Guest Courtney Wilson on Adversarial Focus Groups
If you haven’t ever tried running an adversarial focus group, or any focus group for that matter, then you better start considering doing it to get the most out of deposition or trial.
We’ve pretty much covered a lot of topics on focus groups in our previous episodes. Today, we specifically delve into Adversarial Focus Groups. They are similar to mock trials. The difference is that an adversarial focus group requires continual constant voting. That way, you have the ability to watch the needle move in between different pieces of evidence and in different witnesses.
An adversarial focus group is probably the most in-depth thing that you could possibly do to get feedback. You’re giving the participants the best of everything – from the plaintiff and defense, to everything you need to fine tune your case.
Joining us today is Courtney Wilson who runs a practice on the Gulf Coast in Mississippi, doing plaintiff’s personal injury lawsuits exclusively. In the last couple of years, their practice has narrowed down to doing mostly medical malpractice and products liability. Courtney works extremely hard with motions and briefing. She first came across focus groups back in 2016, and seeing the benefits of running them, she has been doing it since.
In this episode, you will hear:
- Adversarial focus groups vs. mock trials
- What you get out of an adversarial focus group
- How to mesh all the information together
- An example of running a focus group and taking the case through trial
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Supporting Resources:
Courtney Wilson
Tynes Law Firm
Pascagoula, Mississippi
Episode Credits:
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me, Elizabeth Larrick, your host.
This is a podcast dedicated to trial lawyers who are wanting to get better at their craft tips. How to strategies for improving your cases and your client relationships [00:01:00] today. And for this episode, I am very excited to have my very good friend, Courtney Wilson, join us as a guest. Courtney practices out of Mississippi.
So Courtney, for those folks in our audience that don’t know you, tell us a little about yourself.
Courtney Wilson: Yeah. So I practice on the Gulf Coast in Mississippi, and we do plaintiffs, personal injury lawsuits exclusively. Our practice has narrowed in the last couple of years. We do mostly Med Mal and products liability now.
So that’s very low stress, as you might imagine.
Elizabeth Larrick: Of course, of course, no worries with caps or export ports or anything like that over in Mississippi. I’m sure you guys got a clean slate over there, right?
Courtney Wilson: No, actually, we have caps on just about everything. And we have this wonderful products liability act that is a monstrosity to grapple with.
So no common law claims for products.
Elizabeth Larrick: Gotcha. Well, no worries. Just so that everyone is risk assured. Courtney has a very [00:02:00] big brain in her head. She is one of the smartest people that I know and works extremely hard with motions and briefings. So if you have questions, like I launched them at Courtney and she always helps me with them.
So we are super happy to have you on the podcast because we are going to talk about adversarial focus groups, a new topic for the podcast, but first let’s just do a little groundwork. Tell me, when did you, in your kind of lawyer career, start doing focus groups?
Courtney Wilson: So actually I had never heard of focus groups until about 2016 when I came to work for the Tynes Law Firm.
And that’s when I was introduced to focus groups. And my boss at the time did focus groups and he was like, you’re going to work here, you’re going to do focus groups. And so I was like, okay, I want a job. So I started doing focus groups almost immediately. And we did them in the conference room in the back here.
And I remember the first time we did one, I was really shocked at how [00:03:00] awkward it feels at one time and totally comfortable in like the other instance, you bring all these random people into your conference room and you give them some food and give them some drinks. And then they spill stuff on the carpet and you ask them, what do you think about this case?
And I remember from like the very first time we did one, I was like, this is genius. We get to tell people actually about a case and then they tell us what they think about it. Like, what could be more valuable information for getting ready to try a case? I suppose I was hooked from the beginning, so that’s when I started using them.
Elizabeth Larrick: Oh, yeah. No, that’s great. As far as, do you guys use them for every case or only do you use significant ones or ones you think are going to go to trial? So ideally,
Courtney Wilson: right, you would do a narrative on every case that comes in and I would tell you, I think that’s sort of aspirational for us. I can’t tell you that we really [00:04:00] do that, but.
Certainly we’re focus grouping anything that we think is headed towards trial. And we try to start that process fairly early on so that we can do narratives and we can test witnesses, particularly like our clients and things like that. And then working on experts and trying to roll through this process of what evidence is really working for us.
And what evidence do people not care about that the lawyer might be hung up on? And what is it that the focus group keeps telling us is the important thing, right? Or specifically not the important thing. So it really helps you shape what target are you moving at with some actual data from focus group members, like what’s important and what’s not important and where do you need to be focusing your efforts?
Elizabeth Larrick: Yeah, absolutely. And I [00:05:00] think for our folks out there, Courtney’s talking about a narrative focus group. Sometimes I’ve called it a snapshot and some people also call it a concept focus group, but it’s just basically where you get folks in a room and you just give them really a very neutral statement.
We’re not, you’re not giving sides of a story. It’s a very neutral presentation of facts in a very simple opening questions. What do you see? What’s going on? Yeah. Absolutely. Absolutely. What’s happening. And that’s important talks about. We would love to do one for every case. And I think that is mostly aspirational for folks, but I know some folks just talked about who liked to do them when it looks like it’s a case that we’re going to have to sink some substantial amount of money into MedMal is a good example of that, like expert reports from the front end or products liability.
So I know some folks who I really want to make sure, hey, before I take this leap of faith, this risk, I’m going to go ahead and jump into one of these narratives just to make sure, Hey, am I looking at the right thing? Is this really going to be a [00:06:00] positive, fruitful case for us? So awesome. Let me ask you really quickly too, because everybody who we’re talking to getting back into the practice of law post pandemic, did you guys do any virtual focus groups?
Courtney Wilson: Oh yeah. Yeah. Awesome. We did a lot of virtual focus groups and I would tell you we’re having a hard time going back to in person now because the process is so easy virtually. So yeah, it’s really very streamlined virtually. Because you don’t have to bring people to the office. You don’t have to feed the people.
You don’t have to print out all the forms to sign. There’s just so much you don’t have to do when you do it virtually because everybody just logs in on Zoom. And we’ve even developed some Google Forms, like, that you can use online. So when you do your virtual focus group, you send a link through the chat.
To the people who are participating and you say, go fill out this form for me. And all that information just [00:07:00] populates in your Google form. So it’s a lot easier in many respects to do them virtually.
Elizabeth Larrick: Absolutely. Well, let me tell you the con is most people are a little hold down and say, well, no, Courtney, I hear you tell me it’s easy, but am I going to get the same feedback?
Courtney Wilson: Oh yeah. So I think one of the really interesting things about virtual focus groups is that people feel so safe in their homes and. The screen in and of itself creates a like measure of protection for the person who’s talking because you’re not really there with other people. I think rather than inhibiting the feedback that you get from the focus group that somehow or another the anonymity of the internet allows them to be more free with what they’re thinking and their responses.
Elizabeth Larrick: Absolutely. Totally agree. And I think the style that we do, meaning Courtney and I do, is very much about moderator remains very [00:08:00] neutral and is gathering information. We’re not pitting people against one another. We’re not saying, Hey, everybody in the room must agree with One person’s point of view, because yeah, then you’ve got pressure and you’ve got people trying to convince each other.
But most of the focus groups that we run are really about, let me get your individual feedback and your thoughts. And I think that’s absolutely true. There’s something about sitting at home and they may be in their PJs and just telling Courtney, oh, I hate that case. I don’t like whatever it may be, which brings us to the complete opposite style of focus group, which is adversarial focus group.
So it’s been a couple of months, but Courtney and I got on the phone and she was telling me about, they had run adversarial focus group and how much fun it was, but how much work it was. And I said, Hey, let’s come on the podcast and let’s talk about adversarial focus groups because they are a lot of work.
But they’re definitely totally worth the extra time and effort putting into them. So Courtney, I’m going to give you the floor. Tell us nobody’s ever done [00:09:00] adversarial focus group. Like what on earth are we talking about?
Courtney Wilson: So an adversarial focus group, I think you can think of it. As an abbreviated mock trial, but where you stop in between the presentation of the opening and the presentation of the witnesses and take score.
So you’re asking your participants to fill out a little form. After each presentation so that you get to keep track of how people are feeling about a certain witness or how do they feel after opening or how is all this information coming together? What’s actually moving needle one way or the other? So I think the trick to the adversarial is brevity.
While you may want to, I don’t know why you really would want to, but you might want to spend an hour with a witness on the stand. You certainly wouldn’t do that in an adversarial [00:10:00] focus group because what you’re trying to do is get the information to your focus group participants so that they can understand it and make a decision.
But they don’t need all the details. What they need are the high points. to deal with. You’re trying to keep your witnesses to around 10 minutes. And you’re trying to keep all of your presentations, including your openings and your closings and everything to about 10 minutes so that the adversarial really kind of moves along at a good clip and really doesn’t give your participants time to get bored.
Elizabeth Larrick: Absolutely. And so the ones that I have done, it was fun because I got to serve as the judge, we’d set the hotel room almost like a little bit like a courtroom, but the focus group folks were sitting like they were in a jury box. And we had plaintiff’s table, defense table. And we tried to do the whole formality of everything, because that’s one of the big differences I feel like between just a regular focus group [00:11:00] versus adversarial or mock trial.
We really want to impress upon them. Like the work they’re doing is really essential and it’s very formal and there’s a judge in here. And so we really tried to make sure it was looked like as formal as possible. But at the same time, like Courtney said, you really have to boogie because it takes A lot of time to get all 12 people or all 10 people to fill out all these forms and pick them up and then move to the next witness and move to the next witness or play that video or do whatever.
So it really is important that they get a flavor, but they’re not getting the whole slice, right? They’re just getting a little taste of everything. So. Is there anything we’re missing? Courtney talked about, Hey, we’re doing openings. We’re doing witnesses. We’re doing closings. I don’t know. And Courtney, you tell me, did you guys conduct any kind of jury selection or you just kind of rolled right into the openings?
Courtney Wilson: I don’t remember doing any more dire or [00:12:00] anything like that. But I say that I feel certain that there was a little bit of a presentation done before the focus group, at least to give them an idea of what they were going to be listening to and break the ice a little bit. I didn’t actually do that part.
So for the most recent adversarial focus group that we did, I was plaintiff’s counsel, which meant I did opening and closing and all the witnesses, but Anything else someone else did? You asked if we were missing anything. I think something important to point out about the adversarial focus group is that it requires you to recruit other attorneys to help you.
So somebody’s got to play defense counsel. Somebody’s got to play plaintiff’s counsel. Somebody has to play the judge. And then you need other people to play your witnesses, right? So whoever is going to be plaintiff’s expert, you got to have an attorney. Or maybe you know a [00:13:00] bunch of actors or something, they could come do this, but you got to have somebody who can fulfill the role.
Somebody’s got to pretend to testify as your expert, and somebody’s got to be the defense expert. And if you have recorded depositions of clients or witnesses, Maybe you could use those, but I think that’s a little challenging because probably all the tight information you want is not structured that way in a deficit.
So you got to have a few friends who are willing to help you out to put this thing on.
Elizabeth Larrick: Absolutely. And that’s definitely when we talked about time and effort, it is recruiting everybody is half the battle, but then as a person, like you then have to go through all the depositions and gleam through all, get that testimony in order for your witnesses.
So they get up there, they can study the material and everything kind of flows very evenly. But yeah, because you can’t really snip it together. The depositions like [00:14:00] there’s going to be transitions that are going to know that they’re missing something and you really don’t want your folks group people thinking, well, that we could have missing something really major here and you’re not giving it to us.
We don’t want to have any mystery. We just want to give them what they need so they can answer those vote questions and move on. What is it? And you said it’s kind of like a mock trial. And I think one of the biggest differences is Is the continual constant voting. And you’re really wanting to have a whole other room of folks that are basically charting out the votes so that you can see as you go along, where are people swaying, what has significantly changed, like after defense opening, like, Oh gosh, we had a bunch of people switch over after each witness, you’re able to kind of see the sway of things.
And then also you can ask them questions, but. What I always caution people when we’re doing things in person and we’re doing adversarial is like, make it a short question. Because you could have somebody write a paragraph and you’re [00:15:00] just waiting for that person to finish writing. And you’re like, we’ve got to move.
So how else would you say it’s a little different than just doing like a straight up mock trial? I think the only thing that as far as what I’ve seen is basically where you would have multiple panels of people. And yeah, I’ve seen mock trials that have basically multiple panels of people that are watching the trial because you don’t stop and vote in a mock one.
You just roll with it. Right. You. You’re rolling through everything they’re absorbing in and then you basically separate everybody out into separate rooms, give them the charge and then have them deliberate and fill a charge out and then you
Courtney Wilson: would just be comparing between different panels. That’s right.
That’s right. But the information doesn’t change.
Elizabeth Larrick: No, no. Well, and you don’t really with adversarial style that we’re talking about, you are pause vote, go again, [00:16:00] pause, vote, go again with the mock trial ones that I’ve seen is basically you still have a bunch of scripted people in there watching witnesses and all that kind of stuff.
It’s still abbreviated, but you don’t have the gauging the temperature along the way. And. Sometimes you’re able to get back in the room after they finish deliberating, ask them questions, and sometimes you’re not because you have three panels. So you would need to have basically three moderators be able to go in and ask questions after deliberation, which you may or may not have time.
That’s always the toss up to is how much time does it take to get this all done so you can ask them questions at the end.
Courtney Wilson: Yeah, it’s definitely a time consuming process, for sure. If you’re going to do one, you need to set aside a day to make sure it gets all done and finished.
Elizabeth Larrick: Don’t think you’re going to accomplish this thing in half a day.
Have them show up, get ready to feed them lunch. Have a space big enough to let them get out of the room and come back in. And I just think that creates a lot of formality to the [00:17:00] process, which means they’re They’re gonna take it more seriously, which is good for you. Okay, so let’s talk about what do you get?
All right, so you run this adversarial focus group, you get all these data points. So tell me, Courtney, what you guys ran one recently. What kind of things did you learn? I
Courtney Wilson: think the most valuable thing that you get out of one of these adversarials is the ability to watch the needle move in between different pieces of evidence and different witnesses.
So, you give a plaintiff’s opening. Most people vote plaintiff right after the plaintiff’s opening. And then you get a defense opening and you get to see if that changes anything. Are they getting any traction here? And then, as you start moving through your witnesses, you can watch the needle move. Are, are people compelled by the plaintiff’s expert testimony?
Are they compelled by the plaintiff themselves? If the defendant doctor testifies, are people jumping ship on you, [00:18:00] you know, and you can watch how the evidence affects jurors in real time. So you don’t end up at the end with a result and then no idea how you got there. I think that’s probably the most valuable thing that you get, but I really enjoy getting to test defenses.
Because as Plaintiffs Counsel, we’re so in our heads about these defenses. And we’re convinced that this is a really good defense, right? Oh, that’s, that one’s gonna be a problem, that one’s gonna be a problem. But when you run one of these adversarials, you get to really push that, right? Like, you write the defense opening, and you write the defense witnesses.
So, whatever you think is the big scary thing, you can hammer it. Like, bring out the big guns, like everything you’ve seen defense council do, bring it out. And the great thing about that is only, [00:19:00] you know, what you’re really afraid of. And you get to tailor this adversarial focus group to that to find out if there’s any validity there, right?
Like, is this something you need to be worried about? Do you need to fix it or not? Because as you may find out in your adversarial focus group, Focus group doesn’t care about it. And in the most recent one we ran, there was a big defense that had me terrified. And when we ran the adversarial, you take these forms, you give them to your jurors, and after every piece of evidence, every witness, they fill out an answer sheet basically, and it has them.
Rate on a number scale like which way are they leaning and then it says tell me what pieces of evidence you find compelling right now something like that and No one wrote down the thing. No one wrote down the defense like for the whole [00:20:00] adversarial focus group we Created these dragons in our head And then we get so caught up in slaying this particular dragon, we may be missing the point altogether.
So I think for me personally, that is my favorite thing that comes out of the adversarial focus group.
Elizabeth Larrick: Yeah. I think having clarity and knowing where to focus your energy and time is really helpful because like you said, you could be focusing on one defense and they pick up something else that you’re like, wow, I didn’t think that was a thing.
Like. But that is really hurting us in the case altogether. How would you say running other focus groups and then running the adversarial, how do you kind of mesh all the information together that you’re getting like all the feedback on a particular file? Again, I’m making the assumption you’ve run another focus group on this one that you did an adversarial for.
So,
Courtney Wilson: so what I would tell you is that all information is good information. Right? [00:21:00] So when you run a narrative, you’re taking a thousand foot view of a case and you’re saying, look, focus group. Here’s the general outline of the facts. What do you think about that? And they tell you something and you use that to work on your case.
So every time you do a focus group, whether it’s a narrative or you’re doing like Okay. a focus group to get an opinion about medical terminology, right? Do focus group members have any idea what this medical term means or what the particular medicine involved in a case is? Because if they do, right, you don’t want to be talking down to them through your whole case.
But, you know, if they don’t, then, you know, you’ve got some education to do, or if they have a misconception, About the medicine indicates then you really have some work to do, but those are the kinds of things that you can’t know. unless you ask the focus group [00:22:00] about them. So I see the adversarial sort of as like the culminative event, right?
You have done your narratives, you’ve done your medical, like, opinion focus groups, you’ve probably tested some witnesses out, you may have done some individual focus groups on like certain pieces of evidence or certain defenses, you’ve probably focus grouped your opening, like done dueling openings, and you have a sense of where the jury’s going based on that.
But the adversarial is the like, we’re getting ready to go to trial. We’ve got all the expert testimony. We know what everybody’s going to say. We’ve deposed all the witnesses. The die is cast as far as the evidence goes. So now you actually have the opportunity to put it all together. and give it to somebody and say, okay, now what do you think?
So, whereas you’ve been working this whole way, [00:23:00] right? With this focus group, that focus group, they’re kind of piecemeal until you get to the adversarial and you can put the whole puzzle together and say, now, with all this evidence, With all these experts, with my plaintiff testifying, what do you think of all this?
And so as compared to, well, how do you put it all together? I would say that that’s what you do in the adversarial is you put it all together. Mm-Hmm. and. You kind of are able to then look at how all the evidence is playing, how it’s all working together. And I think that’s going to be informed by the focus groups you’ve done before.
Hopefully you’re not seeing widely varying results between your focus groups. I think this adversarial is your opportunity to put it all together and get an answer. [00:24:00]
Elizabeth Larrick: Yeah, absolutely. It’s the most in depth thing that you could possibly do to get feedback, right? Because you’re, like you said, it’s piecemeal, like you’re doing little bitty things, little pieces here and there, and then you’re really giving them everything, the best of everything, the best of plaintiff, the best of defense, like to see what it’s out.
And you really want to make sure that that is fine tuned. Based on other focus group stuff. So you really feel like you can really depend on what you are getting from the adversarial focus group, because that’s so important, having confidence in what they’re saying to you. Like you don’t want to go, Oh man, I really don’t know if I can trust what they’re saying, the results here.
And that’s why. I suggest doing one right before trial, kind of like Courtney said, like, you’ve got everything. Nothing is going to get squirrelly. You know, a hundred percent what evidence is coming in and maybe you don’t. I know sometimes people would say, well, Hey, I, we don’t know if this piece of evidence is going to come in or not.
I said, well, then let’s not [00:25:00] play without it because you want to play kind of worst case scenario when it comes sometimes to evidence, just to make sure, Hey, can I patch that hole if we don’t have that piece of evidence? Or maybe it’s coming in. If it’s really bad, how do you patch that hole? Right? As best you can.
So awesome. Well, Courtney, I know that you have an example for us, not a recent maybe example, but can you tell us a little bit about having run adversarial focus group and then taking that case through trial?
Courtney Wilson: Oh, yes. So, I would say probably five years ago or so, we did an adversarial focus group and this is all pre COVID, right?
So, we did it live, in a big conference room, jurors all over the place, feeding them. We did the whole thing. And that MenMal case. We did not get the result we were hoping to get at the end of the adversarial focus group. That is to say they dumped us in the [00:26:00] adversarial. And then we did a very bad thing.
We decided to disregard the result of that adversarial focus group through various excuses. Then this witness didn’t do a good job. They didn’t read their transcript beforehand. They didn’t say the right things. And you know how we do this, right? We come up with all these excuses. We came up with all these excuses for why we lost the adversarial focus group and then decided, well, we can’t.
really rely on that information because of all these excuses. And I would tell anyone listening that you do a thing like that at your own peril because we took that case to trial a couple of months later and we got a defense verdict because the adversarial focus group had already told us there were problems, right?
And we ignored that, which is a very [00:27:00] poor decision. I would encourage you not to do that.
Elizabeth Larrick: Well, we’re 100 percent that sometimes what happens and whether it be a trial or deposition or whatever, we got, sometimes you got to listen to the writing on the wall, whether you want to hear it or not is sometimes half the battle, but you guys weren’t discouraged.
You, you keep doing focus groups, you keep doing adversarial focus groups, so it didn’t turn you off from keeping using the tool.
Courtney Wilson: No, no. Like I said, that was several years ago. And I think one of the things about doing focus groups is that you have to learn to trust them. It’s real easy to say, well, we did this focus group and we got a bad result, but that’s because of this thing rather than accepting what bad things a focus group might have to say about your case and then dealing with that like at face value, right?
Well, the focus group says this thing’s not working and that might be your shiny piece of evidence that you just love that you’re sure wins the case. [00:28:00] But if the focus group is telling you, no, that’s not it, that ain’t it, honey. You have to listen. And I think that’s a process for focus grouping to like, you have to learn to trust them.
Even when your lawyer brain is saying, no, that’s good. I know it’s good.
Elizabeth Larrick: Absolutely. I think that’s part of the skill. You got to take it all in and you got to remove the blinders and you got to be a researcher and take it in. And, and that’s half of doing focus groups is. Starting to learn the interpretation and taking it in and how to take that information and turn it meaning like, here’s what we got.
Looks like a big pile of dog turds, but you know what, let’s use this here. And that’s what I always tell people is we’re here to gather information. We’re here to learn. And yes, it is disappointing that we got dumped out, but you should be excited because now you have all these points that we can fix and learn and learn more about and like, We can turn all this [00:29:00] stuff around.
And if you can’t, that’s okay too, because that’s also telling you like, Hey, maybe this is something I ought to just go ahead and settle and save. Good information. Save my time, my effort for another case, which is also extremely valuable. I can tell you a very hard lesson that I’ve learned many times. I used to focus group cases over and over and over again.
And finally it was just like, wow, I should probably just settle the case because the, the, all the things I’m trying to change are not changing the results. So it’s not getting any better. No, no, no, no. So awesome. Well, Courtney, I really appreciate your time so much coming to talk about adversarial focus groups.
Super helpful, I think to everybody. And if you do run another one, we’ll have you come back on, or if you go to trial, right, come back on and we’ll talk about how you learned from the last adversarial and how it turned out in trial. I’d love to. Thank you so much. Awesome. All right. Well, thank you so much for joining us.
Everybody out there listening. Appreciate you tuning in today. If you enjoyed this [00:30:00] podcast, please rate and review it on your favorite platform. If you know somebody who would love to learn from the focus group, please share it with them. And until next time, thank you.