Contested Liability: How Virtual Focus Groups Flipped Responsibility Away from the Plaintiff
In this episode, I’m taking you behind the scenes of a gripping courtroom drama, unraveling the intricate process of using virtual focus groups for a trial’s success. Let’s explore the case of an 18-wheeler collision through the eyes of Fidel Rodriguez, Jr., a seasoned trial lawyer, and discover how he harnessed the power of virtual focus groups to transform the case narrative. We’ll dissect the importance of visual evidence, tackle jury confusion, and reveal how meticulous tweaks based on focus group insights can lead to pivotal changes in a jury trial’s outcome.
This episode is more than just a recount of legal strategy – it’s a lesson in psychological finesse, where we reveal the courtroom as a theater and jurors as the audience whose verdict can pivot on a single piece of evidence. We walk through the dramatic transformation of a high-stakes liability case, scrutinizing every nuance from opening statements to surveillance footage. Take this front-row seat to witness the meticulous crafting of a winning case, proving that sometimes, the path to justice is through the screen of a virtual focus group.
In this episode, you will hear:
- The importance of visual evidence
- Addressing jury confusion points
- Shaping the case’s narrative based on focus group feedback
- Pivoting strategies based on juror insights
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Supporting Resources:
To get more details about the sequence of virtual focus groups, check out the blog: https://larricklawfirm.com/case-study-how-virtual-focus-groups-flipped-disputed-liability/
Ever wondered about setting up your own virtual focus group system?
A system that could easily produce a virtual focus group that allows you to test your cases with lower cost and stress.
Well, I am setting up an online course for lawyers to do just that on May 1st. But you need to be on my email list to get access, use this link: www.larricklawfirm.com/connect
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hello, and welcome to the Trial Lawyer Prep Podcast. I’m your host, Elizabeth Larrick, and I’m glad you’re here.
This episode, I’m going to walk through a case study where we look at a particular case and how that lawyer used virtual focus groups. [00:01:00] and what the ultimate result was for them. And this one actually went all the way to a jury trial, so we’ll be able to talk about all the fun details. This episode is for you if you are curious about virtual focus groups, meaning maybe you’ve tried traditional in person focus groups, mock trials, but you’re not really sure how that virtual works.
And it’s also for you if you’ve never even done a focus group or a mock trial, because we’re going to get into the style of the virtual focus group, what we did to prepare, kind of what our results were, and then how that all was folded into the case and ultimately that result. So let’s jump in and just talk about real briefly to set it up the facts of the case.
So this is a crash that occurred about five a. m. In the morning. So it’s dark out. This involves an 18 wheeler pulling a trailer and a small car. 18 wheeler driver has just packed up the trailer and is literally leaving the distribution center, makes a [00:02:00] left hand turn, and that small car runs right into the back of that trailer, right into that back wheel.
Almost an underride, but not quite. It bounces off, right? Resulting in some severe injuries. We’ve got a traumatic brain injury. We’ve got some deep lacerations, including a laceration to the left arm that causes some nerve damage where he can’t even walk. Use his left arm to lift anything anymore, some tendinitis and then some other, you know, scrapes, break abrasions, bruises, that kind of thing.
Some, some more minor injuries as well. So this lawyer, Fidel Rodriguez, who I work with quite often, came to me to run a virtual focus group during the discovery phase. So they had already gone through discovery, had some depositions underneath the belt. If you know anything about Fidel, he is great to work with.
He is a 30 plus year lawyer, lots of trials underneath his belt, lots of mock trials used. He runs Rodriguez trial law out of San Antonio, Texas. He was an early believer in virtual focus groups, and he and I had [00:03:00] done several for his office before this particular file came along. And for this case, his main concern was disputed liability.
As you can imagine. This driver of a small car does not have any memory of the crash. So all there is, is the 18 wheeler driver. So of course, they’re disputed liability. And he wanted to know how much would a potential jury put on his client, this small car. So what did we ultimately do? We had four virtual focus groups over the course of 16 months.
And each focus group involved a planning call, creating or tweaking a PowerPoint presentation, obviously presenting to a group, and then having an attorney or a lawyer debrief, right? We talked about the feedback and then also a focus group report. So let’s dive in and really look at what were these four virtual focus groups and what did we do?
Now, almost all these focus groups Run with a few months in [00:04:00] between them and the last one had eight months since the last ones. Because again, as you all have probably experienced, there’s continuances that happen, there’s delays, there’s extra depositions, there’s all kinds of things that can kind of delay a case, even though he came to me in the middle or how little bit in the middle of discovery phase, right?
They still had quite a few things to do, but they had a lot of information and they knew contrib. was going to be a problem. So they came to me and our first focus group that we ran was a one hour focus group. We did a neutral narrative where we tested liability and a little bit about damages. You know, again, the main concern was how much responsibility is this small car going to get?
So we focused and built a presentation really around that. And the main thing that we learned out of that was really needed to get better photographs and angles of the photographs at the scene of the crash, right? So there was a lot of visual, they’re trying to create it in their minds. What does this really look like?
We had some pictures, But they were kind of dark. They’re from the, [00:05:00] you know, from the scene at that night. So it was very dark and hard to see. So we thought, okay, visually, we need to get some better photographs to show these people what each driver was seeing. And there was also some confusion on mechanism of injury to the ear and the arm.
And again, I think it came back to, again, they were, they could see this picture of this car, which was like demolished, but they couldn’t quite figure out like, what does that happen to his ear? So. Just learn some, obviously when we’re doing neutral narratives, we always want to pick up what are our confusion points.
You know, what is still lingering out there at this point? The liability boat was a little bit 50, 50, but mostly we’ll say on the white car, so, which we already expected, but we just really wanted to learn and how much we could do. So we came back for our second focus group. We, again, we, uh, what we did was basically in that planning session, we took what was created before and took a look at it and decided, okay, how can we move some things around, meaning move some facts around, take some facts out.
And put in some new facts. So they had [00:06:00] actually at that point, a couple of months later, learn some more things about training. And so they wanted to put that in. How much is this training route training going to help? How much is like night training? Is this going to help this at all? And again, we tested out some of those damages again, and we had more visuals because we knew we needed to put some more visuals in.
To this particular one. So we really were able to kind of build, but also at this point, now that we’re doing two, we have really the ability to remove facts and see how does that play. And again, at this point, we’re pretty sure he’s going to run another focus group too. So we run that second one. Again, we’re still getting some confusion points.
And we realized the strength of some of the other facts. One of the facts that we had left out was that the 18 wheeler driver had changed his story. So on the scene, he had a story. And then of course, when he talks in that position, he had a story. So he had changed his story. So that fact, we left it out.
Because we really want to test this training back. So [00:07:00] the training helped, right? But we ended up our small car still, still not doing good on our responsibility liability vote here. So again, take some time, a couple of months go by. And this time they come to me and said, okay, we’re gearing up for trial.
So let’s go ahead and let’s do, let’s do an opening. Okay, great. This one is this virtual focus group is an hour and a half, and I should pause to note to let you know for these particular groups, because his venue was going to be Bexar County. We used only Bexar County. Participants as well. So one thing that’s important, especially if you’re going to trial is to do that.
But for Adele, when we set up focus groups, okay, this is a sidebar, by the way, we set up focus groups. He is very, you know, conscious of, Hey, we need to look at these things early on and not wait till last minute. So typically what we’ll do is we’ll set up a three hour. And then we’ll divide it up between the cases to figure out what cases need to go.
Sometimes it’s four. Sometimes it’s three. Sometimes it’s five. [00:08:00] We put fit in there for so keep in mind when we’re doing these, right? Like, that’s kind of how we’re setting it up to make sure. Okay, we’re getting the panel who could be in this jurisdiction, but also we’re maximizing what we’re doing with these virtual focus groups for this office, right?
Coming back to our story, we’re on our third focus group. We’re getting ready now for trial trials coming up. It is look, it’s going to settle, right? Let’s do a plaintiff opening statement. So put the plaintiff opening statement in there. One of the things too, that was added in here is for damage. What’s the life care plan and other things that were in there.
And again, with advocacy now, right? So we’re taking away the neutrality. We’re putting in the advocacy. They put together that opening statement. So when their office ran it live and then I jumped into ask questions, whereas before basically I had been our neutral moderator, right, create the presentations presented his crew watches and then we would have a debrief session after each focus group.
Also, each focus group has a report. So that also helped us [00:09:00] when we were going back to look and see. Okay, it was a couple months ago. What did we do? So for this plaintiff’s opening, right? We had our two reports. What’s high? What’s low on confusion? What do we need to be hitting? Let’s test out this thing or put some things around for liability.
Again, just to see, like, with advocacy, are we nailing liability now or are we still loose? So did all of that. And again, still kind of a little bit squirrelly on liability, but we’re getting better, right? We’re they’re hitting the good stuff. We’re getting better. Naturally, trial gets continued. So a couple months go by in actuality, eight months go by before I get that call.
Hey, We’re got our trial date again. We feel really confident. It’s going to go. Let’s do this last virtual focus group. Awesome. So this one’s going to be a three hour only on this case. So you know, what are we going to do? What have we tested before? So before we met for a planning meeting, I got together [00:10:00] all the reports that I had, and I created a really simple chart to basically be able to have everything in one place to compare.
What was the style that we did? What was the main feedback that we did? And then what was the general demographics of the group? And especially if there were any outliers. So that’s what I did. Generally, you can go back and look at that report and remember, Oh, yeah, that’s that person, you know, that said all that crazy stuff.
Like, let’s put that as that outlier, right? Like, because again, that helps you if you’re, they’re going to try on at this point. So I want them to be able to see the demographics, think about it. So I pulled all that, put it in a chart together. So that we would know what was tested before. What was the liability vote?
What needs to be tested now? Because at this point, we’re eight months, we got more information, but also knowing what was excluded, right? So there was some testimony that was going to be excluded or some pieces of evidence that were going to be excluded. Okay, great. Now we know. And how [00:11:00] strong were experts in depositions, right?
How strong are they going to actually advocate for us? What do we need to do? So this also is a point where Fidel and his team had very specific questions that they needed to get on feedback, which we had before. But at this point, they knew, like, okay, we’ve got to get information on this. We’re going to try.
We really need to know. So we set it up. as a plaintiff opening statement versus a defense opening statement plus client credibility. They really were very concerned about how is the jury really going to receive this person? Are they going to want to give this person a large amount of money? I mean, we’re talking millions and millions here.
What concerns should we have be going in? So, which was great. So, the other thing that we were able to do is with this comparison chart was pull The defense points like the strong topics that defense participants had circled around and commented and put those into the defense. Opening statement, right?
So we’re trying to craft that. What is the best defense [00:12:00] opening statement? And we have the information to do that. What jurors are going to feed off of. So we put that in the defense opening. Of course, they put together their strongest plans opening, and then we had them do it live. And then I went in and had discussions.
We had those specific questions that Fidel wanted. So we did a little bit of that. And then, of course, we had a for the client credibility portion. We had a video of the client answering very basic questions. What’s your name? What happened? What are your injuries? What’s bothering you now? Like four very simple questions because we didn’t want to inject any long direct exam questions or anything where it’s just yes, no questions.
Because trust me, participants will notice that it’s one of the biggest things that sometimes they notice when we make clips. And you know, one clip has this person talking a whole bunch, and then all of a sudden this other witness only has yes, no questions. Trust me, they can, they, they, they detect that stuff.
So we tried to make a very neutral, but also we wanted them to just hear from the client and they did. And [00:13:00] they told us they ranked. credibility on a scale of 1 to 10. What were their concerns? What questions would they ask them? The other thing we had here against his video of just him asking neutral questions was defense surveillance videos.
And so we tested those out to how strong are those? Is he a liar? He can carry boxes whenever it may be. And they gave us their thoughts. And a lot of those thoughts and opinions really helped them. Meeting Fidel and his team craft questions around that for other people to answer experts for other, you know, all kinds of stuff as far as like kind of defeating the surveillance thing and we had, you know, the liability at this point was much better.
There was still just a little bit on our small white car, and that’s okay still to be expected. But one of the things that they were able to do then at this point, right? Or focus groups down or sets of reports. What’s working, what’s not working. And so they made a decision about where they would go [00:14:00] for liability to what’s their theory, what’s their pinpoint, what’s their, you know, where are they going to go as far as getting this 18 wheeler driver responsible.
And so they stuck with just the rules of the road, right. Got to stop complete stop, look both ways, you know, and also they did the route training, right. Cause there was actually a shorter route for him to take a safer route. Yeah. He just chose not to do it. And so they focused on those two things, right?
Training and that particular role, you know, you got to look both ways, make sure nobody’s coming instead of looking at distractions because they had a video of the defendant driver in the cab. Looking very distracted. I don’t know what we couldn’t really ever figure out what he was doing, but it did look like he was distracted.
But every time that they talked about that distraction, it ended up coming back and blaming the small white car. Well, if this guy’s distracted, what the heck is the other guy doing? How did not see a giant 18 wheeler trailer? So I said, okay, we’re going to scrap that whole distraction [00:15:00] thing and put all eggs in the basket for this training.
And this rules the road. So off the trial, they go October, 2023. It’s a two and a half week trial. They are battling it out. They go to jury deliberation. They had an alternate jury, juror, who they approached and asked. She got released, so they went outside and she said, oh, it’s 100 percent your client’s fault.
So they’re looking at each other like, oh boy. Ultimately, the jury had to take two breaks because of heated arguments in the jury room. They deliberated for six hours and ultimately assigned 20 percent to the small, white jury. Hooray, everything else went to the driver and the employer. So that’s awesome.
Then they came back with the verdict of 1. 2 million. So in this, you know, scenario, this ended up being a huge success, right? They started out with 80 percent or more on their client and then ultimately being able [00:16:00] to move that needle down, down, down 50, 50, you know, ultimately at trial only having 20 percent on their client.
So very difficult case, highly contested liability, putting it together. They both sides had used significant amount of experts for liability and Fidel knew early on, he needed to move that needle on that responsibility percentage and use focus groups to find out how to do it. So strategically, right? We started using small one hour virtual focus groups during discovery, a few months apart.
You know, 80 percent 50 percent Ultimately, after those four focus groups, six and a half hours total jury came back at 20%. So, so helpful to know. Also, where were they needing to put that responsibility? Where was that persuasion? What were the rules of the road? What were the violations that were going to be needed to pin that responsibility on [00:17:00] that 18, right?
Which was don’t go for the distractions, go for the rules of the road, go for that training. And also, you know, what they learned along the way as well was what were the confusion points on the damages, which were significant, but if they were so confused on how it happened, so. We talked about that. How do you walk them through that?
How does the client walk them through where the body would have hit all that kind of stuff? And they had pictures to kind of substantiate that, right? I mean, they’re busted out windshield, like there was all kinds of stuff and there was also blood in the car too. So that helped to, you know, ping things around and they had lots of pictures of the cars.
So, and then ultimately I think that that last Focus group they did where they really asked themselves, what is it that maybe terrifies us the most, which is client credibility. And so we put it up there, right? Put up that surveillance video, created that video so that we can test out that client credibility so they, and they would be able to go in with confidence to know, okay, we’re going to ask for millions and millions.
Like we know that our client’s not going to be one of the stumbling blocks. for them in this situation. So [00:18:00] excellent use of virtual focus groups. I mean a total time of six and a half hours. Sometimes all people have a run as a mock trial and it could be six and a half hours. You wouldn’t have all these data points.
You wouldn’t be able to do this comparison. Where it’s like, oh, hey, what’s good, what’s bad, what’s working. How do we tweak these things to test them out? And that is just to me, one of the coolest parts about doing virtual focus groups and stacking them up, especially the way that Fidel and his team stacked them up to be able to help them test things out, move things around and come back at it again.
So I hope that this case study was helpful for you. I hope it was encouraging to you because again, 80 percent on their client. And they were already mid discovery, by the way, they had already put some money in on depositions on experts. Right? So they knew this thing’s going to trial. We need to figure out how to move this needle and what the jurors need to hear and what they don’t.
Right. So it’s the same, what we need to hear, what we don’t need to hear, how to put that best [00:19:00] case together. I hope this was a great example for you. If you haven’t figured out by now, I run virtual focus groups. And if you want to work with me, just reach out and let me know. We can book a free call. All right.
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