How Michelle Gessner Won a $22 Million Dollar Verdict Against Wells Fargo Part 2 [Ep 129]
In this episode of Trial Lawyer Prep, we delve into the role that focus groups can play in legal trials. This episode explores whether focus groups are worth the investment, as we continue our conversation with Michelle Gessner. Through a case study involving Wells Fargo, Michelle shares her experience in utilizing focus groups to anticipate juror reactions and refine legal strategies, ultimately providing an edge in the courtroom. This episode underscores the financial considerations and potential rewards of employing focus groups, highlighting how they can reveal juror perceptions and help counteract defense tactics.
Moreover, the episode sheds light on the applications of focus groups in trial preparation, particularly in determining the order of witnesses and enhancing witness preparation. Michelle emphasizes the importance of using focus groups to establish a sequence for presenting evidence, which can significantly influence juror understanding and case outcomes. The discussion also highlights the value of having an external perspective during witness prep to identify potential communication breakdowns. With these insights, trial lawyers can enhance their strategies and increase their chances of achieving favorable outcomes in court. Listeners are encouraged to stay informed by joining the Trial Lawyer Prep newsletter and leveraging the expertise shared in this episode to elevate their trial game.
In this episode, you will hear:
- Strategic witness preparation and sequencing based on focus group feedback
- Managing financial risks versus benefits of focus group insights
- Role of focus groups in shaping depositions, summary judgment briefs, and evidence presentation
- Techniques for refining opening statements and trial strategies with focus group feedback
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Supporting Resources:
If you have more questions or have an employment matter to talk with Michelle about, please contact her at:
To learn more about Michelle, please visit her website: Gessner Law PLLC
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Episode Credits
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Episode Transcript:
Hello, and welcome back to the podcast. I’m your host, Elizabeth Larrick. I wanted to step in before we continue the conversation with my guest, Michelle Gessner, the interview where she details The information that she gained from focus groups preparing for her verdict against Wells [00:01:00] Fargo.
Don’t forget, Michelle’s information will be in the show notes if you want to reach out to her. And we will step into this episode right during the interview where I asked Michelle about are focus groups worth it? Okay. I hope you enjoy the rest of the interview. They tried the case. on things that didn’t matter and the tax things that didn’t matter had nothing to do with the actual request for accommodation.
And obviously the jury saw right through that. So many things you had to tackle in this case. And I know again, we’re here, we’re recording in September, you’ve got more appeals coming in this particular file. And again, I think People who deal with Wells Fargo get it. Like, oh yeah, other cases I’ve done too.
Like, this is just the way that they roll their dice. But what advice would you give folks who are maybe on the fence about doing these focus groups or, or wondering about them? Like, is it worth it? Yeah, that’s a great
Michelle: question. Absolutely. You know, when you do plaintiff’s work, The costs sometimes come out of your pocket until you [00:02:00] get to the end.
And so you have to make sure that everything you do is worth it. And there has to be some reward. But the most valuable thing that I did in this case was the focus groups. And my client would tell you that too if he was here. He didn’t participate in the focus groups. He didn’t, he wasn’t there, but he heard about what happened and what we needed to work on when we received the results from those focus groups.
But he absolutely supported knowing that in the end, when and if he gets paid, that would be a cost to the file in which that we would charge him. So I was eyes wide open and told him what they cost and what we were going to get out of them. And of course we pay the money up front. And so, and it’s not just this case.
Yes. Can he afford to pay for a cut focus group? Sure. Anybody who reads the record and knows what’s public information will know that, but there are other cases that people can’t. So I have to make a decision along with them. Am I willing to invest my own money into the case? In order to get what I need out of it in order to hopefully get the desired result.
And so it is the best money we spent in [00:03:00] this case. And let me pair it with something you just said. They tried this case attacking the plaintiff. They attacked his wealth. They attacked how he used the bathroom on the ski slope. They attacked the fact that he had a concierge health doctor, which he needs given his financial situation.
disabilities because he sees the doctor way more than most of us. They attacked every single thing about who he is investment properties. He has things his Children do for hobbies that he’s able to pay for even going and having a drink with his friends or even if he had more than one drink, they attacked him personally.
And so Knowing that that attack would really alienate the jury invaluable for this case, because it’s exactly what we thought they might do. And how would somebody respond? How is somebody who makes 7. 25 an hour and works at Bojangles, for example, which is a local restaurant, going to respond to somebody who made 7.
A lot millions of [00:04:00] dollars for Wells Fargo. Can they relate? Can they put aside what their own life circumstances are in order to fairly judge this case? And we only knew the answer to that because we had people from all walks of life. Who listened to the facts of this case, that we gave them very blunt and clear information about who this person was and what happened here, and was able to get the feedback we needed.
Again, you know, if I have to choose between spending the money and taking the risk or not doing it and just going to trial and winging it. I’m always going to choose the focus group. I’m going to find a way you’ll find a way. There’s ways that you can hire great people like Elizabeth who it’s invaluable.
And I’ll tell you why that minute that let me come back to that for something I’ve written down to say to you among many reasons, but you can also do them on your own. You can do them on your own. And there’s still a cost. You still have to pay to get people to show up because their time is valuable too.
[00:05:00] But you have to be able to know before you go in what’s going to happen with your case. And if you don’t know, then you’re leaving it to chance. And that’s a problem. You know, when Elizabeth does it, you can’t help in a case like this particularly. And if you’re passionate about anything in life and having the jury to really see through you, you know, it’s really hard to be stoic.
And to be not put your finger on the scale and want them to say what you want them to say during a focus group. I mean, I think I’m decent at it, mainly because I put on my defense hat and I try to have a, but I wear my emotion on my sleeve sometimes with the case and, and no matter what I say, they know who I represent, right?
Or they know kind of what we want them to say, and that’s not a good thing in a focus group. We want them to be real and tell us what they’re really thinking. So having Elizabeth do it and just getting out of the way, you get every single penny worth of [00:06:00] information. I mean, I can’t tell you how many times I’ve done my own and then said, man, you know, I think they just told me what I wanted to hear on this piece.
And I wish I hadn’t asked this question because It seemed to be too much of a softball, right? Or they saw my emotion in the case and so therefore they felt sorry for me, right? Because I couldn’t get through it without showing some emotion. But if you let Elizabeth do it and you get out, not only does she care about your case, she does.
But she can get every ounce out of that focus group that you’ve paid for. Because she’s done so many, right? You’ve done so many. I’m talking about you in the third person, right? You’ve done so many that you understand how to really push and push and push and get somebody maybe who isn’t talking or somebody who hasn’t said anything or somebody who said something that was negative and I didn’t follow up on it Right that you want to know why they thought what they thought so If I had a lot of money, I’d hire Elizabeth for every single one.
And that’s always the goal, but find a way to do [00:07:00] them is the critical. Yeah.
And thank you. Of course, it’s always lovely to help folks and get that outside perspective is something that we as lawyers have a real struggle doing because we get so ingrained, like. This is our case. It’s our babe. We’ve already invested a lot of time and money.
But I think also these focus groups that you’re doing, you did them one hours, maybe an hour and a half. Like we’re not talking about a full day commitment or a four, you know what I mean? You’re doing them in a very efficient way. And that’s why you can go do them on your own. I’ve got lots of episodes to talk about.
Like, how do you DIY your own virtual focus groups? And. It’s just sometimes, okay, we’re going to do it. Go find some folks and get them on the zoom and ask them some questions. And really it’s so amazing what you get out of just hearing someone else’s perspective, especially when it comes to an opening statement, because you think you’ve got it down, you’ve nailed it, you’ve worked on it.
And you tell them your opening statement and they go, they have any clue what the case is about. And it’s just, so there’s so many facets of doing an opening [00:08:00] statement that I so helpful for any, if you’re going to do a new one, you’ve never done them run an opening statement because it will open your eyes tremendously to what your evidence is, but also your themes.
And like you mentioned so importantly, the sequence of the
Michelle: absolutely. But as you said, I’ve listened to your podcasts and I’m a huge fan, but have an objective for what your focus group, what do you want to get out of this focus group? But I assure you, you aren’t, you’re going to get way more than just that one thing.
There’s going to be something else that you get out of it. And as long as you have that objective and you meet that objective, whether that’s your opening or if it’s jury selection, or what do you think of this demonstrative? You know, for example, the notes were a big demonstrative, but they were like tiny little print 25 pages.
How do we get them to actually pay attention to that piece of evidence when it goes back into the jury box into the jury room? You know, all of those things are things we tested, but tested it. In addition to whatever the primary objective was of that focus group, you know, nobody knows this. This is [00:09:00] sort of, I haven’t talked about the case, but during opening statement, defendants objected, Wells Fargo’s lawyers objected, and I didn’t get to use all of the things I wanted to use during opening that I had spent time and money testing, but it was such a gift because I was still able to get out what I needed.
And what did I know was the most important thing? I needed the jury to understand what the basic rules, the basic law was that they were going to be asked to think about and a timeline. And I got those things out right in the beginning. And so when they started objecting, I knew that the most critical things I needed the jury to hear at that point in time before I had earned any trust from them were those two things.
And so it was very short and I got most of the things I wanted to say in, but I had to shuck and jive and move around a little bit and try to figure it out on the fly because of the way that the objections were coming in. Now, in closing argument, I got to use it to say, folks, now I get to tell you and show you.
What they didn’t want you to see in the [00:10:00] beginning. And then use the things that I had developed for demonstratives. But if I hadn’t tested it, and if I hadn’t done focus groups on it, I wouldn’t feel as confident knowing that just those two things were enough. The timeline being most critical.
Mm-hmm
Michelle: Yeah. Which would help me do . .
Well, it’s just like one of those things where, you know, sometimes we get super excited, we jump in there and we forget like, Ooh, we need a little context in a very good, succinct way that makes sense with how our brains work. With receiving gobs of information. I mean, as a juror, they just get so much information in a very short period of time.
So awesome. Well, is there anything else? I know there’s so many things we could talk about this trial and just so many awesome things that, that you did and the shucking and jiving that you did. And I know that we can come and have you back once we get past all these appeals and really talk about the nuts and bolts of trial.
And I would say the only thing that to talk about would be the sequence of. Witnesses and witnesses and how focus groups helps [00:11:00] you kind of decide that.
Michelle: Sure. So kind of great segue knowing that the timeline was so critical. We knew that the minute that the jurors would see some of the evidence that backed up the timeline that they almost didn’t get past it once they saw it.
One of the most critical things were the notes, right? So once you got the HR person’s notes where she’s dip deep helling every event that happened, including the they said no and delaying the inevitable. The jurors couldn’t believe it, right? They couldn’t believe what they were seeing. So, we put her up first.
You know, got what we knew was important in the case in as quickly as we could get her in. I shouldn’t say first, she was our second witness. We put up the doctor first. So, we had a doctor who established what his disability was, And what he needed. And so that way again, we’re not speculating he has a disability and we’re not speculating what he actually needs.
His medical provider is who we put on the stand first to describe it and they had a chance to cross [00:12:00] examine him. And so we knew that through focus groups, explaining what did he really need? Was the work from home a want or was it a need? And how did that help him? So given that to them first, that took it out of their mind.
And then of course, the next witness was their own human resources person and getting them the notes because that was part of the timeline. So the thing that we’d put up in the timeline and opening, we immediately gave them the evidence that they saw with their own two eyes. really the history timeline in real time as what was going on at the time that she was trying to get an accommodation for him.
We then ended up using focus groups as to when did we need to put up the plaintiff? You know, what was his bucket to carry? Think about your putting your evidence in buckets. Which bucket did we need him in? Did the jury need to hear from him early? Or did they need to hear from him in the middle or toward the end?
When did we need him to be able to tell his truth and for them to hear and see him on the stand? [00:13:00] It ended up being in the middle and we knew that from focus groups. And did it change over time? Oh my gosh, for sure. I did a focus group the Saturday before trial. I think you know that, right? I think you know that I had a focus group at 11 o’clock on the Saturday before we started trial on Monday and I was testing damages in order of proof at that point in time.
So you never really sort of stop refining and you have objectives, but we changed the order of proof. We also Wells Fargo. There were lots of things that happened. We didn’t know which witnesses that were under their control. We’re going to show up on the day that we wanted to call them. So for example, there was a witness.
We wanted to call day one. They claimed he could not show up until day two. So we had to rearrange the order of proof on the basis of when they were going to control their witnesses to show. But again, we had focus group when in the timeline, yeah. Did the jury need to receive the evidence in order for it to make the most [00:14:00] sense and for them to get what was actually happening?
And when did Wells Fargo first have the time not to violate the law? Like when did they, when could they first have avoided all this? All of that came really from focus groups because the natural tendency is to want to just put your client up there first and tell the story, but they might not believe them.
Right. And I think you guys, when we kind of got down and it was like, well, there are actually kind of two timelines. There’s the, the perspective of the plaintiff in that timeline. And then there’s actually what’s happening with HR and what’s happening with HR is what’s going to win. Cause that’s, and it was like, we need that to be the right, the timeline of the case.
He’s the byproduct of their process. So
Michelle: we had done some focus groups again, just smattering on what do we need in depositions? What should we focus on in depositions? What do we need as far as even the judge with our summary judgment brief, we created good timelines for those. Those are all publicly filed as part of the file.
But the timelines help the judge to see what was happening. And if you read his summary judgment [00:15:00] order, he followed them. There was a timeline on the request for the accommodation and what happened. And then there was another timeline on the true quote layoff or the reduction of force and what was really happening.
And when you overlaid those two, it was almost like a big red light flashing, you know, big, huge red flag flashing saying. Warning, something bad’s going on here. And we knew that from testing it and doing it and having that type of reaction from focus groups.
Yeah. Yeah. And I know we’re harping on focus groups.
Y’all we really liked them, but that was really like how Michelle and I worked together was like, okay, give me what you’ve done. We’ll get ready for the next one. And then we’ll basically interpret what’s going on. What are consistent patterns to try and keep working on that opening statement.
Michelle: Can I say one more thing?
Of course I heard about this, but I’d be happy. I definitely wanna make sure we don’t stop witness prep. So I had the privilege of bringing in Elizabeth Larrick the best, the very best to [00:16:00] help me to prep the plaintiff. And can I do it? Sure. But I also had a lot of cross-examination to prepare for because we knew the most critical witnesses for us were not our own.
It was theirs. So most, we called defense witnesses in our case in chief. So I focused a lot on that. So I called in Elizabeth and she came to Charlotte and we spent a lot of time together with Mr. Billiston and it was incredibly invaluable. And so Mr. Billiston spent four hours on the stand in cross examination.
His direct examination was roughly 35 40 minutes. For Four hours over two days of cross examination Is how long wells fargo’s lawyers cross examine him and the first thing he said when he was completely done Was I can’t wait to call elizabeth larrick. I can’t wait to tell elizabeth how I did he was like a student Who wanted to tell the [00:17:00] teacher how well she had prepared him.
So Again, thank you so much the anticipation of the cross The how to not let them get under your skin in such a way that would cause a negative reaction and really just being so truthful that the jury could see the truth coming out of you, both in your body language and what you said. And it’s great when the truth is on your side, it’s easy, but it’s never easy to be on the hot seat, even when you’re telling the truth.
So if he were here with me right now, he would be saying exactly the same thing I’m saying, having you come and help to prepare him and being committed and dedicated to him in that regard is really was the secret sauce to his success when he was on the stand for those four hours. So again, can you help prepare witnesses?
You’re the person. I appreciate that. And he’s not here. So let’s talk about him. Uh, because we all have, we have witnesses that are just, they’re intelligent, smart people, but my gosh, it just does not serve them. [00:18:00] They overthink and they just, I mean, he just is. Was driving himself crazy with worry and we really tried to help it be an organized and then of course he would also say if he were here I put him through a lot of cross examination and he said this mine was worse than what they did actually on on the stands.
Work together too. And I think when you have somebody else in the room helping that gave Michelle a chance to really see, Oh, this is not what I need you to say on this point. And we were not woodshedding him. It was just more like Michelle was like, okay. So what happened was we would work, we’d work a good part of the day.
And then we let him go. And then it was like, okay, we need to marinate because we’re not hitting the points. We need to figure out where the loss of communication is. He’s got the information. So we work together on how do we create a direct exam that works for what’s in his brain, but also how he has [00:19:00] it in his brain.
Things were getting crosswise. We’re not coming out very clear. It was very confusing. And I think just because communication wise, the way we store things as humans and the way lawyers store things is very different. So we were trying to put two different hats on. Michelle and I worked really together on direct so that she would feel really comfortable and then they would be able to continue working.
Right. And then once opening came out, they’d be able to tweak again without him being completely thrown back into that worry circle.
Michelle: Exactly. And again, to your point, he’s so smart, but he also worked there 25 years, and he was aware of the way that Wells Fargo handled problems. You know, handled anybody who challenged him and acutely aware of potentially coming after him and attacking things that had nothing to do with the case, which is exactly what happened.
And so having someone sit there and endure being personally attacked on the stand in front of the jury about things that have nothing to [00:20:00] do with this case required incredible restraint from anybody. Anybody who would be on the stand who would have to say, what does that have to do with this case? or why are you asking me that?
It took a credible amount of restraint and self dignity and self worth, but to get there, we had to prepare him in a way to say, it’s okay for you to feel the way you’re feeling. And if you feel yourself even getting mad to describe that, look, I’m getting upset about this and here’s why. So the jury understands.
And again, I think the jury Lots of people have given lots of commentary. You just got to get on LinkedIn or Google it and lots of commentary. But attacking a plane of someone with a disability who asked for an accommodation went off like a lead balloon. It just didn’t work. And I think in my own personal opinion, it was to attempt to try to incite the jury against him.
Here’s somebody who’s got a lot of money who goes on extravagant vacations. Here’s [00:21:00] somebody who has multiple homes and you are not like him. So therefore you should, you should find against him and it just backfired. Yeah.
Yeah. They sent their message. I mean, that verdict, there’s 22 million, 20 million, right.
Is all in wages. back pay and front pay. And I know you said that earlier, but I just want to reiterate that is truly a jury that listened and said, you know what, this man needs to get paid because that’s a job he, he did love. I mean, he really loved that job. And by golly, we could not get him to explain that job because we’d all be lost in what he does.
But we didn’t have to, thank goodness, right, right. You know, we had to learn about all this. Michelle did all the heavy lifting and just letting them know like billions and billions people, this guy doing the thing for Wells Fargo.
Michelle: And they were a smart jury. They understood that he made the cut bank a lot of money.
Again, he made a lot of money. They paid him. Yes. It was a bonus for predominantly, but he made the bank a lot of money. And so the two things did not match. Why would you get rid of somebody [00:22:00] who’s making a lot of money? And they heard. a lot of evidence and saw a lot of evidence that they didn’t follow their own policies when they chose to fire him.
So again, we had a very smart jury. They were very attentive. They were from all walks of life and our foreman was a lawyer. So that’s another whole story. Oh, that’s
right. Yeah. Okay. We’ll have to have you come on. Cause I remember there, we had got little sidebars on that too. So we’ll have you come back and talk about the jury and, and the interaction and some of those cross exams.
Cause they had some surprise witnesses. So again, I’ll just go leave it at that. We’ll have you come back. We’ll talk about our surprise witnesses. Once you guys get through all these appeals. Absolutely. All right. Thank you so much for having me. Thanks so much, Michelle. I appreciate it. Wow. I hope you enjoyed that interview with Michelle and I will definitely be sure to let everybody know when she will be coming back on the podcast to finish out our conversation.
Okay. So we’re going to start with cross examination and a few details about trial. But before we close out this episode, I just want [00:23:00] to recap a couple of great things that we heard in this episode. Number one, are focus groups worth it? And Michelle’s take on that, but also really the specific details about using focus groups to determine your order of witnesses.
to help with depositions and even to help with your summary judgment responses. And naturally, we finished out with witness prep and having an outside perspective while your witness is being prepared so that you as a lawyer can watch and really be able to understand where there could be maybe a communication breakdown.
All right. Thank you again so much for listening to this episode. If you don’t want to miss an episode and you would like to be on the trial lawyer prep newsletter, please check out the show notes for the link to connect. And also don’t forget Michelle’s information will be in the show notes if you want to connect with her.
All right. Thank [00:24:00] you.