Guest Andrew Gould on Narrative versus Adversarial Focus Groups
Unearth the inside scoop of the courtroom as I sit down with the formidable Georgia trial lawyer Andrew Gould. As successful trial lawyers, we delve into ways we’ve learned to connect with juries and clients, enhancing our courtroom prowess, and even share a tale or two about a memorable expert witness.
Ever wondered how resilience and repetition breed success in the legal world? Andrew and I share our candid insights on learning from failures, powered by invaluable lessons from trials and tribulations. Diving into the craftsmanship of narrative-building and handling high-stakes opposition, we explore the essence of trial preparation and the indomitable power of practice. We also tease out the nuances of narrative and adversarial focus groups, their pros and cons, and how they shape the path to victory in the courtroom.
In the final stretch of our conversation, we dissect the role of focus groups in the trial preparation process. From practicality and expenses to the invaluable knowledge they provide, discover how these groups can be a game-changer in the legal landscape. We discuss the benefits of collaboration, the importance of silence and listening, and the significance of adapting to the feedback from these groups. Strap in as we weave through the intricate maze of trials, focus groups, and the relentless journey of personal growth as a trial lawyer.
In this episode, you will hear:
- The importance of connecting with juries and clients to improve courtroom abilities.
- Trial preparation and practice in shaping lawyers, viewing failure as a stepping stone to success.
- Differentiating between narrative and adversarial focus groups, understanding their pros, cons, and application in jury selection and trial preparation.
- Emphasizing the significance of collaboration and repetition in conducting focus groups.
- Highlighting the importance of listening and using silence to an attorney’s advantage.
- Analyzing the feasibility and costs of conducting focus groups and the role of narrative and adversarial focus groups in providing vital data for jury selection.
- Memorable anecdotes from trials and discussing the importance of preparation, especially in adversarial focus groups.
Connect with Andrew Gould
Andrew@princemay.com
750 Hammond Drive Building 12, Suite 200
Sandy Springs, GA 30328
(678) 534-3749
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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 today we have a very special guest, Andrew Gould, who is joining us and Andrew is a very special place in my heart.
He was witness to one of my fall aparts in a Shoney [00:01:00] restaurant. If you don’t know what a Shoney’s is, I didn’t either, but I’ll let Andrew recap that wonderful moment where we’re eating at Shoney’s and I just totally lost it. But anyhow. We’re glad you’re here. Yeah. So Andrew and I have known each other for several years.
We actually got to work together and do three pretty large trials together. And it was during one of these trials that we’re working our fingers to the bone. We’re going to go have dinner. I’ve never eaten dinner at a Shoney’s and Mr. Keenan, Andrew and I go to the Shoney’s. For the breakfast. I’ve been
Andrew Gould: to Shoney’s.
Elizabeth Larrick: You’ve been to Shoney’s. I’ve never been to Shoney’s.
Andrew Gould: Oh, you’ve never been to Shoney’s.
Elizabeth Larrick: I’ve never been there. So we check it out. And anyhow, talking about the trial and all this good stuff. And anyhow, we’re talking about getting ready for our witnesses and Mr. King is trying out some heartfelt questions and they were good emotional questions that just got me.
That’s Andrew remembers. So
Andrew Gould: anyhow,
Elizabeth Larrick: Andrew, welcome to the podcast.
Andrew Gould: Hey, thanks for having me. 89 episodes. That’s awesome, man. That’s incredible.
Elizabeth Larrick: It’s the labor of love at times, [00:02:00] but having guests on like you to come on and hang out and talk about focus groups is I think what helps. And I know our audience here is Folks who are getting ready for trial or just know a lot of people are learning about focus groups or learning more about witness prep and trial prep.
So I’m glad to have you on because we got to do those three trials together. Many, many months of training at the Keenan law firm with Mr. Keenan, but also a ton of reforming attorneys.
Andrew Gould: Well, that’s what I was going to say. We go way back, man. And you’re way too kind. It’s an honor for you to say that, that you, that I hold a special place in your heart.
I feel like I should be just the opposite given our experience, but it was a great, Hey, I think you were one of the first people that I really met and got to know when I think I came on with Dawn 2012. I would have met you shortly thereafter either at a seminar or something like that and we start getting to know each other and then of course you’d be, I think we worked on maybe your case or two when you [00:03:00] were either in Oklahoma or with Lynn, and so you were at the beach, and then of course you became the first fellow.
And we were together, what felt like 24 seven at that point. That’s
Elizabeth Larrick: true. It’s true. Shout out to Lynn Gabay. Yeah. So yeah, Lynn, Lynn had a case that we got a little more in depth with, with going through at the time it was called Reptile, now it’s called Edge. But yeah, once I came on as a fellow, which is kind of a unusual program that they put together where you can basically go in and be an associate attorney at a kind of part time level.
Andrew Gould: Hey, you’re a fantastic person. A fantastic friend and an amazing trial lawyer. And those three trials we got to do together were a true blessing. And I know that I learned a ton, both good and painful, and you were there for me during the good and painful. And I’ll remember, and I’ll tell this quick story.
But I remember we had that trial out in Seattle and as I’m sure you’ll remember this, there was an expert. I think he was our [00:04:00] biomechanical engineer, expert time. And his name was Guy Kennett. And I’ll never forget. I’ll take his name to the grave. And he was a, he was a virgin expert, never testified before.
And he was a professor of professors. You remember this guy?
Elizabeth Larrick: Yes. And he
Andrew Gould: was a, he was a quirky guy, but a super nice guy, credibly smart guy. Yeah. And I met him for the first time the night before he was supposed to testify. And it took like three, four hours for me to even understand what the hell his opinions were.
And finally, at the end of that, I was like, okay, it’s like, I think there was like four or five. I was like one, two, three, four, five. And I was like, if this is all you give the jury guy, I’m great. Like, just say these 5 things, and then you can pontificate away about whatever else you want to pontificate that I’ll never understand, you might as well be speaking Japanese.
And so, he’s like, yeah, yeah, I got it, I got it. And so we get to trial, and of course I’m nervous, but he’s even more nervous. And getting to introduce himself, trying to kind of get him [00:05:00] warmed up and then do the whole, we’re going to get into the basis of your opinions, blah, blah, blah. But can you just tell the jury quickly what your bottom line opinions are?
And he goes and pontificates on and on and on and on, and I can see the jury over there and I’m like frozen. I’m like, shit, you know what? Okay. And then I kind of came back to the question. I was like, I hear you, but Was there like a one, two, three, and kind of give the jury, and he still goes on and pontificates and being early on in my career, I’m like a deer in headlights.
It’s how I’m like, trying to look at Don. Of course, Don’s being Don. And so anyways, that was one of the most painful direct examinations because I had to just go straight into the questions and nobody knew. What he was saying. I didn’t know what he was saying. Right? So you didn’t score any points. You didn’t not score any points.
Everybody knew he was crazy smart, but nobody really knew what at the end of the day, his opinions were. And so the defense lawyer gets up afterwards and cross exam. He’s a great, I remember that guy being a great guy. A, he was a great trial lawyer, but just a great human being. Gets up and does his thing, but he really [00:06:00] doesn’t.
My recollection was he doesn’t really score any points because again, guy can’t speak normal English. So it was just sort of like whatever. And I just remember Don like hitting me on the side, like almost punching me into my ribs saying, do not give him the last word. And I’m like, what am I supposed to do?
And he’s like, I don’t care if you just ask him if the sky was blue or something like that. And he’s like, just do not give him the last word. So I just remember standing up and I, you remember what, I think it was something like, was there anything about what he said that changed your opinions in this case or something like that?
And he’s like, no. And then I sat down and none of us knew what his opinions in the case were. So I was like, okay. It’s like my cousin Vinny, everything that guy said is BS. So it was just like, surreal. And I remember we went back to the hotel after that and I got on the treadmill so stressed out about it.
I went back to the treadmill. And ran like a 615 mile or some ridiculous thing. Cause I just wanted to get all that energy out. And this is where I love Don. This is where I owe him. [00:07:00] Everything is, I remember going to his room after that and I kind of had my tail between my legs. I was like, so it felt really bad.
I was like, but how bad was it? And he goes, it was bad. I was like, yeah, that’s what I thought. I was like, I just, I never want to have that feeling again. I got, so how do I avoid that feeling? And he spent like the next hour or two hours with me, just going through all this stuff and teaching me some, so many valuable lessons that I’ve been able to implement in future trials.
He’s just a godsend when it comes to that. If you’re willing to put aside your ego and feel that pain and express that pain and go to someone like him, he’s one of the best, he’s just one of the best at it to be able to share. And he’s so willing in those moments and those moments of vulnerability to a sense it right.
And then to mentor you in a way that. Really will last the rest of my life. And that, like I said, I’ve implemented in many trials [00:08:00] since, because yeah, now I know how to handle that situation or other kinds of similar situations where, all right, I’m feeling this pain, like, all right, I’m not going to let this train run off the tracks.
And I go back to that two hours in his, in the hotel room. So
Elizabeth Larrick: yeah, a long
Andrew Gould: story. Well, no, I remember that I have with you tried during that, that was like one summer of three. Major trials back to back to back. So, and
Elizabeth Larrick: I remember like, I think I had left the room because that case had so many experts. I even was taking an expert to do it.
But I had this guy who’s like super random, like literally no value, but like, Hey, here’s this.
Andrew Gould: That’s right.
Making it sound like you got up and didn’t do anything you were crucial.
Elizabeth Larrick: No, no, no. That was the point where I think. I had gotten him ready. He was in the [00:09:00] hallway and that’s when the settlement happened. Like I remember at one point, like you’re talking to that guy, come back in. And I swear you guys had gotten him to draw something.
And it was so confusing. I was just like,
I’m so glad that’s not me, but there were plenty of times where they’re Andrew would be up and I was like, Oh, I’m so glad that that’s not me.
Andrew Gould: Well, that’s how you learn, right? I remember Dom would always be like, use the flip chart, use the flip chart. He just beat that into my brain. So every trial I’ve been in, it’s like there’s some flip chart or something.
And so I remember in the South Carolina trial, you were there for that, right?
Elizabeth Larrick: No, Kentucky.
Andrew Gould: Oh, it was Kentucky. All right. Well, I remember we had a case with Kevin Smith. I thought you were there. And we had a vision expert that I took, and I was doing all these other kind of things. Right. And those were all fine.
But then we got to a point, I think I was trying to create a timeline of something that she was talking about. And so I drew this line across the flip chart, and that was all it was. And I, [00:10:00] like, so after I got done, I looked back at it. I was like, this is just a line across a piece of paper. But anyway, so you learn from it.
It’s just my, it was just beaten into my brain of like, use the flip chart, use the flip chart. So I was like, well, I got to use the flip chart for something. So let me draw this line across and it’d be completely useless. Yeah.
Elizabeth Larrick: I’d tell everybody that if we’re getting ready for trial or whatever it is, how are we going to use the flip chart?
People are like, I’m not going to use it. I’m like, oh my gosh, what a loss you’ve just like, even if you wrote like three words on it, like just to keep people on board. But yeah, I’m a huge fan of the flip chart, even if it’s. Squiggles and whatever.
Andrew Gould: Well, and that’s what I loved about going back to Don and giving him credit.
He gave me the opportunity to fail, and I remember I did what’s called Leadership Hall County here in Georgia. It’s like through the Chamber of Commerce, and we were interviewing high school students who wanted to do the youth version of that. And this kid came in who was just stellar kid was a stud, his [00:11:00] resume, the way he presented himself, he was far and away, probably the best candidate.
His maturity was well beyond his years. And so he goes, can I ask a question at the end of all of you guys, can I ask a question? I said, yeah, sure. So he goes around the room asking people different questions. And when he got to me, he was like, what advice would you give me? If it was you sitting here, but that kind of question I was like, okay.
And my, it was like instant. I said, fail. Because based on this resume, I bet you’ve never failed in your life. Right. I’m not knocking it. I’m just saying you’ve got to put yourself in a situation to fail, feel that pain and learn how to overcome it, learn from it and get better. And so Don gave me that opportunity to fail.
That I feel like maybe a lot of lawyers, mentors would be hesitant to let their associates get up and do. I mean, Guy Ginnin was a big expert in that case, the biomechanical engineer that was going to explain how the [00:12:00] bicycle hit that, what they call water berm, it was a fricking speed bump, but, and how that then translated into her hitting her neck or head on the mailbox, that was a big causation type deal.
And for him to give me that opportunity. It’s a big deal. And like I said, that lesson, that pain, yeah, the pain is still with you, but man, it makes you a better lawyer. If you’re willing to get back up on the saddle and keep going, failure is the best way to go about it. I used to do kicking camps when I was a kicker in college and the young kids that I taught would kind of ask me similar questions.
And I would say, look, I can tell you every field goal that I missed. I can’t tell you the ones that I made, but it’s the ones that I missed that led to me making as many as I did. So you just kind of have to have the willingness to fail, knowing that it’s going to happen, especially in our profession, right?
Whether you’re talking about focus groups, I know we’re supposed to get to that here, talking about trials or whatever, you’re gonna fail. Right. It’s just whether or not you’re willing to, and then willing to get back up after you do, even though you so painful, you go and run [00:13:00] a 615 mile on a treadmill.
Right. Where you literally have the defense lawyer coming up and putting his hand on your shoulder saying we’ve all been there. That’s how painful it was. That’s how painful it was. Anyways.
Elizabeth Larrick: That guy, that defense lawyer was a total class act. He
Andrew Gould: really was. I love it. I love it. I wouldn’t want to try a case against him.
Again, because he’s so dang, I’m good. Well, that’s not true. I probably would, because I just like to go toe to toe with him.
Elizabeth Larrick: Well, yeah, you want somebody that good, but I just remember one of the things that he did, I’ve not ever seen anybody do, and he did it so well was he really told the story and used everything in the room and almost acted it out.
And in such a way, I was just like,
Andrew Gould: And it was so genuine.
Elizabeth Larrick: Oh, we got a major problem here because he’s teaching, but he’s also like his story, you were totally engaged and he had the bicycle out and they’d made all these like,
Andrew Gould: and remember he had the iPad and he had the. Prompter the teleprompter that was kind of [00:14:00] moving and he did such a good job.
Like you really couldn’t see that he was looking down at it.
Elizabeth Larrick: It
Andrew Gould: was so impressive. He was, he taught me a lot during that trial.
Elizabeth Larrick: Yeah. And they just, yeah, it was, I was just like, wow. But it
Andrew Gould: kind of reinforced what Don talked about, take control of the room and you take control of the room through things like flip charts or like in that case, the bicycle, like.
All of these different things were not just in the centralized location. He was moving around, really taking control of the room away from us. It was very impressive. So there was that battle of who’s going to own the room. And so I thought there was a good back and forth of he’s trying to take it. Then we’d take it back.
It was kind of like a little battle. You take that ground and then we take the ground back and then he’d take the ground back and it was who was going to be the final person taking the ground. But. It was a fun trial.
Elizabeth Larrick: And of course, all the things like my takeaways are, I’ve always remembered the struggles of the hard parts.
Here’s where we could have done a better job, but here’s where I was just like, what are we doing here? Is this where, you know, [00:15:00] but, but yeah, there were definitely some parts where I was just like, Oh yeah, this is like, this is it. But the only thing I remember is, and I’ve never been in a courtroom like this again, and apparently it’s very unique maybe to Seattle, which is there was that giant art piece.
Do you remember the giant? And it was,
Andrew Gould: So random,
Elizabeth Larrick: huge. And I’m pretty sure it was a naked dude because I told all my witnesses. I
Andrew Gould: don’t remember that. Yeah, I
Elizabeth Larrick: was a naked dude. I told all my witnesses like, listen, because the way the courtroom was is the jury had to stare at that. It was directly across from the jury.
And I told all my witnesses who had a lot of the before and afters, if you get nervous, if you’re not sure, like, please look over my shoulder at this butt and then come back to me. And they were like, can we meet a girl? Remember
Andrew Gould: the Kentucky trial and the hotel we stayed at that had the naked babies, like statues?
It was like so uncomfortable. You walked into the lobby and there were like three or four statues of naked babies and I’m like, or [00:16:00] naked children. And I’m like, what, what is this? And it was supposed to be some artsy hipster type thing. And I’m like, this should be shut down. I feel like it’s so inappropriate.
Anyway.
Elizabeth Larrick: Yeah. Anyhow, we can totally go on with stories, but I always remember the Shoney’s story and I always remember just being deliriously tired. And just always being so glad that you always drove the car. Like, I know that sounds so weird, but we never stayed within walking distance of anywhere. So we always had to drive.
And it was always just like, who’s going to drive? And I was like, Andrew’s driving. But it
Andrew Gould: taught you how to overcome it. You know what I mean? We were delirious, but then you get in the courtroom and I don’t know. I felt we put our best foot forward and did a good daggum job, even with Guy Ginnan. But you’re right.
It’s a lot of work. It was a lot of work. But it was worth it.
Elizabeth Larrick: It was. And I think that that’s definitely a lot of my takeaways and a lot of things I talk about here are about learning that system that we did and applying it [00:17:00] over and over and over again, boom, boom, boom, no matter what type of case, no matter where we were, no matter how many experts, the same thing and seeing it not slowly come together.
But the first go around was a little bit disjointed because I just come on board. Then we get the next one. Okay. We’re hooking up the train. And then the last one I was like, Oh, okay. Like full steam ahead. This is easy to do as far as like knowing your job organization, what we’re going to do, how it all is going to come together.
It’s one of the biggest things that I’ve learned also, besides trying things and failing, which
Andrew Gould: happened often and frequently, completely eradicated my fear of failure. Because it’s just like that pain was so intense that it’s like, okay, I could probably fail like that and feel that way again, but it’s not going to be worse than that.
And I survived it. So it completely eradicated. And I think that that builds confidence and makes you a better lawyer where particularly you have a mentor who’s willing to do what he did. Yeah,
Elizabeth Larrick: and there were plenty of times too [00:18:00] where I remember specifically one time where I got up and I don’t know what happened, but like I froze and we were in front of a bunch of lawyers.
I can’t remember what I was doing and I just froze and we got done and we have to go back to wherever we were in Florida. And I would just ask you, I was like, what happened? He goes, like, you froze, like, literally. And I was like, okay, that’s what I thought. Cause I just lost all that time. Like
Andrew Gould: blacked out.
Elizabeth Larrick: Oh yeah. But okay. All right. So anyhow, let’s talk a little bit about focus groups. We can help some folks out today. So we were really going to talk about narrative versus it. adversarial. And I think that one of the things when I always talk to folks who call up about focus groups is we always think it’s most people always think, Oh, we’re always going to do adversarial, which is a plaintiff’s side versus defense side.
And like, that’s all they think is available focus groups. And I’m like, well, no, that’s why I say focus groups all the time. I don’t say mock juries because Very [00:19:00] different. And even the adversarial, I think we learned is even different than
Andrew Gould: I never heard that, but that’s, yeah, I like that.
Elizabeth Larrick: But I think adversarial or if you want to call it a mock jury, like if you’re thinking about that, that does sound time consuming and really cost prohibitive and super complicated and all these people involved, that’s why I really love.
Thinking about it in a focus group sense and talking about the narrative focus groups. And I think using a narrative is just so easy. Like it’s like, that’s what I encourage people to do right off the bat is the easiest one. Do you feel that same way?
Andrew Gould: Well, easy, I think might be relative because it takes time.
Being on the KTI staff back when and teaching focus groups back when, no matter how many times I would tell the students to put together a narrative that’s neutral. That has kind of the whole kitchen sink, good, bad, and different. Whether you think the facts are relevant or not, drafting the narrative without kind of strong adjectives, right?
Just straightforward facts, [00:20:00] just, it’s so ingrained in us and what we do that inevitably you’re drafting a narrative to get what you want, not what you need. And so when you’re comparing the two adversarial versus narrative, I think narrative is easier from a logistical perspective. It is a little bit of a, I wouldn’t say a logistical nightmare to do a mock jury, but there’s a lot more moving parts you have to bring together.
But a narrative is still putting it together to make sure that you’re presenting it the right way. And then asking the right questions, because what I’ve often seen is the lawyer only wants to follow up on what’s good for him. And I would argue the main purpose for running a narrative, I kind of let the good stuff go in one ear and out the other.
I want to know the bad stuff and why. And so, to me, that takes time. It takes effort. repetition. I think it would be great to participate with other focus group folks like yourself who have been doing it for so long and do your [00:21:00] own, but then sit back and watch and learn from it. And then yeah, the narratives will become more natural, will become easier in that sense.
But I would say the ease of it is more of a logistical ease because it does take time to learn not only how to craft the narrative presentation, but the questions to ask, how to ask. How to spread the discussion around, how to pit folks against each other, really challenged their opinions. And then as you well know, the interpretation coming out of that is not an easy skill to learn.
Elizabeth Larrick: Totally true. I think time consuming for sure. The narrative is much shorter and in actual doing time, but. I think, and I was talking with another lawyer who’s doing DIY focus groups that one of the skills that you learn with focus groups that you don’t even think about is, You learn to hear the negative stuff and it just rolls off your back.
And it’s like, okay, cool. And tell me more about that. Like, there’s no [00:22:00] reaction. And I think it’s a huge skill that we need as trial lawyers because we’re definitely always going to hear bad stuff. And that raises your hackles every time. You lose so much energy with that with defense lawyers and jurors.
And so, I love that skill that we learned doing focus groups narrative, even the little other ones is that you’re going to hear the bad stuff. And like you said, it’s like, you go after that. Tell me a little more about that. And
Andrew Gould: you welcome it. And I’ll say this funny story ran a focus group yesterday, actually, and I forget.
What the question was or whatever. I just know that I wanted, like a couple of people had spoken about it, but I was like, that’s not exhausted. Like I know other people have opinions about this. And so I sat there, I forget what Don said his record is for sitting there in silence, right? I don’t know what he said, but I sat there for probably a solid 30 to four.
I started to get uncomfortable about how silent it was, but I was determined. I was like, I know there’s more to be said about this. And then sure enough, right as I was about to be like, all right, it’s been like 30, 45 seconds. Nobody’s, this is getting awkward. We’re all staring at each [00:23:00] other. Finally, somebody popped.
Right. And then she goes on and then I don’t even have to ask anything else. It just spreads like wildfire. But it was just kind of a reaffirming of that tool that Don teaches about just shut up, shut up and listen. And if you’re willing to just shut up and listen. And use that silence to your advantage, and you get the information that you need because they want to tell you it’s just their folks who are like, eager to tell you, and then there are folks who are like, I don’t want to, but they’re kind of the kernel that sooner or later going to pop, they just.
But sooner or later, they feel that pressure and whatever pressure we feel to fill in the gap. It’s like 10 times that for them.
Elizabeth Larrick: And
Andrew Gould: so anyhow, yeah, the skill of just sitting back and listening is a skill that you develop that then becomes so, so useful in things like jury selection or even direct or cross examination.
It’s just so helpful.
Elizabeth Larrick: Learn to like, to make people pop, you learn, like, you don’t even need a real good [00:24:00] question. Sometimes I’ll go back and I’ll listen to my folks groups. And I’m like, that’s not even a comprehensible question. There’s no question there. I just say people’s names. And they’re just like, because again, there’s something else there.
Cause you can, you get that second sense of like,
Andrew Gould: but narratives are great for that.
Elizabeth Larrick: Oh yeah. Yeah. I would argue
Andrew Gould: narratives are obviously going to be better than adversarials for learning that tool. When we’re talking about differences between the two. Gosh. They’re both beneficial for different reasons. I would argue that if you were only able for whatever reason, financial or otherwise, if you’re only able to run a single focus group, run a narrative, because you’re going to get far more information that you need than just straight running an adversarial.
And what I mean by that is you’re going to learn all the good, bad, and the ugly. If you run an adversarial and. Whichever way it goes, it’s going to be difficult to interpret why. And we can talk about the ways to do an adversarial, or at least the way that I do adversarial, but it’s still going to be [00:25:00] difficult to, is this, they’re going to point to this evidence or that evidence, but is it so much that, or was it a lack of this?
Was it, was it a disconnect? Could I have filled that disconnect? Do I have the evidence to fill that disconnect? But with discovery come and gone, most likely that could then be like, Oh, I don’t, I may not be able to overcome that at that point. And so maybe settlement is in the near future, but versus a narrative, which if you do that early enough, particularly during discovery, it helps to guide your discovery.
Cause all right, I know what facts help me, but more importantly, I know the facts I need to go get to fill these gaps. or to address these bad issues that they’ve raised. And that to me is just absolutely critical. And even if it’s after discovery is close, at least, you know, where those holes are and to the extent you have the evidence, you can address it at trial.
So it’s in that way, more useful in my mind than an adversarial, easier [00:26:00] as far as logistics. And more useful. Would I say that useful, more useful? I don’t know. Maybe I’d double.
Elizabeth Larrick: Yeah. Well, I think just to give people a little bit of context, I think most people, when you run adversarial, it’s very structured because you have a lot of information.
You have witnesses and it’s paper votes, paper vote, paper vote, paper vote, paper vote. And yes, sometimes there is a little bit of deliberation or discussion, but you’ve given them so much information that they lose so much of it along the way versus narrative. It’s a very compact amount of information and then a free flow of conversation.
And it’s like, Oh, because there’s a lot less, they digest and they kind of go into it more and it’s, Oh, what do you think about this? And I think sometimes this is where one of the hangups that people get is like, you don’t add more information narrative. You create that nice little compact. Everything that you want in there and you don’t have information because you got nothing there to get.
What are you missing? What are the blind spots? What are those assumptions? And you just [00:27:00] don’t get that adversarial because of the structure and the amount of information that you go through.
Andrew Gould: And the other beautiful thing about a narrative that maybe you can’t do as much in an adversarial is, all right, somebody is poo pooing on your case.
Okay, you’re learning the why, all right, what facts, what lack of facts, this, that, and the other, but then you also get to learn about the person. Yeah, you got these demographics, age, political affiliation, marital status, education, job, and that’s all well and good, but you really start to dive into who they are, where they grew up, what personal experiences, how do they relate to this story, what personal experiences do they have that kind of are triggered by this case, And you can kind of really dive into that and you’re not really picking on them because you can then turn that as anybody else have said when you were listening to this have similar or their own memories that kind of popped up.
And that helps you to me that helps you tremendously in [00:28:00] preparing for jury selection.
Elizabeth Larrick: Pause here and put a little pin in what you just said and repeat it. Because one of the biggest struggles that we have as lawyers, and we do this in jury selection, and we do this in focus groups, and it makes me cringe is instead of asking like what Andrew just did, which is you were listening to that, did you have something pop up for you?
A similar memory, beautiful question versus. Who agrees who disagrees with what just because people automatically do not want to be,
Andrew Gould: they don’t want to be confrontational.
Elizabeth Larrick: Yeah, totally don’t be confrontational. But like, if you just take one second and be just a little more creative with your question.
And that’s such a heartfelt question. You’re asking people about their memories, like,
Andrew Gould: oh, and they want to tell you so bad. And that’s one of the questions that in recent times, I’ve kind of mixed up. What’s the first question you come out of the gate with, right? And I’ve done kind of the traditional, if you sum the case up in one word, the bumper sticker, [00:29:00] what’s this case about?
But I, I’ve kind of enjoyed asking, are you listening to this case? Or if there was things that they watched and listened to, whatever, you saw this stuff. Um, what memories did this bring out, if any? What did it take you back to a moment? And then listen, just sit back and listen to people. And it could be a moment that happened two weeks ago.
It could be a moment that stuff you, it’s like, have you got to be prepared for like, yeah, my parents, when I was six years old, got hit by a tractor trailer and die, it’s like, and you gotta be prepared to handle that. Like, it’s not just, oh, thank you for sharing. Now let’s go on to the next word. Like, like I’ve seen before, like it really does open up.
And if it helps to all right now we know what some of these experiences are and you don’t necessarily have to get to everybody because what you’ll see oftentimes is somebody sharing this personal story and you see people kind of nodding along. And it’s like, all right, well, I can reasonably [00:30:00] assume it’s always can’t be definitive, but I can reasonably assume that they’re, they have a similar experience, or at least they agree with the sentiment of that experience.
And so that then, all right, I’ve got that information. Now I’m going to get into my more traditional questions, and I’m going to see to what extent those experiences. Fact, if at all, and maybe they do, maybe they don’t, but do these experiences track and we’ve got this experience over here. We got this experience.
They may be completely polar opposites. So, do the opinions become polar opposites? And if not, okay, that’s a whole nother interpretation. We got to figure out why not. But if they do, all right, well, I’ve got something here. Potentially, let’s keep running these focus groups at the case value justifies it.
And let’s keep this in mind about these experiences. And if so, if this continues to track, then I need to find a way to incorporate this into my jury selection. It’s so narrative focus groups are just a wealth of information. But when we talk about ease, [00:31:00] that ain’t easy. That takes time. That takes sitting down and thinking about it.
It’s like anything else. It just takes repetition, repetition, repetition. The more you do it, the better you’re going to get and to do it with folks as often as you can collaborate with folks who have done it like yourself. And not only are you splitting the costs right and help reducing your costs, but you’re having the opportunity to shorten that learning curve because you’re seeing folks.
who have been doing this a long time go at it and you’re like, okay, now I’m starting to understand. And if, if you’re willing to give that time sitting after the focus, you’re sitting, sitting with them afterwards, let them ask questions. Why did you do this? Why did you do that? It just helps to expedite that learning curve.
You really do learn how valuable those narratives is. I really do think we say it all the time, but how much of that really resonates is what I’ve always questioned. And it’s not until you start to get into the weeds and the nuts and bolts like we’ve been talking about now where you’re like, Oh yeah, I can see how this not only it helps with discovery, it [00:32:00] helps with my jury selection.
It can help with an opening statement. It can help with this cross examination. It just has so many branches that come off of it. It’s so incredibly helpful.
Elizabeth Larrick: Oh, but direct exam, because generally you’re always going to learn what your client did wrong or what. That’s
Andrew Gould: right. Witness prep.
Elizabeth Larrick: Mm hmm. Yeah,
Andrew Gould: it really touches on just about every aspect of litigation and trial.
It is one of the most, if not the most important folks groups you can run,
Elizabeth Larrick: which is why you start with the first. And that’s like the not what I love sometimes in rerunning a narrative is. Running it right out the gate with just kind of bare bones, bare minimum, you’ve not, sometimes I don’t, you don’t even file the case yet.
Andrew Gould: That’s right. You don’t have the information.
Elizabeth Larrick: And then you get a little bit further down the road and then you run it again and it’s like, okay. Obviously have more information factored up too much, but you’re still going to get so many gems out of that. And it’s again, we’re not talking about [00:33:00] adversarial can be a very long, I’ve seen them be six hours.
Andrew Gould: Oh, we, I did one with Kevin Smith in the case I just talked about when we went and tried that case. I think we started at 8 a. m. and we didn’t get out of there until 8 or 9 o’clock. It was a 12, 13 hour day. It was great, but there were a lot of witnesses, experts, and things like that you had to get through.
And it was incredibly insightful, but we had all the other focus groups behind it that led into it. And so what we were basically doing was incorporating all that and seeing where do we stand now on the eve of trial. But yeah, they’re, they’re. They are, there’s a lot of moving parts. You got to get a lot, like I said, you got to get the experts in.
I like to get any of those damage witnesses in live, those before and after witnesses, your client in there live. It really is. Like I said, there’s a lot of moving parts. You got to start planning those things out well in advance So yeah, the information that I get out of that is more of [00:34:00] i’m looking for a confirmation of information that i’ve already gotten
Elizabeth Larrick: That’s right.
Yeah, you’re doing those right on the doorstep of we’re ready to rumble We’re not gonna mediate anymore or if you do it’ll be the courthouse, you know, you’re ready to commit and so
Andrew Gould: It gives you an opportunity to tweak. That’s really kind of what it is. You’re running it in It’s confirming the information that you have you’re confident about that information You And now it’s like, all right, let’s kind of figure out where we stand.
Hey, where can I tweak it? Because I’m up there and I’m feeling it. I’m like, okay, I should have asked it this way, blah, blah, blah. But then also from what the mock jurors are going to tell you too, about what pieces of evidence really stood out is it should be affirming what you already know. You’ve done the top three things multiple, multiple times.
What are the top three things that stood out to you for any reason? You expect that evidence to be in their top three, but sometimes you’ll find that one or two of those are different and you kind of, all right, there’s a tweak. There’s a little bit of a tweak of what do we want to echo.
Elizabeth Larrick: Right. And I will say from a functional [00:35:00] standpoint of why adversarials don’t get done very often is because we get caught in that last minute mediation, last minute settlement, where they’re pulling us away.
From trial preparation from with all that time. And this is one of the things, biggest thing that I learned when I was with the kingdom law firm was there’s one person designated for that. Everybody else has been trial prep mode and we’re doing this adversarial. And because we’ve got to march forward and get ready for this trial and not get caught up in, Oh, well, it could settle.
Oh, well, it could do this. Oh, well, it could do that. And one person was designated as that point person. And then everybody else was. Head down focus, doing our thing, doing the last minute focus groups, whatever it may be. Um, but yeah, I think that really holds up people from doing an adversarial because you get kind of caught up in, Oh, well, it’s going to settle or, or it’ll continue.
It’ll be continuance. And I’m like, [00:36:00] but don’t you want to get that work done right now? You’ve had this huge buildup. Everything is fresh. Do it now. And then you’ll have that information for when the trial does come back around. But
Andrew Gould: yeah, and I’ve also heard and look, every case is different. And so I’m sympathetic to this.
I think oftentimes it’s Too often dismissed because folks say you run as many focus groups as you need to be successful. Well, the value of the case has to justify number one, but assuming the value of the case justifies it. One of the things that I’ve heard as well, why spend the money on adversarial?
If it’s going to potentially settle that to me, I think is. You might want to think twice about that. Number one, obviously there’s no guarantee of a settlement. Number two, that’s primarily it. There’s no guarantee of a settlement. And the way that Don liked to do it, if at all possible, and we weren’t able to do it every time, but, is mediate the case as close to trial as you can.
To maximize the pressure on the insurance company. And so what other option do you [00:37:00] have if you’re mediating the week before, or even two weeks before you need to be getting that adversarial in and kind of in the can so that if there are any tweaks, you can make those tweaks. You can make them with your experts.
You can make it with yourself. You can make it with what evidence you’re going to echo, whatever it is, your closing argument, whatever it is, you need time. And if you’re waiting until the Saturday before the Monday, good luck. You might be able to pull it off or you get it done ahead of time. And if the case settles, so what?
But the cost of it, a lot of people are like, why spend the money? I mean, that to me is a pitfall that I’ve seen folks fall into. And then the case doesn’t settle. And was it really worth saving 1500 bucks? I don’t know, is it, is the stress and the trying to, the logistical nightmare that you’re now in trying to pull this all together last minute.
Was it worth trying to save it? A funny little kind of analogy, I built a fence in our backyard, those tiny little backyard that we have, but I wanted to be able to throw my kids out and not have to worry about them getting run over by a car. Just like get out
Elizabeth Larrick: of [00:38:00] the house,
Andrew Gould: lock the door, but y’all go do your thing.
Elizabeth Larrick: You’re very cute. So we want to keep them.
Andrew Gould: No, I will. Thank you. And so, me being cheap. I put a door on one side of the fence, but I was, it was like going to be a hundred bucks or something, put the door on the other side. And I’m like, I’m not gonna spend a hundred bucks. I already got a door. And that side of the fence is the side of the fence that we’re always coming to.
And so now it’s like, you have to walk all the way around the house. Because Andrew wanted to be cheap, right? And so, I expected at the time, well, we’re always going to come to this side of the fence, and therefore this door, we don’t really need another door. Well, I was wrong, right? And so, kind of similarly, we may be expecting the case to settle, and maybe it does, but banking on that in an attempt to save money, I think is a, in a case that justifies And it has the value to justify, I think is a very dangerous game to play.[00:39:00]
Elizabeth Larrick: And I think conversely, let’s say you even spend 5, 000 bucks, 6, 000 bucks on adversarial. The value of your case, hopefully, from running that adversarial is going to be 10x, 100x. Because, trust me, a 5, 000 mistake on a 1, 000, 000 case, No big deal. But what if that 5, 000 could save your million dollar case because of a tweak?
And that’s kind of where every time I run it, I’ve never run a focus group with anybody where they said, well, that was just worthless. We didn’t learn anything. No, every time somebody says, gosh, I learned something new about the case. And if
Andrew Gould: somebody does say that they’re wrong. That’s right. You weren’t paying attention.
Elizabeth Larrick: That’s right. That’s right. Yeah. Yeah. You’re on another plane in here and then I don’t expect you’re coming to do another focus group again.
Andrew Gould: Well, and here’s the thing, the difference between adversarial and narrative, the narrative illustrates the level of work that you’ve put into the case. Right. And so you can use that at mediation to show the level of work, but [00:40:00] also what you’re wanting to show at mediation is that you’re ready to go, man.
If the mediation fails today and we start trial tomorrow, I’m ready to go. What better way than an adversarial. And I’m not saying you have to obviously say that at the mediation, every mediation is different. How you, what bullets you want to fire. But if you have that in the can, then you’re going to know one of the benefits of the adversarial is you’re going to know your case inside now, because you have to.
Right? So you’re going to go through the file, you’re going to know that case inside and out, and that can’t help but bleed into the mediation where you know and have great command over the facts of that case, the issues of the case. And so even if you don’t know, tell them about running that adversarial, show them clips from the adversarial, that adversarial is still going to bleed into that mediation.
And it’s going to, whether the insurance company wants to heat it or not is a different story, but they’re at least going to see that you’re ready to go.
Elizabeth Larrick: Yeah. And that [00:41:00] confidence you have.
Andrew Gould: Confidence.
Elizabeth Larrick: It really
Andrew Gould: comes from the adversarial. So again, if the case value justifies it, yet another reason that it can bring that value to your point.
Yeah, you may spend five, six grand or whatever it might cost, but the value that that can bring, if you do have that kind of last minute mediation, the value that that can bring through the confidence and command of the case should not be undervalued or overlooked.
Elizabeth Larrick: Yeah, absolutely. And like we said, not every case needs.
And adversarial. But I think every case that you’re going to litigate needs a narrative.
Andrew Gould: A hundred percent, whether that’s a 15, 25, 000 case or a 15, 25 million case, it doesn’t change. And again, the way we do focus groups is it could be from, I mean, I think yesterday was one to four, so three hours, and we split that three hours between two cases, and so I don’t know, two grand it may have cost or 1, 600 bucks it may have cost or [00:42:00] whatever it was now gets divided.
And then at other times, we’ll split it up three different ways if you can get three cases in and so it just keeps chipping away at the cost of the focus group that yeah, you’re spending 800 bucks or something on a narrative focus group that it’s the 800 bucks and the information that you’re going to get is going to add significantly more than 800 bucks to the value of the case.
So, yeah, I agree with you. A narrative, at least run a narrative, and you don’t have to do it alone.
Elizabeth Larrick: Right, and people are just starting out. I know that Andrew’s not a huge fan of virtual, but I love virtual. And I still do them both, but yeah, gosh, virtual makes it, like, there’s a lot of ease. That takes away a lot of the heartburn of finding a space and getting parking.
Like some of these things that are heartburn for you, that are heartburn for participants, like turning on the zoom, finding people for zoom is really, it’s not difficult. I think that’s going to
Andrew Gould: save costs too. Right. We’re going to [00:43:00] provide them with lunch and other, and, and having to rent out a space and stuff.
You’re inevitably going to save costs. And if you’re dividing that two or three ways, again, I would argue That there’s little to no justification for not doing it. If you choose to do it by zoom, but you’re right. You hit the nail on the head. I’ve done a few of them, but yeah, but anyhow, that’s a discussion for another day.
Elizabeth Larrick: It is true. And it’s just something that you just like, it’s just a comfort level of anything else it’s learning it. And it’s getting comfortable with it and depends on how you want to do it. But I know a lot of people who are. I always say, well, Hey, just start with a virtual interest. When I started out, we did one for two hours.
I think I had three people show up and we had a good time because I was like, we’re just trying this out. We may, I may mess it up. And it was totally, it was like, okay, cool. We learned the wrong ways, the right ways and get boogie along for sure. All right. So narrative. Adversarial, have we missed anything in our discussion here?
We talked [00:44:00] about when to do them, obviously how to do them.
Andrew Gould: Well, I don’t know to what extent we’ve really, we’ve really, though, and I don’t know if you want to dive into the how with adversarials. I think we’ve done a pretty deep dive into the how of narratives. We’ve touched on adversarials about bringing witnesses in.
And you talked about a lot of the written kind of responses throughout it all. But I don’t know to what extent you want to dive in. When do we do those written responses and who in whose role is what you want?
Elizabeth Larrick: We certainly can. I, we could probably do a whole other podcast on running adversarial because it’s, again, to me, like when people are like, that’s what I want to do.
I’m like, let’s talk about that because we have to have a lot of coordination. And are you ready? They’re going to take some preparation time, but adversarial, are you ready to run an opening? Are you ready to do like, people are like, Oh, I haven’t written my opening. I’m like, okay, well, PS, by the way, you’re about to launch into this time consuming, [00:45:00] costly adversarial.
You’re not allowed to wing the opening. Okay, like let’s write it because you were really frustrated when you try to wean that opening in there and you forgot something. And then that skews the whole thing for you.
Andrew Gould: And have you drafted your direct and cross examinations? Have you gotten all of your exhibits?
Have you taken all the depositions of the necessary defendant? Whether it’s experts or witnesses that you can play, obviously you’re not going to get them to show up in person, but do you have those videos cut and ready to play as you would play them at trial if that’s the route you wanted to go? And yeah, there’s a lot of that.
And I would argue again, if the case value justifies it, have you focus group your opening statement? And how many times have you focus group that opening statement to get it refined to the point where you’re ready to do an adversary? You make good points on that. How ready are you really to walk in and do it the right way?
Yeah.
Elizabeth Larrick: Right. And that coordination, like you said, the logistics of even if you bring it up live or even if you’re going to zoom pre record them and then cut them and make [00:46:00] like cutting those clips and cutting deposition that like, that takes time. You can obviously offload that to somebody else, but that’s an extra expense unless you have somebody in house and then thinking about the flow and how that’s not a thing I always talk to people about, Hey, here’s what I want to do.
I’m like, okay, well. You need to think here’s the two hours, we got to take a break. We got to do this. We got to have discussion time. So really your material, your content time is really short. And that’s kind of what happens adversarial is you got to have that timed down, like An oil machine and have your fake judge and have your everybody come in and play other parts and yeah,
Andrew Gould: it’s like in bringing in experts ain’t gonna be cheap, but in today’s world, and I think we did this with Kevin before, obviously before COVID and all this zoom stuff and it’s far more comfortable now, but you can now have experts zoom in.
Right? And, and you’re going to save those travel costs and whatnot. It’s still not going to be cheap, but it’s probably going to be the biggest expense of an [00:47:00] adversarial, most likely, that or, or depending on how much you pay your focus group participants. But that’s the kind of logistical nightmare is, all right, how am I going to get, because I want them there live.
I want them there so that the jury can size them up, get a feel for them in the room. I’m already having to play video clips of defense, this, that, and the other. So I feel like that’s already. But I don’t want to have to eat that on my end with my witnesses. So I want them to feel my client. I want them to feel the BNA witnesses, before and after witnesses.
I want them to get a feel, like an emotional feel, not just listening to what they have to say, but I want to know how they connect or don’t connect with my experts. And that’s why you’re passing out the questionnaire. I pass them out probably multiple times during the opening, during the defense opening, which again, you got to draft a defense open, right?
That’s a whole nother thing and really be honest with yourself and really put forward your best foot of drafting a really strong defense. And that’s going to be based off a narrative focus groups, right? You’re going to know [00:48:00] where the pitfalls are, where the perceived pitfalls are, where your weaknesses are, and then you draft your defense closing to try to hammer those home and their cross examination, hammer those home and then cutting.
If there are kind of positive things for them out of the defense expert depositions, even though they may not have asked questions, perhaps the defense expert provides their opinions and basis for it. You’ve got to be willing to play those in their case, right? When it’s their turn to present. evidence for them.
So there is a lot of that in the questionnaires are going basically after each witness, each direct, each cross. So there’s a lot of that going on that you need to get in, get out. You need to know what questions need to be on that questionnaire. They’re very short. You can’t be having them writing for 15, 20 minutes after each one.
It’s just got to be boom, boom, boom, boom, boom, pass it over. I don’t have time to look at it in the moment. And so there is a lot of that going on during an adversarial and you’re right, it’s gotta be a well oiled machine. Even in that case with Kevin Smith that went [00:49:00] 12, 13 hours, that was still, we were moving like that.
It was just so many witnesses we had to get through. But again, the other thing I’ll say about it, I don’t know if we’re running out of time or not, but the other thing I’ll say about it is, And I think this probably goes without saying, I think it’s common knowledge, but you need to have, if Don and I are trying to case together, Don’s the defense lawyer and I’m the plaintiff lawyer.
So it is who that you got to put that in perspective. And I’m not trying to say strongest, weakest, I hate to put it that way, but who’s that lead lawyer, that lead lawyer is going to be the defense lawyer. And that’s really going to test the strength of your case.
Elizabeth Larrick: Well, right. And I think it’s because you’re going to go up against a defense lawyer who’s tried a lot of cases.
And so you need somebody in there who it’s going to be a realistic play.
Andrew Gould: More realistic, or it gives you, or, and this is like worst case scenario. This is that guy in Seattle. So you’re going up against Don. And so, yeah, it gives you a really good picture. [00:50:00] Or how many defense lawyers are going to be that Don Keenan type?
Well, how many defense lawyers are going to be that guy in Seattle? So this is like as good as it gets. And I’m not trying to be disparaging of the other side or any other lawyer. It’s just, if that’s the quality you’re going up against. What’s the likelihood that that’s the quality you’re going to be up against at trial?
So, you know, this is the worst case scenario that’s really going to sharpen you walking into that trial because it’s more likely than not, you’re not going to be facing that same experience on the other side. And even if you do, you’re ready for it, right? So
Elizabeth Larrick: Okay. We’ve talked about both. We’ve talked a little bit about, about interpretation.
What, I know a lot of the folks listening in either are thinking about running their focus groups, or maybe they dabble in focus groups one or two. What advice would you give folks who are maybe on the fence, or maybe they’ve done one or two in like the biggest cases that they’ve ever had? What advice would you [00:51:00] give?
Andrew Gould: About what?
Elizabeth Larrick: About running focus groups, and the value, and what people are like. People who are sitting
Andrew Gould: on the fence. Yeah. Sorry. I’m okay. Look, everybody’s got to make their own choice. Everybody’s different. I’m a firm believer. There’s no one way of doing anything in this profession with that said, I’m going to contradict myself.
I do believe that in today’s world with the access that we have to folks groups like you’ve described virtual with the ability to coordinate with other lawyers. to reduce those costs significantly. When I spoke at seminars back in the day, and that was back back in the day, I was saying it then, and I believe even more so now that if we’re not at least running a narrative on our cases that are in litigation, right, that we are going to trial or we are pushing to drop if we’re not at least doing a narrative focus group.
Man, that’s borderline malpractice for a trial lawyer. It’s just to go [00:52:00] in with the hubris that I know what a jury is going to care about, that I know what the best facts of my case are, that I know what the weaknesses in my case are, I think is, given what we know today, is beyond playing with fire. And look, and I’ll give a great example.
The Boston trial that Don talks about a lot. Here’s Don Keenan, practicing law, Longer than I’ve been alive, right? Probably double the years I’ve been alive. And the defense lawyer on the other side, similar. And the jury had deliberated for a day and a half or two days, two and a half days, whatever it was.
And they come out and there’s all these settlement negotiations going on while they’re deliberating. And the jury comes out with a question, and the question had to do with liability. And so here is everybody with all this wealth of experience, with this success, this almost unmatched level of success that are sitting there being like, God, man, they’re at liability.
They haven’t even gotten to [00:53:00] damages, right? We’ve been here two days or whatever, and they haven’t even gotten to damages. And then within five minutes of that question being answered. The bailiff knocks on the door and says, the jury’s reached a verdict. And so we’re all like, oh, snap. And the defense lawyer, I’ll reserve what I think about it, but he comes in and waving his arms in the courtroom before the jury is called back in, waving his arms, saying all settlement talks are off the table, all settlement talks.
And we’re all just like, Don’s like, whatever, man. But we’re all thinking the same thing, right? The jury’s coming back with a defense verdict. And so, then they come in, and sure enough, it’s the 6. 6 million dollar judgment. But like, here is a guy who has been doing it forever, and we’re all thinking the same thing, and the jury does, and it reaffirmed the 20 something focus groups that we had run, right?
And in some of the conversations with the jurors afterwards, it reaffirmed these were the key facts, these were the key witnesses and what they had to [00:54:00] say. But it’s still illustrated to me that no matter how long we do this, no matter what success we have, believing that we know is a dangerous game to play and, and for a lot of us, like me, we want to control all this, right?
Part of why I love what I do is at the end of the day, I get to hand the baby over. And now it’s theirs. And to me, it’s just, there’s nothing, God, there’s nothing more satisfying. Even in the cases that I lose, there’s just nothing more, God, here I’m going to go, we’re July 7th, just coming off the heels of July 4th, but there’s nothing more American to me, short of military service, where I can hand that over and let a community decide what’s best for the community.
And so, In the same vein of we thought we knew what that jury was going to do, right? And bam, they do what the focus groups had suggested they were going to do. It’s the same thing with not running a focus group and believing that we know [00:55:00] what a jury is going to care about or not care about or what the strengths and weaknesses are in our case.
And so it’s that same kind of We want to control everything. And part of that wanting to control everything is, oh, I know better. And I don’t see that there’s a little bit of hubris there, but it’s more to me of a control thing. When in reality, you got to let go of that, hand the baby over and enjoy that process.
Soak it up, embrace it. Because that’s the only way that you’re going to really learn the ins and outs, nuts and bolts of your case. That are really for the benefit of your client. It’s going to increase the value, but it really, at the end of the day, it’s what we’re all striving to do, or I hope we’re all striving to do, which is to take care of our client the best way that we can.
And that to me is a critical piece of that. That’s a long answer to your question.
Elizabeth Larrick: I don’t think I could have said it better. It’s a dangerous game and relying on your own experience is dangerous. Relying on your calling up your colleague or putting a post on the listserv and [00:56:00] just relying on other people’s experience is dangerous.
I’ll
Andrew Gould: say this. It’s not t of it. Clearly you’re goi experience. Clearly me re saying, hey Elizabeth, I I ran this focus group. I perceive that there’s this issue. I know that we’ve had these cases or you’ve run these cases before. You have more experience than I do in these cases. I want to hear what you have to say, but relying solely on what you have to say is the dangerous game.
All right. I’m going to take what Elizabeth said. Okay. That’s extremely helpful for me. Now let’s go run a focus group. All right. And I may run a focus group with an eye toward, all right, know what Elizabeth said. Now I’m looking to see if that crops its head up anywhere in this case. And if not, I need to understand why, because it’s not that Elizabeth’s wrong, but it’s something about my case.
That’s not steering it in that direction. And I need to know why it’s either not steering it in the direction of the pitfall. Okay. I’ve got a blind spot here. I know it exists. And I just got to figure out why it’s not rearing its ugly head because man, that’s the [00:57:00] snake in the grass or it’s this positive thing.
And it’s like, all right, what is it about my case? That’s not eliciting
Elizabeth Larrick: that.
Andrew Gould: So it’s not to say that you don’t reach out to folks, obviously, right? It’s just, you’re right. Don’t rely solely on that because you do so at your own peril. And I don’t care if you perceive yourself to be way up here or you perceive yourself to be way down here or somewhere in the middle.
It is a dangerous game. Just like I said, I know it’s like, we’re talking two different things, but the analogy of here’s all these great lawyers believing that we knew what the jury was going to do. No. And so believing that we know what a focus group is going to say, or what a jury is going to say is just.
It’s dangerous.
Elizabeth Larrick: Yeah,
Andrew Gould: I understand why we want to do it. I understand it. I am sympathetic to it, man. I want to control everything, too. I want to sit there and say, and maybe it’s arrogance. I shouldn’t say maybe. It probably is. It is, I know better. But over the years of doing these focus groups, that hubris has been all but shattered.
Because it’s just, I don’t know, [00:58:00] right? And I’ll go in and it’ll be like almost the exact same case, or I’ll perceive it as. I’ve done this case before. I’m going to run in and I kind of, I have a general idea of what they’re going to say and I have a general idea of what their top three facts are going to be.
And then damn, I’m dead wrong. And I’m like, wait a second, what’s different about this? Suddenly now these are your top three facts. We got to dive into this. And then I’ll challenge them with devil’s advocate. What do you say to the person who says, and now I’m drawing back on my experience. What about these three things?
Oh, or they’ll say, oh, that’s right. That’s right. Yeah. Yeah. That’s important, but it’s not really because they didn’t say it first. Right. That’s part of the interpretation aspect of it. Oh, that’s right. I forgot about that. Well, they forgot about it because they didn’t give a damn about it. So I’m injecting it in.
And I think one of the common mistakes is, oh, they do care about it because they said it’s important. Now, sometimes they’ll latch onto it and they’ll really be, Oh, and then you got to really listen for it. And does it spread like wildfire? But if it’s just like that classic, [00:59:00] Oh, that’s right. Yeah, that was important.
No, it wasn’t. And so again, we’re playing with fire when we say, well, I’ve handled a case like this, or this is almost identical to that case. So I know what a jury is going to do. No, you don’t. And that’s just, I’m not trying to be rude. It’s just, no, you don’t. And even the Don Kenans of the world, look, the Lord knows he’s handled very similar cases over hundreds of them, whether it’s medical malpractice, product liability, trucking, car wreck, whatever it is.
And they have very similar facts. And we still ran focus groups because we knew ultimately there was going to be something different about it. Something different that’s going to drive the emotion in that case. And if you’re on the fence about it, I would say get focus groups help you get past that.
control issue. If you have, I’m not saying you got, but if you’re like me and kind of have that, I got to have control. Therefore, I know everything. It helps to really, it’s almost like therapy. You get past that and it makes you a better lawyer and it [01:00:00] really benefits your client.
Elizabeth Larrick: Absolutely. Again, couldn’t have said it better here.
Andrew, you have been amazing and wonderful. I appreciate you joining the podcast. Talk about, well, rehash some wonderful memories.
Andrew Gould: I love you. This has been wonderful. You are an amazing person. I am honored to be on here. 89 episodes. That is fan stinking tastic Elizabeth. I’m proud of you. I hope you’re proud of yourself.
I’ve listened to these podcasts. I know how helpful they can be. If folks will just listen to them, you give incredible information. Your guests give incredible information. I think the questions that you ask really dive deep into the issues. So I can’t thank you enough for having the opportunity to come on here.
And I can’t thank you enough and feel how blessed I am to know you and be a friend of yours. So thank you for asking me to come on. This is a really good thing that you’re doing here.
Elizabeth Larrick: Well, I appreciate, I think today loaded with lots of amazing nuggets and just so much helpful information and your experience.
And [01:01:00] I, again, there have been many moments I can think of where I’m just like, thank goodness, Andrew was there.
Andrew Gould: So we could share, we got to share in the pain together a lot of times. That’s
Elizabeth Larrick: true. Lots of good things, but definitely sometimes
Andrew Gould: there were far more good than bad, but I agree, it was good to have each other to get through both of those things.
We had so many others, right? We had so many great relationships with the referring attorneys, and they also saw us go through the similar pain, and we forced them to go through similar pains, right? And I wouldn’t say I enjoyed watching them go through it, but there’s
Elizabeth Larrick: a little bit of it. It was nice not to be in the hot seat.
That’s
Andrew Gould: right. It was kind of nice. It’s like a group therapy. I’m not the only one.
Elizabeth Larrick: Absolutely. Well, again, thank you so much for doing the podcast and I hope everybody was listening in replay some of those nuggets that Andrew was talking about. If you enjoyed the podcast, please rate and review it on your favorite podcast platform.
[01:02:00] Follow it on your Apple iOS devices to get the free downloads of the downloads every week. But until next time, thank you so much.