It’s always a concern when you’re running and you’re handling costs as a law firm or as a solo. Like you’re handling those costs.

I do think it’s always super important to talk to your clients and let them know and get that approval. But thinking it’s going to be a ton of work is one of the holdout thinking it’s going to be a huge expense. And then sometimes what I also hear from people is this worry that like. They don’t really know what they’re going to get.

What really are we going to learn from the focus group that I can actually use? Was that ever a worry from you? And I know you had another podcast friend chirping in your ear, Neil Anthony, who’s been on the podcast before. And so he was probably chirping in your ear a little bit, but was that a concern at all?

Brooke Grogan: So I don’t think I was [00:09:00] so sure about what the feedback would be, but being in it, I can tell you what it ended up being. And I think. Looking back, I’m like, Oh my gosh, it was invaluable. It helped me get my case resolved. But when you’re in it, maybe you don’t really know necessarily if it’s your first time.

I appreciate it now, but my focus on the second session we had was really a game changer for me because I went in concerned about my damages and my valuation. And that’s what I thought I was going to hear everybody talking about was the valuation was too high or the injuries were problematic or what have you.

Every question that the focus groupers kept bringing up to you, I believe, and the conversation kept going right back to a liability issue that I really wasn’t expecting leaving the second focus group even I felt like I had refocused on, okay, like I had more confidence in my valuation of the case. I knew I was on the right track there, but I really needed to focus on my [00:10:00] liability, and that’s where I did focus for the next.

A couple months, I ended up getting the case resolved because of that. That was the missing piece that ended up getting the case resolved as we didn’t even make it to the third focus group. We had the three kind of staggered and just, I have to say, understanding in the focus group, they would bring up defenses and things they were thinking about in words that made them think of other things.

And it just, it helped me refine my opening, which helped me frame the case. And then, I Refocus on to back to liability. I thought I was over liability and on to valuation and I realized I had to take a step back as far as what you can get from it. I think that every case is different. There is 100%. I wish I could focus group every case because there’s 100% Something to be gotten from the focus group.

Something someone says or thinks about that you didn’t think about. There are so many perspectives. It’s not just yours. It’s so nice to check your perspective. So [00:11:00] doing it, be open minded. You will learn something. You will learn about the difficulties of the case and to have a strength in your case, I truly feel like you have to understand those difficulties and hurdles to get over them.

So it’s helpful to that for sure. 

Elizabeth Larrick: That’s what my, my questions was. I know sometimes, and this is the feedback I get from other people’s watching it, it’s just like sometimes a total gut punch because they are just saying all these things that you didn’t even think about and it’s just, Whoa, wow, I missed that.

But sometimes. Again, we’re got our own point of view on things. It’s difficult to hear, but it’s always going to make you a little bit better versus not ever knowing about it. And then just going in blind with people for sure. For sure. 

Brooke Grogan: Absolutely. Yep. 

Elizabeth Larrick: So tell me a little bit about what was your, let’s go back to that first focus group.

You’re sitting there listening. And I think we, it was pretty, pretty general, I think on the facts and stuff. How were you feeling during that focus group? And after walk us through that, going 

Brooke Grogan: into that focus [00:12:00] group, like I said, it was, we focused on the opening statement. So I had probably my opening statement, 90 percent done.

Five months out from trial, which was I think pretty early. And I sat back and just listened and I just, that’s really all I did. I feel like in that focus group was I had an opportunity to present what I would be presenting in the near future. And I just listened and I was making notes to my opening as we were going, changing certain words, like I said, were maybe not hitting home.

Like I wanted them to, or maybe I missed a few things. So it was invaluable feedback for me to. Make the changes I needed to make over the next coming months. And it was the next couple of months were like a breeze because I’d already done all the hard work early on. And I didn’t really want to do it so early on, but you were so great cause you kept me accountable.

You’d be following up like, Hey, we’re going to be presenting in a week. Do you have any questions? And I was like, okay, we got to do this. I worked with Neil, my trial partner, and we just, we spent a [00:13:00] lot of time on it early on, but then it freed up. So much of our time getting closer to trial, we were able to focus on so many other things.

I really loved having an early timeline in hindsight. 

Elizabeth Larrick: Yeah. Was there anything that surprised you from the focus groups? Not that I can think of. Okay. Okay. So I know that we did the two focus groups and then you went on to do quite a bit more in the case, meaning there were some depositions, there were some more conversations.

So how did the focus group work impact The rest of the things that you did in the case. I 

Brooke Grogan: think that having done so much work on this case early on, when it was coming time to crunch time with these expert depositions and tough conversations with opposing counsels on what they perceive to be problems in the case, I just felt like I had a layer of confidence.

The conversation in my mind wasn’t me wondering what, how a jury would perceive stuff. I think [00:14:00] they would see it this way, or I think that this fact would be received in this way. I felt confident that I maybe understood even how they would understand it because I had focus grouped it twice. And I think we had 10 people, complete strangers in the first focus group, about 10 and 10.

So I had already talked to 20 people that didn’t know me, didn’t know the case. It really gave me a pulse on what the strengths of the case. And that really flowed through. I think in my conversations, I was able, I just had a layer of confidence in my conversations with the client. Changed as well because the client would always ask questions about what do you think about this?

What do you think about that? And it would always be my perspective. Well, I think this but I don’t know how a jury will receive the information and the conversation was really taken out of that context to more. This is how a jury will probably perceive this information. So it was just a different level of confidence and knowing this isn’t just my perspective, but probably this is how [00:15:00] a strangers are going to see this case as well.

So it flowed into all aspects of the case. So it made me feel more confident, my depositions, my conversations, even with my client. 

Elizabeth Larrick: And that’s awesome. That’s, that’s sometimes having that feeling helps just to, and you guys got it resolved, which is. Pretty awesome. Cause when you guys came to me, the, or you guys were like, I’m pretty sure this is going to go like, we’re really, we’re 90 percent sure that we’re going to go to a trial.

So I was shocked when I got that email. 

Brooke Grogan: Right. And then we got to use the last session on a totally different case. And I got to practice a voir dire cause I had never done one of those 

Elizabeth Larrick: before either. So it 

Brooke Grogan: was really fun. 

Elizabeth Larrick: Yeah, exactly. Then we got to do some other stuff. Let me ask real specifically, cause I know you had to take some expert Was there anything from the focus groups that really gave you either some ideas or some confidence about particular pieces that you knew the expert was?

Either not going to agree with or didn’t even [00:16:00] consider. 

Brooke Grogan: I knew from, like I said, that second focus group, which I said was a game changer. I knew what piece was missing and what the case needed. I knew what the people were looking for. The question was the same question. I kept coming back to the same question.

So in, and that deposition Came after the appropriate expert to actually fill that gap and came after that focus group and I hammered it home. I hammered it home. I probably asked the relevant question five times sideways to make sure it was like a concretized answer, but I made sure that it was like a stone, like a really strong response to that because I knew that’s what.

That’s where the interest was. So I probably spent more time on that missing link because of that second focus group. And I know I did because I changed completely changed my focus from, like I said, the valuation, which was fine to this missing link on more of the [00:17:00] liability side. So it allowed me to craft my questions more so around that missing link and spend more time on it.

Elizabeth Larrick: Yeah. And that’s one of the things I always tell people and it’s hard to kind of grasp without going through it is you’re going to hear what, where the education needs to be. You’re going to hear What it is that they need to hear from an expert because exactly truly some experts are totally they just get up there and they just go and you’re like, there’s something really specific.

I need you to talk to exactly. They don’t get it at all. And so I really love that piece came through for y’all. And when it did, because again, sometimes people time these things when they have all the expert depositions and then they go to a focus group and the focus group, like you said, you kept hearing it over and over again.

And you’re thinking, Oh, I didn’t get to have my expert fill in that piece. And I didn’t get to hammer defense expert on that piece. And so that definitely, I think really is one of the big, [00:18:00] significant things that people, We have in our minds, that focus group is really just like you said, it’s like a mock trial.

You threw everything at them and then you get feedback. If you do it early enough, you’re really coming and bringing all of that into everything else you’re going to do next. Depositions, experts, having those conversations with that opposing counsel and then having a lot more confidence in your number and your valuation that you might not have.

Brooke Grogan: Exactly. In my mind, I was not gonna gloss over that issue. I was like, I heard it, I heard it once. I heard it twice. We are gonna be focusing on that issue. Thank you. . But it was good. It it, I, I was very aware of it and that was like I said, really great, maybe unintended consequence or, I’m not sure of that se really second focus group.

Elizabeth Larrick: Yeah. Yeah. And I think that people. Like you, you’re, sometimes people are curious about what they’re going to get and they don’t, they feel like sometimes it’s going to be like looking for an [00:19:00] Easter egg thing. But I’m like, no, they will tell you straight out and you’ll hear it more than once. And that’s when you know, okay, they’re ringing that bell.

Like that is something that we need to answer that question. Or a lot of times we may run a focus group. And I know for sure we had conversations once we finished where it was like, okay, here’s what they want to hear. Do you have this? Is this something that’s already in the case? Or do you have this witness who can come in and explain this?

Or, and you guys did, there were things that we heard about damages that Gave you confidence. Okay, good. This is how I felt about it. They secured it and then it was like, okay, how can we hammer this home if, if you guys go? And it was like, okay, we’ve gotta get the manager he worked with. We’ve gotta get people he worked with.

We’ve gotta get the boss to come in to really understand the magnitude of the job that this person was handling. And then couldn’t anymore. Sometimes we have all the things in the case, just not know how amplified they need to be. And then sometimes, like you [00:20:00] said, you got to go to that expert and ask those questions and fill those holes.

Brooke Grogan: And I think too, being in it presenting the opening, it was so helpful to have you as a third party, hearing it and really observing everything. And after the focus groups, we talked every after every focus group on your feedback as a third party, kind of. Like seeing reactions and stuff. I got a lot of information from your responses as well.

I don’t know if we had ever really talked about that, but your feedback on reaffirming, Hey, I think they sounded like they were accepting this part of the case, but now it seems like this is the question. And You and Neil were really good, like sounding boards on that conversation and affirming me and like where I needed to go.

So. 

Elizabeth Larrick: Right. And I think we appreciate you so much. Of course. And I think sometimes I know for sure, cause I can remember one person in your focus group. Occasionally we have, we have 10 people, but that doesn’t mean we’re going to have 10 solid [00:21:00] people. Occasionally there’ll be a one off and I’ll be like, listen, we heard everything that Susan said, but.

Let’s just put that in a little bubble. Okay. Because that may be that extreme juror who never gets on. And I want to say you probably, I don’t want to say you had somebody like that. 

Brooke Grogan: I did. And you gave me, I was like concerned and you were like, no, they’re not all going to be like that. So I really took to heart your feedback.

So I didn’t get too wrapped up in the, I’m going to say the negative comments or whatever it ended up being, but it was good having your perspective too on that. 

Elizabeth Larrick: Yeah. And sometimes that happens it’s, and, and trust me, you’re not alone. That’s why when I see it happening, I generally make a little note myself and then just say, Hey, listen, we’re this person in particular, let’s just put them in a bubble because sometimes what will happen is our brain will just hear that comment.

And then. What I hear from lawyers, everyone felt that way. And I’d have to be like, no, that was just Susan. And nobody jumped on [00:22:00] Susan’s bandwagon. So that’s one of those things of having that extra person. And I always even like having you and Neil listen, and you guys then having that immediate feedback right after the focus group.

And that, and I’m glad we’re talking about that because sometimes people just, you know, Okay, good. Got it. Gone. And so if you like talk it through and sound off each other, you’re going to get such like a more in depth understanding of kind of what happened, especially bouncing it off another lawyer who just saw it.

And then we always, I think that having that immediate, like, Feedback so that you don’t go chasing that rabbit, that one little person who mentions that one kind of crit. No, come back. We’ll let Susan do her thing. You’ll know how to spot a Susan, but the majority of people, like you said, that it’s gonna, if somebody says something you’re looking to see who else is going to pick up on that and if it’s going to come back.

That’s always I think helpful to go back and look like, okay, 

Brooke Grogan: I think to the [00:23:00] majority of people, if not all, maybe but one were very committed to the process. I felt like I was getting really organic, real responses. And that’s a credit to you, too, in finding these people that are committed to the process.

Elizabeth Larrick: Yeah, I think it’s just a matter of making sure everybody understands what everyone’s role is, and I think it’s so critical that when you’re running, especially an opening statement, like, you don’t then do all the questioning, right? Then they’re like, your brain’s confused. Wait a second. You’re obviously not neutral.

You just gave me this very biased, you know, statement. And so I think having that extra neutral third party to come in and be like, okay, I’m just here to ask questions. And we try really hard to make our questions a very open ended, right? Like, how are you feeling? And how do you think? And put this in the chat and give me your thoughts.

And that way we’re really. Getting everybody. And I always tell people it’s so key. It’s just like a [00:24:00] classroom. Like everybody has to have that individual attention. And in zoom, that’s really the only way to manage people. Otherwise you literally don’t get what people are saying. Cause zoom cut somebody off.

That’s another. Reason why I really love like comparing in person versus zoom is in person. So many people, especially post pandemic, I don’t know what it is. Talk over each other constantly. And it’s as a moderator, it’s a constant, Whoa, Whoa, Whoa. Cause you’re missing it and having someone to go back, repeat it.

Like someone’s going to lose something in there. So I appreciate zoom in that sense of being able to gather everybody up individually. Me 

Brooke Grogan: too. And if you can present your case on zoom. You can present your case in person because zoom, I think when you’re standing up and you can actually move around, it’s more effective.

So if you can do it on zoom and you may have a better pool on zoom as well. A lot of people don’t want to go in person because of concerns, COVID concerns or masking situations. I think you get a better, a larger pool of people probably [00:25:00] doing it via zoom rather than not just like a narrow group of people that, you know, you know, Don’t want to be in person.

Elizabeth Larrick: Right, and that’s what I was going to say. Did you have any concerns about being virtual? Versus in person? 

Brooke Grogan: I didn’t. I actually prefer it because, especially when you’re presenting, it’s so much easier to present. You share your screen, it’s right in front of the people. They can all see it. There’s no issues.

They can hear you, they can see it. I have no problems, uh, doing it via Zoom. And like I said, it’s probably you get a better pool of people. So I personally prefer it, but I don’t have any experience on the other side of doing it in person. So I don’t know, but I didn’t find that there were any issues for me.

I love that you posed your questions throughout the session. People, I could see their responses in the comments. It was what I was looking for. It, it, it achieved what I was looking for. 

Elizabeth Larrick: Yeah. And again, we you’re in Florida, I’m in Texas. We couldn’t do it otherwise, [00:26:00] but that’s what I hear from so many people in doing the in person is they don’t even literally want to get in the car and drive somewhere.

We always try to have free parking wherever we go, or if we do reimburse it, but people even just, I don’t even, that’s what I hear. I don’t want to fight traffic. I don’t want to come down there and have some kind of crappy lunch and then sit through and. Maybe I’ll get sick or whatnot. So it’s, we definitely have a lot better response to recruiting for virtual versus in person.

Oh yeah. I would imagine. Yeah. And then I would just say the other thing thinking about cost wise to get some people to come in person, the cost is much higher because, Everything, renting a space, and then just paying people for their time, has really significantly changed since the pandemic. So that was definitely a helpful thing with virtual is we cut a lot of that stuff out.

Oh, it’s 

Brooke Grogan: good to know. 

Elizabeth Larrick: Yeah. Yeah. Absolutely. Brooke. Let me ask you to check in because we’ve got lots of people who are listening to the podcast and maybe they’re thinking about running their own focus [00:27:00] group or they’re on the cusp of like maybe pulling the trigger for a focus group. What would you, what would you tell them?

What would you, what would your advice be to them? 

Brooke Grogan: I kind of think if you have a case that has damages, like decent damages, regardless of the rest of it, invest in the case, the client will be appreciative of it, and once you do one, you’ll understand why you will want to do more. It helps you prepare early on, it helps you build confidence in your case, it helps build trust with your client, and like I said, if you have a case that warrants it with damages, I’m pretty confident you’ll get good feedback and have a good experience, like I did.

Elizabeth Larrick: Yeah. And I would say just to that, that after that we, the first focus group, I think we did was just a one hour, just a one hour shot. We just did an overview. And I think that’s one of the ones where we really were like, Oh, we need to take, you guys need to take a step back. We need to really take this next one and look at.

Liability just to make [00:28:00] sure you guys are hitting it spot on. So I appreciate you saying that because sometimes you have to start a little small, just to alleviate some of those concerns and then be able to feel like, Oh, okay, now let’s move forward with a longer one, a bigger one, more preparation on you.

And then you’ll get more out of it. 

Brooke Grogan: Yeah, and I think along the way adjustments can be made. If you feel like you’ve really hammered home one aspect, you can always change the scope or the topic area of the next focus group, which is, I like that as well. We had our timeline and our subjects, but I think there was an understanding if we needed to refocus and We ended up doing that for the third one.

We made it into a voir dire. There was a lot of flexibility, but you were really helpful in, again, with the feedback on, Hey, maybe the next one, this is what we do. Your suggestions were really helpful. And I’m glad we implemented them because you’re more experienced in the focus group. I relied on you a lot for the feedback on how they should be run.

And it’s exactly where we should have been focused. And it was exactly what needed to be done to get the case resolved. In my case. It all really worked out. All came [00:29:00] together. 

Elizabeth Larrick: Yeah. And you guys gave yourself a buffer. You gave yourself a month to almost 40 days between each one, just to buffer it and give yourself time.

And I think that’s a really smart move. Because when you jam it all in there and do two, one week apart or two week apart, you’re really having to buckle down to make those changes, those adjustments and go back and think and marinate and think, okay, do we need that question again? Or can we change it? So yeah, you guys really, I think, approached Having that space there, super thoughtful, like knowing yourself, knowing your caseload and other things that have to get done and not try to pile it on at the last minute.

Awesome. Brooke, I really appreciate you coming on and sharing your perspective about focus groups and your first time experience. Thank you so much for having me. Awesome. All right. All of Brooke’s contact information is going to be in the show notes. If you have questions for her about focus groups, I know she’d be happy to feel those.

And of course, if you have anything in [00:30:00] Florida, Florida is a big place. I’ve learned this. through working with people in Florida and knowing, Hey, do you do something in Tampa? Absolutely not. Here’s this other person. But I know that anyhow, we’ll have that contact information for you guys. If you have questions for Brooke, I know she’d be happy to connect and talk about that.

Or if you have a case in Florida, happy to put that too. Okay. Thank you all so much for joining us. If you enjoyed this podcast, please rate and review on your favorite podcast platform. And if you haven’t done so, let’s connect on LinkedIn. My LinkedIn connection will be in the show notes. All right. Until next time.

Thank you.

In this episode, we reflect on a year of trial advocacy growth and gear up for an even more dynamic 2024. Listen in as I share insights from my tenure as president of the Capital Area Trial Lawyers Association, highlighting how organization and balance have become pillars of my practice. I also discuss the surprising dominance of virtual focus groups, with a staggering 44 sessions conducted online, illustrating their continued convenience and efficiency for our busy legal community. 

Plus, get a sneak peek at future episodes featuring fellow lawyers and experts who will shed light on innovative case development, witness preparation, and the powerful use of medical illustrations and animations in storytelling. 

As we wrap up 2023, I can’t help but share the profound impact certain books have had on my journey both professionally and personally. As I set my sights on devouring 40 business books in the coming year, I extend an invitation for your recommendations. Lastly, we’ll explore how experimenting with AI tools like ChatGPT might revolutionize the way we practice law.

In this episode, you will hear:

• The effectiveness of virtual focus groups (with 44 online sessions highlighted)
• Insights from impactful books for personal and professional growth. 
• Exploration of technology in legal practice, including the use of ChatGPT for brainstorming and content creation.

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:

To learn more about grief listen to Episodes:

Ep 85: What is Grief?

Ep 86: Ways We have been Taught to Deal with Grief

Ep 87: How to Navigate and Assist Our Clients with Grief

Book Recommendations:

Never Split the Difference by Chris Voss

Essentialism: The Disciplined Pursuit of Less by Greg McKeown

The Big Leap by Gay Hendricks

Loving What is by Byron Katie 

Got a book recommendation? Podcast episode topic? Email Elizabeth: Elizabeth@larricklawfirm.com 

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 with me your host, Elizabeth Larrick.

Today, we’re going to do a wrap up of 2023, as this will be our first episode in 2024. It’s always a great time at the end of the year to do some reflection. And I always like to do [00:01:00] that here on the podcast, because it’s a good time to take an inventory, look at what happened, what made an impact, and then also set some things forward for 2024.

Thinking about 2024 and just to get to those folks who are thinking, I don’t really want to listen to what Elizabeth did over in 2023. Totally fine. Let me just give you a little bit of a broadcast for the podcast coming up. We’re going to keep doing every other week episodes and continue to focus on having lawyers join a podcast to talk about things that are helping them develop their cases better.

Get clarity, get confidence, get certainty. How we’re going to have a lot of case studies, folks that are coming on to talk about, Hey, I use this, I use this style of focus group. I use this style of witness prep. I use this kind of organization to help me develop my mediation presentation. Really a lot of.

examples of how to’s where we can really kind of see the benefits. Also going to have some folks come back on our podcast to talk about things that they’re [00:02:00] doing in their Avenue, specifically in my mind, I’m thinking about Annie Goff. She’s going to come back and talk about medical illustrations versus animations.

I don’t know. We’re going to have a few other people come on as well, who are vendors that help lawyers tell their stories, whether it be a mediation or a trial. So let’s talk about this episode. I went back through my calendar as I live and breathe and die by my calendar and block things out, all that good stuff and looked at what really did I do in 2023.

Well half of 2023 was dedicated from, from January until June to the capital area trial lawyers association presidency. I really wanted to serve in that role to give back to the profession and here in Austin Capital Area Trial Lawyers Association provides monthly CLE lunches for members. Uh, we support each other with an email list serve and give back to the community through volunteer service.

I am proud to have served in that [00:03:00] organization as its president and will continue to support them on the executive committee. And I learned a lot about organization as balancing what I normally do with my work, plus also adding on the things to support that organization was just a good exercise and making sure that I balance things out, which is probably one of the biggest lessons that I have learned in 2023, but we’ll get to that just a little bit later.

Also looking back at. What did I do? 44 virtual focus groups and probably more considering inside some of those groups, we had two to three focus groups, right? So if you’ve listened at all to the podcast, you know, that my mantra is really about focus groups, small bites about case strategy, about issues, facts, instead of doing long, Okay.

So that’s why I say 44 focus groups, because we, we, I break it down. And then also [00:04:00] within that, we do even break it down, even smaller for focus groups did eight in person focus groups. I will tell you, this was a little bit of a shock for me. I had figured that the beginning of 2023, we would be doing a lot more in person focus groups only because I knew a lot more folks would be going to trial and be having a lot more action in our dockets.

And that really, for whatever reason, the virtual focus group still continued to dominate the space. My thought is that, one, it’s still so much more convenient to do these virtually. It’s convenient for us as lawyers, it’s convenient for people, it’s easy to put one together quickly. The other thing that we, I really saw in doing the in person focus groups was a huge new cost barrier to renting space, because typically when we’re doing the in person focus groups, the mock trials, we’re going to have a [00:05:00] lot of people.

So we need a lot more space. We joined them for longer and a lot of venues, especially the hotels that I dealt with were Much more difficult this year than last year, which I’d done some in 2022 and didn’t have the same difficulty. So I’m not really sure if there’s just an uptick or if there’s more competition or what’s happening in the space out there for, for in person venues, but that just, um, I was a little shocked we didn’t have more, but again, I just think, personally, the virtual ones are just so much easier for people who have a busy schedule, which those are lawyers who are listening to the podcast, right?

We’re in litigation, we’re going to trial, we’ve got mediations, we’ve got depositions, got a lot on our personal dockets that don’t allow sometimes for an entire day to be set aside just for attending, but not to mention the preparation that’s involved. So kind of a big takeaway is virtual is still the way to go, hands down, especially when it comes to time efficiency and money efficiency for [00:06:00] a lot of the same benefit.

And that’s one of the biggest questions that I get when talking with lawyers is, is virtual good? Like, is it good? Does it work? And hands down, yes, absolutely. I mean, just looking at these numbers, I mean, that’s 44 lawyers, right? Versus eight lawyers, right? And those are also not to say that people aren’t doing a combination of the two, but what I saw with our in person focus groups, those were folks who hands down, Um, we’re past the point of settlement.

We’re going to trial. We’ve got to get this together and run through it a couple of times. And naturally the virtual focus groups are not in the same position, right? They’re building up, they’re getting discovery ready. They’re getting mediation ready. They’re trying to figure out what does this need to settle or does it need to go to trial?

And then of course we had some trial prep ones in there as well. So kind of a mixed bag, but just to kind of give you a little bit of a background on that. The other thing that I help folks with is testimony preparation, whether it be trial or deposition. A lot more folks going to [00:07:00] trials, but I did see a lot more folks that I was helping with trial.

That was about a 50 50 split on that. Doing a lot of that work virtually as well. Again, just a matter of convenience for lawyers and for people. You know, a lot of folks are working a lot more because that dollar does not go as far. And so a lot of clients that we’re helping just, there’s a convenience level, right.

To not having to take off work to working around things and using virtual. So lots of good folks that were helped this year. I really enjoyed us, of course, helping people with that. And that’s lawyers and clients involved. The other thing that I did was I spoke at five CLE programs. Always love getting on my feet to do that.

Almost every one of them was in person, so that’s, I really enjoy doing that. Podcasts of course. You’re here. So thank you so much, but we did 50 episodes. We did have just a few repeats, but the focus of this year was really about having guests on and, uh, I would say we definitely had a majority of the episodes that were with our [00:08:00] amazing guests and a big thanks to all those people who came out, uh, to do the podcast with me.

The other thing that I did is I worked with three amazingly strong women who helped me grow personally and in my business and I read about 30 ish books. I say ish because I did not track it very well. Uh, and I do. Repeat reading books, some of them every year, sometimes every other year. We’ll talk a little about the books in here a little bit, but I just love reading.

So I did a little more fiction this year than I normally do. All right. So in that full reflection, of course, I looked at really what was impactful for me, meaning what were things that helped me or things that didn’t help. One of the most important things for me is working with.

And that’s [00:09:00] really a dedication that I made to myself many, many years ago to always work with someone to help me see what I can’t see. And I’ve done masterminds, I’ve done, you know, business coaches, I’ve done therapists and psychologists and it has always helped me grow. And so of course continued that this year and have seen many helpful things.

So many things that would be difficult for me to talk about here on this podcast. But one of the things that I did spend some time, which was talking about grief. And the grief recovery method that I did and then the certification that I got. If you are curious about more in depth conversation about grief, there are three main episodes that were released about grief and I’ll put those in the show notes if you’re curious.

In addition, if you’d like to learn more about the grief recovery method, I’ll put a link to the show notes in that as well. I want to also jump to the books that I read this [00:10:00] year that really had an impact on me. And I read many books, but these were the ones that kind of stuck out to me in my journey this year.

I read the book, Never Splitting the Difference, uh, as a negotiation book by Chris Voss. It’s been around for a while, but there were so many helpful, applicable things. So if you’ve read the book. I totally suggest reading it again. If you’ve not read it, definitely as a lawyer, gotta read this book. I think it is so helpful to anyone who’s maybe just starting out in the PI world to have in their thinking in their mind.

See, when I went to law school, I didn’t take any classes on arbitration mediation because I want to be a trial lawyer who needs the rest of that stuff. Okay. Well, it would have been really helpful to have, but I didn’t. So this book is a very helpful fill in for a lot of the mindset, a lot of the thoughts.

Plus he’s a really good storyteller. So the book goes by really quickly. Another book that I just wrapped [00:11:00] up this year reading was Essentialism by Gary Q. And he also has a podcast, but. The book is very helpful in this mindset of, you know, just doing what is essential and not rushing around to do everything, which is a lot of what can happen when you are a solo, you rush around because you have to do everything.

Uh, that’s a lot of what I do. I’m trying not to do that. The other thing that he really talks about is rest and time to think as a way more important. Thing in our lives versus rushing around, doing that one extra task, reading that one extra book. And I really loved that. And I have painstakingly trying to put that into what I do on a regular schedule.

And this kind of came full circle for me because when I worked with Mr. Keenan, one of the things, and if you’ve spent any time with [00:12:00] him or heard anything, then you know, then he loves a very good cigar and he would always have. Stokey time where basically he would sit up outside and smoke a cigar and I understood.

He always explained like this. I’m just thinking like I’m going back through, I’m thinking back through this focus group or I’m thinking, or he would just have me read things like read the focus group transcript. But that was what he always told all the lawyers that we worked with is like, you have to take time to stop and just think.

I just think, think about your cases, think all the way through, think about how to tell the story, and really give time for your brain to do the amazing things that it does. So get a full circle here, you know, reading this again, but also just like, okay, we’ve got to build some time in to stop and think.

And then of course, time for rest. Cause then that makes our brains better. Another book that I read at the beginning of the year, which [00:13:00] was the big leap by Gay Hendricks. And I’ve talked a little bit about that on the podcast here and there great book. If you are looking to grow, it’s been out for a little while.

It’s not a newbie, but it’s really helpful in finding. Things that you may do that could be holding yourself back. And if you are all about trying to grow to the next level, whether it be business or, or professionally, that’s the same thing, by the way, whether it be personally or professionally. Great book.

It’s so small. It’s really simple. He’s a very wonderful storyteller as well. There’s all kinds. He’s got a couple of their books out as well, but I would say that’s a good one to start with. The other book that I reread was Loving What Is by Byron Katie. Very simple book. It’s the four step questions, but just always a helpful re reminder.

I’ve read that many, probably five plus years ago, and I always have it on my Kindle to reread, you know, whether it just be a piece of it. And that’s also why I like her book is because she’s jumped to the [00:14:00] section you need, right? You need to have that.

So if again, you may find yourself stuck in a thinking loop, which is a lot of my personality is thinking loops. And as, as lawyers, we have think all the time and thinking in loops that are not very helpful. That’s a great one too. And I’ll put links to all of these books as well in the show notes. If you’re curious, if you’re thinking about picking up some books, one of my big favorite Goals for 2024 is to read 40 business books.

So my, my push to y’all as my audience is if you have a great recommendation, please send it my way because I’m trying to set it up ahead of time. So I know all the books that I’m going to read and in what order, well, hopefully in what order, but to knock them down, but also, you know, take notes and be able to find the books that I need.

So if you have any suggestions, please. Let me know. You can email me my email up in the show notes, or if we’re connecting on LinkedIn, you can just send me a [00:15:00] message on LinkedIn as well. One of the things that I also played around with, I always try to do something technology wise, and I really try chat GPT and I use it for a lot of things, but I mainly used it for helping me start ideas for writing a blog or for.

thinking about a podcast topic or LinkedIn topic. It’s super fun just to ask it questions and see what the output is, especially as like from a lawyer’s mindset, right? Cause we have what we know people think about us. And so it’s, you know, that’s what’s filled in with chat GPT. So it’s super fun to get good prompts.

I don’t want to talk too much into this topic. There are many other lawyers have great Things to say and how lawyers should use it. I was approached by some folks who had an idea to have an AI generate deposition questions like during your deposition, which is a very fascinating, wow, what a great tool, but from a brain capacity, energy perspective, that would be so much.

I mean, you have [00:16:00] a lot of energy dedicated to. Your outline to what you want to accomplish, but then there’s energy from across, you know, the screen or across the room. Right? So there’s all sorts of stuff going on for our brains. You know, one of the biggest things I think good trial lawyers do smart trial lawyers do is use their energy efficiently.

Because we really don’t want to lose being present in that moment or being lost in emotion, which is very, very draining. So super interesting topic on how to use chat GPT. I know some lawyers have gotten in trouble for using it because chat GPT will make things up. So nothing is perfect. Uh, but I would say if you are Wanting to play around with it.

It’s, it is fun, like in the sense of having somebody don’t have anybody to bounce ideas off of, put it in a chat GPT, and it will definitely spit out some information for you. The other thing that I have always been looking for is a note keeping. [00:17:00] Uh, say a digital note keeping app or organization or website that would help me.

And I’ve tried a couple of different things. And so far notion, it has been what I have stuck with and it’s very easy to use. There are so many note taking apps that get really complicated. Notion has been super simple to learn. It doesn’t add too much in there, but if you want to get really deep with it, you absolutely can.

I’m sure that it. Syncs with other things and links up. I didn’t have any of that done. I just have it as a really simple place for me to keep ideas and thoughts for content, right? To think about how do I do this or how should we talk about X, Y, Z, like. I just put all those in there and go back in there and find them.

It’s a great way. And again, pretty easy organization wise. And there are other people who are using it. That basically it’s makes it very easy to copy and paste to me. It’s way easier to use than, than Google as well for our, for my Google lovers out there, the other thing I’ll [00:18:00] say that I just kept up doing that I’ve always done is just a real, you know, simple routine of exercise, meditation, and reading.

And I’ve read something today that I’m sure we’ve all heard a thousand times, which is like people with good discipline, like helps them when the motivation is all gone. And that’s totally what that routine is for me because there are definitely days where I wake up and I don’t want to exercise, which if I skip one step, generally the whole thing’s out the window.

So I always try to make sure I do step one and then three, four, five, uh, go right after that. But that has always helped keep stress down, keep my thoughts clear. That’s really why I enjoy exercise so much. And then meditation keeps it clear, reading, right? Spark ideas, but that’s something I’ve always kept up with every morning.

I’m not always perfect about it, but it has always stayed on board for, uh, I would say hopefully 80 percent of the time, but I did not look back and track that either. So looking back, reflecting, what are some of the biggest things [00:19:00] that came back to me whenever I was looking at 2023? And I would think the biggest thing was building space, building extra time to get things done.

It always takes you longer than you expect or plan. Building space for rest, building space for thinking, building space for growth. Because typically I just bump everything, it’s just one right after the other. And in that, having done that, I have a lot of Backups, meaning I’ve got written notes and digital notes everywhere, just so when I bump to the next thing, right, I don’t lose that thought versus following all the way through and finishing.

Right? So really want to teach myself, which lots of teaching moments this past year for building some space and I would encourage the same thing for you. When I talk to a lawyer who’s going to trial in two weeks and there is no availability for them or [00:20:00] for even me to do a focus group, I feel terrible.

I think, gosh, how did this happen that there just wasn’t enough space? And that’s because it’s so easy to let go. Our schedules rule our time. And I feel like, gosh, I wrote to help you. I want to give you the information that a focus group could give you, but there’s no time because there didn’t leave any space for that.

And so, you know, there’s so many people say, Oh, we’ll do this, do that. I mean, blocking on our schedule is probably the best thing we can do to protect our time. And I know when. We work with other folks, whether it be assistants or paralegals or other people in the office, right? Protecting that calendar sometimes is not even our job.

And so we’ve got to teach everyone around us to protect our time so that we can have space to think about discovery, to plan out that deposition, to think about that mediation presentation to say, Oh, I do [00:21:00] need to schedule a focus group for that. Let me go ahead and book that day on my calendar right now.

And then I can. Book a reminder. If what I’m saying sounds totally foreign to you, give me a call. I’d lovely tell you how, how either Gmail or Outlook calendar works, because I think it’s such a great thing to block timeout out and then be able to get to that time spot and be like, Oh yeah, this is where I just get to sit and think and do a strategy or think about questions or whatever, maybe building space.

That is really what 2020 Three has been teaching me. And so that’s what my hope is for 2024. And, you know, we talked a little bit about what this podcast is set to do, what I hope it will do. And if you are someone who’s listened for the past two years and you want to come on, or you have an idea, please don’t hesitate to reach out to me.

And that’s what my email is for. I’m like any other lawyer who lives and breathes and dies by their email. So I totally will check it and [00:22:00] respond. But we just want to continue what we’re doing with this podcast and helping lawyers get better by learning from other people, whether it be the good stuff or be the mistakes.

That’s what we’re here for. That’s what I’m here for to help you with. And if we’re not connected on LinkedIn, please send me a connection because I would love to reach out and learn more about folks who are listening and what they want to hear from the podcast. Um, and of course, as always, my goal is always to get better with this podcast and speaking more to what I’m learning when we’re running these focus groups or when I’m working with clients.

So thank you so much for supporting the podcast in 2023. I hope that you stay safe. Stick around for 2024 and, uh, keep those automatic downloads coming. And if you haven’t left a review, please take some time to do that because that helps other folks find this podcast or just send a link to somebody else so they have a chance to listen as well.

All right. Until next time. Thank [00:23:00] you.

Have you ever wondered how the best trial lawyers prepare for court? Join me as I sit down with Justin Starin of McKenna & Starin, to pull back the curtain on the strategic deployment of focus groups in personal injury law. Together, we venture beyond the traditional mock trial format, navigating the nuances of targeted sessions that dissect specific issues like causation and case framing. Justin’s expertise shines as we dissect how focus groups can not only unveil potential juror biases but also refine witness preparation and bolster plaintiff credibility—essential tools for any legal arsenal. 

We also delve into the art of simplifying complex legal arguments for the lay jury. From revising opening statements to rendering technical evidence understandable, we expose the trials of countering preconceived notions and managing inflated expectations set by the likes of CSI. For legal professionals aiming to cut through legal jargon and connect with a jury, this episode is an invaluable masterclass in strategic case management.

In this episode, you will hear:

• Using focus groups for causation
• Responsibility of testing security systems
• Challenges in investigating a death case
• Expert testimony for defense against blame 
• Focus groups in legal cases benefits (90 seconds)

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Supporting Resources:

Justin Starin

McKenna & Starin

Justin@mslawmt.com 

Episode Credits:

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Episode Transcript:

Elizabeth Larrick: Hello, Elizabeth here. I just wanted to pop in very quickly to tell you a little bit about my guest that we’re going to have on today, Justin Starin.

He is a partner in McKenna and Starin personal injury law firm out of Missoula, Montana. Justin and I met many moons [00:01:00] ago while doing a deposition preparation for some clients of his. Which we’ll actually talk about in the episode. Justin is a total nature lover, as you will also hear. Loves to go rafting, spend time outdoors with his family.

All of his contact will be in the show notes if you have questions for him or need to reach out to him about a case in Montana. Okay, let’s jump in. Hello, and welcome back to the podcast. I am your host, Elizabeth Larrick, and we have a brand new shiny episode today with a guest. I will say, Justin Starrin is joining our trial lawyer prep podcast to talk about focus groups and causation.

But before we totally jump in with Justin and just say hello for everybody here, Justin. 

Justin Starin: Hello. 

Elizabeth Larrick: Perfect. Justin’s up in Missoula and I met Justin and his partner, Sid. Several years ago, I want to say we met through the edge back in the day. It was called the [00:02:00] reptile and worked with these two folks. And we have been fast friends ever since.

And they’re so awesome that they get me a speaker spot at the Montana trial lawyers speaking pretty much every other year, which I’m grateful because I love going to Missoula. So Justin, thank you for getting me the speaker spots and welcome to the podcast. 

Justin Starin: Yeah, thanks for having me on. 

Elizabeth Larrick: Yes, and so focus groups.

Plaintiffs personal injury work, workers comp stuff. Why do you run focus groups? I 

Justin Starin: think we’ve evolved in our focus group stuff over time, but mainly we do it to find out the viability of our cases from a juror’s perspective. We do it to learn what is the most compelling case frame for any particular case.

We do it to find out problems with our case or problems with our plaintiff. And sometimes we use it in all kinds of ways that, in fact, I’m always fascinated that there’s [00:03:00] always some new angle that we develop that comes out of focus groups. Witness prep would be a good example. You can find out what the defense is going to say by the focus group.

So yeah, there’s lots and lots of uses for them, but those are the main ones. 

Elizabeth Larrick: Yeah. And I. So I’ve been talking, I did an episode on it, and so let’s just be really clear for anybody listening, maybe if you’re a new listener, hello, we’re glad that you’re here, maybe you’ve been with us for a while, and yay, welcome back, but we’re not talking about mock trials, okay, so Justin, when you are talking about focus group, in your mind, what are you thinking of?

Justin Starin: We did back in the day, a full mock trial focus group, and it was very time consuming, very expensive. And it led us astray a little bit. It’s too much to do in one big show. Anyway, so the ones that we’ve, been doing lately and some of them with you. We’ve been doing just like [00:04:00] an hour, maybe two hours with a smaller group of people and more focused on a particular issue.

Maybe it’s causation. Maybe it’s case framing. Maybe it’s finding out what jurors think of your client. So usually Oh, an hour, two hours at the most. 

Elizabeth Larrick: Yeah. Okay. So you said something that I want to follow up on. You said it led you astray. Can you elaborate a little bit? 

Justin Starin: Just to be blunt about it, we asked them for a number.

Elizabeth Larrick: Oh. 

Justin Starin: And so at the end of the trial, after the closing argument, we asked them what they thought a reasonable number was and then they gave it to us and it was higher than we ended up getting in the trial. 

Elizabeth Larrick: Oh. 

Justin Starin: So there might’ve been an opportunity to settle the case, but we were emboldened by the focus group number, and I think it was our first focus group, so we just didn’t have enough experience to really understand that.

And it’s possible we would do [00:05:00] another focus group that big, but I can’t imagine it in most of our cases. 

Elizabeth Larrick: Yeah. Yeah. And that’s, yeah, that’s exactly what I talk about is there’s such a big difference. And sometimes people think we’re talking about the same thing when we say focus groups, meaning it’s a mock trial.

It’s not because exactly for the reason you said, it’s really involved. It takes a lot of work. And most of the time you’re not going to do it until you were on the doorstep of trial when like things are set in stone and you’re just rolling the dice at that point. Do another thing to worry about is what comes in and what doesn’t and what people say on the stand.

Which no one can predict in a mock trial. Awesome. And you mentioned way in the back. So you guys had done in person before. 

Justin Starin: Yes, we did it with our friend, David Paley, who he played the role of the defense counsel. And I think we had experts. We had cross examination of the experts. We had an opening and a closing.

We might’ve had a direct examination of our client. I can’t remember. [00:06:00] It’s been about. 15 years ago. And I mean, it was fun, but it was a ton of work and probably not really that efficient in terms of getting what we wanted out of it. 

Elizabeth Larrick: Yeah. It can be really challenging and there’s a lot of data that comes out and it’s very hard to wade through it.

When you’ve just done it, cause you’re exhausted. And I know that you and Sid though have before the pandemic, you guys ran some focus groups in your office, right? 

Justin Starin: Yeah, we did. The biggest problem we had with them is getting the people. I never did develop a very good system for getting people to come to the focus groups.

We mainly used employment service. And I suppose there’s probably some problems with that. For me, it was fun to get on your feet and have interactions with mock jurors about cases, but then the pandemic hit and after that changed everything. 

Elizabeth Larrick: Yep, I feel you on that. So let’s talk about just overall, what [00:07:00] kind of cases are you using focus groups in?

Justin Starin: We use them in a variety of cases, med mal cases, we’ve used them in products liability cases, we’ve used them in car crash cases, we’ve used them in premise liability cases, maybe even an employment case. Yeah, I think we used one in an employment case once too. I would say mostly our bigger cases, we don’t use them in every case, but some of the mid sized ones too.

I’ll give you a good example. We had a case that was in a parking lot at a box store, and the person was assaulted, the plaintiff was assaulted by some bad guys in the neighborhood. And we focus grouped it and we just couldn’t ever get the focus group to. side with us. They just thought that it wasn’t the box store’s responsibility to police the parking lot.

And so we turned down the case, even though the guy was blinded by the assault. So right off the bat, we were doing a focus [00:08:00] group. And in retrospect, I’m glad we did, because we could have spent a lot of time and energy working that case up and have it. Either lose at trial or get beat into a low settlement.

Elizabeth Larrick: Yeah. And I think that’s such, I try to tell people that. Cause that could be a case you spend a lot of money on. You’d have to have a securities expert. You’d have to probably have just quite a bit of case expenses and depositions. And there’d be a lot of money that’s sunk in before you realize, Oh no, a jurors.

They’re never going to get with this. It’s always going to be like stuff happens. And this brings us to our topic today of coming to using focus groups for causation. And you may be thinking in your mind, listener, like medical causation, which is good, which we can. But I think what Justin and I are going to talk about is more about the mechanism of the event being the actual causation.

And one of the examples, which I think you guys, we did together virtually, Was a case that you weren’t really sure whether the focus group was ever going to put any blame. And so talk [00:09:00] about our 4th of July, tell me about your 4th of July case and what brought that to the focus group. 

Justin Starin: Okay. It was a tragic case.

There was a apartment complex and there was four, a small complex. There was only four units in, and there was two units in each side. And on the 4th of July, an arsonist had come to one of the upstairs apartments and had He used gasoline to light a fire at the door of one of the apartments, and the fire burned out, and there was a cursory investigation by the landlord, and then two days later, the arsonist came back, used more gasoline this time, and burned the entire place to the ground in record time, in a matter of hours.

The whole place was just, Completely burnt it to the ground and our client was in one of the upstairs apartments and she had to jump out of the window to escape the fire. And so the question really was, who’s at fault for [00:10:00] this? Who’s responsible for causing the harm? And is the jury going to put all of it on the arsonist?

Are they going to put some of it on the landlord? Are they going to put some of it on her? How do we work this out? And so that’s what we reached out to you to come in and. Do a focus group and try to walk us through that. 

Elizabeth Larrick: Yeah. Cause again, at any point that could have been, well, who could ever predict an arsonist?

Like why would a landlord ever be able to predict that? And I think the other thing that was so crazy about sticking out of my mind. And again, just so everyone knows this is something that’s been long is long gone. And we’re not worried about any confidentiality here. We’re not going to mention any names or anything.

What amazed me was like the pictures of the fire. There were, it was one. Entryway one set of stairs up to the second floor and the arsonist first go around. He said just a little fire and they got out the second go around. He burnt, he put so much gasoline at burn the stairs. So the people in the upstairs units could not get out.

And then there was all this [00:11:00] whole other, maybe there’s a conspiracy and the people upstairs. And Justin was very good about creating some visuals for us and using some pictures. But yeah, I think we ran it more than once, I want to say, just to secure and get all the questions and everything, but tell me if you can, what you remember about what kind of feedback did you, did we get about what happened there?

Justin Starin: I think it was a mixed bag at first, and it really focused our attention on how we were going to frame the case as a systems failure instead of. A one off and the more that we were able to learn from the focus group, the more we were able to build this idea or this frame that a landlord does have responsibility and.

We’re trying to get around some of these causation heuristics, where a focus group juror might just focus on one piece of bad conduct by the arsonist, and that would be the end of the analysis. And we tried to move it back in time [00:12:00] to what was their security system like? What did they do to prevent it?

arsons or other crimes on their premises. That’s where they fell down. And that’s where the end of the focus of the case shifted after the focus groups that it really helped us learn how to figure out what was the root cause of the problem from a focus groups perspective. 

Elizabeth Larrick: And I think one of the things that stood out to me that Kind of became a little bit very helpful, which was the expectation that the renters should have about being notified about things going on.

And I think that was one of the biggest facts that you guys found had a lot of draw to it, which was that nobody told anybody it was all this gossip between the renters. That’s how the rest of them found out. 

Justin Starin: Yeah, they didn’t. First, they didn’t have a very good system set up. In the first place. And then they really didn’t have a plan for when something bad happened.

How are they going to notify people? How are they going to fix the problem? So it didn’t happen again. [00:13:00] And yes, that ended up being the focus of the litigation that then led up to the resolution of the case. 

Elizabeth Larrick: Yeah. Anyone that’s it’s super easy. Yeah. How could you ever predict an arsonist? But it came once.

They definitely. Could have come again. And I think also, like you said, a cursory investigation, I think that was also something that kind of stuck out to them about what they would have expected somebody in the landlord capacity or the management company to do something other than what they did, which I think was pretty much nothing.

Justin Starin: Yeah, they didn’t do very much for sure. And I think the fact that The fact that the facts were egregious in the sense that the arsonist came and poured gallons and gallons of gas on a wooden exterior staircase, that then it happened so fast once the fire started. And we did go down and hire a fire expert to explain to us how the fire worked through the building and stuff.

And just a [00:14:00] wood structure exposed to gasoline is extraordinarily dangerous. Thank you very much. 

Elizabeth Larrick: And that was something I mean, regular people wouldn’t know as far as the, uh, how fast and what that really means and could it have been something else? And. I think also one of the things, maybe it was just my worry or my thought or my question, was like the fact that the arsonist was still out there, no one had really even tried very hard, I would say, to go do a second investigation or anything and just never got caught.

No punishment, no nothing. Once you’re able to get that feedback about the notice and oh, this happened, oh, this, they found it through gossip, then that kind of, that definitely helped. And I want to say for the second one, we changed things up a little bit to try and make sure we’re dialing in on the right parts.

Justin Starin: Yeah. Yeah. And that’s what I’ve learned over time is that sometimes you need to do more than one focus group because you need to learn from the first one so that then you can reframe the case and then [00:15:00] present it in the second one. And when we first got the case, we thought it was going to be more of an analysis, not of the security system, but of the fire suppression system that, you know, but it turns out that because it was a relatively small facility, they were up to code in terms of their, their Fire suppression and fire alarms and all that kind of stuff.

So 

Elizabeth Larrick: yeah, it didn’t even have to have a suppression system, right. They didn’t even have to. Yeah. Yeah. And I always find that super interesting where we have an idea in our minds, like what makes sense sometimes legally. And then it’s, Oh, what’s the simplest thing that could have stopped him? Get fricking ring doorbell.

That’s what a lot of them were just like, wait a second. This is easy. Right. You can go get a camera for 5 or something and put it up there. Even if it’s fake. And that’s. Still deters people. Like they had so many good ideas and I was like, Oh yeah, okay. This is way easier than trying to have a sprinkler system in a pretty low rent apartment complex.

Justin Starin: Your lawyer brain goes down that rabbit hole and it’s nice to have a focus group that kind of brings you back to reality. [00:16:00] Make your case simple, which is important because as we know complexity confusion and ambiguity are your enemy So 

Elizabeth Larrick: yeah, and my gosh, we love details lawyers love the details I’m always like let’s not overwhelm people with the details.

Let’s just see what they do with these facts Because yeah, there’s so much detail that we get into that we have to write We’ve got to dig through all the fluff and all the stuff to then put everything together But at the end of the day when you go to trial It’s really simple. You really want to try to avoid all the extra confusion and You got to plant your flag.

You got to pick your path. And if you try to have two paths, it becomes way too confusing because there’s always going to be extra evidence with almost for both ways. And it’s hard. Although I can hear people think listening, go, well, what if there is contrib and what if they do have to take some responsibility, that’s a little different than, you know, Like Justin is saying, was it a security system [00:17:00] situation or a fire suppressant?

You tried to go both avenues and you didn’t test out which was stronger. You could just be spinning your wheels and just confuse everybody to begin with. Which leads me to our second example, which was an even more challenging causation with our gun manufacturer case. So I know that one’s got a hairy lot of details, but why were we so hounded by doing focus groups?

Justin Starin: It was a very complex kind of factual scenario and there was no witnesses to the incident where a young person had a firearm and ended up shooting himself with it. And the question was, did he do it intentionally or was it as a result of a defective product? And there was so much emotion and there was so many factors that we felt like we had to do focus groups to try to.

Understand it. And it was a very challenging case for a lot of reasons, [00:18:00] but just even the simple scene was challenging to try to figure out. 

Elizabeth Larrick: And I think the causation of why it malfunctioned was difficult because there were. So many pieces like that part alone. Let me just tell you people, they sent me, how old was this video of the inside of a gun and how it works?

I don’t know, but I took it and I slowed it down so I could understand. And we could try and watch it together with a focus group. So they would be able to understand like, why this was something that could happen without the gun could go off for any, you accidentally drop it. You literally touch it. You don’t have to do anything to it.

And it’ll just go off all on its own. And it was just like, okay. And then add in this whole other complication of a very young person who the whole defense was this, this is really sad. This is just a case of suicide. And the amount of work they had done to basically put so many facts on that side of that defense and then us, you [00:19:00] guys trying to figure out like, okay, we’ve got to be able to really pinpoint this causation of how it malfunctioned and then put it into the set of facts of what happened that day.

That morning and it was just really, I’m complicating it just by saying it sounds complicated just by me saying it. 

Justin Starin: I think I drafted that part of the opening statement, maybe 15 or more times and I would get done with it. And then I would bring it back to the team and I would say, okay, here’s my latest attempt.

And then they would shoot it down and say, oh, it’s too complicated. It’s too confusing. You got to make it simple. Why do you have to pretend like you’re an engineer, blah, blah, blah, blah. And I just, it was, It’s probably the most challenging thing I’ve ever done as a lawyer was to try to figure out a way to simplify that level of complexity and not sure we ever really got there.

Elizabeth Larrick: Yeah. At the end of the day, they were the focus group and we, I think we did two or three, I want to [00:20:00] say, and the focus group was still just came down with a lot of confusion. And unfortunately it was just like, what’s the simple, instead of trying to understand or learn or. They, the simplest thing was for them just to blame him, which was of course not what we wanted.

And another thing, of course, which is so frustrating as lawyers, sometimes as you have, there were mountains and mountains of evidence and proof of all of this stuff. And it was going to probably come in. And that was like, the other hard thing was like, okay, how do we synthesize, how do you guys like siphon all this, like really good, hard proof.

It was a really, it was a huge challenge. 

Justin Starin: Yeah. It really was. That, that one would be just tough. 

Elizabeth Larrick: I know. And I’m glad we, again, this is another one that has been closed out, but just another one of those ones where it’s holy mackerel, like having to try that case. Cause you guys were coming up on the doorstep.

This is, wasn’t one where we, it [00:21:00] came and this was the beginning part. No, this was at the end of trial prep. Let’s run this opening. Let’s put these pictures out there. And I think the hard part was because again, coming at the tail end and getting ready to try it, there were so many pieces of things that just weren’t even available because at the time that that all happened, no investigation was done at all.

Justin Starin: Certainly not at the level that I think you would expect for a death. And I think there was just some assumptions made by the law enforcement. Officials that investigated the incident of what it was and they really didn’t take a deep enough dive into the cause of the incident and that ended up making it very difficult to try to reconstruct.

So yeah, it was a challenging case all the way around. 

Elizabeth Larrick: Because you’re going against what the police report says, and you’re going against what the manufacturer says, and you’re going against what [00:22:00] would be looked at as, oh, this seems like the simplest explanation, and respectfully, I don’t think suicide is ever a simple explanation.

I think that’s probably the more complicated one out of any of them, but it was a lot. And you guys were It’s getting ready to go to trial. So it definitely answered some questions for us, but I think this was a focus group that kept leaving us with more questions about, and also how to answer their questions.

Because just like you said, they had an expectation about where’s the ballistics, why didn’t do the powder thing they do on CSI for the gun residue, 

Justin Starin: right? That always seems to be the case. There’s always seems to be like a juror’s expectation that there’s going to be a lot of. Kind of CSI type evidence.

And as everyone that’s probably listening to this podcast knows that rarely if ever happens. 

Elizabeth Larrick: No. And you guys had tried that. Okay. We have pictures and it was still was not enough because it was just going to be, it [00:23:00] was just so close, you know, as far as like the distance and all the stuff that was just, they all of course expect that it’s like, whenever we do a focus group now, any, I don’t care what kind of focus group it is.

Like, where’s the video footage? I’m like. So everyone just expect your car is going to have some kind of video camera, the front door, the convenience store, which I think we get used to that. But at the same time, nobody’s, do you have video in your car? No. Why would you expect? Anybody to be at the video, but that’s just one of those things.

Well, where’s the ballistics? Where’s their gun residue and where’s the, whoa, you didn’t do the whole like recreation thing. Oh man. So yeah, there’s a lot of expectations people have out there. And especially in that particular case. And it was just like, how do you get around that? Because you were going to have to like have a little side.

Like a side tussle with the police while you’re in the middle of having this other case again with the gun manufacturer. So yeah, there were lots of issues for sure in that case. But do you feel like the focus groups helped the case resolve? 

Justin Starin: Yeah, [00:24:00] definitely. I think that’s definitely true. It certainly showed us.

What we were up against in terms of trying to persuade people’s preconceived notions of what the case was about or what a manufacturer’s responsibilities are. Some of the more preconceived notions that people have about these kinds of scenarios were just clarified for us to the point where we could then take a more direct approach.

honest look at our case and value it in a different way than if we hadn’t done those and we would have maybe got overconfident. And yeah, definitely. It always, I’ve never had a focus group that I didn’t think helped. Everyone that we’ve ever done helped in some way, some more than others, but I’ve learned something from every one of them.

Elizabeth Larrick: And he means some more than others. He means the first one we ever did together because Sid and Justin were my Guinea pigs. They were my very first. virtual [00:25:00] focus group in May of 2020. I was like, y’all, I’m going to try this out. Let’s see how this works. I think we had four people there. Do you remember we had four participants?

Justin Starin: Yeah. 

Elizabeth Larrick: What we ran, I have no idea what case we did, what we ran at all, but I think it was just, Is this possible? Is this going to work? Thank you for being the guest. Yeah, 

Justin Starin: absolutely. 

Elizabeth Larrick: I’m not even sure what we got out of that other than, okay, it’s totally possible. There are a ton of things we need to fix before we go forward with any more.

But, but yeah, I think folks groups of course are useful because they tell you just like you got clarity that, Ooh, maybe this is not one that needs to go to trial. And sometimes. A lot of times that’s what I feel like sometimes, like it, that’s what it helps you do decide, Oh, we can try this case. Totally fine.

Like the arsonist case. Yep. We can try this case. We know how to try this case. We’re going to get past those little things that they think. And then other times it’s, this is more than we can bit, bit off more than we can chew for sure. 

Justin Starin: I was thinking [00:26:00] about that one case that you helped us with the misdiagnosis of the cancer tumor.

After we did a focus group in that case, we learned that, and I’m going to give you the brief facts, so there was a young girl who had a growth on her arm, and the surgeon removed it, sent it to the pathologist, and the pathologist put it under a microscope and looked at it and said there’s no cancer. A few months later, the tumor came back, the surgeon removed it again, sent it back to the pathologist, this time, oh, yep, there’s cancer.

Oh, and by the way, that first specimen you sent us also had cancer. was also cancerous. So we got a problem. And what we learned in the focus group that really helped us in the preparation of the case was that they were going to blame the mom for not getting a second opinion. So mom, you should have taken your child to get a second opinion.

And So what we did when we started taking depositions is we [00:27:00] chose not to sue the surgeon, even though some of our experts thought that he may have been somewhat culpable, but we decided we’re not going to sue him and we’re going to use him to get around this. And so in the depositions, we went and said to him, do you rely on the pathologist?

When you make medical decisions about your patients, yes, and have you ever got a second opinion from one of your pathologists? No. Do you think it’s reasonable for you to rely on a pathologist? Yes. Do you think it was reasonable for this family to rely on the pathologist? Yes. And that really helped, knowing that, helped insulate our clients from the defense, which was that the mom was somewhat culpable.

Elizabeth Larrick: Mm hmm. And then it was like her deposition, like they couldn’t get her to do anything. She absolutely positively would not budge one inch and just gave them a run for their money, hardcore, [00:28:00] the epitome of a mama bear for sure. And terribly sad case. It’s so sad, but. You guys fought that thing all the way to the end.

I remember you were like, we’re going to have to go to trial. I was like, all right, let me come back. I’ll come back and help. Cause yeah, it was just like, you guys had been really with them for so long. And there were so many other extraneous things that were happening that were just like, Oh my gosh, we have to get this finished.

Like there’s a time constraint here. This girl, this woman is basically going to succumb to this cancer before we’re finished. Like Her whole, she was such a fighter, her whole goal was to hold, hold them accountable. But yeah, such a good way to use focus groups in the beginning, because you guys, that’s a pretty big case strategy thing to do, to not sue somebody.

Right. Most people would have said, oh no, you sue everybody and then they’ll pay you to get out, which can cause a [00:29:00] lot more problems than it does put extra dollars in your pocket. 

Justin Starin: And I think he was grateful to us for not suing him and it made it easier for him, I think he would have done it anyway but it made it easier for him to go to the deposition with less stress in terms of his testimony at the deposition and.

It really worked out very well because he was kind of a charming, you know, it’s, he was an orthopedic surgeon. They typically are people, persons, unlike a pathologist who’s behind the scenes. And they’re the nerds. 

Elizabeth Larrick: They’re one of the smartest people that come out of med school because they got to look at microscopes and do what that’s just all there is to it.

And you guys also had the primary care and doctor in there too, which had his own flavor of interesting issues, which. We’re not ever going to come into evidence, unfortunately, in any form or fashion. But yeah, those were good focus groups. Good example. I forgot about using that particular case. Let me ask you, because we got people who, from all over who listened to the podcast, what would you say to somebody who maybe is on the fence [00:30:00] about doing a focus group?

Justin Starin: I would say, do it and see how it goes. Like I said, I’ve learned something from every one of And they’re just not that much money. Compared to what you could spend just spinning your wheels about what the case is about or fretting over some fact that you don’t understand how it fits in the context of the frame that you’ve developed, or sometimes I’ve even thought that maybe they help with the briefing, you can understand that this is what’s compelling to people, and judges are people too, and if you got the first part of your brief and you’re trying to persuade the judge, Having some compelling facts help.

And if you know what facts are compelling and what aren’t, yeah, I think I would absolutely. Recommend doing them for sure. 

Elizabeth Larrick: And like I said, you guys literally bought a camera, used the room in the basement, and had some people come in. That’s how it, that’s how we all get started. That’s [00:31:00] exactly how I got started.

I borrowed somebody’s conference room. I bought a camera. We started advertising on Craigslist and people showed up and like you said, you’re going to learn something from every single one of these. And it’s only natural that we are stuck in our lawyer brains because that’s how we. Went through school.

That’s how we progress. We hang out with lawyers when we have questions, we ask other lawyers. That’s what listservs are for. But I always find that that then naturally creates blind spots that we’re just not going to see everything. And sometimes it takes an outside person for 75 bucks. A hundred bucks to tell us something, you know what?

And guess what? It’s worth every single stinking penny. That 75 opinion right there could go and save you a hundred thousand dollars or 50, 000 on that expert who you don’t really need. Or what I always tell people is we get really obsessed with experts and that’s such a good other place where it’s like, go learn what they need to know from the expert.

And then. Have the expert testify to [00:32:00] that, but don’t feel like you automatically understand what a juror needs to hear from an expert. And I got to tell you, experts don’t really like that because they’re like, I want to tell my whole blah blah. Okay, you need to get it for an expert because they clearly don’t get trial.

Like, you know, there are experts that you take to trial and there are experts that you take to get it settled. Right. And there are, I can think of a really good example in Texas right now where it’s, oh yeah, if I’m going to trial, that’s the guy I’m picking. If I just, I know I need one, but I’ll go over here to this pile of people.

There’s just a huge difference because they get that the jurors involved is not just about them and, you know, pontificating their opinion, total soapbox and sidebar. Sorry about that. All right, Justin, you’re in Missoula and folks, if you want to learn more about Justin and Sid, then I’m going to put all the contact information in the show notes.

Justin is also a river rat. So if you have any interest in. River stuff, and I’m going to say river stuff because if you live in Texas, you get it. We don’t have [00:33:00] rivers. We damn them up to make lakes. But anytime I’ve been up to hang out with Sid and Justin, I get to go on the river and I’m always grateful.

So thank you for my river trips. 

Justin Starin: Yeah. We’re going to, we’re going to turn you into a dirt bag by the end of this, for sure. 

Elizabeth Larrick: So the funny thing is another sidebar here. When we float down the river in Texas, we get a tube and a cold beer and we put our butt in the tube and you just float down the river.

Not so much in Montana. You’re going to get swept away, uh, got to get a whole boat thing, which is not even a boat. I’m not probably not even saying it right with the Justin gets out there. How many boats do you have? It’s not a boat. It’s a raft. 

Justin Starin: I have a couple rafts, some kayaks. Yeah. Lots of boats. 

Elizabeth Larrick: Lots of boats.

He even took the whole fam down for a couple, how many, was it a week? 

Justin Starin: A week. Yeah. 

Elizabeth Larrick: 10 days down the snake river. 

Justin Starin: The salmon and the snake. Yeah. Yeah. 

Elizabeth Larrick: Nice. See, I remember it. All right. If anybody wants to know about rivers or personal injury cases, and they still have workers comp in Montana too, by the way, we had Matt Murphy [00:34:00] on and he talked about workers comp, which doesn’t really exist in Texas anymore.

And other places too. Justin, thank you so much for joining us. 

Justin Starin: Yeah. Thanks for having me. 

Elizabeth Larrick: Until next time, thank you so much. And everybody, if you enjoyed the podcast, please rate and review on your favorite podcast platform. And if you haven’t done so go and follow and connect with me on LinkedIn. That link will be in the show notes if you weren’t already doing it.

All right. Thank you.

Communication is the heartbeat of every relationship, and the bond between lawyer and client is no different. Listen in as we discuss the challenges and strategies of managing client expectations in the legal field with Matt Murphy from Montana. Specializing in workers’ compensation cases, Matt shares his invaluable experience and emphasizes the importance of being upfront and honest with clients, even when the news isn’t the most favorable. We also tackle the complexities of managing expectations in personal injury cases and the pivotal role trust plays in the lawyer-client relationship.

We highlight the importance of keeping clients in the loop and seeking their feedback, no matter how uncomfortable it might be. Listen to how changes in judges or legal rulings can alter a case’s trajectory and the need to involve clients in the decision-making process. Get insights on the importance of transparency and the art of delivering difficult news. Matt shares practical tips on effectively communicating with clients and setting realistic expectations. 

This episode is a must-listen for anyone in the legal field looking to enhance their client communication skills and build stronger relationships. Learn about the importance of open communication, managing expectations, and maintaining a strong client-lawyer relationship. 

In this episode, you will hear:

• The importance of building client relationships
• Importance of communication and trust
• Challenges with accepting medical treatment choices
• Importance of documentation and contact information

Follow and Review:

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

Supporting Resources:

You can learn more about Matt Murphy & his practice by visiting:

Matt Murphy website profile: https://www.murphylawoffice.net/about-our-attorneys/matthew-murphy/ 

Murphy Law Firm website:  https://www.murphylawoffice.net/

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:

Hi there. Another quick introduction for our guest, Matt Murphy, who is joining our podcast. Matt Murphy is a lawyer in Great Falls, Montana. He practices with his dad and his brother and has basically grew up helping in the law firm in some capacity since he was 12 years old. He has a passion for workers’ comp and he is currently a co-chair of the workers’ compensation section for the Montana Trial Lawyers Association. If you have questions,

about Montana or workers’ comp law, please reach out to Matt. His contact will be in the show notes. Hello and welcome back to the podcast Trial Lawyer App. I’m your host, Elizabeth Lerner, and we have a shiny new episode today with a wonderful guest from a state that I have a very special place in my heart, poor Montana. Matt is joining us. We heard a little bit about his bio in the mini intro, but I wanted Matt to come join us because I met him.

multiple times at an Intili Montana Trial Lawyers Association seminar. And he has this great bubbly personality. I know that he loves what he does. And he has a true heart for helping workers and his workers comp, which I know a lot of folks that are listening, even my Texas folks are thinking, well, I don’t do workers comp. And that’s okay, because what we’re going to talk about today is client management and more specifically more about client expectations. And

speaker-0 (02:05.226)
This came up for me here recently where I was assisting and helping with a trial and there was some definite expectations that had been missed. And so the client had quite a huge expectation for this trial and their time on the stand, which was very different from reality. So we had to work with that. And so that kind of spun itself into an episode. And I thought, gosh, Matt would be great for this because I know he loves his clients.

He’s also a pretty good straight shooter. thought, let me get Mountain here to help us. So Matt, welcome to the podcast.

Thank you very much, Elizabeth. That’s very flattering. And I can’t really imagine a better compliment for an attorney than it being obvious to other people that they love their clients. Cause we do. And I’d say that we, cause I speak for all of Murphy Law firm. And I’d also like to return that. Thank you for all that you do. We’ve really learned a lot by listening to your podcast and attending your speeches at the Montana trial lawyers association. So thanks for everything that you do as well.

Well, pile it on now. love this set up, that’s why it’s part of the podcast and why this podcast is really made for people who are working with clients, first-hand clients, workers, comp, employment law, a little bit of business litigation stuff, because managing client expectations is really across the board. But where it tops up so often for people like us and like you is when we’re having our clients that are going to testify.

or they’re coming to a hearing or they’re going to mediation and understanding really what we need to be doing so that we kind of avoid some of these places where we need a lot of trust from our clients when it comes to handling a case and making decisions for that case. And when it’s their turn to come in and do testimony or be at a mediation and answer questions, right? We want to make sure that they’re going to trust our guidance and coming to trial as well. So just from the standpoint of like,

speaker-0 (04:04.074)
Why is this even an issue for us as lawyers? And my perspective is we go through law school. We’re super trained to think intellectually and be super logical about stuff. And sometimes managing expectations feels like stickier and a little bit more emotional when it’s straight work for us. So I know it’s hard to have the conversation with people. And has that for you, Matley?

practicing, has that been kind of a hard conversation or a little bit uncomfortable to help manage people’s expectations?

Absolutely. And it’s kind of shameful to say, but in Montana, work comp, that arena, you have a lot of that because the benefits that an individual is going to get in a work comp claim, that pretty much day one anymore, I will have the conversation that says, you’re not going to be in love with the result. No matter what I do, no matter what anybody does, the law just affords the remedies that it affords.

It’s a insurance policy written by the Montana legislature. That’s the Work Comp Act. And it just keeps getting whittled away, whittled away. It’s been on this downward trajectory for well over 50 years here in Montana. I know that’s not just true in Montana. I’m familiar with other state schemes. so you’re not going to be able to tell a Work Comp client, we are going to have our day in court talking to the jury.

about the human damages. There is no pain and suffering. There’s no loss of consortium. There’s no established course of life. So you’re limited to statutory medical, statutory wage loss benefits. Those are capped in all sorts of crazy ways. I could go on for days about it. We’ve challenged the constitutionality of those statutes. You we’ve had a case in every decade for over three decades, at least one, but those are hard. They take forever. You got about a 4 % chance of winning right out of the gate.

speaker-1 (06:00.588)
So anyway, you are in most of the clients that I represent having a conversation day one about the fact that the benefits that are available to them are going to be less than what they’re hoping for, certainly less than what they’ve lost. I mean, we are not getting made whole in a work comp claim. And I’ve realized that you kind of got to start on that foot because if you just talk them into

how well you’re going to do and how big of a delivery you’re going to have day one and then a month later or three months later or a week before trial, which would be terrible. Now you’re bringing this to their attention. You’ve already lost it. So they don’t want to hear it, but they can tell you’re being honest and they can tell you know what you’re talking about and that you’ve had that conversation before. So yeah, back to your question. Yes, we have that conversation. Unfortunately, it’s a little bit easier in the work comp context because you can

almost have this common enemy, the Montana legislature. And here’s this book and I’ll show you the exact verbiage, which is a little bit different than all the complexities of trying to explain why, you know, when you go before the jury, things might be a little bit different than what they hope, but that, you know, that only gets you so far. It’s still going to be on you to be honest and candid and establish that rapport with your client.

Yeah. And I think you kind of nailed it. It’s really about the timing of the conversation and how you’re presenting it because that’s a total intellectual like, you think this is what you deserve. This is literally what it says it like and why. And you can go talk to six other people. They’re going to tell you the same things. But a lot of times, I’m unsure you’ve had this in practice where you have somebody who comes to talk to you and they interviewed a lawyer and they say, well, the other lawyers didn’t say that. The other lawyer said this or that. Then it really kind of comes down to

how do you express yourself in the most honest way possible? Like, I’m just here to help you and here’s truly what it says, you know, I’m not making this up. I’m not just trying to get you to sign on. And I do think it’s really kind of one of those things where people…

speaker-0 (08:02.99)
It’s just a hard conversation sometimes to have and it’s hard to break people’s expectations and to know you’re not gonna be made whole. I that’s a great example. Like there’s this whole loss here of like, here’s where you need and here’s what the law provides. And I think even that happens a lot of times in car wreck cases as well, where it’s just like, you know, well, $5,000 is all they’re offered. And it’s like, that’s true. There’s not really a guideline for this, but that’s why we go to trial and why our litigation and all these other things. That’s kind of where

You have to constantly be talking about managing these expectations. You said, Hey, you guys do it right in front you. Are you doing it along the way as the case goes along? Or, know, when you guys are coming up to that making decision point, how else do you work in managing those expectations?

So with comp, you know, that’s easy for me to answer because I do it right off the bat, but it’s for specific reasons. That is the statutes that prescribed benefits are just, I don’t like them. And I can say that and I can say how we lobby and I can tell them all the stuff we do behind the scenes that are in their case to try to change that. Some of it works. All of it helps. Most of it doesn’t do a whole lot, right? But that’s an easy one for like say a car wreck case.

or really any personal injury claim where it’s not so black and white, you don’t really have that common enemy, the statutes that limit benefits. Instead, as we all know, oftentimes the enemy is some aspect of your client’s case, or in other words, some aspect of them. And I don’t think you’re going to be able to understand it well enough to really get into it day one. But what you can do and what I certainly do is day one, I mean, I do this before I hire.

In fact, if I’m thinking, I mean, I usually probably do this twice before we sign them up, just to ask them, what are your expectations? I find that most people and by most is probably a vast majority are reasonable with their expectations. want to get my car fixed because I’m missing work right now and this rental isn’t working out. My neck hurts. I want to get my medical bills covered. I’ve had to miss a month of work and I got a mortgage. I mean, that’s all totally reasonable stuff.

speaker-1 (10:17.728)
And so pretty clearly right out of the gate, you’re going to realize this individual has reasonable expectations that I shouldn’t be able to meet if I’m doing my job and I hope I am. So you’re going to have that conversation in the intake and then you’re going to have that conversation when you meet with them in person. Because part and parcel to all this is during your representation of clients in whatever realm, you got to be meeting with them in person and you got to be talking with them and you should be asking them, what are your expectations now?

as the case progresses and you’ve had a number of conversations with them where you’ve covered this item in this conversation, a development, now it’s Depot Prep. you know, as the case grows and your relationship with that client should be growing, if you’re calling your client for the first time the week before a deposition, I don’t know how you tell them anything. How can they trust you? How could you trust them? As it goes, I think most of time you’ll find their expectations shift a little bit and kind of track.

what it should based on what you’ve been telling them, based on what you know about the case that you’ve been communicating to them, based on the rapport that you’ve established by having really good communication and always shooting them straight. And you kind of mentioned clients that come in that have consulted with other law firms are almost like testing you. I find that the easiest and the only really solution to that, but certainly the easiest is just shoot them straight in plain English and let them know. And if they don’t like it, you’re doing yourself a favor, but

they’re probably going to like it because you might be the first person that’s actually, you know, shot them straight in, whether they have a law degree or not. People like juries can detect the truth and the credibility they got, you know, like Jerry Spence says, psychic tentacles. And they have that in your office. They’re looking at you. You know, that they know when you’re exaggerating, even just a little bit versus when you’re shooting them right down the middle. And that’s how you got to approach that.

Mm-hmm. I totally agree. And I think that’s kind of part of some place where we don’t sometimes as lawyers stop and ask that they open a new question. What are your expectations now? How do you think things are going right now? We’re really just stopping and listening and asking that open-ended question. Most of the time when we are calling and having conversations, it’s us telling them.

speaker-0 (12:34.456)
here’s what’s happening, here’s what the next step is, here’s these instructions, here’s this, right? And so that stopping and listening along the way, like you said, really helps to build that trust. And also I think it’s really important for us to also express what we expect as well. And that way you’re building that relationship together where it’s a tit for tat, like you tell me, I’ll tell you, right? So we’re constantly on the same page because what can happen if we don’t…

those conversations early and often is, I I’ve seen people get fired, I’ve seen people get sued, I’ve seen, honestly, like a client basically loses interest and it’s just like they’re like, whatever, I don’t want to do this anymore, let’s finish this out. And then, obviously, you never get a referral or a good review from that person when it was probably just a matter of having these conversations. And nobody wants that to happen, but…

What I saw in that case was basically what started as probably a small seed grew into this giant tree of anchor. And it was just like, how do we now manage this? Because now we have a whole different set. We’re not changing it. That is set and we’ve got to now somehow work and manage around this when we probably could have done that a long time ago and not have this.

giant ball of anger ever dealing with. So let me toss it back to you, Matt. What are some of the things that you’ve seen happen when we don’t manage clients expectations?

And that’s a really good analogy because if you represent people long enough over in complicated areas of their life, because I mean a personal injury lawsuit, as much as we try to limit the inquiry and as much as we try to keep as much of our clients privacy to themselves as possible, their whole lives get opened up, whether they like it or not. Regardless of what we do, it just happens. So you’re involved in all areas of their life. And when it’s that broad for that long, you…

speaker-1 (14:30.584)
You’re going to have, you know, we’re people, we’re people, there are people, going to, you’re going to have some issues that start as seeds. And I really do feel like you can at that phase intervene, salvage the relationship by doing so. It’s just like having your first fight with your significant other. You become stronger in your relationship with that person and hopefully you don’t have to have too many fights, but we’ve had plenty of clients that are extremely difficult that

Nobody else could help. And we have some excellent firms and we’ve had clients had to move on as well. Sometimes that is what is necessary, but we kind of pride ourselves on being able to take a problematic client, if you want to call them that, or someone who’s really difficult to work with and get through it by being honest, by counseling them, you know? So yeah, you got to keep asking the question, what are your expectations? But you also got to keep asking, how you feel? How’s it going? What do you think? Could we be doing anything differently?

The only reason you wouldn’t ask certain questions like that, I think as a lawyer is because you’re kind of insecure about what the client might say. And there’s no reason for you to be like that. You know the law better than them. You know the process better than them. You should not worry about what they’re going to say because whatever it is, it’s going to lead to the route that you need to address to get back on that same page with them. And you can’t forget your obligation to be a counselor of law. You’re their advocate. You’re staring up through the legal process. part of that

And as we all know, the part that pays massive dividends by the time you’re actually getting to trial or getting them through a deposition, if it doesn’t go to trial, is the rapport and the trust that you’ve established with them. So I think your question, I went off on a tangent there was, what have we seen? What are some examples of breakdowns or bad state developments that have to be communicated that lead to a disgruntled client essentially, right?

One that actually just happened to me last week was in Montana, we’ve had a work comp judge for well over a decade who I wouldn’t say trust more than the new judge by any means. It’s just, know this old judge that I’ve been trying cases in front of and had conversations with, listened to him speak. So I’m really comfortable predicting how I think he’ll approach certain issues. Now we have a new judge, you know, in the appointee process, there’s partisanship to his degree.

speaker-1 (16:51.788)
Not that I believe this new judge has that problem, but is an unknown. And so it has to change the advice that I’m giving to my clients. And it sounds like I’m saying something different than I said six months ago, because we’re still in the litigation process, pretty far from trial. That’s not what’s happened. It’s just a new judge got appointed. So things did change. And this isn’t a great example because this client wasn’t disgruntled, but the reason was they weren’t happy.

They didn’t like what I was telling them, but I’ve had enough communications with this person. I’ve put the time in, had enough interpersonal reactions and been able to actually bring them into my office and face to face enough. And they know me now. They know my paralegal very well. They know our secretary. You know, they just, trust us. So I was able to explain to them, show them. now we ultimately resolved that case for less than I probably would have advised under the old judge, but with the unknown and

some new issues, I do believe it was the right decision. So, you know, that’s one example. And then I can think of many more where due to a new fact or say a legal ruling, you’ve kind of had a lot of your eggs in a basket. You get a bad ruling. Now you’re telling this client, well, it’s not going to be anywhere near where we were hoping to get. But if you set that up right by explaining that at the outset, it shouldn’t be that difficult to say, see, remember when we talked about this before?

And now it happened. now we’re kind of in this camp A as opposed to camp B where we were hoping to end up.

Yeah. And I think that’s exactly because rulings change cases. We don’t have any control over that. You know, we can try and predict things. You may take a deposition and all of sudden you learn one of the claims that you thought was maybe pretty viable is now dead, right? Dead in the water. got facts that basically kind of obliterated, you know, not obliterated, basically take away your factual basis for the claim. And that’s sometimes where, like you said, it goes back to when you’re making a motion.

speaker-0 (18:52.462)
or you’re taking depositions, I think sometimes we forget we need to check back in and say, hey, let’s just do it, check it, and we took these depositions, here are the facts that we found out. This is it impacts what we’re doing. It’s gonna change things this way or that way. We can predict as best as we can, but I think that’s part of going back in and keeping that education going and keeping that conversation open because I think I’ve seen that happen quite a bit, like where it’s like, you take that opposition.

you find out something new that’s detrimental and it’s like, I dread, I don’t want to make that call or I have that equal client who I know is going to be really like, you know, and I think you made a very good point of like getting that person in person. And I think even just getting somebody in Zoom because that way they’re able to see your face and see how you’re expressing yourself and making yourself available. And it’s not that you’re saying, I’m sorry we failed because

We can’t control what happens in that position. The facts come out or how a judge rolls. And I certainly have had a situation where I had to call a client and just say, yeah, listen, this happened and it was a mistake. You know, and here’s what I can do to make up for it. And here’s how it’s going to impact things. And anytime I have like totally come to the carpet and just said, this is what happened. Everybody’s sure like, okay, like we get in a problem solving node and set it like.

fixating the problem. And that’s generally what I try to say is like, listen, this is where we are now. Like, here’s how I’m going to help. Here’s how we’re going to make up for it. But because at the same time, think like you said, you’ve done a good job of bringing people along in the relationship. And in that case, they’re going to have enough trust in backgrounds to know like, okay, this is what Elizabeth said at the outset. You know, this is what Matt said at the outset. But here’s where we are. And it’s okay to remind people the battles that you’ve been through to get to this place. It’s not, is not easy.

for you or for them. they, think sometimes they forget about like, it’s a battlefield all way through. So keeping that education open as well, I this is a huge factor in keeping people, cause that, think that surprise factor is the worst thing. That’s what I, I, it’s the worst thing.

speaker-1 (21:06.358)
Yeah, surprise coming after a massive gap in communication and they haven’t heard from you and then all of sudden you just call them with bad news. You can’t expect anybody to be okay with in any type of profession, right? You go get blood exams from your doctor and six months later they call you and say, well, yeah, you know what? You got a month to live. You’d be like, I kind of expected a call earlier or you bring your car into the mechanic and then they send you off on your way. And then six months later,

The car breaks down and they’re like, well, yeah, I mean, your engine was bad. mean, that’s would be unacceptable in any realm. It’s not acceptable here either in ours. And ours is very complicated and very interpersonal. So I think there’s even like a heightened duty on us to meet those client standards of trust and communication and relationship building. And you kind of mentioned, well, you often mentioned in the multitude of episodes that you have addressing depo prep specifically, but also trial prep.

One really good way to kind of keep your client in the loop that doesn’t necessarily require that you set up an in-office meeting is to just send them these developments in the case as you go. it’s almost like giving them homework, but it’s also keeping them in the loop. It’s also keeping them invested. So I will send them every deposition transcript, unless it’s, I mean, I can think of some examples that I wouldn’t, but any fact witness, their doctor, I will just send them and say, Hey, you know, if there’s a

Obviously big bombshell fact. I’ll point that out and call them in and whatever. But if it’s just pretty run of the mill tracks with more or less, but obviously every deposition does has some new information, maybe good, maybe bad, whatever it might be. Send it to him. Hey, give this a read and tell me what you think. Like just a quick little cover letter. Sometimes they won’t call you. I don’t, maybe sometimes they don’t read it. I’ll call them out later. If they don’t, Hey, what’d you think of that deposition? Did you see that part where Dr. So-and-so said that? it’s like, Hey man.

I send you stuff to read, expect you to read it just like I’m reading it and I’m there. And if you send me an email, I read every word and you can check them there. But it keeps them coming along. It keeps them apprised of developments. Oftentimes they’ll call you. Sometimes they’ll give you really good stuff. They’ll say, hey, that’s not, that’s not right. And here’s somebody that I know that can refute that. Or here’s why I know that’s not correct. A lot of times they’ll just say, man, Dr. Miller really kind of bailed on us there. He told me in the appointment that

speaker-1 (23:32.226)
He was a hundred percent sure this was causally related and now he’s saying that he doesn’t really know. And you’re like, right. And that’s his testimony and that’s going to affect the value and that’s going to be what the jury hears. And so now you have that conversation and it doesn’t have to happen in the mediation or they don’t read it in the motion in lemony or whatever it might be. So you can keep your clients involved with a simple letter and a transcript and email.

And they’ll get it. I mean, they’ll understand most of the stuff and when they don’t understand, guess what? It’s good time to have a conversation and get them on same page.

Yeah. And city people transfers is pretty intense. I’m not gonna lie. I it’s when it’s in your example was for their doctor, like you go take their doctor, like here’s your doctor set, you know, then reading or rep stuff, a little bit. And it’s just, you know, like some people get like super lost and they’re going to give up, but I like it. Even just giving a quick recap email or.

Yeah that one, yeah.

speaker-0 (24:37.326)
I love using, cause people love videos. Like I love using Loom, it’s free and you can make a five minute video for free. And they literally just watch, cause again, you talking like we love, we’re easy. Talking to us is like easy. So you can talk that out without having to write it. Cause if you’re like me, like when I write a client email or an employer email, like I write it and I leave it and I come back and I read it again. Cause I just want to make sure like, can I be clear?

How can I leave no ambiguity here? Like, am I covering everything versus like, I think when you say it, it’s five minutes, you can watch it again and speed it up. And so can they, and email will even do a transcript as well so they can kind of watch it. But keeping up with people that way, in a way they’re gonna read it in a page. And of course, I always ask myself, what’s the easiest way for us to communicate? and I know you’re gonna like, some people love email. Of course, I love email. We live and breathe email, but some people don’t. Like, well, can you just text me? Like, sure.

And you can do the same thing on your phone. Just text, talk, or do that little audio file really quickly just to let them know. And like you said, it’s like, do you want more? Let’s get a recall. Or are you good? Just making sure there is anything else. But I love that because those little changes from that position, that’s where you’re going to get an ideation and that’s where it’s going throw it at. You’re like, well, that’s not what they said that appointment, right? And then it’s like,

Okay, now we’re going to be in a huge deadlock because your client thinks that’s one way, but in reality, that’s just not how it out in demo. So that’s a good solid example. And why I really like taking the client demo a little bit later is again, so you have that ammo, like you know what’s in there. So you know where that client has to fill in those gaps. Then that significantly helps. And so they don’t have to get you down on the leads.

But okay, here’s where that gap is and here’s where the client can help or prepare and understand. then I think, like you said, the more we can kind of get them invested in what their role is, the better they are at meeting our expectations and for themselves and helping them kind of get through the emotional and psychological burden of being in this situation, being permanently injured at times, or there’s always going to be some kind of major impact to people’s lives when they’re injured.

speaker-0 (26:56.91)
Like that is such a huge component of giving them a role in the ability to do the rest of it.

precisely and everything we’ve been talking about so far is super important in establishing the trust and the ability to have those conversations with your client for better or for worse. The ability for them to be coachable because as you’re talking with them more and more and as you’re keeping them invested and involved in the case, they are becoming more and more coachable. I have not had an example yet where a client just can’t help but

eventually perceive, okay, this is a complicated situation that I’m not familiar with, that I need help with, or at least I would benefit from help. But what it also does is it enables you to do your job. I mean, it serves so many different benefits, but if you really want to be able to present the best version of your client’s case to the judge or the jury, especially the jury, you got to understand them, you got to know them, that’s going to take time.

And so you’re checking off all these important boxes when you’re doing these trust and relationship building activities, like going to their house. I mean, you want to get on somebody’s level. I, again, I think, you know, obviously this isn’t my idea, but I read this in the first Jerry Spence book I ever read. I mean, you go have a meal with your client in their house. mean, so that you’re going to, they’re going to trust you. They’re going to like you and they should. mean, it’s a special thing to be able to do that and for people to invite you in.

It’ll build that trust. It’ll allow you to have honest communications with them. It’ll give you access to the inner circle in their mind and in their heart, but it’ll also give you the tools that you’re going to need to present their case. So you don’t have to think of it like you’re only doing this so that someday if you need to give them bad news, you’ll be able to do that. It will help with that, but it’s kind of necessary to enable you to do the job if you end up in trial and everything in between, even writing the settlement brochure.

speaker-1 (28:57.71)
or the mediation brochure. mean, you will do a much better job having an intimate understanding and relationship with your client versus not really of having had much communication with them up to that point. And it, sure as can tell, so can attorneys, so can mediators. They know.

Absolutely. I would sell people what they’re going to go to trial. Do you your client? Because if you, who cares about the jury things, because they’re going to know right off the bat, you don’t want to post. But I think there’s also this occasionally when I’m talking with lawyers about preparing and bonding and people would say, my personality is just not necessarily very warm to that bonding perspective. And that’s where like, like the just having

open conversations, asking them about their expectations and constantly talking with them and listening to them is still, oh my gosh, goes leaps and bounds to that bonding and that trust relationship. Even though it feels like you’re still very much seeking to like an intellectual place, like checking in and keeping those lines of communication open, that’s half the battle because bad facts can happen anytime. They can be at the beginning, they can be in the middle, like…

depositions can change things and like avoiding conversations that are difficult because you’re busy or your skill letter apparently will take care of it. Like all those things just totally lead to trouble because it just kind of alls up. And then like I said, it can just lead to maybe having to take an avenue to your client really isn’t happy with or sometimes what I’ve found is even if you do everything right, you’re going to learn a lot about your client who…

will never have their expectations met. But you know the front end and you know how to manage it. Like, okay, like you said, difficult clients, we’re all gonna have. But as long as you’re doing your half a load on what expectations are and educating and doing all that, then you can at least tell them, hey, listen, we’re talking about this. I’m not hiding anything. You’re being upfront with how you feel and I’m being upfront with what the facts are. So we can work through this together or if you think somebody else do better. Because again, like you said, there are some people that you just

speaker-0 (31:11.502)
My arch-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-eye-

Yeah, absolutely. And the obligation is not become their best friend. In fact, I mean, that happens. mean, I’ve become friends with my clients and I don’t think there’s anything necessarily wrong with that, but that can be a problem. And that’s not, again, that’s not the job description or requirement. This doesn’t have to be a relationship where you’re going to be best buddies with this person. But if you’re considerate and I say considerate because I mean, you don’t just get to be so busy that you’re blowing off.

their feelings or you’re not taking the extra steps to make them feel good. mean, you need to polish and do that. And then just being honest, you’re going to develop mutual respect. That’s what’s important. That’s what the jury needs to see. And they will. We talked about how, well, the insurer and the defense attorney will know that the jury will definitely know whether you like your client and what your client thinks of you relatively quickly. And that’s critical. I mean, if your client doesn’t trust you, how’s the jury going to trust you, right?

And that’s if you get to trial, if you don’t get to trial, there’s definitely a reality where you could end up in the same spot result wise, but depending on the route you took to get there, one being that you had a good relationship with your client the whole way, their expectations are met, they’re satisfied, they’re a happy customer, they give you good reviews. Nothing gets you off on a better foot than when your client comes to you because their best friend or their brother or someone that they really trust is the one that sent them to you.

So just having good referral sources by maintaining that standard is probably the best thing you can do for yourself, but you can get to the same result that way, or you can go the way where, you you still get them the money or whatever it is, but you didn’t have a good relationship during that period of time. They’re not happy. And I definitely have seen that every client’s different, but in my experience, it’s more often than not how they feel about you and how they feel like you’ve been doing their case.

speaker-1 (33:08.32)
et cetera, then the ultimate result that’s going to factor into how happy they are with you. And again, I mean, with work comp, I’m already in my mind going, wow, there’s all these examples where no matter what, they’re not going to be happy necessarily with the result. But knowing that at the outset, okay. And then taking them through and showing them and being really communicative throughout seeing this is what I was talking about. This is what we talked about on day one. And then after this, whatever it is and

going forward and this is that lie I told you about, now this what we’re saying to the judge. They will be a lot happier and ultimately they’ll know you did your best. They’ll know you knew what you were doing and that you did a good job. And they will put the blame where it’s supposed to be, which is on the law, on the legislature, not on you. You can have a very happy client after the fact, even if they can’t get full justice, like you’re not getting in a work conflict.

And I think what you’re saying is absolutely true for car cases. I mean, I definitely think of many examples of percentage cases where, especially in men’s males, like anywhere you practice men’s male is going to be like, there’s just not going to be generally, there’s not going be enough quote unquote justice to go around because it’s just, that’s the sway of the laws, right? And I think you’re right. You can take two pads. can take the…

The path for, yeah, you’re going to have to spend some time on that relationship and expectation. And that means you and your office, like you said, it’s always a team effort and always have everybody communicating, or you can make it difficult and have less communication. Yes, you’re getting the job done. Yes, you’re going to get to that finish line, but at end of the day, like where’s it going to end up? And I think what people understand is people.

They may not ever understand why a law is written the way that it is. Like they may never understand people at that capitol are making decisions that really truly impact them. They may never get that, but they will totally get how you treat them. How you treat them as a lawyer is how they will believe any lawyer will treat them. And we sometimes are the only lawyers they have contact with. And I always try to keep that in mind because when I was growing up and along the way there were lawyers and

speaker-0 (35:27.47)
To me, they just had all this power over my life and other people’s lives. And it was just like, wow, what an impact they’re making. I don’t know that anybody will feel that way. They have that same expectation of like, what will you do for them will totally impact their lives. And it’s true, even if you get the best result, which is still not the greatest, you’re still making an impact on their life. And I think we always should be keeping that in mind. It’s like, okay, I know what I do as a lawyer is pretty normal to me because I do it every day.

those people like it makes a huge difference and how I really is how they’re going to proceed all years and I want that to be a good thing.

Absolutely. mean, how many of us have heard about, have had examples where clients are going, I just don’t trust that doctor and I don’t want to treat with them anymore. And you’re going, Ooh, that’s a really good surgeon for sure. It’s just a bedside manner. And so that doctor with the little charm school, I mean, they’re the best doctor in the Northwest, but it is a necessary part of the job. And more so, think with us than, you know, the surgeon who can show up and do a good surgery, but it contributes greatly to your client satisfaction.

their impression of attorneys. We kind of talked about at the outset, I mean, when the client comes through the door, they have expectations for their situation, their injury, their claim, but they also kind of have a preconceived notion of you. unfortunately, a massive, and even clients who walk through our doors, a massive portion of that is tort reform and just schist lawyers and whatever you want to call us. mean, they all have that.

And my brother is a general contractor and he’s always got about six to eight blue collar construction workers with him, whether it’s in his living room, whether they’re out getting a bite tea, whatever it is. I just, that’s my focus group. That’s my down and dirty focus group. Cause that speaks for Great Falls, Montana, especially. I’ll just run, float the ideas by them in all regards. They’ll just…

speaker-1 (37:27.23)
almost dial it in in five minutes, what I’ll spend thousands of dollars and hours doing with a formal focus group. But one of the things we will periodically discuss is lawyers in general. And those are the guys that I represent, guys and gals. mean, they get hurt in that construction trade. Those are the people we represent and they’re going to have that initial impression. They’re walking in and their whole lives, maybe they’ve been kind of degrading us in just cheerful conversation. All those lawyers. You’re starting on that slide.

And what will immediately kind of immunize that problem is honesty. It’s that simple. You just shoot them straight and simple and they’ll pick up on, they know how to read. Yeah.

And I think trade bleeding that over, it’s the billboards, right? It’s the billboards with the millions and millions, the commercials with the millions and the millions. And most of the time, there’s a lot of clients that I would deal with because I’m like, well, okay. I always ask people like, what do you think happened to that person that they had to get millions and millions and millions? Like, right. And that’s kind of perspective, not necessarily expectations, but let’s keep ourselves in a perspective where we kind of got to do that.

helping with some comparisons. But yeah, I mean, it can be super frustrating because people do come in with that. And doing it day in and day out, like, you eat what you can. Like, we got to keep that will be all we got to keep people coming in. And I think sometimes we forget to like stop. And what’s your experience? Hey, what do you expect of me? And just to make sure that we’re checking in and doing that and in the correct way. And because you never know and you just you can, something can totally creep up and you just like, you don’t know until too late. And all of there’s you me and you’re like,

don’t know, like when is it that they’re upset about? Like, and you just don’t know. And that’s kind of like getting that whole hidden surprise thing. It in, we’re just like, or you get really upset about something that they’re doing. And it’s like, okay, if these things are happening, like just stop, conversation.

speaker-1 (39:23.68)
Yeah, bring them in, get them in. The minute it bubbles over, get them in. Just, just stop call. You got to, we’re setting up an in-office appointment. That’s it. Come on in. mean, that’s, found that to be one of the most effective tools in the toolbox. Just immediately. Once it’s officially passed the boiling point, just, okay, we’re going to postpone this and we’re going to talk again when you come to my office or I’ll come to you, whatever, but we’re going to meet in person.

I mean, that cures the majority of those issues in my experience.

I agree. And I think people want your attention and then it’s by the attention and then it’s really difficult to stay really upset. When someone’s sitting across and you like literally just listening, it’s like, I can’t really be like upset with you while you’re just sitting or listening to me. And then we’re pro-assaulting. And it’s not like everybody has to say, of course, well, I’m sorry. And like, that’s not what we’re talking about. Cause sometimes it’s just the job. Like we can’t be sorry about a judge’s ruling. We can be disappointed in it.

Like that’s for sure. Like I’m just flying here and this one here’s how we pick up the pieces. And I think sometimes that’s where like we think, somebody has to apologize. It’s like, no, sometimes we just have to get together, talk about whatever it is that’s upsetting, figure out if it’s really something we can control and then let it go or work with it.

Yeah, that’s what they want. They want a problem solver. come in, they’re coming to you to fix this problem, to make this situation work for them. mean, so you’re right, but you can’t, like you said, you can’t just jump there. You got to start with the, just the same stuff you’d start with anybody, any human about when they’re going through a tough time or a difficult situation, the same exact rules apply. And it’s easy to put on the professional.

speaker-1 (41:11.938)
face and just not want to go there and not talk about emotions and not talk about disappointment for fear that you might be admitting that you’re the one that disappointed them or for fear that they might blame you. Don’t be afraid of that. mean, talk about it and allow them to talk about it and express themselves. They’ll feel better. They just having them re-explain the story in their own words will dispel some of that.

trauma, if you want to call it that. It’s the psychological facts. And then you can get to the problem solving, which is of course where we want to go right away. And in that realm, you know, have options and obviously have a plan, know your stuff. I mean, you generally will and certainly probably more so than them by leaps and bounds, but still don’t wing that part. When you’re delivering bad news with a follow-up of now what should we do? Don’t wing it. Have a good plan. Have thought it out yourself.

And I find that given them options, mean, as much as you might say, look, man, you know, there’s a really ought to do option A, but still, if that’s the only option you present, it’s a little bit suspicious. I would be suspicious of that if someone was saying this is all you can do. You only have one option. No, no, that’s never true. I literally can’t think of a circumstance in life where that is true. mean, and so right away you’ve activated their.

The part of their brain that’s going, Ooh, Ooh, I might want to get a second opinion here. So give them some options. You know, here’s some different choices. mean, my recommendation is they’re going to probably go with your recommendation. Obviously you’re the professional. That’s why they hired you. But they like choices. I like choices. Everybody likes choices. These are the potential consequences. Shoot them straight on that because if there is an obvious option, the potential consequences are going to make that obvious to them too. So.

I mean, there’s definitely a way that you can structure that conversation without them blaming you, maintaining trust, in fact, strengthening it, dispelling some of that trauma for them, and then getting on the same page and making it their choice to be going down the road that we’re now going down.

speaker-0 (43:16.428)
Yeah, perfect advice. Because anytime you try to just tell someone what to do, here’s what, this is the only option. Like I’m telling you what to do. Like the inner two-year-old and I, it just pops up, you’re not going to tell me what to do. Like you said, I’m always awkward. So it’s like, okay. That’s why like, anytime you like try to just give someone a list of instructions, like people are always going be like, well, you know, I’m going to do it with my, cause again, our inner two-year-old. I think that’s.

super advice, is prepare yourself in that conversation, have options, know what those consequences are, each option. And then also I think going in knowing you’re going to first listen, let them invest, let them tell what’s upset with them and their own words. And so trying to go in and recap and say, okay, so I know that you’re mad. And so let’s just like hear them hear the options. Nope. You got to take that first step.

Listen to them, let them get it out and then move through like kind of with that, move it into that auto-solving area and having those things ready and set and go for you and have thought up root even just five minutes.

It’s probably, not going to take you that long depending on if the legal issue is really complicated. You probably already briefed it and that’s why you’re having this conversation. I mean, it’s not like that takes a massive time commitment, but you should be polished in part of the presentation because that is what you’re bringing to the table.

Absolutely. I think most of the time we have options, a lot of them lead back to leaning more on the client to get something forced. Like, okay, this is what the doctor said. So that means we need more before and after witnesses now. So I’m to lean on you now. That means we’re going to do this instead. Or we heard this, like, okay, that probably is going to close our claim. But I’m going to go talk to one other person. I’m going to talk to our ex, right? This person who could actually the judge may listen to and…

speaker-0 (45:09.678)
can throw feedback on it then I’ll get back to you, right? So there should always be some kind of plan of action and always a follow up. Here are the options. You don’t have to decide today. I want you to think about this and then we’ll come back and read this.

yeah, yeah. Great. you, right. You all, I make them sleep on it. I say that, right? Like just like you don’t go to a car dealership and walk away with a car. You go home and go to sleep. You wake up in the morning and then you decide, you don’t buy a house the same day you walk through one. You shouldn’t come into the lawyer’s office and have the lawyer say, okay, but you got to make your decision. No, no, that’s, everybody resists that type of pressure as they should. So right. You let them sleep on it. You say, Hey,

If your wife or husband has any questions for me, let’s have another conversation where between the three of us, or they can call me directly. If we need to have a couple more conversations before you make a decision, that’s fine. This isn’t like we got to have this answer in by Friday at five. And if it is, then you better be on Monday.

Yeah. Yeah. And I would say, because we definitely, and you and I are talking about this, when we have that factor, we got to come in and manage expectations. But if we’re talking about time conversations, like if you’re managing expectations and keeping communication lines open, when you do have that time, when you do have that, this is our deadline of deciding to go to trial or take that settlement.

they know you’re going to get in space and time and options to think about it. And they’re going to be able to make that decision much quicker than somebody else who hasn’t had as many car stations with you and discussions and knows much is going on in the case.

speaker-1 (46:49.07)
Exactly. And kind of the typical example is mediation. mean, they got to make a decision, which really we all know is you can ask for an extension and you should, if you have an indecisive client, that’s kind of what you should do for their sake. But I don’t really have that issue. And I don’t often, because I think you’re starting that conversation weeks before the mediation, or least a week before the mediation by copying them with the settlement brochure. Obviously you call them to go through it before you send it.

Talking to them again a couple of days before the morning dog. So that’s how you’re approaching virtually everything. Deposition prep, the direct examination at trial. And in doing so, you’re never actually putting them in that pressure cooker where they have a time limit. And I mean, I know I won’t accept that, know, clients will, they’ll jump off the cliff before they’ll climb down if they feel like it’s their only choice and you’re not giving them any other options, you know? So to their own detriment, I mean, I just have a client right now who

She’s got a chronic illness and there is a treatment for it. It’s terminal. But she’s holistic and she doesn’t feel comfortable with modern American medicine and for whatever, you feel about that is irrelevant. This is a human, it was a life that’s worth saving. And the doctor’s saying, this is your only choice and if you don’t do this, I swear to I’m going to get rid of you and you’ll never get treated. I’ll tell every other doctor not. I mean, he’s going crazy. But what he’s really doing is saying this is your only choice and that’s that.

So, she’s exploring all this other stuff. It’s not working and I’m sure her doctor’s unsurprised by that. But what she’s not doing is engaging in lifesaving treatment. And I think a huge part of the reason is because she was given one choice and an immediate, better get on it right now. And it’s like, that’s a mistake. That’s a professional mistake. You might be able to save that person with a different approach. And all it is is your words and your attitude. Why would you not adjust?

So I’m obviously this at the doctor, but I’m also on his team. mean, I agree with him. It’s just the way that he’s delivering it.

speaker-0 (48:54.71)
Yeah. And I think, yeah, that type of alice is deliberate for sure. And I think you can yell at me, human type, all of it is. You can’t tell me what to do with one option. Right. That goes for anything. you call my CPA, they tell me there’s, nope, you got one option and you got a pale, that’s like, my daughter tells me there’s one option. Like, well, you know, I’m pretty sure that they have more than one way to solve problems. that, you have been so awesome. Let me just.

Yeah.

speaker-0 (49:23.926)
Make sure there’s not anything, any other tips or tricks or things that you can think of that would help those as far as when we think about like, okay, products will advise for managing client’s expectations before it gets too late.

I we hit the majority of the stuff that I wanted to get out, but I really feel like I ought to just bounce that question right back to you because I’ve gotten more from you on client preparation than anybody I can think of. So I really appreciate the opportunity to discuss this stuff with you though and learn from you and hope it has some valuable information for your listeners who are, I know there’s a lot of them and they’re all excellent trial attorneys. So thank you very much.

Yeah, and I think we definitely nailed it and I think sometimes it’s just, we all need a little refresh, right? So maybe this episode is just a refresher for everybody who’s listening. I’m like, yeah, like I do need to make sure and like checking with people and that’s all it’s about. And for me thinking about managing expectations, doing it a major pin at higher, at major decision points, at litigation.

filing litigation, a deposition point, making sure we’re communicating those things because those are pivotal points checking in. And that’s really all you got to do. And when you get the bad news, just pull the band-aid off. The festering is like the worst. Because sometimes you just can’t. Then you really have to manage a whole different problem and like literally crossing your ears and hoping for the best. And that’s never what you want to do with a case or a client.

I couldn’t agree more. And everybody knows that. The only reason you don’t do that is because you’re trying to avoid it because you don’t want to have to that conversation or you’re worried or you’re insecure. But that’s the same rule that applies to any relationship you have in life. You got to address those issues before they turn sour and the virus spreads.

speaker-0 (51:25.486)
It is absolutely true because most people, they’ve already made a commitment to you. They signed a paper, they’re with you. But it’s still a relationship we both have to do work in. It’s not a one way street, no matter what relationship it is. So yeah, you need to have expectations. They need to know what they are. They have expectations and you need to find out what they are. Because that communication line is sometimes half about with folks. then the only thing I would add is like,

And I most people have some kind of case management situation that helps them document all our case notes and call notes. I used to just literally use a Word document that had like a date and action conversation. So I always had everything in one place. That was super simplistic take on it. I’m sure there’s lots of fancy case management software out there, but having that documentation and having those emails with us is really helpful too.

just to make sure sometimes you got to have that timeline to remind people like we covered this in the beginning. Here, I’m going to remind you one more time. And here we are. We’re now having this impact on you. Hard to see that impact a year ago, but here it was along the way. So just another little fine tune point, but.

Matt, again, thank you so much for joining the podcast today. Hey folks, if you want to learn more about Matt or you want to get in touch with him or you want to go to an interview in light of it, or I will tell you, if you want to pick his brain about Worker’s Comp and what the lobbying efforts and what they’re doing there, this is your guy. He literally is the point guy. So please reach out to him. He is in wealth of knowledge on that stuff. All of his contact information will be in the show notes. So if you want to contact him.

Actually, Matt, let me ask you, what’s the best way for people to get a hold of you or they want to learn more about you? What’s the best way?

speaker-1 (53:14.924)
Yeah, absolutely. can, anybody can shoot me an email at mattmatt at Murphy law office.net. So M-U-R-P-H-Y L-A-W-O-F-F-I-C-E.NET or call my office at 406-452-2345. Like you said, I’d be happy to talk with anybody regarding anything, especially Montana work comp or any other states work comp. love to collaborate on those issues and find it to be very valuable. So thank you again, Elizabeth.

Awesome. All right. I think that we’ll get all those contacts in the show notes. And if you enjoy the podcast, please read and review it on your favorite podcast platform. If you’d to connect with me, go to LinkedIn. I’m trying to get more folks to connect with me on LinkedIn. And so that’s what I would ask for you today. And otherwise, thank you so much for listening.

Prepare yourself to embark on an enlightening journey into the realm of traumatic brain injuries (TBI), where science, law, and humanity converge. With Kenny Berger, a seasoned plaintiff’s personal injury lawyer from South Carolina as your guide, you’re guaranteed to gain a deeper understanding of the human elements in each TBI case. Kenny’s insights, drawn from his extensive experience representing TBI clients, will help you comprehend the far-reaching effects of brain injuries on all aspects of a client’s life. 

In this episode, we’ll navigate through the intricacies of building a case for TBI, discussing key elements such as documenting symptoms like confusion, dizziness, and altered mental status and the significance of eyewitnesses. Kenny emphasizes the importance of establishing contact with individuals who the client may have been in touch with within 48 hours post-incident. 

Moreover, we discuss the timeline of brain injury recovery and explore the value of sensitive imaging. Kenny also generously shares invaluable resources for those keen on learning more about brain injuries and neuropsychology. Get ready to embark on this enlightening journey as we unpack the complexities of traumatic brain injuries.

In this episode, you will hear:

• Exploring traumatic brain injuries with Kenny 
• Understanding brain injuries and memory loss
• Understanding the impact of brain injuries
• Timing in court cases and brain damage
• The importance of neuropsychological assessment

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Supporting Resources:

To learn more about Kenny Berger visit his website: https://www.bergerlawsc.com/ 

To listen to Kenny’s podcast, Best Practices with Kenny Berger, listen here: https://www.bergerlawsc.com/reports/berger-law-best-practices-podcast.cfm

Episode Credits:

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Episode Transcript:

Elizabeth Larrick: Hi there, it’s Elizabeth. I wanted to pop in very quickly to introduce my guest, Kenny Berger.

Kenny Berger is a plaintiff’s personal injury lawyer. He operates his own office over in South Carolina. He’s got an office in Columbia and Myrtle Beach. His [00:01:00] office operates with many personal injury areas, including workers comp. So if you have a case or questions about South Carolina, be sure and reach out to him.

His contact information will be in the show notes. Hello and welcome back to the podcast. I’m lawyer Pratt. With me, your host, Elizabeth Larrick. Today, we have a special guest joining us all the way from South Carolina, and we are going to talk about traumatic brain injury clients. Now I know most folks through your tuning into this podcast have a litigation docket.

And if you don’t have a TDI client, because I know there’s a lot of employment law and transaction law and other things. This is still a really good podcast to tune into if you have a case that comes your way. So you can kind of identify it, get it to the right place. And a lot of times, I think what is coming out as well is that the more we learn about TDI, the more we recognize.

We’ve all probably had some kind of concussion in our lives. So [00:02:00] always helpful to learn more about that. But enough of my jib jab, Kenny Berger, thank you so much for joining the podcast and welcome. 

Kenny Berger: Thank you for having me on. It’s great to be here. 

Elizabeth Larrick: Fantastic. So Ken runs a personal injury law firm down in South Carolina, and I want him to come and talk specifically with us today on this episode about.

traumatic brain injury. Now, we’ve never super dived deep into a specific type of damages. So, I’m excited to have you. Kenny, I know that you talk a lot about this at CLEs, Continuing Legal Education. There’s a couple of those topics I know on your website. So, I’m just going to throw it over to you. Kenny, tell us a little bit about TBI and how you got interested in helping these folks.

Kenny Berger: Yeah, thank you. So you’re right, if you do any type of personal injury, or even if you don’t, the likelihood of coming across somebody in your lifetime, friend, family member, colleague, [00:03:00] who has suffered a traumatic brain injury, these things are all just good to know, but especially folks who do personal injury, I think you just, you’ve got to be familiar with traumatic brain injury, and my goal today isn’t to, to do a deep dive in the science and kind of learn anybody, um, um, what As we go deeper into some dark abyss, but more just to point out some of the, what I think are real keys to unlocking what I call the power of your TBI case.

And by unlocking the power, what you’re really getting at is the dun da da dum, the truth, right? Getting to the core of the matter, the quote, what’s really going on. Yeah. And the way I got interested in these cases is neat. And there’s a connection here, Elizabeth. So 11 or 12 years ago, something like that.

I was out in Las Vegas at a reptile depositions. Seminar and this was in, I think maybe 2012 and I’m in line and the 2 guys in front of me looked familiar. We’re going to launch on 1 of the [00:04:00] breaks and the 2 guys look pretty familiar. Turns out there are a couple of lawyers from South Carolina who ended up becoming good friends.

My guy named David Yarbrough and William Applegate, and they’ve just. It’s been tremendously successful, great guys, but we ended up eating lunch together and there was another attorney with us, a lawyer from California whose name I can’t recall. But at lunch, the three of them, William, David, and this attorney from California gets talking about brain injury cases.

And as they’re talking, I’m realizing, wait, a friend of mine had just called me about a case that sounded very similar to what they’re describing. So after lunch, I got into the hallway and I called my buddy and I said, Hey, that case we were talking about, what are they offering you? It’s like they’re offering 50, 000.

I would, I’d take 60. I said, how much coverage is there? He was like half a million. I was like, whatever you do, don’t settle your case. I think it’s a policy limits case. And he was like, well, how so? And I was like, I think your client has a brain injury. I’ll tell you all about it when I get back from Vegas.

Well, what I then proceeded to do over the next couple [00:05:00] of days, in addition to going to the deposition seminars, I was learning as much as I could as quickly as possible about brain injury cases. And the fellow he was representing absolutely had a brain injury. There was just no doubt. He was different in terms of personality.

He was different in terms of memory. And attention and concentration. He was different in terms of his mood and his ability to control his anger. He was just a different person. And that’s what so many people describe. So I ended up representing that young man. And along the way, what I learned is. You had to know the medicine.

You had to know the science. That was true, but it was just such a human story. It impacted every part of his life, every relationship he had. And along the way, you know, I really got to know him and care about him and care about this family and his life. Elizabeth was a mess, a mess on the way. Up to Columbia from where these folks live down in Aiken, South Carolina.

And he and his wife had an [00:06:00] all out fricking world war three kind of argument. It was just, they show up and when they get here, he’s red face, she’s crying. It’s like, what’s going on? And it was exactly what people with brain injuries and their spouses experienced, and we had to take, luckily we’d prepped them and we sat down and again with them where the deposition started and more than anything, just worked to get everybody calmed down.

But that was again, 11, 12 years ago, something like that. And, and over the last decade and a little bit of change, we just took a real interest in, in not just brain injury cases, but the brain injury population. That’s one of those things where it’s the type of injury kind of like other ones, but it could happen to any of us.

Right. And I’ve watched what people go through from folks who would be considered kind of just working class. Hard Scrabble background all the way up to corporate executive lawyer types with brain injuries and everyone in between and to a person, they’re all [00:07:00] impacted just in a full scale, often hidden, often very apparent kind of way that certainly calls for help, perhaps above all else.

And yeah, that’s the short skinny on how I first got involved in it. I guess it wasn’t that short or skinny, but that’s how I got involved. 

Elizabeth Larrick: Yep, those deposition seminars, like, I still remember, like, those were my first reptile seminars. I still remember all the people that I met. I’m still in contact with them.

But it’s so amazing, like, you mentioned all the backgrounds of people, and just, I think what also is so different is every TBI is so different. You named off some pretty traditional symptoms, but having worked in the field, like you see so many different flavors or symptoms and it’s just like, wow. And like you said, it’s hidden, but it’s apparent, like the people around them can see it, or maybe just a little bitty small things that I think the science and the recognition [00:08:00] when we run focus groups.

People are much more familiar with it. And like, there’s definitely some language that people can talk about it a lot better, but I still feel like there’s a pretty big gap in knowledge for people having an in depth understanding about what it is. Is that kind of the way that you feel too? 

Kenny Berger: I think that the challenge is helping people understand that what may have started with a, quote, concussion could have these kinds of ramifications.

So one of the things I think you absolutely have to do is show that the mechanism of injury was sufficient to cause something terrible. Because what you’re showing is kind of the snowball effect, or at least you’ve got to show that the mechanism of injury was enough to light the match. very much. Right.

I think if you’re dealing in a case where you’ve got to get a biomechanical expert, or you’ve got a car accident case or car wreck case with no property damage, [00:09:00] and you’re claiming millions and millions of dollars in damages based on a TBI, I think you better be darn certain that something can be shown that if on the one hand you’ve got this raging fire That people understand that whatever caused that raging fire again was at least enough to get the match lit.

And what I tell folks a lot for me that the absolute start point is establishing that the client suffered a traumatic brain injury. Like just that’s kind of an easy elementary point. It’s like we have, of course, but I think that opens the door. To, to so much else. And when we talk about a brain injury, the person doesn’t have to lose consciousness.

The person obviously doesn’t have to have findings on a CT scan or an MRI scan. What you need to have based on the Brain Injury Association of America or CDC or the DSM 5 or really anything again, not to go too into the weeds, but it’s real simple. There has to be some alteration in brain function.

There might be [00:10:00] confusion. There might be some amnesia surrounding. The event you just have to show there was some alteration and brain function. And a lot of times it’s like, well, how do you do that? Cause you’ll see a medical records. They didn’t lose consciousness. And then later on, they say they did lose consciousness.

Well, most of the time asking someone if they lost consciousness is like asking what you forgot yesterday. I don’t know, I only forgot. So there are ways to deal with that and one of the really simple ways to deal with it is to say, all right, what’s the last thing you remember before the, we’ll just say impact.

Do you remember the impact itself? What is the very next thing after that? And the very next thing after that, the very next thing after that. And typically what you’ll find is there are pretty significant gaps in someone’s memory, which is again, by definition, post traumatic. Amnesia. And a lot of times by the time the EMTs get there, by the time someone gets taken to an ER, they’re alert.

oriented, [00:11:00] but before the EMTs get there, they may not be. So if they had a passenger with them, if somebody came up to their window, we hear that a lot, right? What’s the next thing you remember? I remember somebody at my window. What do you remember between the impact and someone at your window? I don’t remember anything.

Well, you get in touch with the person who came to their window. What do you remember about them? Ah, they looked a little dazed. They were kind of out of it. Again, you start checking off those boxes where by definition, even if you can’t document the loss of consciousness, you can certainly document the dizziness, the confusion, the altered mental status.

The fact that on some level, their brain function was altered due to trauma. It could be a rear end collision that knocks their brain back and forth real quick, which is known as coup contrecoup. It may be they got hit in the head directly by something, but just remembering that if you can simply, and you must, I believe, establish by definition that this person had a traumatic brain injury, it really opens the door and kind of lays the foundation [00:12:00] for whatever other damages may be costly related.

Elizabeth Larrick: Sure, and I think like that’s that whole causation and like you mentioned the mechanism of injury mechanism of event that forward and backward that is true battleground right there and that’s most time when you have a TBI case and the ER records are pretty much unhelpful like that’s the battleground that the opposing counsel is going to go after which is it’s fine it’s great you know they didn’t have to go to the emergency room or if they did so I think that’s really probably one of the hardest parts And I’ll just speak for myself, when I did have a litigation docket, like, I would get cases that, like, they did probably have one, but nothing was documented.

And so there’s this gap where they’re having all these symptoms, but Nobody’s marking it down or the chiropractor marks it down and it like that’s as far as they get. So you did such a good job going through like at the scene and like trying to get that particular type of information and symptomology, but yeah, [00:13:00] what else would there be?

Kenny Berger: And I’ll tell you, we try to get people to tell us everyone they talk to. Or came in contact with for like the 48 hours following. Because again, a lot of times the EMS records suck. The ER record sucks. And they suck because the person’s life isn’t in danger. They’re going to live. They just want to rule out a brain bleed.

They rule out a brain bleed. They send them home. And one thing to know is in the ER record, it says, or the discharge paperwork, it says, Hey, if you get worse, if any symptoms persist, go see a doctor. So that’s one thing, if they come to see you and they haven’t seen anybody, you can be like, Hey, did your ER records say if your symptoms persist, come back to them or go see someone?

They’re like, yeah. I’d be like, wow, that’s probably a good thing to do. But we always want to find out who did they talk to, right? Like, did they call somebody from the scene? A lot of times they’ll call the spouse or the parent. And so you want to talk to the spouse or parent. And we had a case recently where the spouse was like, yeah, Joanna kept calling me.

She called me. Three times she [00:14:00] called me. I’d hear some stuff. She’d be gone from the line. Call me. And I got real worried. And finally, I got in touch with her and she sounded kind of garbled. She didn’t really sound like herself. I couldn’t tell what was going on. And I was able to make out that she gotten in a wreck.

Does that win your case? No. Is that great evidence? It’s not great evidence, but it’s just one more thing. One more person who can testify to the fact that from the very outset, right? Like from the very outset, this person was not the same mentally. Something happened. Their brain was not working the way it did before they were struck.

They meet the definition of brain injury. And here’s here are things we know about brain injuries. And you can go down a whole litany of things about brain injuries. And the fact is, when it comes to concussions, which is just a type of brain injury, when it comes to concussions, which are known as mild traumatic brain injuries, that’s just a crappy medical classification.

for the initial injury. It doesn’t mean the consequences are mild. It doesn’t [00:15:00] mean the symptoms are mild. It doesn’t mean the impact on someone’s life is going to be mild. There’s nothing mild about losing a marriage. There’s nothing mild about losing your job. There’s nothing mild about falling into depression, becoming suicidal, all these things that are often consequences of someone having brain damage are not mild.

So you can kind of, you can work to disabuse people of the whole notion of mild. But the fact of the matter is a lot of people. You know, substantial percentage get better, make a full recovery, and that’s wonderful. What we often look at, though, is what are the similarities between people who don’t get better and what type of symptoms do they have?

What type of consequences do they live with? So rather than comparing a population of people who didn’t get hurt to people who did, we want to show the population of people who did get hurt, what the similarities are. And in that setting, you find some textbook presentations, some classic presentation symptoms.

But like you said, there are also some [00:16:00] individualized aspects because everyone’s lives are different and oftentimes TBI’s affect every area of a person’s life. And because of that, the impact on individuals varies. One of the added challenges in TBI cases is obviously that people typically look okay.

They talk okay. If you spend two hours with them, it doesn’t really seem to be a problem. If you spend two days with them, the problems become very clear, very pronounced. Because of that, we found over and over, the people who are best positioned to tell that damages story are the waywitnesses, right? This is stuff that David Ball was talking about.

15 years ago or more, but the people in a person’s life who are best positioned to tell the damage of the story, typically it’s not the person with the brain injury. Oftentimes they’re in denial. There’s still stigma that surrounds head injury. So in our experience, we want to go through a typical day and a typical week [00:17:00] and find the people that our client interacted with and talk to them.

We want to go on Facebook and find out, Hey, who’s that person on Instagram? Hey, who’s that person you’re doing that with? If someone says they loved going. Fishing. That’s a common one in South Carolina. Okay. Who’d you used to go fishing with? Get in touch with that person. Find out what’s different.

Obviously the more removed you can get from the financial interest. The better, but if you’re just hanging your hat, I think on the client to tell their brain injury story, you’re in a really tough position because it’s kind of a no win either. They sound so bad that it’s hard for someone to really wrap their head around giving.

That person money in the sense that they’re so bad, they can’t describe or substantiate what’s going on with them, or they sound pretty darn good leaving jurors think, well, heck, why is this person getting a bunch of money? So, if you want to know what they were like before and after, I’ve said it a bunch of times, the person with the brain injury is typically the last person you want to ask.

Elizabeth Larrick: Yeah, [00:18:00] 

Kenny Berger: they just, they don’t typically have the types of insight in a day in day out way that the friends, family, coworkers, neighbors, associates. 

Elizabeth Larrick: Yeah, absolutely. And I think you mentioned a couple of things in one was like concussion. And I hear a lot of times in focus groups, Google say, well, that’s not a brain injury.

They just had a concussion. Right. And so it’s like, there’s still this like loose. Oh, it’s different. I would, that gets better. I know this does it. And that sounds so serious to say brain injury. And I think that’s kind of where a lot of times having the before and afters. really solidifies, oh, like that, there’s so, that’s very relatable, but I think also the leaps and bounds that we have had in understanding like what it means in the brain and like having some really good, I’m not going to say animations because I think illustrations are, are wonderful.

And I think being able to describe it well also [00:19:00] is very helpful. I want to ask you a real specific question though, because I know DTI imaging has come into popularity and some people are yes and people are no. So like, how do you feel about like that kind of evidence? 

Kenny Berger: Yeah. So what’s funny before we came on the podcast, I was saying, we’ve done this.

The CLE, where we go through and we talk about like, all right, establishing the injury, using lay witnesses to tell the damages to where the very next point in that is determine whether there’s physical evidence of brain damage and if there is show it to them. So, I think DTI is fantastic for the right case.

Zooming out a little bit. I think that imaging, especially. More sensitive imaging. I don’t like the term advanced neuroimaging. This type of imaging has been around a really long time. It’s just not used clinically as much because from a clinical standpoint, whether or not there’s axonal sharing, whether or not they’re tears and the brain’s wiring may be relatively [00:20:00] insignificant in terms of prognosis, diagnosis and treatment where it has application, though, is improving that there’s physical evidence of brain damage.

Most notably, And in the litigation or forensic setting DTI, I really like for the right case. If, again, if you’ve got someone, um, we’ll just say over the age of 15 or 18 and under the age of 65 or 70 DTI is wonderful. And again, what you’re looking at in a sensitive way is whether or not there’s any damage to the brains.

Wires and the brand’s wires are known as axons. Diffusion tensor imaging or DTI looks at the damage to those axons and can spit out a real pretty picture that may show almost looks like color out spaghetti noodles and on one side, you may see some long strands will say of yellow. And then you look at the other side, which should look pretty damn similar, if not identical, and those strands are missing.

And what that helps establish Is those strands which represent axons or the [00:21:00] brain’s wiring are no longer there. They’ve been sheared. In other words, they’ve been torn or ripped open. And when they’re ripped, they connect a lot of brain cells. And when that happens, the brain cells die and the brain doesn’t function as well.

So, I like DTI another type of imaging that’s not as flashy and not as many people maybe talk about, but I think can be really effective is another type of MRI. And that’s something for folks to know. DTI is just a type of MRI. There’s another type of imaging again. It’s a separate MRI setting and it’s called S.

W. I. which stands for susceptibility weighted imaging. S. W. I. The same way DTL looks for tears in the brain’s wiring, SWL looks for little micro hemorrhages within the brain. Where have there been low tears, bursts? Where is there a little bit of microscopic blood on the brain, not that would pop up like on a CT scan [00:22:00] to show a subdural hemorrhage, but where they’re just tiny little markers where there used to be little blood spots and SWI can show that.

And again, that’s evidence that’s consistent with brain injury. DTI can provide evidence that’s consistent with brain injury. You can’t say because The DTI findings were positive, or SWI was positive. That means there conclusively was a brain injury. What you can say, kind of like an x ray, if you see an x ray of a broken leg, you can’t say based on an x ray alone what caused it.

But if you give someone the information, you say, hey, they got hit by a drunk driver two hours before the x ray was taken, got thrown off their motorcycle. And when they showed up at the scene, EMS had a compound fracture, you’d say, Oh, in that case, yes, I would say the broken leg is related to the crash.

Well, if you look at the clinical history and the clinical history, someone suffered a 10 foot fall, hit their head and was unconscious for 5 or 10 minutes or wasn’t, but was [00:23:00] disoriented. Uh, and confused and you do a DTI or SWI and you see again that there’s damage to the axon or their micro hemorrhages in the brain.

It’s consistent with, with the faults consistent with their being brain damage and based on the clinical history, you’d most likely correlated a neurologist or other neurospecialist would with the actual TBI. One thing to know about that type of imaging, they’re not time stamped. Okay. Uh, so SWI can’t tell you how long ago the blood was there and left an iron deposit.

DTI can’t tell you how long ago the axons were torn, but it’s part of the larger picture. And what you know at the end of the day is there was a person who woke up one way. When they woke up that morning, they were one way. Then let’s say we got a case right now, the storage door came down on their head and knocked them out.

And after the storage door came down on their head and knocked them out, they haven’t been the same. [00:24:00] Imaging shows the imaging is consistent with traumatic brain injury. Their friends and family talk about how different the person was before and after in the following different ways in terms of their mood, personality, behavior, and cognition.

What do we think the most likely cause of that is? Well, Occam’s Razor tells us the simplest answer is usually the right one. The defense wants to overlook the fact the garage door storage door came down on the guy’s head, but it did. And when it did, it knocked him out. And ever since his life’s been different.

And that’s the reason that we brought a case against the storage door company, right? Like, so yeah, so I’ll say all that to say that, that I’m a big fan of imaging. Uh, And if you get positive findings on imaging, show them, show them through illustrations, show them through animations. But I’ll also say all this with one caveat, be weary of anyone who’s trying to sell you DTI, be weary of anyone who’s trying to sell you any type of [00:25:00] imaging, PET scans, functional MRI, SWI, the imaging, And the results really are only as good as the technicians doing the work, the normative data set that it’s compared against and the radiologist or other expert who’s analyzing that data.

So just be careful and make sure. Not that the technology can pass Daubert, which it can, but that the expert that you’re choosing to use is sufficiently qualified. 

Elizabeth Larrick: Yeah, I know that there’s lots of people. When it first came out, I was like, Oh my gosh, we’ll use this people and use these people. And as happens with a lot of things that are like new and exciting for evidence and animations and that kind of stuff.

It’s so true. Like, you really want to, you want to pick somebody who, you know, knows what they’re doing and is not just going around to every lawyer convention and sponsoring everything possible. It’s just true because I think there are probably a lot of people listening who’ve been like, yeah, I did that and it turned out either I couldn’t use it or it just, it didn’t turn out to be what I needed, [00:26:00] what it needed to be.

Kenny Berger: For someone to say. Your client’s brain is abnormal on DTI, for instance, there has to be a normative data set to compare it to also, you want to be careful about what else may better explain those findings, right? Like you need to be careful on the age side that it’s not an aging brain, an atrophying brain.

That the person isn’t older and has small vessel disease, that they’re old enough, that the axons and the parts of the brain that DTI is really kind of looking at for normalcy or abnormality are properly developed. You know, it’s a great. Tool. It’s not the end all be all, but it’s a great piece of evidence kind of in the old, like we learned as kids show and tell if you can show the jury the injury, if you can show them the brain damage, right?

Like, a lot of times we’ll talk about. Look, what happened to them was a traumatic brain injury. What they’re left [00:27:00] with is brain damage. And now we’re going to show you the brain damage. So if you can show them the brain damage and show that the parts of the brain that were damaged are consistent with and medically correlate.

Great. With the changes in their life, which is something neurologist or someone else can explain, then you’re just, you’re further layering the evidence again and also utilizing those lay witnesses. So it becomes a situation where you’ve got a TBI to start with. You’ve got people who are talking about how different they are.

Now you’ve got imaging that shows why. They’re different. So you’ve got how they’re different. Now you’ve got the why they’re different and you’re able to show it to the jury, which I think kind of leaves you more to how much you’re going to get setting versus whether or not you’re going to get a result.

Elizabeth Larrick: So let me ask a question about timing because you said not every case. It needs to have like this kind of imaging, like, when are you, like, when are you thinking about this? And when are you making that decision? Because I know again, playing this person, [00:28:00] your lawyers were pretty cost conscious because we’re, we got it.

So when are you kind of making these decisions and when do you pull that trigger? 

Kenny Berger: That’s a great question. The classic, it depends, right? Typically in my experience, people who are going to get better, who are going to recover, do so within about 10 or 11 months. Okay. The rule that most people follow is 12 to 24 months from what I’ve seen over and over.

People are pretty much as good as they’re going to get it at 10 or 11 months. With that said, I’ve seen a lot of people make substantial improvements between 6 and 9 months. I’ve seen people who are. Messed up as a football bat after a month or two, and you’re thinking, my God, their life’s pretty much fricking ruined and it’s six and nine months, they’re 95 to 99, maybe 100 percent better.

Be careful. I typically wait until kind of that nine to 12 month mark, unless we’re pretty darn certain [00:29:00] the results are going to be positive. I’ll give you an example. Let’s say a client has positive findings on CT. Right. And, and they’ve got, uh, subdural hemorrhaging, or they’ve got subarachnoid hemorrhaging, but they’ve got, they’ve got blood on the brain.

Right. In those situations, depending on one’s kind of a better idea on coverage and some of the other moving parts of your case, uh, in a case like that, we’d probably send them a little sooner to show not only was there an initial finding of a brain bleed, because the defense can be like, well, they had a brain bleed, right?

Yeah. And it got better. Correct. Correct. And when they came back in and on this MRI, this caught MRI, the brain bleed had resolved. Correct. Correct. Yet they were still complaining of their symptoms. Isn’t that true? Yes. Despite the fact that the brain bleed was no longer evident on imaging. Correct. Because what they’re trying to do is say, because the blood [00:30:00] had been absorbed, the person’s no longer hurt, which is crazy medically.

But in those situations, again, if you’ve got good coverage, good viability, likeable client, compelling story. We’d send them out for more sensitive imaging, including DTI, to show what else was going on inside the brain that, again, is consistent with the initial skull fracture or brain bleed. Because then you can say, look, their skull got fractured, their brain bled, and they have permanent brain damage.

Now let’s look at the ways their life has been altered and what’s been taken because of the brain damage. And again, the brain damage all goes back to when the defendant chose to do X, Y, and Z. 

Elizabeth Larrick: Yeah. Yeah. That makes a lot of sense. And I know the other, the third option there is people just wait way too late in litigation.

And then it’s just, then it looks like it’s a little bit more manufactured. Like you fall into a different set of problems. Sometimes we wait too late. 

Kenny Berger: A big time. And with that said, if it hasn’t been done, you know, [00:31:00] cause sometimes we won’t get a case until a year and a half, two years into it. And in those situations, so long as there’s Enough medical evidence along the way or enough other people besides the client and their spouse to talk about what’s been different over the last 18 months or two years.

We won’t rule out doing the more sensitive imaging, but it does come with it. If the only thing we have is they treated for 2 months. Then they came to us and then the lawyer referred him to somebody and lo and behold, there was, you know, an alleged brain injury. That’s a tougher sell. I’d be more wary of that.

Elizabeth Larrick: Yeah. Yeah. Well, Kenny, you’ve been super generous with your time, but I know there’s a lot of people who are like just learning about it and obviously there’s lots of different, what is a good resource for them? Like what’s a good book? I know that there are lots of books out there on concussion and stuff, but what are some that you would recommend to people or.

Maybe they’re just learning or people [00:32:00] who like maybe want to get their knowledge just based a little bit further down the road. 

Kenny Berger: That’s a great question. Before I answer it, I just I want to I’m going to answer that. But before I do, a lot of people may be wondering, like, what about neuropsych? You know, what do we do about neuropsychology?

Which neuropsych do you like or not? Like, personally, I don’t like neuropsychology. I try to stay away from neuropsychology if I can. I don’t think it’s necessary. If you’ve got an initial injury, I You’ve got people from the human beings life. You can talk about how their life changed at the exact same moment in time.

Their brain was damaged. If you’ve got a neurologist who can clinically correlate those things, and especially if you’ve got, uh, imaging, traditional CT, traditional MRI, or some of this more sensitive imaging we talked about at that point, you get a neuropsychologist. So the defense gets a neuropsychologist.

And then there’s a day of testimony about the MPI to just like, [00:33:00] what, what are we doing here? That’s not a knock on neuropsychologists. That’s not a knock on the field of neuropsychology. It’s just in terms of case presentation and persuasion. I just, I don’t know that we need the Wisconsin card scoring test.

If you can point to an image and show where their brain is damaged. Uh, but if someone wants a good resource, I here’s what I’d say the best resource I’ve found. Is a traumatic brain injury litigation group? It’s the seminars that this group. I’m not talking about age. A is an entity, but specifically within this litigation group, you’re going to meet a lot of the what I think are just the best of the best.

Uh, you’re going to meet a lot of, I think, the best cutting edge doctors, lawyers, really being at the forefront of, of what’s going on with the literature with the medical and scientific advances with the techniques on, on being able to. Best present these cases [00:34:00] in a common sense way. So I’d say from a resource standpoint, the absolute best thing that someone could do is join a chase tbl litigation group and start coming to some seminars.

If there was a specific. It’s funny, I just mentioned how I don’t like neuropsych, but because it comes up so frequently, I think the neuropsychological guide to assessment or evaluation guide to assessment, 5th edition, a doctor who passed away in the last year or 2, Dr. Lezak, L E Z A K, was one of the co authors of that book.

It’s just the nurse like fifth edition that you got to have that because you’re going to deal with neuropsychologists, be it from the defense from cases. They’re referred to you in certain cases that we have. We use neuropsychologists. There are some great ones out there, but you just you got to know that stuff.

And here’s what I’d say about neuropsychology. If neuropsychology is being used to assess deficits. A deficit is the difference in how [00:35:00] someone was before and after the injury. You can’t know the difference between how someone was before and after the injury without getting an accurate baseline. So a lot of times I’ve seen plaintiff friendly neuropsychologists talk about, Oh, this person has these impairments these deficits.

Well, hey, they might’ve had those same fricking, uh, and low end skills and abilities before the injury. By the same token, I’ve seen plenty of. Defense folks basically try to claim that, that there is no difference, but they’re still average or high average. Well, fact is, before they may have been quote superior in, in some of these domains and there’d be massive deficits.

So you really got to know to, to an accurate standpoint or to really precise point what they were like before. If you’re going to be able to speak intelligibly and honestly about whether or not there’ve been any changes in their life. And I just don’t see a lot of neuropsychological exams that do that.

Elizabeth Larrick: Yeah, and we could spend a whole [00:36:00] episode just talking about psychs and it’s definitely, like you said, best way is just to kind of educate yourself, especially because you’re going to go up against one for sure with the opposing counsel hiring one, but we will put a link in the show notes to that particular title so that everybody can find it and a link to the AJ TBI litigation group.

Kenny, thank you so much for coming. I know that we’ve just barely touched the surface on TBI stuff, but I appreciate you just come and give us a little, a light touch, and I think what we focused on is probably the most important thing for people to walk away with, which is. Go to that scene, go to that exact place and find exactly what is happening in those moments right afterwards.

And that 48 hours afterwards, because that’s going to be the best place to find the evidence you need to, like you said, strike that match, right? To light that fire. Kenny, if people want to get ahold of you, if they have questions or thinking, you know what, I would love to have to come to my podcast or come to a CLE for my group, what’s the best way [00:37:00] for somebody to get in contact with you?

Kenny Berger: And just for reference, it’s Neuropsychological Assessment, 5th edition, again, LESAC. Best way to get in touch with me. The easiest way is probably just on my cell phone and that number. We’re in South Carolina, but we, like other folks, go all around. My cell phone number is (803) 360-6267, and then my email address, it’s on our website.

It’s Berger with an E-B-E-R-G-E-R law, SC as in South Carolina. And my email address is kberger at bergerlawsc. com. So folks can feel free to shoot me an email or like I said, call my cell 803 360 6267. 

Elizabeth Larrick: And I will put a plug in here since you didn’t talk about you have your own podcast. So if people just want to come and learn a little more with the same [00:38:00] your podcast.

Kenny Berger: Yeah. It’s a good one. It’s called best practices with Kenny Berger. Elizabeth was a recent guest. Other Texas folks. We’ve had Russell button, Chris Hamilton, who got that 7 billion with a B dollar verdict. His was excellent. Russ has been excellent. We had Amy with a right, come on and talk about kind of more from a business perspective.

I’m trying to think, I don’t want to miss anyone we’ve had from Texas. It seems to me like there may be one or two more, but. Again, we’ve had some great guests from TBR stuff to truck stuff, uh, openings, clothes, case selection, all in between. 

Elizabeth Larrick: Yep. Well, it’s a great podcast and I encourage everybody to go like, review it for Kenny and support the download that always helps more people find the podcast, which is what I’ll say as well for this podcast, but I will say another great way to connect with myself or with Kenny is on LinkedIn.

I know there’s always going to be some dialogue there. [00:39:00] Lawyers as well. So again, thank you so much, Kenny, for joining the podcast today and we’ll put all that good good stuff in the show notes so people would know how to find you and find that podcast. All right. Well, this is concludes our episode.

Thanks again, Kenny. Appreciate it. 

Kenny Berger: Thank you so much for having me. 

Elizabeth Larrick: All right. Well, if you like the podcast, please rate, review on your favorite podcast platform, follow on LinkedIn and until next time, thank you.

Are you ready to redefine your understanding of focus groups and mock trials? Let’s dive into the subtleties and key differences between the two, as we expose the secrets behind effective case preparation. With exclusive insights from expert attorneys, medical illustrators, and visual aids specialists, we’ll be enriching your knowledge and honing your skills. 

Don’t miss our intriguing foray into the world of legal jargon as we dissect the merits of focus groups over mock trials, shedding light on the importance of creating an open environment for participants. We further delve into the strategic use of background checks and surveys in your practice. Bring in your queries and join me on LinkedIn as we start this thrilling journey into the realms of trial preparation.

In this episode, you will hear:

• Focus groups vs. mock trials
• Early focus groups in lawsuits
• Dedicating time and resources for learning

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:

Let’s connect on LinkedIn, or send me an email: elizabeth@larricklawfirm.com 

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 trial lawyer prep. I’m your host, Elizabeth Larrick, and thank you so much for joining us. I’m going to call this the official episode 100. Well, I know we did a replay. Last week, I want to make this the official 100 [00:01:00] episode and say, cheers. And congratulations.

Cheers to you for listening for pretty much two years now. Podcasting. Thank you so much. I couldn’t do this without you. And congratulations to me for putting it together. I know that here lately, it’s been a little hit and miss, and I appreciate everybody hanging in there with me. We’ve making some changes over on my work side of things, and that has translating now to some changes for the podcast.

And so what I want to talk about really quickly is some announcements. Before we get to our meat and taters of the episode changes would be, we’re going to move to a format of every other week. Now what we’re going to do though, is have just a little bit more meatier. episodes. Okay. What I want to do is start flavoring in some specific case study episodes.

Now, these may [00:02:00] be with the lawyers who are actually involved with the cases, or sometimes it’ll just be me talking about the case, you know, the outcome, but more specifically the preparations, right? And how maybe those things helped what was learned. Of course, if we can’t our lawyers on, we totally will.

To talk about that, kind of dive into that and really kind of get into the how to’s, you know, pulling this lever equal this, you know, pushing this way equal that to really kind of give y’all the audience very much a how to, right? That’s what this podcast is about, is really talking about the how to preparation for cases.

We’re going to continue to do interviews with lawyers, of course, and folks who help lawyers. So I know that I’m going to have medical illustrationist, Annie Gao, come back. We’re probably going to do a couple episodes on illustrations versus animations versus a couple of things that she has up her sleeve to help y’all.

I know that [00:03:00] we’re going to have other folks that help for visual aids beyond medical and probably some other people here and there just to help maybe with thinking about business wise or things that we can delegate people to help us with that. Also, of course, I’ll be here doing some solo episodes, you know, lessons learned and how to’s.

So, as always, I just want to talk about who this podcast is for, and it’s for folks, trial lawyers, people who are litigating cases, pretty much plaintiffs, lawyers, personal injury, employment lawyers, and also business litigation. Now that’s not to say I, family lawyers cannot also gather up a lot of this thing, a lot of these things that we’re talking about, but I do know having dabbled in family law is just a little bit different style of practice, if you will.

Of course, there are some people that this podcast may not be for, right? So this is for folks who are curious, who want to learn more, who want to see something, try new things. And so for folks who may [00:04:00] be down the road a little bit in their practice, who feel like they got a pretty good handle on things, not so sure, certain about trying new stuff, this may not be the podcast for you.

Of course, you’re welcome to hang out and listen, happy to have comments and feedback as well. My email will always be in the show notes for that, as well as I’m going to ask that we all start connecting on LinkedIn together. I’d love to hear more from the audience in this next year coming up. And so I will ask for that, that we connect on LinkedIn.

So with all those announcements down, let’s get to the meat and taters of this particular episode. So I do speaking quite a bit. And I always enjoy going to talk to a trial lawyers association. Got to talk to Montana this year and have brought some of those things that I talked about here on the podcast and probably bring some more along the way.

But recently I went down and spoke to the San Antonio trial lawyers association, which is great [00:05:00] organization full of wonderful folks. And we talked about. DIY virtual focus groups, a topic that I have talked about here on the podcast several times and you know, kind of can collaborate those episodes and put them in the show notes for you.

But what really kind of came from the conversation in this discussion with these lawyers was very much more about focus groups versus mock trials. Now, a lot of times when I talk about things, I’m talking about focus groups, but in lawyers minds they’re thinking mock trials. This kind of impasse or miscommunication happens often.

And that’s because my mentorship and my learning came through the avenue of focus groups. Not the adversarial style, the mock trials where [00:06:00] we’re getting, you know, basically a group of people and we’re having, you know, sometimes even having a judge there and having the opening statements, you know, showing some witnesses, having some closing statements, voting, you know, maybe having deliberation along the way.

That’s a mock trial to me versus a focus group. And. That’s why I want to talk a little bit about that today for people to know that there is a really huge difference here and what I advocate as you’ve heard if you’re listening here very often is for focus groups because and a lot of do it yourself focus groups, especially when it comes to virtual, but before we Jump there.

Let’s just stay really quickly with our focus group concept. People talk about doing focus groups along the way. If you’ve read, and I’ve mentioned on this podcast before, winning case preparation, understanding jury bias, they [00:07:00] talk about doing concept groups. That’s a word for them. I just sometimes call them, you know, neutral focus groups, but basically you’re taking a very small approach.

Either maybe it’s just an issue, a very digestible approach to getting feedback from potential jurors. And then that’s why I call them participants because I’m not going to ask them all to agree to one point of view. Rather, I’m going to go through and get each of their opinions and then dig a little deeper as to where that may be coming from.

Right. So it is very much a quantitative, right? Am I saying that right? No. Qualitative, right? It’s not about the numbers, right? Because there are people who do that too. And they do it very well, by the way, like great groups out there that do a very big number of people, good sample size and push everybody through and give you some great metrics.

That’s not what I do. I’m much more qualitative, right? So [00:08:00] we’re going to work with the group and really understand and get each of their opinions and go through that when it comes to these smaller issues. Right. So again, it becomes this very digestible format where we’re maybe spending an hour. Maybe sometimes it’s even 45 minutes on an issue or a neutral fact pattern or a visual aid or witness clips and just mulling through impressions and thoughts, assumptions like really just kind of diving in what their opinions and thoughts are without any advocacy, right?

Very much a neutral base. This can be difficult for trial lawyers because we advocate. However, with a very smaller digestible approach, with a neutral approach, you can do it or staff can do it. I know a lot of lawyers are incorporating staff, paralegals, legal assistants that can run focus groups for them because they Again, come from a unbiased place.

[00:09:00] They’re just there to ask the questions and get the feedback. And so it becomes a very different, I consider it a very big difference between a focus group and a mock trial. When people come to me and they want a focus group, I’m assuming you want a focus group that you don’t want a mock trial. And so we have that conversation.

But what I love about. focus groups for plaintiffs, personal injury attorney, for employment lawyers is a smaller, digestible, cost effective way to start talking to potential jurors, start understanding their attitudes and their backgrounds. Again, the, it’s a lower, Smaller time, you know, we can have smaller groups and of course, this is why I always push for virtual because that is an extremely cost saving convenient for you and for our focus group participants that they love way to get this feedback.

And if you do it [00:10:00] earlier, right, traditionally mock trials are left for the very last stages. Like you’re going to trial, no possible way of settlement or the possibility of settlement is so low that you want to make sure you’re ready. So then you’re doing a mock trial. You’re at the end stages versus a focus group because again, smaller in nature, different kind of style can be done virtually.

You can do it in person. You can do them more often and earlier. I always advocate, you know, six different spots, but I’m going to say for sure, no matter what two, Gots to do it spots. And the first one is before you file. Now, you may be thinking, well, I don’t have all the information and I don’t have this and I’m not sure what people are going to say.

You got a pretty good read on the situation before you file. If you have enough information to file a lawsuit, you got enough information to run a [00:11:00] focus group. And the cool thing about when you run it this early in their case, you get a lot of mileage out of that feedback. Because you’re going to, See it over and over again.

Also, you’re going to get a blink read, a blink reaction on Settle vs. Trial very, very early on, and that can really significantly help you shape and style your case expenses, your effort. Your energy in a case before things get too far. The other place that I say absolutely run a focus group is after you have key deposition of testimony from key witnesses and facts, fact witnesses.

So that would be our parties and a corporate rep. Going beyond that, like we probably don’t need it unless we’ve got like a super complicated so we need some managers in there or something like that because then you’re able to basically truly take clips and give. The focus group, [00:12:00] more information just through those clips.

You can always read them. This is what someone says. This is the testimony. You could even show, hey, here’s the black and white testimony on a screen. But actually having them watch even a five minute clip of somebody talking, they’ll gain so much more information. We, we know that just humans in general, we gather information from nonverbal, verbal, it’s more nonverbal, but that really will help you then see how things are lining up.

If you put all those key witnesses in a focus group, and then just. You know, ask them, what do you think, who’s, who’s right, who’s lying, you know, all that good stuff. Very general opening questions. You are really going to help significantly continue to shape your case and the themes and what works, what doesn’t work, find the holes that maybe still be missing.

So those are two really key spots. Now again, you can run these yourself. I encourage people to do that. I go to the website. There’s a download that I give away that [00:13:00] has. Information about how I do them for virtual confidentiality sheet questionnaire that I use because it’s just the return on the dedication of time and money in a focus group is exponential, like exponential, right?

So let’s say you, you spend 1200 bucks on a one hour focus group. And you learned three things. Those three things could be case saving information, right? They could save you 50, 000. They could add 100, 000, right? So that return on investment is fantastic. The only other place I think that we get A return on investment that is as good as a focus group is a background check.

That’s only because in my line of previous practice, I learned like as much as people try to [00:14:00] remember, we can’t remember everything. And it’s not that people are lying to us, but they may not have remembered that bankruptcy that they had 25 years ago, but you gotta know. So that’s what a background check helps you with.

Um, and is a great return on investment, by the way. If you’re not doing them, start doing them, you’ll be so glad that you did. So okay, back, back to this. So you may be thinking, well, but with a mock trial, I’ll already know like, no, you could learn a bunch of stuff in your mock trial that you can’t change at all.

Like you’re at the point of no return. That’s, that’s a problem. You may get a lot of graphs and a lot of charts and a lot of. emotional information. And that’s great. Totally great. I’m not discounting mock, mock trials are great. I love doing them for people, but I’m again, this episode is about their differences and that there is a big difference.

Sometimes you just want to hear them talk. You [00:15:00] just want to hear what they have to say. And when you have a deliberation where you just. You know, you get to actually watch them deliberate, make decisions. That’s great. But when you’re able to moderate and you’re able to give everyone a question and give them space and set the rules so that everybody gets to have their own opinion, one person can say it’s purple and the other person can say it’s green.

As a moderator, I mean, I get to follow up and ask how come right, but sometimes you can’t do that in a deliberation. And sometimes you can see people getting stifled and that doesn’t happen when you have moderate when you’re moderating in a focus group, right? You get to take time for each person and learn more about those opinions and create a very open environment for it, even if people are disagreeing and that’s kind of the hard part.

Sometime with deliberation. You, you can’t necessarily do [00:16:00] that. And then you kind of lose out on that person’s feedback and that point of view. And you, you want to get everybody’s point of view because you may have somebody like them that shows up on the jury panel. And that’s just good to know. You want to hear as much as you can or possibilities because once you get up for jury selection, you will have heard some of these things before.

There won’t be a shock factor, but also you’ll kind of know how to navigate it. And that’s again, just one of the other main differences between. mock trial versus focus group, you, you get so much more, and I’ve talked about this before, you know, what have I learned? Like you get really good at hearing bad stuff when you do focus groups, because people will just tell you, you know, they’ll dump all over it.

And that’s one of the fears that lawyers have. And I think one of the reasons why people are not running focus groups is because they’re going to hear bad stuff. And we get so invested. Trust me. I was there. You’re investing your time, your [00:17:00] energy, your money, your hopes that it’s hard to overcome that.

Lay it out there in front of a focus group to hear the bad stuff, like, been there, done that, tried to run more focus groups to get different outcomes. It, it was, you know, hearing it over and over again, does that necessarily, you know, then you come to a little bit like, okay, got to come to the truth that this thing needs to settle.

I do not need to try this case. Also, I’ve run way too many focus groups, which was another thing I told people in San Antonio. Like, Hey, trust me. If there’s somebody who’s run too many on a small case, that’s me. I’ve been there. I’ve done that. I don’t want you to do that. I know how to avoid doing that.

Okay. So if you have questions, call me about that or schedule a time on the calendar. All right. So that was, again, one of my major takeaways from talking to the San Antonio trial lawyer association was. There [00:18:00] is a difference here between focus groups and mock trials. There is. an expansive way that we can, as trial lawyers, start using this tool earlier in our cases.

We can set up our own system to do it, and we can start getting information to make better decisions in our cases. Learn if we need to settle it. Learn if we’re going to need to try it, right? Find the holes that are there, and do so at a level that makes more sense for our practice, right? Whatever your practice may look like, we all have to be cost conscious, right?

Especially when we’re taking on the risk as plaintiff’s lawyers. So let’s look at how we can better dedicate our time and resources, learn early with this tool so that we can use all that information and get as much mileage as we can out of it. All right, lots of mock trial versus focus group here today on this episode, and I hope that it was [00:19:00] helpful.

I hope that, like I always say, we’re just kind of opening the door just a little bit when it comes to, Oh, we’re not talking about mock trials and focus groups are not the same thing. They are not. They’re not the same thing. They’re different and they’re wonderfully different and they’re great in different ways.

So if you have questions, please don’t hesitate to email me. And like I said, please join me on LinkedIn, follow me, make a connection request and let’s connect on LinkedIn until next time. Thank you so much.

Imagine being able to improve your trial practice by utilizing DIY focus groups – well, that’s exactly what our guest, Clint Schumacher, has been doing. As an attorney specializing in eminent domain cases, Clint shares his fascinating journey of implementing focus groups to enhance his practice, and how Zoom has become an essential tool in facilitating them. We also take a deep dive into recruitment strategies, discussing the importance of finding the right participants and sharing the tips and tricks Clint has learned along the way.

When it comes to condemnation cases, people’s emotional reactions are often at the forefront. Clint and I discuss the complexities of these cases, the inherent bias against the government taking property, and how to gauge the emotional value of a particular property case in order to better communicate with the jury. We also explore the scaling question, which measures how much people care about the case, as well as the importance of communicating facts clearly in focus groups.

Setting up a virtual focus group may seem daunting, but we cover everything you need to know, from the geographic area to be sampled to the recruitment process and the electronic confidentiality form used. We also discuss the challenges of finding participants in rural areas and how Clint and his team have been successful in using Facebook ads and Google forms for recruitment. Finally, we touch on the challenges of virtual focus groups, the strategies needed to handle them, and the undeniable importance of focus groups for trial lawyers. Don’t miss this engaging and informative conversation!

In this episode, you will hear:

• DIY focus groups for trial lawyers
• Measuring emotional engagement in focus groups
• Virtual focus group process and challenges
• Managing remote meeting disruptions
• DIY focus groups for lawyers

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:

My interview on the Eminent Domain Podcast – https://www.eminentdomainpodcast.com/118-witness-preparation/

Clint Schumacher

DAWSON & SODD, PLLC

8333 Douglas Avenue #380

Dallas, Texas 75225

Email:  clint@dawsonsodd.com 

Phone:  214-373-8181

Fax:  214-217-4230

Licensed in Texas and Oklahoma

The Eminent Domain Podcast – http://www.eminentdomainpodcast.com/ 

 

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, Elizabeth here. I wanted to pop in before our episode begins to introduce our very wonderful guest, Clint Schumacher. Clint practices in the eminent domain area. Specifically, he helps individuals and companies who are having problems with [00:01:00] the government taking their property. So Clint has been doing this really specialized work for the past 20 years.

He has his own podcast. If you were interested called the eminent domain podcast, Clint reached out to me about focus groups. He started his own focus groups and had some questions and I was happy to help him. And then I said, Hey, why don’t you come on the podcast? So I hope you enjoy this interview with Clint.

Hello and welcome back to the podcast. My name is Elizabeth Larrick. I’m your host for Trial Lawyer Prep and this is a podcast dedicated to lawyers preparing for trial or preparing cases better to get better results. We generally like to talk about focus groups, and so I’ve brought a guest on here who has started his own DIY focus groups, which I know I encourage people to do.

If you’ve been tuning in here lately, the past couple episodes we have really been trying to talk about focus groups, setting them up. I heard from my recruiter, we had a replay about like when to do focus groups, six good times. So I hope this is helpful, but I really wanted to bring Clint [00:02:00] Schumacher on because he has started his own DIY focus groups.

And I thought it would be great to bring him on to talk about it and see how it’s helping his practice. Hello and welcome to the 

Clint Schumacher: Well, Elizabeth, thank you. Thanks for having me join. I have been a avid listener to your podcast. They’ve been extremely helpful to me. So hopefully I can pass something along to your audience that may be helpful to them.

Elizabeth Larrick: I appreciate that. Now, as you all probably heard in the intro, Clint has his own podcast. It deals with property, which was one of my worst classes in law school. So I can’t quite say that I can help with that at all. But I know that you are here to give some good advice and some sound feedback on doing your own focus groups.

But Let’s get started from the very jump. What even got you interested in doing focus groups? How does that mesh? 

Clint Schumacher: I do have a really specific practice niche. We represent property owners that are having their property taken by the government condemnation or imminent domain cases. And so early in my career, I had some excellent Mentors [00:03:00] who, when the case was right, encouraged using a jury consultant and have had a lot of experience working with jury consultants in the past and have done focus groups and mock trials with jury consultants.

But Elizabeth, as you and your audience know, that can be very expensive and not every case warrants that expenditure. And so I have seen the value of it, but have often shied away from it in all, but the largest cases. Because of the expense associated with it, then during the pandemic, you know, everybody’s life changed a little bit.

And as I started networking and listening to really personal injury lawyers who had very good practices, I listened to them talk about how they were doing their own focus groups. And. That you could do it a lot more economically and get tremendous feedback. And then as the country started figuring out how to use zoom and lawyers started to [00:04:00] incorporate using zoom in their focus groups or a similar tool, Microsoft teams, whatever, into their focus groups and the added.

Convenience the additional shaving off of cost. I was intrigued and I figured out this is really powerful. You get a lot out of it. And if I can figure out how to do it at a price point, that makes sense for cases that I might have and be able to do multiple of them, then wow, that could be really impactful to the.

Practice and really helpful to the clients. And so as we, and my team are starting to figure out how to do that, we’ve actually found your podcast and listen to some of the tips that you had for doing it yourself and they have been enormously helpful. I think we, and my team reached out to you even, and you’re very helpful to give us some specific tips and that’s been very helpful to us.

Elizabeth Larrick: Yeah, we reached out about recruiting and that’s probably one of the number one questions that I always get, which is like, how do you find these folks? Always happy to help. And I’m excited to hear that. I think a lot of people learning zoom in the pandemic [00:05:00] was already a challenge. That was already new for lawyers.

So then. Learning the second layer of doing focus groups online virtually is a whole nother one. So how do you feel like you’re doing? How do you feel like the team’s doing as far as putting on the focus groups? 

Clint Schumacher: So definitely a learning curve. As you said, I think recruiting is probably the most intimidating part of it.

Figuring out how do we find people that are qualified and helpful. We started. Really do and do it yourself, I would say a year ago, and we’ve gotten better as the year goes at figuring out, okay, what works, what doesn’t work, how can we get the right people in? And I think we’re obviously we’re still continuing to learn, but we’re really starting to hit our stride.

And we try to do at least one a month. I know there’s probably people that do more, but one a month seems about right for us. And we’re starting to get it figured out. It’s not as hard as it may seem. 

Elizabeth Larrick: It can be a little scary. I can remember my first one. We had three people 

Clint Schumacher: understand. 

Elizabeth Larrick: But we did a short one.

We just did two hours, I want to say. [00:06:00] And it was like, okay, that felt a little painful because you got to get through. It’s not just, okay, get them in there. Like it’s navigating the technology and keeping people engaged and keeping the flow of conversation going as well. So you’re setting up a system, but also you’ve got to learn moderating and putting stuff together too.

So how is, as far as. Do you normally do the moderating or do somebody else in your office do it? Or how do you guys split up that work? 

Clint Schumacher: So when I was coming up watching jury consultants do it, the jury consultant would do it. So that was the model that I was used to when I first started trying to do it self focus groups, I was doing it in tandem with another lawyer here in town.

I practice in Dallas, and there was another lawyer I was having this conversation with. He’s, yeah, we’ve been doing these for a while. I would love to moderate yours. You can come participate in mine. And so he moderated ours. For a bit, we’ve tried it with kind of another, there’s another, I would say, jury consultant that works remotely that we’ve had moderate one [00:07:00] recently, but I’ve gotten to the point where I feel like it’s best if I moderate them because I know what questions I want to ask.

And I can hear what the. Focus group is saying and direct questions into things that I know are going to tie into the case. The obvious downside to doing that is remaining neutral. And I don’t always do that perfectly, but I’ve gotten to where I’m most comfortable just moderating them myself. And I know that I can get it.

If something comes up in the focus group, that’s unexpected. I can adjust a lot more easily than if there’s another moderator that’s involved. 

Elizabeth Larrick: Yeah, I would say when I was talking to another friend of mine about focus groups and one of the gems of doing focus groups consistently and. Even if you are just listening, right?

Being moderating helps, but you get into a really good habit of taking bad news. Because you’re inevitably going to get, like, you, and you get to where that fight, that, that real, that fight, that defensiveness [00:08:00] that comes up, that urge to convince, it just goes down and goes to a point where you can listen, stay curious, stay curious.

And not get completely, Oh, I want to, I want to convince this person, but yeah, you get used to hearing bad stuff every time. And I’ll 

Clint Schumacher: tell you the last time I did a Vordire and forgive me for all your non Texas residents, but Vordire is how we say it here. So forgive me if I am not sounding, that doesn’t sound correct.

I noticed that I was a lot less, I’m going to say inflamed. I’m not sure if that’s the right word, but when that juror is giving you something that you know is not going to be good for your case, I think we probably all feel our temperature start to rise and the anxiety start to rise. And I noticed the last four dire I did, I was a lot Better at keeping that feeling at bay.

And I think it was because I had moderated some groups before then. And as you say, you get used to hearing the bad news. You’re not taking it personally. And you learn, gosh, when you’re doing the board, are you that that’s gold? If somebody is [00:09:00] going to tell you they don’t like your case, that’s gold. And not being able to get overly passionate and to remain dispassionate, to be able to hear with them, deal with that, figure out who else feels the same way, that was a big help.

Elizabeth Larrick: Absolutely. It’s a very good skill to learn because in litigation, you’re always going to hear the bad news from the other side and sometimes it can be legit, but you’re such an advocate. So I always think focus groups help you prepare for hearing bad news, being able to listen to it. Stay curious. You don’t have to take it like you said, don’t take it personally.

But then when jury selection comes, it’s like, Oh, cool. I’ve heard this before. Oh, cool. Another one of those people. Cool. Weird. Tell me a little more about that. Like you said, 

Clint Schumacher: do you, do you moderate your own groups? 

Elizabeth Larrick: Oh yeah. Oh definitely. 

Clint Schumacher: Okay. 

Elizabeth Larrick: Yeah, and I, of course, it’s been several years and I do several months, but yeah, so it just got to where it was just like, oh, okay, okay.

You know, like I hear bad stuff all the time, and what I always strived for when I started [00:10:00] was just staying curious and also. You got to nail down that poker face. You’ve got to nail down that. Okay. 

Clint Schumacher: Oh 

Elizabeth Larrick: yeah. Okay. And then you just kind of like, okay. You know what I mean? And it’s, you start to, okay. And you can always tell somebody who, and again.

I’m just saying, throwing this out there. If you’re having this issue, just so you know, this is kind of where it’s coming from is I’ll have people who come in and I’ll set a focus group and people will come use my space or we’ll do the virtual focus group and the followup that always gives the little cringes, what if you heard, and you’re like, Oh, like your bias immediately comes out.

So it’s just a skill to learn. And I think it really makes you. Such a more well rounded lawyer just in practice and just probably in life to hear like, Of course people are gonna disagree with you and do you really need to try and convince them of your But tell me a little bit about, let’s get back to yours.

So how, tell me about [00:11:00] how has focus groups or how have focus groups helped your practice? in particular. 

Clint Schumacher: So probably not anything that’s earth shattering. But gosh, what I’m going to say is not earth shattering. The information we get sometimes is, but it helps me see things that I’m blind to. Right. So I inevitably almost every time they ask questions or think about things that I had not ever focused on or thought were important.

And so that’s always a big takeaway to hear their feedback on that subject. But then a lot of times, if there’s a key. Issue in the case or two or three key issues in the case to get their feedback, not only on how they feel about that, which is obviously important, but if someone were to present evidence about that at trial, who would you expect to talk about it?

In other words, Is this going to be a fact, is this going to come out of a fact witness or is this going to come out of an expert witness? And what is their expectation about that in what we do, which is very heavily expert [00:12:00] driven, that’s been a really helpful thing to hear that, Hey, that’s something that really our client or whoever the fact witnesses needs to cover as opposed to having our expert evaluation person talk about that.

So that’s been a big piece of it too. 

Elizabeth Larrick: I would assume, and again, this is my assumption because I don’t know any, that a lot of what you’re trying to understand is what do people even know about condemnation and what are their kind of attitudes about it, and have you found any kind of universal assumptions people are making?

Clint Schumacher: Absolutely. So there is generally a bias against the government taking property, and There are a fair number of people in the population that don’t think that’s even allowed or permitted. So they’re surprised to find out that can even happen. But then inevitably, one of the things that we always try to gauge in our focus group is how passionately do they feel about it in this particular circumstance.

And so if you’re taking property from a family and that land has been in the family for four [00:13:00] generations, you can imagine people. They have a sense of emotion that’s tied to that, and it’s very different from, say, a commercial piece of property that someone has owned for 10 years and their business is on it, or they rent it out to someone else.

Those can elicit different sets of feelings, and so one of the things that we or I say, should say I, I kind of subscribe to the reptile theory even in our property cases, and inevitably if we can communicate with the jury at an emotional level. That’s going to help us and one of the things I’ve got to gauge in every case is how emotionally connected does this group feel to this set of facts in this particular piece of property.

And so that’s always helpful to us to see, do we have a case that really drives that or is this one that they’re like, eh, it’s not a big deal. Are 

Elizabeth Larrick: you scaling that or are you? Doing a word association with that, give us a little bit more. And I’m happy to share how I gauge emotional, the emotional value or the emotional engagement, if you will, with folks [00:14:00] group, 

Clint Schumacher: actually, I really want to hear your feedback about that.

Cause I don’t know that I have a good system to do that. It’s really, I feel right now it’s just my field, like how involved are they? So how much feedback are they giving me? And we normally will do a two hour focus group and we’ll have two different cases. And you can tell they’re a lot more emotionally connected to one than to another.

But I don’t know that it’s systemized. And so if there’s a way to do that, I am all ears. 

Elizabeth Larrick: Yeah. I did not create this by the way, to totally did not create this. It’s just a scaling question on a scale of one to 10. How much do you care about what happened here? 

Clint Schumacher: Oh, that’s a good idea. Yeah, that’s a good idea.

Elizabeth Larrick: And you can always follow up with people. I love doing it online or doing it virtually with zoom and having a chat, having them chat it to you, and then just saying. Hey, Ralph, you put nine. What does that nine mean to you? And there, here comes a little more gold coming in there. Now it also helps you really decipher.

Occasionally some people will say, just what happened, this person was just so sympathetic. [00:15:00] Yeah, that’s not always going to push the boulder, right? We need to, we really wanted them to be impassioned about what the government is taking from people, what the defendant’s action was. So it’s helpful, but yeah.

And I do you care your Carol meter on a scale of one to 10 generally helps. Decipher and you can just do a follow up. What does that nine mean to you? What does the two mean to you? But like you said, a lot of times people will just have heated, very heated reactions, or you can always check the words people are using as well.

Clint Schumacher: So where, that’s a really good idea. Where in your focus group do you do that? 

Elizabeth Larrick: At the end. 

Clint Schumacher: At the end, okay. Mm-Hmm? . 

Elizabeth Larrick: It’s generally the last question I ask. 

Clint Schumacher: Okay. That’s a great idea. 

Elizabeth Larrick: After they have everything, right? You’ve got nothing else to give them or no other questions. And how much do you care what, what happened here?

And you can tweak it. I don’t, this was given to me when I learned focus groups and I’m sometimes of the, I may not make something better. Okay. This may be good. Okay. You don’t have to add [00:16:00] to it. I always tell people like, you don’t need to create everything on our own. Yeah. You need to create a focus group system that works for your office.

But there are some questions people want to, you know, why would I put my own twist on this? I’m like, why? Another thing that we get from doing so many focus groups is how to clearly communicate. Because the way that we communicate things can get so confusing to them. And so it’s really, focus groups help you, you give it to them and they’ll give it back to you in a much clearer way.

Generally, every time versus what the way you’re describing a fact pattern or how something happened. So, yeah. 

Clint Schumacher: How much time do you say for that last question? How much time do you need to, 

Elizabeth Larrick: Sometimes we’re running out of time. That’s why I love it’s a scaling question. Just throw it out there. Blink reaction, put it in the chat for me.

Or if we’re live in person, I just go around. I say, I’m going to ask every person individually and then just go around the room and popcorn it. And if we have time, somebody is a one. And do I really need to follow up with the one? I’ll follow up with an eight or a seven or a nine. [00:17:00] Something that I really want to figure out.

Why was it a nine for that person? 

Clint Schumacher: Interesting. Okay. See, I’m learning stuff. This is good. 

Elizabeth Larrick: Some people are super passionate about their case. Most people are, right? You’re building it. You’re creating it. You believe these people. Your heart and soul is in what we do. Most of the time, I say most of the time, sometimes it’s not, and you want to help everybody else is just as passionate about it as you are, and sometimes they’re not.

And you kind of want to know that before you start, like you said, getting those experts in there and pushing more money into that case, expensive column that people care about what’s happening here. 

Clint Schumacher: Absolutely. Yeah, absolutely. 

Elizabeth Larrick: Okay, so let’s get down to the nitty gritty here because I know there’s a lot of folks who listen who haven’t tried virtual focus groups.

And so let’s talk a little bit about your system. Kind of. Pieces of it, how you guys like to do it and set it up. 

Clint Schumacher: Sure. I think you, you had a recent episode where you have a remote person that helps you. [00:18:00] And I would start there. My paralegal does it because she’s got the capacity to do it and she enjoys it.

But having somebody to help do all that backend work, I think is absolutely critical, unless you just are blessed with. More time than I have, and you know, we’ve kind of decided in our practices all over the state, and so we’ve got to be able to make it work in different jurisdictions. And sometimes because of the nature of our work, we might be in a very rural jurisdiction.

And so we’ve got to decide, can we sample inside that county without? Running the risk of ruining a potential jury pool. And so we start with figuring out, okay, where are we going to draw people from? What’s the geographic area that we need to draw from? Can we sample inside the County or do we need to hit surrounding counties?

And if it’s surrounding counties, can we match the demographics of the County that we’re in? So we go through that process and then she really starts recruiting. And our process right now has principally been in Facebook ads. We do a little bit of. Craigslist, but probably we’ve had the most success doing Facebook ads.

And I think we’re [00:19:00] continually trying to get better at doing that. I don’t think we’re far as long as you are with regard to your Facebook page for your jury consulting business. And that’s probably something ultimately we would. Like to get to just because it’s a, it seems to me to have the effect of having a common anchoring point that you can bring people in, but we’re mostly using Facebook ads.

And then she has a Google form that we can use pretty much for every case that helps populate the information from the various consultants or various participants. And as you have pointed out multiple times, one of the challenges is to make sure you’re really getting somebody from the jurisdiction that you want to pull them from.

And we have figured out a few helpful questions to let people that maybe are not in the right jurisdiction. So that we don’t have them included on the panel. And so that’s, that’s largely the process that we’re using. Although, as I say, we’re continuing to tweak it and hopefully continue to get better at drawing people in.

And the other thing that we don’t have, you’ve got a great advantage, I think, just because you’ve been doing it longer and you’ve got [00:20:00] more participants. And so we’re still at the point where we’re. At the genesis of not having a huge group of people that we’ve worked with in the past, we don’t have a lot of repeat participants yet, but obviously my hope is, as we do this more, we’ll have people that we can go back to and use every twice a year, three times a year is probably not too much.

So we’re still working on that. 

Elizabeth Larrick: Yeah. Yeah. So do you guys do an electronic confidentiality form? 

Clint Schumacher: Yes. Yeah. So, yes. So she’s got an Adobe form that people can assign that we use. And as I think you’ve suggested, I think we’ve do it just exactly like you guys were talking about on the show the other day, your kind of entry into the zoom is you sending that form back the morning of you send the form back, we send you the zoom link and then we’re good to go.

Elizabeth Larrick: Yeah. Yep. Yep. It’s all building in the hurdles. I always feel like it helps your people are going to be there. Cause that’s always my fears. Two people are going to show up to talk to me. It’s a long [00:21:00] conversation. 

Clint Schumacher: And I think my guess is that anybody that does this has probably had that situation. And I think we had a panel or we had a focus group is in the last couple that we’ve done, where we had three people, we were having trouble drawing, we’re in a small county, we’re having trouble drawing.

She told me at the outset, she’s like, I got five people. Two of them are really, I’m not sure they’re going to show. And so we had three and you know what, Elizabeth, even with those three that I got a lot out of that, cause we got to get really deep with what those three people thought. And so it probably wasn’t as statistically valid, but.

Because we had that small number, I got feedback at a deeper level. And so I really got a lot out of that, even though we didn’t have very many people. So it’s not, it wasn’t the end of the world. Yeah. 

Elizabeth Larrick: It’s, and it’s not. And I think that if you end up with three folks who want to talk to you, you’re good.

If you end up with three that. We’re the folks that don’t talk very much. It’s 

Clint Schumacher: brutal. [00:22:00] No, you’re correct. These were three talkie folks. So that helped a lot. 

Elizabeth Larrick: Yeah. And it’s, have you had the situation where you’ve had to let someone go yet out of a group? 

Clint Schumacher: Yes. Yeah. Yeah. So that was a learning moment. So yeah, the person who won’t turn their video on or the person who gets in and you figure out they don’t know how to speak English and we needed to, we had to put something or some.

Guardrails in place that helped us tell them, Hey, here’s our expectation. We expect you to have your video on. If you don’t, we’re going to boot you off. We’re not going to pay you. So yeah, that was, yeah, we learned the hard way on that. 

Elizabeth Larrick: We expect you to, we’re doing a zoom focus group. You’re we’re going to need to see you, but some people just, they don’t, you got to just line it out there every chance you get, and then we’ve just gotten to where it’s like, and that’s the other thing too, I think.

If you don’t have that talking to everybody out there listening, you have to have a way to say it to where you’re being polite and [00:23:00] it’s okay, but you’re kicking them out. Yeah. You don’t want to disturb anybody else. You don’t want to become like the taskmaster because then people won’t want to share who are left.

They’d be like, wait a second. I don’t, I don’t, that wasn’t nice. But I’ve had it one time where this person was just. I mean, off the wall answers, they’re making people uncomfortable. And so I just had to like, politely kick them out of the meeting, and just paid them for their time, but, and then just moved on.

But yeah, it’s a challenge sometimes. 

Clint Schumacher: So my paralegal will sit in on these and she’ll handle, not the person who’s rude and out of sorts, right? That, that one’s probably on me, but if you’ve got somebody whose camera’s not on or whatever, she handles that. Is that how you do that or how do you approach that?

Elizabeth Larrick: Yeah. So she’ll start the meeting or we’ll both be there. We both start the meeting and then we have kind of a 30 minute check in period where we got check the IDs and then we check the technology. And the goal is to get all of that done in that. 30 minutes [00:24:00] before. And so if she’s struggling with somebody and because I’m generally there at work, like technology wise, and we just can’t get it to work, then I’ll come on and say, Hey, I can see it’s not working.

Can we just reschedule you? I apologize. We got to have you. And we have all the backup, right? We need to see you. So blah, blah, blah, whatever may be. And then generally people are like, okay, I’m sorry. I’m like, Hey, no big deal. But I generally come in as the second, like reinforcer of that. So that it’s. Like people understand it, but yeah, we had, we, and then, and the fun thing is what this is when you know, you’re going to have a good focus group.

It’s like somebody gets on and like, they’re having a glitch. Let’s say it’s their video. Or we had this poor person who had flipped his video. So he was upside down and we were, I couldn’t keep a straight face because he was upside down and I’m just like, Oh my gosh. And another participant like put in the chat, like, Hey, here’s how you fix that.

And I was like, okay, we’re going to have a good focus group. People are trying to help each other out. So we did get a fix, but it was like. [00:25:00] Everybody wants to help and figure it out. So it’s, we’ve definitely had hurdles. She generally tries to go first go around, but I’ll come in second and see. And if there’s something specific, for example, we have to ask people, hey, we can’t really see you, can you turn a light on?

Or, looks like that you’re on a cell phone, do you have any other device? You’re not gonna be able to see the presentation. It’s gonna be too small. Oh gosh, we’re gonna have to get you rescheduled. It’s really important to see what we have to show you. If they can’t get it worked out, then, then we’re just gonna reschedule.

Clint Schumacher: That makes sense. Yeah, that’s good advice. 

Elizabeth Larrick: Yeah. And we just, we’ve just gotten to where, I think I’ve just about run into, I know, Knock on some wood here. I’m sure there’s probably something else that’s going to come out there and impress me, but I’ve had people do some very interesting things with the camera on.

I’m just like, Oh, baby, turn your camera off for that. But 

Clint Schumacher: yeah, I can’t say that we’ve had that. So, yeah. 

Elizabeth Larrick: Yeah. Just [00:26:00] get, just in case, 

Clint Schumacher: just get ready. Okay. 

Elizabeth Larrick: That’s right. That’s right. All right. So what advice would you give some folks out there who are thinking about it? They’re on the cusp. Most people, we know it’s important, but we know it’s this expensive thing.

So we can’t necessarily hire someone to do our focus groups. So what would you, what advice would you give folks are on the fence about getting started doing their own focus groups? 

Clint Schumacher: That’s a great question. I think, and you prefaced a part of this, but I think it’s the place you have to start, which is, I have never left a focus group, including the ones we’ve done ourselves, and go, that time was not extremely well used.

And because we always learn something about our case, it’s some of the best, it’s some of the most valuable time I spend on a case. And it’s hard to put. A price tag on that place that takes your case from a C case to a B plus case, it’s hard [00:27:00] to figure out what that is worth. And it’s worth a tremendous amount.

And so the amount that we spend, I know, is coming back to us and more importantly, our clients many times over. And so I think you start with, if you have something that’s that helpful to your case, okay, now you just got to figure, now you got to find a way, right? How can I figure out? How to do this. And that was finally the point that pushed us over the top, which is I knew it was important.

I knew it could be valuable, but it just seemed too big a hurdle to get over. And once you thought, okay, there’s from a time standpoint, I can figure out how to make this make sense and be efficient. And from a money standpoint, I can absolutely figure out how to make this work and be efficient and then just get in there and not be afraid.

To screw it up and just know, Hey, these first couple are probably going to be screwed up and that’s fine. And just the sense of learning and continuing to get better. That’s ultimately where we got to and where we’re going to. And like I say, it’s, uh, it’s not as hard. It’s like most things in life, probably.

It’s not [00:28:00] as hard as it seems is that first step’s the hardest one. And once you take the first step and you go, okay, I’m going, I’m going to do this. Now I just got to figure it out. There are resources out there. Yours being very helpful to me that have helped us get down that path. 

Elizabeth Larrick: Yeah, so not telling us your numbers, how are we talking about with our value proposition here, right?

Our return on investment here, we talk about five times, sometimes 10 times, like how would you equate that one hour focus group that expense you may have to the case as far as value and return of investment? 

Clint Schumacher: Yeah, so we try, I’m not sure I can answer that question specifically. So I’ll give you, I’ll give you a, I’ll give you a story.

So we tried a case in February. And it was one of the first cases we had focus grouped ourselves. We did a zoom focus group and then two weeks before trial we did an in person focus group. And we did both of those were do it yourself. We found the people did the whole vineyards. And my, the jury came back and gave us [00:29:00] 880, 000, I’m sorry, jury came back and gave us 680, 000, which with pre judgment interest turned into like 880, 000.

I really think that There are probably 3 key things that we learned in the course of those 2 focus groups that took that case from a 350, 000 jury verdict to a 660, 000 jury verdict. And so, I don’t know, maybe we spent 5, 000 doing those 2 groups, probably not even that much, but let’s be honest.

conservative. And you know, whatever that math is, that’s what I think happened on that particular case. Maybe not all the cases have that same effect, but I think I would guess we’re seeing 10 to 15 to 20 to 25 times return on what we’re putting in to the focus groups on our cases. 

Elizabeth Larrick: That’s awesome. That’s what you want.

And I think You nailed it with your example, which is, and that’s what I hear all the time from people, even if they just run one focus group, they’re like, we heard this one thing that turned [00:30:00] Our case into a million dollar case, right? And it was this one thing. We didn’t even know about good friend of mine example.

They had a propane gas leak in a house and they never even thought about clearing the air that no one was a smoker in the house. And it’s the 1st in the folks group said, and they said, oh, my gosh, thank goodness. We never would even said a word about that. And the jury would have gone back and assume just that 1 like you said, those 3 nuggets.

Doubled the case back. 

Clint Schumacher: Yeah. And in this case, there was one fact that scared us that we thought was potentially the outcome determinative facts. It was a bad fact for us. And in both of those focus groups, not a single person cared about it. Could not care less, which completely stunned us. But that helped us then figure out how to try the case and we realized we don’t have to be afraid of this fact.

We don’t have to make a big deal of this fact. We need to explain it and then the jury is good with it. And the ultimate jury felt the same way. 

Elizabeth Larrick: Yeah, that’s awesome. And I think again, having some [00:31:00] confidence to know I don’t have to spend so much time on this. It was my worry only, not their worry. Awesome.

I, Clint, I really appreciate it. Is there anything else, any other resources you would suggest for folks who are listening, who are thinking about doing focus groups, any other resources that you would suggest that focus. Lawyers go check out. 

Clint Schumacher: Yeah, sure. The other place that we’ve learned a lot is a lawyer in Las Vegas named Sean Claggett.

Sean does DIY focus groups too. They do, I think he does one every Friday in his office and he’s got a lot that he’s written about and has put out there for public consumption about how they do it and what they do, and that’s been very helpful to us as well. 

Elizabeth Larrick: Sean reptile and edger as well. Yeah. I think they have a whole company as well.

They do. They have a pretty, they have a pretty cool space too. I’ve gotten to go to that space before. 

Clint Schumacher: Oh, I haven’t seen that. You’re a step ahead of me. 

Elizabeth Larrick: Yeah. This is well before the pandemic, so many moons ago for sure. Awesome. I think no matter where you get the information, please just start looking. I think that’s step number one is take a look [00:32:00] around.

It’s not nearly as complicated. And I think the beauty of it is so many people are used to zoom. It’s not a foreign concept for participants who are out there trying to find some extra money, gas money or whatever, maybe. 

Clint Schumacher: Absolutely. 

Elizabeth Larrick: Clint, thank you so much for joining the podcast. I hope that you enjoyed your time here with us.

Clint Schumacher: Elizabeth, I did. It was a great pleasure to get to visit with you. And like I say, we owe you a tremendous debt of gratitude for what you put out there publicly and then what you’ve helped us with when we’ve emailed you here over the last several months. And so thank you very much. And I hope I was able to return that favor just slightly by sharing something with your audience.

Elizabeth Larrick: Absolutely. It was a pleasure to have you. And I hope that everybody else enjoyed Clint. We’re going to put his. Contact information, the show notes. If you have questions for him about his DIY focus group system, or if you have an imminent domain case, am I saying that right? Condemnation case. 

Clint Schumacher: You got it.

Elizabeth Larrick: Definitely puts all that information there for you to contact Flint for anything. Thank [00:33:00] you all so much for listening. If you enjoyed the podcast, please like and review it on your favorite podcast platform. So other folks can find this as well. Until next time. Thank you.

Elevate your understanding of deposition preparation with a unique focus on Spanish-speaking clients in our latest episode. We promise you’ll gain valuable insights on the role of translators in this process, offering your clients a deeper layer of comfort and preparation. With firsthand experience from the field, we share how employing a translator for role play during deposition prep can drastically improve your client’s understanding and readiness, setting them up for success.

Venture further into the world of legal translation as we highlight the importance of hiring certified court translators. We unpick the ethical code they adhere to, nuances of regional dialects, and the potential risks of miscommunication. We also address the significant challenge of translation delays and suggest ways to keep this process as concise as possible. By the end of this episode, you’ll be equipped with a new perspective and practical strategies to effectively utilize translators in your deposition prep process, ensuring no stone is left unturned.

In this episode, you will hear:

• How a translator can help Spanish-speaking clients prepare for deposition
• The importance of hiring certified court translators
• Ensuring confidentiality and comfort of clients
• Understanding the importance of brevity to avoid delays

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:

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

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

Elizabeth is an experienced trial lawyer, consultant, and founder of Larrick Law Firm in Austin, Texas. Her goal is to help you connect with juries and clients in order to improve your abilities in the courtroom. Now, here’s Elizabeth. Hello and welcome back to the podcast, trial lawyer prep. I’m your host, Elizabeth Larrick, and I’m glad you’re here.

This is episode 99 and I’m celebrating already before a hundred because it has been a journey and I’m so glad that you have been here with me. If you’re new to the [00:01:00] podcast, welcome. This is a podcast dedicated to lawyers preparing cases better, getting ready for trial. We talk about Preparing clients. We talk about preparing for trial focus groups and a few little tidbits along the way.

I like to have guests and join us and next episode, which is a hundred. I’m going to do something totally different, but I want to talk a little bit about how we’re going to do the podcast going forward. And I’m going to change a few things up, test some things out and you guys can let me know whether you like it or not.

But my hope is that to give. More context to what we’re talking about. So today’s episode, we’re going to talk about deposition preparation specifically for clients who do not have English as their first language and using a translator in preparation. So this episode is for folks who have clients who don’t have English as their first language.

And in my experience, most of the folks that I have or have [00:02:00] worked with are Spanish to English. Translation, but this is not limited to that. I mean, I think what we’re going to talk about as far as the problem and the translator helping with this goes to any translator, any kind of language that we are working with, mainly because there are so many different variations of Spanish and best example I can give you is, of course, I know book Spanish, but when I go to speak with somebody who is a native speaker from Mexico, like we’re kind of lost.

Now, let me just. I don’t speak it. I can, I can understand what they’re saying enough to know that we are lost in translation. So what I want to dig into today is how to take your preparation for these particular clients to a whole nother level and to really gear them up for using a translator in the deposition.[00:03:00] 

So I always suggest to use a translator. Or hire a translator, somebody not in your office to come in and help during deposition preparation. And particularly if you’re going to, when you do the role play session, definitely get that translator in there to help in that session, because there’s so much that has to be learned extra on our clients in this situation, because they’re having to be very patient for our translator.

They’re having to be very patient, listening and waiting for their turn. You know, if there’s objections and understanding all those things, which is normal for a client, but then knowing they have to kind of wait for the translator and most people, most clients that I have dealt with know enough English to know what’s happening and going on.

They’re just much more comfortable. They want to testify in Spanish because that’s what they understand very well. So, I’m working with some folks right now, and we’re using a translator during preparation, not just during the role play. [00:04:00] And it has been such an eye opening experience because of the vast difference between the translator’s version.

of Spanish to English and then his version. And it’s not that either one is wrong, but it has been such a education for me in the words that we may say in a question and how they get translated and then given over. And then there’s this huge block and it’s a car wreck case. And so we’re talking about, you know, navigating the road and passing cars and getting around cars and Of course, there’s a thousand ways to say it in English, but there’s only so many verbs in Spanish.

And so that’s why, like, we just kind of got lost in translation. So it’s been so helpful for him to kind of understand, oh, like this. It’s the word that I use here is, is so important. And they were also, you know, kind of lost with this [00:05:00] translation of easy versus better. And so he kept saying easy when he was intending to say better and she was just translating it that way again, you know, nothing wrong with the way she was translating it, but that’s just the way, you know, from the book Spanish, that’s what it says.

So, I know that when we use translators in deposition prep, it gives them a whole nother layer of what to expect and how to teach themselves to be patient, to wait. But also, what I tell them is like, this is really. This is helpful because you are going to have a lot more space to understand no, you’re going to have to work with the translator, somebody you have no idea with, but that also sometimes when we have this.

Translation chain, a lot of the times translators don’t translate tone. Some do. I don’t know if you’ve ever had that experience where you’re sitting in a deposition and [00:06:00] opposing counsels asking your client question and the translator is actually translating the tone, which doesn’t need to be done because we all understand tone.

We don’t really, as kids, we know what a bad tone is, a good tone is, so we don’t really need the translator to, to do the tone, but you know, hopefully. You get the impression, the tone of the question and it’s translated and hopefully that gets a little bit minimized right by the time they get the question to them.

But it’s been so helpful to have a translator as somebody outside of your office because there’s always a comfort level with speaking with somebody in your office or even speaking with you. If you, if you speak in Spanish or another language with your clients, they’re, they’re Is a whole other layer of preparation that you can give them by bringing in a stranger and having them go through that experience.

And this is another reason why we always say, bring in a different lawyer or bring in a new face to do that role play no matter [00:07:00] what, because they need that experience of a complete stranger asking them questions, you know, hammering them on the details and giving them the answers. You know, what happens in a deposition, a real life experience, and it bringing in a translator significantly helps because they’re going to realize, Oh, wow, I’m not only do I have to answer this question, but I’ve got this other person who’s translating who may get it wrong.

And I need to work really hard to make sure I understand that question the way that they’re doing it. with the words they’re using. And so that’s my little tidbit for today. You know, I’ve always suggested, I’ve done this myself in cases and I’ve, I’ve, anytime we’ve used a translator in preparation, I’m always glad that we do.

And in this particular instance, the, why I’m talking about it with you today is we did, we had a translator for more sessions and it just has been So much more helpful to get that help and assistance and know, Oh, here’s this challenge with like talking about [00:08:00] what happened in the crash because of all these different verbs.

And let’s get, what is the truth? What is it that you want to say so that we make sure it’s, it’s, it’s translated correctly in English. And the concern that I had, of course, because not having had somebody there for such an extended amount of time was, well, what is, what is the ethical concern? Like, does this break confidentiality?

And so we talked with a translator with quite a bit about it before we felt comfortable and she said, no, no, that’s, that’s fine. You know, that’s an ethical code that we have, like as an official, you know, court certified interpreter translator, like it’s, it’s confidential. We’re not breaking confidentiality by, by translating, being here and translating.

So if you had that concern pop up like I did, she assured us, nope, that’s, you know, she would never be able to reveal anything, you know, she’s translator and that’s kind of the code of ethics they have for a translator. certified court certified interpreter. So be thinking of that. If you’re going to go get someone and hire someone, you want to go basically get, get some money.

[00:09:00] from a certified or court list, not just maybe the other person who speaks Spanish down, down the hallway in your office, or, you know, some, somebody not, I’m not gonna say off the street, but somebody else that’s like in your home with a friend or family that, you know, you, you really want to get somebody who’s going to be stuck with this very, and I call it book Spanish because that’s really what it is.

And when I’m using Spanish as the example, but there are same thing with, I mean, people who, Speak Russian. There are so many different flavors of that. And when you kind of understand the flavor that your client is speaking or that your deponent will be speaking, it’s going to benefit you tremendously to also learn what are some of those differences.

In that, in that specific dialect, because then you can ask questions in that way to make sure you’re hitting those verbs that you want, we’re hitting that translation that you want. So it’s [00:10:00] helpful always to do this in your clients with, with deposition prep, but always be keeping that in mind when you are going to go to post somebody where they’re from regionally and how that may change the questions when you’re going through a translator.

And yeah. Again, English, we’ve got a thousand ways to say one different phrase. So, you know, keep that in mind when you’re asking questions. And I’ll just add one other little story that I had come up again with the translators running a focus group, getting this case ready for trial. And we’re running a clip from the deposition and the client is a Spanish speaker and there’s translator and opposing counsels asking these questions.

And it’s about speed, you know, how, how fast were you going and, you know, he testifies he’s going 60, 65, which ultimately we know from black box data and [00:11:00] reconstruction, like he could not have been going 60, 65. But what was interesting was we played this clip and we did some other things. And then one of the participants said, you know, That translator was using a different kind of Spanish than that speaker.

That speaker, that, he, he’s from somewhere in Central America and that translator, he wasn’t, he wasn’t translating it 100 percent correct what that guy was saying. And it was like, oh, wait a second. Like, because this whole, of course, speed thing is, It’s kind of a hang up in the case if you couldn’t tell already.

And so it was like a light bulb when I was like, Oh, wait a second. Like that is probably, there’s, there’s probably something lost in translation and that’s kind of what she was trying to say was, I don’t think that he actually was saying that. I think the way that question came off, we understood as English, but he got a different version of it and then he came back with a little bit of dialect and then it got translated with book Spanish.

[00:12:00] And, and so it was. And so it’s like, wow, I’m so glad that she mentioned that. Again, what a nice little gem from a focus group that really hadn’t been thought of, like because the case had come along and gone through, uh, you know, a different set of lawyers and then this is the trial set, right? Lawyers are going to try the case.

So super important to always be keeping that in mind when it comes to, um, uh, uh, uh, Like translating and dialect and regional stuff. And if you’ve got a deposition in your file that has a translator, like go back and look at that, go back and figure out like, you know, maybe there’s, there are definitely some places where it just doesn’t translate the same when you have got dialect versus kind of that book, you know, kind of Spanish or whatever the second language is.

All right. This is a short and sweet episode on purpose. So thank you all so much for listening. I hope that this was helpful, you know, just keep it in mind. It’s a little bit of an added expense to bring [00:13:00] someone in to translate during depo prep, but. I guarantee it will tremendously help the client and probably reduce a little bit of time and tension in the actual deposition because they’re going to have had that process and that patience that they’re going to have to build in more so than English speakers.

I know we always tell them, let’s wait so I can object. Well, my gosh, they have to sit there even longer waiting for that translation. So anyhow, keep this in mind, use it a little bit, but just think about using. Somebody else for that to help get that little edge on translating. All right. I hope this was helpful.

I can’t wait until next episode, which is a hundred and I hope that you tune in or catch it later on, on your favorite podcast platform. If you enjoy this podcast, please rate and review it wherever you are listening. And until next time, thank you so [00:14:00] much.