Beyond the Obvious: Using Focus Groups to Expose Hidden Dimensions of Liability
Ever wondered how focus groups could be the game-changer for navigating complex liability issues in civil litigation? Imagine unlocking jurors’ hidden perspectives and using these insights to your strategic advantage. This episode takes you through real-world applications, like contributory negligence in construction injuries or multiple defendants in medical malpractice cases. We dive into the nuances of a recent car crash case involving seatbelt usage to show you how a layered presentation strategy can yield invaluable insights.
We also discuss the crucial practice of conducting and recording debrief sessions right after focus groups. Learn why transcribing and creating memo reports can elevate your mediation preparation and case strategy. From clarifying responsibility to uncovering critical facts, we lay out how focus groups can help frame information for the best outcomes. Plus, we offer practical resources and invite you to join our email list for upcoming courses on running your own focus groups. Don’t miss out on these essential techniques that could transform your approach to complex liability cases.
In this episode, you will hear:
- Navigating a common challenge in civil litigation: problematic liability
- The value of a layered presentation strategy
- The role of focus groups to uncover hidden factors in complex liability cases
- The importance of conducting and recording debrief sessions immediately
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Supporting Resources:
In the episode, I mentioned Episode 112 where we look at a specific case example for flipping contested liability and expanded blog.
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Episode Credits:
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Episode Transcript:
Elizabeth Larrick: Hello and welcome back to the podcast. I am your host, Elizabeth Larrick, and thanks so much for joining me. This podcast is dedicated to lawyers, folks going and civil litigating in front of jurors. And the purpose is to help you get into the minds of jurors. [00:01:00] We talk about things, focus groups, persuasion, communication skills, and I try to pass along things through our examples and our lawyer friends that come and talk with us.
Today’s episode, I want to talk about a really common problem that lawyers have, and that is difficult, problematic liability, right? Maybe you’ve got some contributory, maybe you’ve got some situation where you’re trying to pin down several defendants, right? So thinking like a construction or workplace injury, or even medical malpractice.
We’ve got several doctors, hospital nurses. So where it’s not so obvious about what is going on in the minds of jurors. And so this is where focus groups can really help. And I will tell you, this is a place where I get a lot of calls. Hey, I’ve got a problem. I’ve got this challenging liability, or like we heard from our episode [00:02:00] before.
episode 118 with John Prudhomme where they had a video and it looked really obvious as to who caused the crash. And this happened very recently as well, where we’ve got some, we keep getting more video evidence, right? People have ring cameras. We have cameras in our dashboards. and in all over buildings.
So there’s always some kind of recording somewhere. And while it may be obvious to us as lawyers, it’s not for those jurors. So that’s always a good place to do. The focus group is on those videos, but this episode is about going kind of deeper into focus groups to help you with liability, right? So the obvious would of course, people come and number one, they want to know what.
And how is the focus group or jury going to blame my client? How much responsibility are they going to put on our client? Again, great place to start with [00:03:00] focus groups. And this is, again, what normally people say, Hey, I just need to figure out what this is. Well, then number two, our next level, which is again, fighting, what are the hidden places, right?
Things that we are just not seeing with our lawyer eyes, but maybe really obvious to jurors. And that is what are the facts and what is really the context because facts are one thing, but sometimes we just need a little more context that can change the amount of responsibility on a client. And this is where our focus groups can get a little tricky.
And let me explain. So at first flush, it’s obvious. We take a focus group. We give them, here’s what happened. Here’s some pictures. Here’s a, what this person says, and here’s what the other person says, right? Analyze this and tell us, you know, who, if anyone is responsive, boom, obvious level one. Number two, though, is like, okay, we’ll.
What, like, what is it that led you to that decision? But then [00:04:00] also you want to know lawyer how to change it, right? What facts do I need? And this is where sometimes when I run focus groups with lawyers, we have this idea in our head. Well, if we just ask this question about what if the police gave a ticket to that person or what if the cell phone records showed the other person was on.
So we’re like adding facts, but we’re putting them into questions, right? This is really, really tricky because what can happen is we really run into showing some bias. And it may not be this, you know, bell that goes off inside our participants minds. But their little brains are like, wait a second, he’s adding more information.
He just said he didn’t have more information. Now he’s adding more information. Wait a second. Now I’ve got to analyze more information and there comes a level, a little bit of frustration. And I’ve even had participants who basically say like, I don’t know anymore. I need more facts. [00:05:00] That’s really not helpful for you as a lawyer because you want them to analyze the new information.
So from a presentation point of view, It’s just be very careful, very thoughtful about creating a presentation that is layered and that doesn’t just have like all this information and then you’re going to start dribbling out facts in questions because again, you’re going to start to see people not want to analyze the additional information or they get dug in and they won’t even take in the information like, no, nothing’s going to change my mind.
Well, We know that that’s really not true. Things can actually change people’s minds. This is where you want to make sure that you work with somebody who’s done focus groups, right? Because you want to dig in, you want to get that hidden stuff. You want to find what that facts and context is in that same focus group.
Because again, you want to make sure that you’re peeling back the onion and getting as much as you can out of a focus group. And so a [00:06:00] good example of this that recently came up and again, you may have a similar case, which is a situation where it’s a car crash and the injured person is not wearing a seatbelt.
Well, here in Texas, you get to now talk about that as a way, a mitigation of damages, right? So choices that the injured person takes. not wearing a seatbelt. So this was a really big factor in this case. So they said, Hey, we know that this is typically really terrible, but we still need to run a focus group and figure out how can we navigate this?
And more importantly, there was some evidence and obviously you name it experts, of course. And so what we did was we created a layered presentation in a way where it didn’t look like, Oh, we’re just adding more facts, right? We just add things in, in a different form, in a different sequence. And one thing too, if you listen to the podcast is when we talk about DIY, doing your own focus [00:07:00] groups, there are definitely some episodes back there and we’ll bring those back up and probably redo a few of those just to keep them fresh on our minds about how to do solid introduction so that there is a clear expectation about what information and more importantly, how it’s going to be delivered to our participants so that they understand, Oh, we’re just fitting into the model here.
You’re not just adding more information to me. And so we layered in an investigation with some of this information from the expert, right? And what they found Or what we got back really as feedback was what was critical to them was what other things were in the car, right? It’s a pretty violent crash that could have caused the seat belt to come unbuckled.
And also they really, we dive deep into the, into the evidence, right? So they, we went back through things and was this helpful? And was this, you know, like, tell me about this and what, you know, what, here’s this thought about this expert. And they were very good [00:08:00] about analyzing it and telling us about it versus me or someone just asking questions.
Well, what if there’s just an expert? What if there’s this, right? So it’s very much like, I’m going to show you and you tell me, okay. Versus like asking just a bunch of questions. Also, it’s, it’s very hard on our brains. to bring in information that way, right? We think that that works right as lawyers, but it’s very hard when you are an audience member to bring in new information through a question, right?
Because you’re asking me a question, you’re asking me to analyze. So just always keep that in mind as well. And we’ll, we’re going to talk a lot more about our cognitive, Bias, how we learn, it’s definitely one of the things that I want to dive into more in this podcast. And we’re going to be doing that and how we can do that as well.
But let me just stick on track for today, which is using our focus groups to get a little more out of our liability. [00:09:00] So The other thing, right? So, so far we’ve talked about number one, we get, we use focus groups for our challenging liability facts. Number one, we’re going to know the obvious, which is how much responsibility they’re going to put on our, and then number two, which is what facts or what context, right?
So sometimes facts help, but sometimes we just need to have more context. that can change that responsibility that’s going to be on our client. And then our third thing, which is what is the sequence? Like, what is the order that creates the most benefit for my clients? And then where do I need to point the audiences, the jurors attention, right?
Because we can sequence things. in the most beneficial way and it can still get completely lost, right? So that’s the other thing about, you know, having the sequence down, having that order that you like, that’s most beneficial, but then also how to then [00:10:00] intersperse pointing their attention, right? To those facts, right?
That context that re that reduces that responsibility on the client. Really, these are our persuasion points, right? Like, you know, we’re racking up those persuasion points. And my example of that is, last summer, there was, we did a series of focus groups on a medical malpractice case. this case had a sequence of events that went over three months.
So we were really honing in on creating a timeline that was most beneficial for the client, but also keeping the attention directed correctly. And because it seemed obvious, right? So here, you know, what happened, the, the medical injury caused blindness, right? And so that seems obvious. obvious that the client didn’t do anything wrong.
However, you know, like I said, there were three months of events. So there were things that were other things going on. We just need to make sure again, keep them pointed. And so that’s why we did [00:11:00] several different focus groups again, trying to then figure out what is the strongest sequence. What is the attention grabbers when and pointing it that way?
And that’s why we talked about, you know, we did some timelines, but then also we had interspersed other slides that to grab their attention. And so what that allowed then the lawyers to do is to go into trial and they had their What dear tied to opening as we do, but we really tied down some of the things about the client and what dear and then, you know, came back for opening and like we talked about, they had this, you know, very wonderful timeline that had been created with these interspersed slides pointing their attention right to the right places.
Now, ultimately they settled in the middle of trial and it was a very successful, I will say, although confidential settlement. But they, you know, the feedback was. that it was [00:12:00] so beneficial and helpful to have the focus groups really hone in on those facts that they needed to alleviate the responsibility on their client.
But then also that, that sequence, because again, they had so much information and they had multiple doctors and nurses, right? And so that also helped them know, okay, well, who then, if we’re, you know, who then is the main target. And that, again, that’s that pointing your attention to the right place, right?
That’s our deeper peeling back those onions. peeling back the layers of the onion. We can peel those onions too. And so that’s really where we can get even deeper into liability and what’s in the minds of the church. And that’s really what we want to be doing. So let’s put this a little more into context, which would be, so this is not something you can just run one focus group and it’s done.
Hooray, all done. The best example is that is when I, you know, that last episode where we talked to John Prudeholm and we’ve done one focus group and he said, you know, we wish we’d done [00:13:00] another one, right? Just to confirm some of those liability things, but then also test some of that, the damages things as well.
But here, you know, when we’re trying to peel back the onions, squeeze the orange, we’re trying to get deeper into understanding. What liability is, how to sequences, what are the facts that we need to alleviate things on our client? We really are looking at doing, you know, two or three short focus groups.
I’ve talked about this before. If you want to go back and listen to episode one, one 12, and also wrote a blog and those links will be in the, in the show notes as well, but basically. To, we want to have these little short focus groups where basically we’re testing different sequences, different presentations, and to see the differences in our feedback and very specifically.
So what needs to happen is you have to be able to synthesize the data that you get, right? Meaning the feedback, the answers that you get. And most helpfully, then you have to take that information and put it into a visual format. [00:14:00] It can be a chart. It can be so simple as a chart, but then that allows you then to, once you have that next focus group, you add in the data right next to it.
And that allows us And our brains to really compare quick, because then you’re going to be able to see patterns, right? So you’re going to be able to see, okay, our focus, our first focus group really looked at, it had to have been speed, right? Okay. Speed, speed, speed, speed, speed, right? But then the next one, it was more about route, route, route, route, route, route, right?
So, you know, seeing the shifts and being able to figure out, okay, well, this is what we presented. Was that the reason, or was it? So you really want to make sure that you are analyzing the feedback you get more than just on that day. And so we I’ve talked about using memos. It’s like a report. It’s the same thing, right?
That word could be interchangeable, but it’s basically, you want to make sure you take all the goodies that you get and you write them down. We will totally forget them. [00:15:00] And then we’ll come back and we’ll say, Oh no, do I have to go back to this whole thing? No, no, no. Please, please, please do these things right away so that they are down.
One of the things that I do with my clients here is when we have a debrief, right? Meaning. At a minimum, we have to do one right after folks, right? We want to brain dump. And so we just make sure we record that, right? What did you hear? What did you see? What stood out to you? And then it’s memorialized. Now, of course, what’s our next step?
We’ll go get it transcribed, right? And then. What I always encourage people to do is just take a piece of paper and write it down. And you were thinking, well, I should just type it up. Well, you need to do that too, but I really enjoy handwriting because I’m going to, I’m going to write the most important things versus the typing.
I’ll type a thousand things and that’s not helpful. I want the pop top one or two, three or four things. So that’s really where that memo report comes in because then you can go back. And again, when we’re doing two or three. Right. We’re comparing our liability and we’re comparing our [00:16:00] sequence. We’re looking for those facts in that context that’s changing the percentage on our clients going to be able to easily go back and look at all those things and and compare and then build what you need for your open or build what you need for mediation.
Right. You’re going to mediation. You want to make sure you have all this stuff lined up front and center, ready to go. Now, are you going to see, Oh, we’re going to show them my cards. Oh, no, you’re not giving them the full meal deal. Not the full razzle dazzle. But you are doing enough because it’s mediation here.
We’ve got to make sure we’re, we’re, you know, solidifying what we need for liability. But I think doing a memo, doing a report, even just writing down some notes is a really huge gold mine that a lot of it’s because they’re busy or they, Oh, I got what I need just by watching it. No, but do you know how much more.
Gold. There’s in there. There’s a lot more in there and you really want to get the most bang for your buck. Okay. This is [00:17:00] really what it’s about. It’s like squeeze our brains to make sure we got everything out of those focus groups. Right. So, and you can do all this on your own. Heard me talk about it in Keith Stover.
Come on. And he talked about running his own focus groups, right? We talk about that here on this podcast as well. These are things that you guys that you can do, right? With it, we’ve got a lot of how to episodes here on this podcast. But let’s just summarize this one and we’ll get you out the door here, which would be using focus groups to really dive deeper into difficult, challenging liabilities.
We’re talking about these contrib, contributory negligent situations, these situations where we’re trying to pin down, um, several defendants, right? The ones that we can actually recover from are the ones that are the worst. Or, or like we, with my example, with John Prudhomme, where it looks really obvious to us, but something’s missing here because we’re not getting this case settled.
So number one, of course, focus groups are going to give you [00:18:00] how much, how much responsibility is on your client compared to everybody else. Number two, what facts or context can change That amount of responsibility on your, on your client. And number three, going deeper, which would be the sequence, the order of facts, the framing that creates the most benefits for the client.
And then where to point their attention, right? This is that persuasion, like really where to get their attention and pointing in the right direction. And that can be done without being super obvious either. So hopefully this episode was helpful. I know that we have a lot of cases probably in our files that have some challenging liability.
Focus groups are a great place to help you get organized and again, feel more confident in the case that you are building. All right. If you are curious about learning to run your own focus groups, I do have a live course. If you’re interested, [00:19:00] just jump on the email list. There’ll be a link in the show notes for when the email is the only place that I actually release the, when the next opening will be.
So jump on that email list. I promise I won’t bombard your inbox. We have about one or two emails a month. I hope that this episode was helpful. If it was, please rate and review on your favorite podcast platform, share with other lawyers, or maybe somebody who is having a challenging liability situation so they can find the tool focus group to help them get ready.
All right. Until next time. Thank you.