Live Replay: Focus Groups and Mediation
Focus groups before mediation? As trial lawyers, we all want clarity and certainty in any given case and focus groups can help provide those even as you’re preparing for mediation.
Whether you settle, which is great, or you don’t, you’re still going to have this great information from running a focus group. It’s going to help boost the case value as well as your confidence in your case and how you’ve put it all together.
If you really want to wait until after mediation to run focus groups, that’s fine. But just know that if you’re preparing for trial, you can’t just run with whatever theory you have. You have to test out different theories in order to make a strong case. With a focus group prior to mediation, you have the advantage of testing out theories, giving you a leg up.
In this episode, you will hear:
- The benefits of doing a focus group before mediation
- Examples of scenarios people run focus groups before mediation
- The need for a neutral moderator
- The exchange value of running a focus group
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me your host, Elizabeth Larrick.
Thank you so much for tuning into this podcast. It’s designed for trial lawyers preparing cases for trial, or as we will learn today in this episode, trial. Mediation. This [00:01:00] is going to be a recording from a live LinkedIn session that I did. If you are curious about joining in those live sessions, I do them about once a month.
This year, we’ve really looked at five. focus groups, all different facets. You can find the old videos are still on LinkedIn if you’re curious about those. But today this episode is going to be about focus groups before mediation. Here recently, I’ve had several folks who are gearing up for mediation. And just going through why you would choose to do focus group before mediation, some examples of focus groups, what you can learn, actually even the style of what to run and the need for a neutral moderator.
And then also some holdbacks for what may be standing in your way of doing a focus group before mediation. All right. So let’s tune in. Thank you so much for joining me today. We’re going to talk about focus groups and mediation. If you’re here, just say [00:02:00] hello, put a little hello in the chat so that I know that you are joining us.
That’d be super fantastic. If you watch this later, then it would be good as well, just so I can know how interested people are in learning about focus groups and mediation. So this comes up really often for me when I chat with lawyers and they talk about using focus groups and they really want to know, Hey, I’m at mediation or I’m going to mediation.
But a lot of times I’ll get, well, I need to get through mediation. If we don’t settle, then I’ll do a focus group. And I always ask, well, what are your chances of settlement? And maybe, you know, maybe you don’t know, but I always say, wouldn’t you like to increase your chances for settlement by doing a focus group about your mediation proposal, maybe, or just putting together your strongest points, things that you probably are going to use at mediation and test those out.
But I really. Like the idea of doing a focus group [00:03:00] before your mediation, because whether you settle, which is great, or you don’t. You’re still going to have this great information that’s going to really help boost your case value, but also your confidence in your case and how you’ve put it together.
Because the nice thing about when you make it to mediation, most of the time, your case is pretty well at the point where discovery is done. You know what they’re going to say. You’ve got your things all sorted out. You’ve got your experts. Discovery is pretty much sealed up where everybody is. Maybe you’ve got a few experts.
Depositions to take, but you generally know what those people are going to say. There’s nothing really surprised. It’s just maybe how they say it, or maybe they’re smoother than other experts. I always get this. And I saw really thought, Hey, this is going to be a good topic for us to talk about just really briefly here on LinkedIn life.
So what I always think of is. You’ve got a case, it’s a larger case, you’ve probably spent quite a bit of time and [00:04:00] effort already to get it to the point of mediation, and so maybe it’s a good idea to run a focus group so you can see how strong you’ve put the case together. I also see people use a focus group right before their mediation when they’ve got a particularly challenging case.
For example, we’ve had a daycare case that came through that the other side wasn’t giving a lot of feedback. There wasn’t a lot of action. And so they were guessing about what the defense holdouts were. They had what they thought was a pretty good theory, but they said, you know what, this could totally go to trial, but we want to know.
Before mediation, what are the strong points from the other side? And so that was a good use of time for them. They were able to find the strong points for their case. They were able to really understand the opposite side a lot better where those jurors would stand. And also I see people use a focus group before mediation when they [00:05:00] have a particularly challenging disputed liability case.
The most recent example is there’s a Three car wreck, one person passes away. So then we miss out on that testimony. We don’t really know what happened in that vehicle, but we’ve got some other information and of course, all everybody’s. Account is a little different. So which way is it gonna go? How strong is the case?
Should they really just push really hard to settle mediation or there’s some gems that they can lean on when it comes from going to trial? So when we’re talking about running this focus group would be, have you set your mediation? You’ve. 30 days out for mediation. Maybe you’re two weeks out for mediation.
Try not to get too close to mediation because you really want to be able to fine tune that mediation presentation based on the feedback. And a lot of times people say, well, I really want to wait until after mediation to run a focus group. And that’s funny. Just know if you’re [00:06:00] preparing for trial, you can’t be trying to learn, Oh, Hey, what should the rule be?
Or how should we have Doctor, what questions should we be asking and what discoveries should we go do? Well, you’re trains on the tracks, you need to just go with what your theory is. So that’s why I like running it before mediation. And particularly, like I said, test out your theory. Test out the defense theory, opposing counsel’s theory.
How strong is it? Can you make it stronger? You’re basically seeing it. Hey, did I develop this strongly enough in depositions? An example of that is anytime we have a lie in the case, maybe a defendant lied at the scene, maybe there’s a lie to an investigator, some kind of lie around the time, or maybe it’s a lie later on.
And you really want to know how strong is that? Is that a critical lie of the case? Do they really care or not? And did I prove it? Did I really get the berry in the bucket and actually show this person like purposely lied about this? That’s always a good [00:07:00] way to test it out. Also, I like that you can practice mediation presentation and then you’ll be able to fine tune it before you get in there.
And then also practice. giving that mediation presentation, how it feels, how to say it, your delivery. I think it always helps to have a little bit of practice. That’s what makes it better. And also going to give you just a little more confidence when you actually go to the mediation. So those are my three main points for like, Hey, let’s do it before mediation.
test it out, fine tune it and practice it. Our most recent example that I had is we had a premises case. It was an apartment complex and felt pretty good about liability. That really wasn’t what we were going to test out before mediation. Just really wondering about damages and the defense theories going on.
So what we found was, of course, liability was nice and strong. It was solid. But, what we got from them was the language. So occasionally, we can go [00:08:00] out on a limb as lawyers and use really strong advocate language, and sometimes it misses the mark. And you don’t really want to go too far. I mean, that’s always a worry.
The jury thinks we go too far, it’s too much, and you can’t back it up. So what I loved was we heard some really great, strong language, complex, ignored her, they chose to ignore her. So some really nice, strong, persuasive language that they gave to us that, okay, great. Let’s use this. Right. We’ve got the green light.
People are on there. And also what we had in damages were we had some questions and questions we can answer, which is always great. And some questions that we can’t, and that’s okay too. We’re storing that for later so we can answer those questions in our mediation presentation. We give it to those decision makers, but also maybe there’s a need for explanation, which in this particular file there was, and it wasn’t that we didn’t think that there needed to be one.
Sometimes in [00:09:00] focus groups, we have to. pare down that presentation so we can have that really fruitful discussion. And that’s really kind of where it came in. Hey, there’s a hole here. We need some more explanation. We definitely need some more before information to really show where this particular client was before the injury and fine tuning for that mediation presentation.
So super helpful. So how do we run this? What’s the style? What’s the presentation? The way I think of it is your presentation is going to be full. persuasion, right? You can actually run your mediation presentation. I think that that’s one of the best ways to use that time. If you do that, then you will need a neutral moderator, right?
So you can’t do both because you’re taking the full side of one particular position. So you need a neutral moderator to come and ask questions, right? Because they’re not going to give you right at the opposite side. They’re going to be obviously biased. They know where you stand. So It’s helpful if you just do the [00:10:00] full mediation presentation, you’re going to get a critique, what points suck out to them, the good follow up how come, which way are they leaning.
Right. If they were going to take the other side, how would they argue? And it’s also helpful that once you have discussion, you can actually test out some numbers because you’ve told them from the very beginning, that’s, this is the purpose of today. We’re going to give you this settlement presentation.
We’re going to talk about it. And the purpose of it is for settlement, how strong. Is that settlement presentation, throw some numbers out. Then again, this is one of the big things I always get from people. I want to learn my case value from focus group, which we’ve talked about in a podcast. Probably do another one on that, which is you can, it’s a little shaky ground.
Don’t 100 percent rely on it. But in this particular presentation, that’s the whole purpose. And that’s really helpful when you set things out. Clearly the focus group, they know what the target is. They’re going to walk towards that target. And this is more of a, Hey, the [00:11:00] purpose of this is for settlement.
Let me throw some numbers at you. You’ve done which thing would you put on it? That kind of stuff. The gold being the gold feedback being why, how come that’s a good number? How come that’s too low or too high? Ultimately we get, sometimes we have a few holdbacks, right? Maybe we are not sure if we can actually do run the focus group.
And again, Just get that neutral person, that neutral moderator can be anyone in your office or even a colleague that can come in and help and ask those questions. Sometimes we’re worried about the expense of it. Again, we’ve talked extensively about using virtual, which cuts a lot of the money expense on it.
And they’re also quick. They cut down on time, right? There’s no travel time to the venue and all that kind of jazz. So that is always a helpful alternative for doing the focus group. Um, and I was thinking about, okay, let’s look at the exchange here, right? So we’re going to exchange an amount of money and some time, three and a half hours, four [00:12:00] hours, five hours, right?
Some prep time in there. And what do we get in exchange? I mean, you could get a boost of case value in the thousands, tens of thousands, right? Because you will learn, Oh, let me. rearrange that theory a little bit. Let me go grab this other evidence and boost that theory that we have. Or, Ooh, that’s not a very strong one.
Let me replace it with another one. And rearranging all that, having that ready in that presentation for mediation is huge. And maybe you feel like, Elizabeth, I don’t really like to give presentations. We’re talking about the big mama jam. We’re talking about the large cases in your office where you want to talk to those decision makers because you want to make sure all this hard work you’ve been doing in these depositions and these motions and this discovery that you’re able to show them how you’re putting this puzzle together because you don’t necessarily trust opposing counsel to do that, to be a Truthful reporter [00:13:00] about what is happening and so again, just where we’re at and what we’re talking about.
Let me give you an example. Commercial case with a delivery driver. Pick one of the big ones. Okay. Lawyer comes to me and says, Hey, I think I can do better. We’ve got a million on the table. I’m like, okay, cool, man. We’re going to go to mediation. I really want to run one or two before mediation. Okay, cool.
Here’s your list. Just settlement 3. 4. Million pretty good return on investment there. Right. You end up doing three focus groups, each of those being a one hour. He did just what we talked about as far as the setup. So the exchange value is there, I promise you on your return of investment, if you’re worried about that.
So. Running a focus group before mediation, fine tuning, right, that presentation, understanding the strength of your theory, understanding the strength of their theories, so that you can walk in there with confidence and [00:14:00] know, hey, this is the point I need to make in order to shut down. their defense theory, you’re going to get a lot of more clarity about the strong points in your case, how to rearrange those and ultimately certainty, right?
Settling a case. You really want to have some certainty. You’re doing it for the top dollar, or you’ve got some certainty like, Hey, this is probably not going to settle, but certainty helps no matter where we are in the game or what we’re doing. And at this point in your case, you think, Spent the time, the effort, the money.
You really want to have some certainty about moving forward or getting it settled. All right. I hope that this was helpful. If you have questions, please put them in the comments. I will be trolling around later just to make sure there aren’t any questions. If you watch the replay, Just put your name also in the comments.
So then I know that you appreciate it. Or Hey, if you thought, Hey, I need some more information here. Not enough. Just let me know. Thank you so much for tuning into this episode. I [00:15:00] hope that you found it helpful. If you have questions about how to use a focus group for mediation, or whether you have the right case to run a focus group for mediation, please don’t hesitate to send me an email.
An email. I promise I check those. If you have questions or maybe concerns, or you have a particular topic you’d like to see on the podcast, please don’t hesitate to email me as well. The email is going to be in the show notes. And again, thank you so much for tuning in. This podcast is designed for you. So please share it, rate it, review it on your favorite podcast platform so that other folks can find it.
All right. Thank you.