Personal Injury Lawyers: Watch out for THIS Harmful Assumption You May be Making In Your Cases
Can you really trust your instincts when it comes to trial preparation? In this episode, we uncover the hidden pitfalls of overestimating evidence clarity and the transformative power of focus groups. Drawing from extensive experience with over a thousand focus groups, we reveal why lawyer assumptions often miss the mark and how understanding the jury’s perspective can be a game-changer in the courtroom.
Learn practical examples of cases where the evidence seemed crystal clear but proved to be surprisingly ambiguous. We’ll also discuss the importance of not relying solely on recent jury verdicts or seasoned instincts and explore how focus groups can offer invaluable insights into how jurors interpret evidence. Don’t miss this essential guide for trial lawyers aiming to refine their courtroom strategy and build stronger connections with juries.
In this episode, you will hear:
- Why you shouldn’t base your assumptions solely on experience or recent jury verdicts
- Video evidence revealing driver’s responsibility
- Challenges with video evidence in court
- Avoiding communication mistakes in legal strategy
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Episode Transcript:
Elizabeth Larrick: Hello, and welcome back to the podcast trial lawyer prep. I’m your host, Elizabeth Laird, and thanks for being here.
This is a podcast dedicated to lawyers building their cases, litigation cases, talking about personal injury, employment law, business litigation, and a lot of things we talk about [00:01:00] can apply to other areas of trial law, including criminal defense. And we’ve spent some time over the past couple of episodes talking about virtual focus groups.
And I want to just stop and point out, I would say, a mistake that I see lawyers make real often. And the reason why I see this is because people come to me for focus groups, for developing for trial, getting ready for trial, getting ready for maybe a big mediation. And Or when I’m talking to lawyers, just casually, you know, networking events or whatever, we talking about focus groups and what I will hear are these assumptions, right?
Oh, it’s all very straightforward. We don’t need a focus group. This is all very clear or this is all on video. So it’s very clear liability or, we have got, you know, those gross negligent facts, those punitive facts. We’ve got that in the bag. Not even worried about that. You know, jury’s going to give up just, Dumb money on this thing, [00:02:00] and I think that when we make those assumptions, we are really far from reality because unless you’ve done focus groups, we just don’t know what jurors think, and we’re taking this huge risk.
And what I don’t want you to do, listener, is to make the same mistake because what happens is we begin to overestimate pieces of evidence that we think make it all very clear. Oh, this is just super clear. Now, of course, we’re using our lawyer eyes and not non lawyer eyes, right? Focus groups, potential jurors to make the assumption.
So, and the objection that I hear a lot of times when I talk about this, like, well, you might not know 100 percent of that a straightforward is well, listen, we’re making an educated guess. I’m very experienced lawyer. And you know, there’s these recent jury verdicts that support all of this and. What I [00:03:00] always say is, you know, you can’t entirely base your assumptions based off of experience or recent jury verdicts unless it was yours, right?
Unless you were there every day to know what the jury heard, how they heard it, and how things happened every day at trial. I mean, it’s very difficult. There’s not a lot of research on how. jurors make their decisions. Okay. So that’s why we do jury research so that we don’t walk in knowing or overestimating.
And so in my experience over a thousand focus groups, it’s really never as clear as you think it is because we think like lawyers, right? So we’re thinking through the elements. We’re thinking through rules of evidence. Oh, this is super clear. However, non lawyers. We’ll think of a thousand other things that make it unclear.
And so what is happening more and more, when we think about overestimating on [00:04:00] pieces of evidence, like what I’m seeing more and more are we have things on video, right? We have our crashes on video, or we have surveillance video. We have some things that. Our video, and that’s, jurors expect that we should have all this, video stuff.
But so what I want to talk about are three really recent examples where it was not as clear. We, they, we came in, right? Lawyer came in thinking this seems really clear, but I’m going to trial. So it must not be that clear because they’re willing to roll the dice. I don’t want to take the risk of not knowing.
So in that particular case, we had a rear end collision where an 18 Wheeler. Going down the highway and last minute, you know, jerks the wheel, but hits the back end of a dump truck going 62 miles an hour. Of course, that’s all in the video, right? So let’s just, again, let’s take it back and just think if we just have a video, right?
And that’s all that we can see. We don’t hear anything. And just based on that video, right, people are, hey, [00:05:00] why didn’t that car get out of the way, right? Why didn’t they should have seen that huge dump, that 18 wheeler coming. Man, they were just going way too slow. What were they doing in there?
They must not been paying attention. So just based on this super clear video, they were still going to tag, right, some responsibility on the plaintiff. And once they had the additional facts, all in writing documented. That the 18 wheeler had actually fallen asleep driver had fallen asleep and totally admitted to it, by the way, that helped things.
But even when we got into further, you know, discussion, one of the things that is maybe obvious to us as a lawyer, which is, You know, this was inevitable, somebody’s sleeping, driving down the highway, they’re going to run into someone or something. It wasn’t to them though. And so that’s kind of one of those things where it’s like we may make an assumption, Oh, look at these facts.
They’re going to know where this is going to lead, right? I don’t need to lead them there. But [00:06:00] that’s one of the things I see often as well as we’re making that assumption that they’re going to get there, but they don’t. Then that’s kind of where it’s like, okay, hey, they’re never going to get to this place.
They’re never going to get to that conclusion. You have to get them there. And how can we get them there without basically forcing them down this road? What are the little breadcrumbs that we need to give them? And then knowing they’re not still maybe not going to get there and you have to actually say it.
So also another good point about making an assumption that they’re going to get there when they never do. Another example is. Had some body cam footage immediately after a multi car pile up on a highway and all the cars are still in the same spots, right? All the drivers are still there. We got some body cam footage and, police officers asking people what happened.
And in the video footage, even the, or the, main car vehicle responsible says, you know what? I was answering the phone. I was on a phone call. So I was doing two phone calls at once and, just, you know, didn’t stop in time. Tried to, and [00:07:00] then our plaintiff is like, yep, saw the 18 wheeler and they crashed right into me.
Couldn’t stop, ran right into me. And then the next vehicle they just had pictures of, and they just said, you know what? It’s just, it’s all of them. We’re not really sure. We’re just going to put fault on everybody. Even though we had it like, you know, basically a good confession, right? It was not clear to them, right?
They needed more information, more input. And again, last example here is recently again, we had some video footage of a collision at night. Now these are always a little bit more challenging because the videos themselves are difficult to see. Like you just really can’t see anything. And that’s really what happened was what felt like.
Fairly clear. And again, this is us, as a moderator pointing out, okay, look here on the screen, it still was not very clear to them. Of course, they blamed both when they’re confused. And even when we added information, meaning we gave them more facts about, okay, here’s what the computer data revealed [00:08:00] out of each vehicle, you know, 20 miles an hour over here.
85 miles an hour over here, right? We still had this, kind of confusion and blame all around. So it’s not as clear as you think it is. And so it’s, while it feels great, we have pictures, we have videos. It’s not necessarily this magic wand that we get to wave that makes it super. easy to meet what the jury wants to see.
So we may be meeting our evidentiary burden, maybe clear to the judge. Maybe we can make an assumption about that too, but really we don’t want to be assuming or overestimating what the jury is going to think. Again, going back into what is our non lawyer experience? Well, they’re watching videos and they’re short, right?
They’re all our videos are during longer than we ever want them to be, but You know, they’re watching TikTok videos or watching videos on Facebook, anywhere. I mean, even short news videos, right? They’re all very, very short, sweet to the point and they get there. And so they don’t have to do a lot of [00:09:00] heavy lifting.
And so when it’s not, it may be clear to our lawyer minds, it’s not always going to be super clear to them because that’s not their necessary background. And that’s why we say like, you know, while it feels very clear what the jury wants to hear and see is always a little bit of a moving target. So that’s why jury research is so important.
And. My three examples that we talked about, we didn’t talk about damages, right? And causation, which is another sometimes place where we can skip ahead. Like if the pictures look really gruesome, maybe they’re injury pictures, maybe they’re vehicle pictures, right? Then, we sometimes feel like, oh, they’re going to get there.
They’re you know, the causation won’t be a problem, but I’m still seeing, we still need to step by step that mechanism of injury because it’s not as clear as they think and they’ll hang their hat on something else, right? So again, When we have this risk, where I see it playing out is when I have the ability to see some of our demand letters or our mediations that we’re doing.[00:10:00]
And we’re making a lot of assumptions in there. And that’s very easy then for the counterpart or the other side to be like, yeah, no, right? Because again, they’re seeing it from a different set of eyes. They’re like, yeah, no, this is not super clear, right? That’s why we’re willing to roll the dice and go to trial.
Like these three examples, right? These are all examples that. They’re going to trial. This was not a, Hey, this is a KPS prep. These were trial preparation focus groups because it was like, what? This seems so abundantly clear. What are we missing? And that’s what I want you to be thinking from the very early on, right?
What are we missing right now? Before we go take these depositions, let’s play these videos and figure out what is missing. What is unclear? What are they thinking? What are they taking away from these things? And what are this place where maybe we need to breadcrumb and get them to their conclusion, right, that we want them to, that’s there, but maybe, takes a couple extra leaps with more facts.
So I don’t want you to take this risk, right? I don’t want you to make this mistake because [00:11:00] we could spend some dollars now on jury research, right? Doing some virtual focus groups to avoid spending thousands. on our trial and losing, right? That huge risk when we could just figure out what’s missing, what overestimates am I making?
And we also can end up making a lot of communication mistakes when we do that, right? So the way we may talk about how clear it is, And then we’re overestimating and then they see it and it’s not as clear, there’s a huge mismatch and we really don’t want that for you when you go to jury and like, wait a second, that’s not clear, that allows them to pick you apart and that’s, we don’t want them to happen, right?
So we don’t want to overestimate, we want to have that, any language we’re using matching up. And connecting with where they are so you’re going to know what questions they’re going to have and then you can answer them and you can do that in your demand letters and your mediations, right? And you don’t have to say, Hey, we did jury research.
You just know it, right? You can just use it in a different way. [00:12:00] So. I love the fact that we can take virtual focus groups and test these things in pieces instead of feeling like we have to wait until the end to do large, heavy, cumbersome mock juries with the whole thing, right? Smaller focus groups, looking at things, we can do abbreviated versions, easy to target what we need and get targeted feedback so we can get what we need and move on and avoid any kind of assumptions that we may be making about what jurors think about are quote unquote very straightforward.
Okay. I hope that this was helpful. If you find yourself making assumptions, just, you know, hit the pause button, right? Okay. Wait a second. I’m making an assumption about how clear this is. How can I go and either prove myself right? If you want to make it that way, or just, figure out what the jury wants to hear.
Either way is fine by me. I just don’t want people to be making this assumption or overestimating on pieces of evidence [00:13:00] that are just not as straightforward. Anyhow, I hope that you enjoyed this episode. If you like it, please like and review on your favorite podcast platform. Follow it as well to get update episodes when they come out.
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