One of the ways trial lawyers can prepare people for trial is the jury instructions where you basically look at how your client can help the jury answer the questions. Now, it doesn’t matter what level of intelligence or understanding a client is. That’s just the way a trial goes. 

The questions that the jury is going to have to answer should always be the target. This way, you can help the client focus and narrow down on the information that they can help the jury with.

In this episode, you will hear:

• Looking at how the client can help the jury answer the questions
• Identifying which questions should be answered
• Recognizing what they can bring to the jury that’s unique
• Sitting down for trial prep in-person

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Supporting Resources:

If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

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If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.

Episode Transcript:

Elizabeth Larrick: Hello, and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

Thanks for joining me today. This is probably going to be brief episode as I have a little bit of a cold and I may end up coughing a little bit, so bear with me. Even though it’s a [00:01:00] very short message today, something I think is really helpful. What I wanted to bring to you today was a very simple story.

I conducted a preparation with a client for a trial and an employment case here recently. And one of the things that I had been told was possibly going to be a hindrance to preparation was the ability of the client to remember things, to have focus, and to have kind of a deeper level of understanding of things.

That’s totally fine. A lot of people come to us in a lot of different ways and a lot of different levels of intelligence. And one of the things I always like to use when I prepare people for trial is the jury instructions because that really helps bring focus. And so that’s really what, just a really simple tip today was when I met with this person, that’s what we looked at was, Hey.

Let’s look at what in this trial. How can you help [00:02:00] the jury answer these questions? And as we work together over the few days, we use those questions over and over again. What are the strongest stories, what are the strongest facts that help the jury answer this question in your favor? And the beauty of it was We didn’t need to have like, oh, these are the exact questions.

They were framed enough that we could see, oh, this is so specific. And that’s really helpful for any client to get focused in on, okay, how can I help the jury answer that question? And when we had things that maybe weren’t going to come into the trial, there was a little bit of a relief because that’s okay.

It doesn’t help the jury answer this question. Okay. Now, it doesn’t matter what level of intelligence or understanding a client is, that’s just way a trial goes. So you may have somebody who is off the charts intelligent, [00:03:00] but that jury instruction, those questions that that jury is going to have to answer, that always should be the target when it comes to helping the client focus in, narrow down on the information that they can help the jury with.

Now, the nice thing is, there’s always more people coming into trial, and that’s also a really good way to explain, hey, here’s what this person’s job is going to be, is to also help answer this question. And there may be questions that you have on your jury charge that require an expert. And that’s great.

You’ve done your job. But that helps the client understand, okay, who is coming? Who am I going to hear? Who are the jury going to hear? And how are they going to help answer these questions? Because at the end of the day, that’s all a trial is about. Answer these questions in our favor. And how can the client help the jury do that?

So it’s a very simple tip and probably many people do it, but I [00:04:00] find it such a helpful backstop to start out trial prep looking at how can you, client, help the jury answer these questions. What is it that you have that is unique? Because every witness that comes in up to the stand should be giving the jury something different, something unique that helps them answer that question.

That you can echo back. It really did help in particular in this case that we had or that I had about a month ago because as with most things in an employment case there are hundreds and hundreds of excess documents and emails and conversations and when as more things you get more things that come about but.

At the end of the day, trial is very narrow. There are only certain things that are going to come in. There’s only certain exhibits. There are a lot of things that don’t come into trial and that’s really confusing for people who are not in the legal field. What do you mean it’s not in there? [00:05:00] Well, that’s the only way I can answer this question.

We got to think of another way. We got to get creative. So it really helped her when it came down to, we’re not going to talk about that. And instead of saying no. Don’t say that. We reframed it with that doesn’t answer either one of these questions. So guess what? We don’t need it. Our whole focus in our job is to answer these three or four questions.

And if we give it to the jury, They don’t need it. It’s going to confuse them. So we really want to keep the jury honed in on, Hey, does the jury need that to answer the questions or not? Great. If we don’t need it, we don’t have to talk about it. That’s a great thing. So it’s just spinning things a little bit differently and always using the backstop of the jury and the jury questions versus you I don’t want you to say that.

You don’t need to say that. Okay? But that doesn’t really give them an understanding overall of [00:06:00] what’s going on. Those jury instructions really help. And I’m really just talking about the jury questions. The instructions overall, they don’t need to see all that. They just need to see what are these questions that the jury is going to answer.

And how can they bring in something unique to the jury that other witnesses aren’t going to do. And take things off their plate. So I always like to help the clients. No, hey, you don’t have to do all the heavy lifting. There’s going to be a lot of other people that come in to answer some of these things for the questions that you’re not going to have to do.

And we’re not going to be asked to repeat it either. Very short and simple podcast today. I appreciate your patience with my congestion, but simple is good. Having those three questions and using that as a backstop is great. One word of caution. At times, we like to save time. Always, right? There’s something we can do to save time.

And occasionally we will email things to a client, like, look [00:07:00] at this or read this. I would highly recommend you wait to do that in person because there’s going to be a lot of questions on their mind. They may not understand, like, when does a jury get this? And is this what it is? And why isn’t it this?

There may be a lot of other things that you need to bring context to these, what these two or three questions a jury is going to answer. So I suggest doing this in person when you sit down to do some trial preparation together, so Don’t send it ahead of time, could cause more questions and confusion, emotions that you can’t control.

We always want to do things in person when we’ve got something that may be emotionally charged. So anyhow, thank you so much for listening. I appreciate it. We’ll have a new episode with hopefully a very nice, clear voice in the following week. But if you liked the episode, please rate and review it on your favorite podcast app.

Share it with somebody who maybe has an upcoming trial. Maybe they have a difficult client. It’s difficult getting lots of different things, but getting a client [00:08:00] focused in, go back to those jury questions. It’ll really help you out. So anyhow, thank you so much.

Times have changed. And after the pandemic, things have shifted yet again. The question is, are you changing with the times? Are you preparing your clients in the best way to make it easy and simple for everyone involved?

There is currently a huge push into mediation, not trial. In fact, the whole thing about “saving on costs” has gone out the window. But what didn’t really shift is the trial lawyer’s mindset on the client’s day in court. Along with that shift was the “OG” style of preparing a client or a witness for a deposition. Depositions are where major decisions are being made so you have to work smarter around that. 

Today, we are going to delve more into this huge shift in personal injury practice, particularly, from a trial-focused practice to a mediation-focused practice. You will also learn about the history of mediation, and how it crept into what we do as trial lawyers in the personal injury realm. 

Whether you’re preparing for mediation or trial, it’s time to step up and make sure you’ve got all your bases covered.

In this episode, you will hear:

• The history of mediation practice
• The shift to mediation is one of the biggest hammers for trial lawyers.
• The OG style of deposition prep
• How to get through without damaging your case
• Giving a list of don’ts
• Depositions are the battleground.
• The importance of breaking up your prep and giving enough time to your clients

Subscribe and Review

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We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

If you are curious you can learn more about court statistics at: https://bjs.ojp.gov/topics/courts 

If you have a question or a suggestion for an episode, please email me: elizabeth@larricklawfirm.com 

Episode 44: Using Deposition Objections as a Band-Aid 

https://larricklawfirm.com/using-deposition-objections-as-a-band-aid

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their business and impact the world.

Find out more at https://emeraldcitypro.com

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 dedicated to trial lawyers who are working in the personal injury field. And today we are going to look at a shift, I would [00:01:00] say in the personal injury practice. And the shift that I’m talking about is really from a trial focused practice into a mediation focused practice.

Now along with that shift was one of the things we’re going to really talk about is kind of the What I call the OG style of preparing a client or a witness for deposition. And there are so many facets of law, like we’re really focused in on the personal injury practice. You know, folks with mental injuries, physical injuries, that can be workers comp as well.

And it even factors in some employment law. But why I really want to focus in on that practice area today when we’re talking about is we’re going to take a little history lesson with kind of the history of mediation and how it kind of creeped into what we do as trial lawyers in the personal injury realm.

A lot of mediation practice really [00:02:00] came up back in the eighties. And when I started practicing over 10 years ago, this was still what I was taught to how to prepare people. And so that’s what I want to talk about today. This is how I learned originally how to prepare a client, but this style has gone back many, many years.

And it really started in the eighties. Okay. There were many labor strikes, labor relation issues and the rise of mediation really started around that time frame and expanded during the eighties and early nineties, and during that time, insurance companies really saw, oh gosh, this is hugely beneficial. We can get like all these claims done.

It’s extremely cost effective. We don’t have to go to court with all those expenses. and slowly this began to creep into. The practice of [00:03:00] personal injury and, and it’s mandatory in a lot of places. It’s here in Texas and many courts, it’s part of the rules of practice. You have to mediate your case, whether you like it or not.

And a lot of the places it’s the norm, it’s not necessarily mandatory, but generally it becomes this hoop that we have to jump through, which can be very frustrating because also over time, the mediations. They’re not fruitful. When I practiced, they were very frustrating to me because we would show up. In good faith, hoping to get something done and the mediator is not making anything new.

There’s no real attempt to actually get it settled. They don’t bring enough authority. They don’t have enough information. And so it’s very frustrating. All this to say in our history lesson here that most cases nowadays don’t even get to a jury trial. I mean, statistically speaking, it’s taking the whole swath of the U.

S. Really it’s, we’re talking about two to three to 4 percent of cases total on dockets [00:04:00] are actually getting to go to a jury trial. And that’s not to discourage anybody, don’t get me wrong, you can go to trial and I believe that that is one of the biggest hammers that we have and that we should really be focusing always with our eye on the prize of making sure that we’re preparing things to go to trial, if that is the proper case.

There was this just huge shift, right? This huge push into mediation and not trial and that’s how it’s been pitched. Oh, we’ll get this done early, you know, we’re gonna save on costs. And I think most people realize like the whole quote unquote save on costs, like that whole thing’s gone out the window. So many in house counsel and lots of different pay structures now that that’s really, they just write that in and they write it off like that.

on their taxes. So it’s really not even a factor anymore. So all that to say one of those things that didn’t really shift was a lot of trial lawyers mindset on the client’s day in court and the client [00:05:00] telling the jurors and having sympathetic jurors and, you know, just. Money’s just going to roll in and with that shift over into mediation, there were also a lot of campaigns and I’m kind of getting a little off track, but there was a lot of things that went into the public realm, into media and advertisements about the negative, uh, aspect of trial lawyers and all this creating this shift.

And so we really don’t have very many compassionate jurors. And again, we’ve had probably another shift with the pandemic. So we keep having these huge major shifts and are we as trial lawyers keeping up with that? So let’s talk a little bit about the OG style of deposition prep, which would always the rule number one, it was just tell the truth, which I think everybody understands watching TV movies.

You get it. You got to tell the truth, right? There’s an oath, right? We watch everybody get on law and order and tell the oath. Don’t share, don’t explain, it’s yes, [00:06:00] no, I don’t know, I don’t remember. Those are all quote unquote truthful answers. And at the same time, don’t fidget, be stoic, don’t show any emotion, always listen and pause before you answer.

So this is kind of what I would call like a list of don’ts. And along the way, maybe there’s some here read your discovery answers and here’s your medical records, you can come to the office and review these. But mainly a lot of the preparation conversations are just kind of a list of Don’ts. List of do’s.

And then just, Hey, where to go? Show up 30 minutes early. Wear business clothes. Don’t talk to anybody. And if you go through and YouTube deposition preparation or how to prepare for a deposition, you’ll get Almost five hundred thousand hits. So there is a lot of information out there and just clicking through some of the videos.

I always like to watch them to see, Hey, what is it that people could be out there listening to? And if you have a client who is [00:07:00] overwhelmed or who is really not sure, or has lots of questions, they’re totally going to pull out their smartphone and start trying to find answers. and videos are a really quick way to learn about it and it’s Especially if you don’t want to read or just listen to it.

So there’s a lot of things out there and most of them are, again, geared towards this, Hey, try to get through without damaging your case. Try not to show that you’re nervous. Yes or no are truthful answers. I don’t know is a truthful answer. And again, all 500, 000 videos are not all personal injury related.

There’s a lot of things about family law and business law. And that’s why I kind of segmented this out because in a business case or a contract dispute case, you’ve got a few other factors in mind. Personal injury cases, that’s why we’re kind of setting aside to talk about that for this particular episode.

What I want to do is just really ask, are giving a list of don’ts, does that really help a person give a [00:08:00] deposition? First, like we talked about, it’s a very outdated notion that A personal injury client should hold information back and wait to give it to a jury, right? Just based on the fact that we’re talking about two to 4%, maybe 5 percent of cases go into a jury trial.

Not to mention the backlog, the time to get there, right, is also a long time. And the reality of our practice is that, yeah, it’s two to four to five percent of cases. But the also reality is that we are working harder as a profession to get less money. It is a fact. When I started practice, I had a couple of bosses and, Oh, there’s used to get, just throw a demand letter out there and get three times medical, no problem.

And if you’ve had the same experience as me, throw a demand letter out and you get one, nothing back [00:09:00] 500. If you’re lucky, you know, insurance companies just don’t want to pay. There’s a lot of factors that go into that. But I think the truth and reality is like we. are working so much harder. This is why we have so many more cases.

And that makes us much more busier. We’re distracted. We’ve got a lot of things on our plate, which really can get in the way of being able to practice self discipline. And we need to be able to go to trial and be able to walk into mediation and say, Hey, you’ve had everything in your file for over a year and we did our job.

Where are you at? All in all, we should really just try to work smarter, right? Depositions are the battleground. So we really need to be better prepared to know, Hey, let me set this transcript up. Colleen, all of my. It’s a project that you’re [00:10:00] going to be working on. We’re going to be talking about projecting that to a client who is going to be using a different type of replacement service, a different type of replacement service.

But the reality, again, is that Depositions are where major decisions are being made. These transcripts, the impressions that are made on the defense counsel when they report back to their adjusters. And that’s the reality. And so let’s work smarter around that. Back in episode 44, we talked, I talked about objections as a band aid to PrEP.

Meaning, when those hard hitting questions come at deposition, we’re just throwing those objections out there hoping maybe the client catches that’s a signal or just trying to like, basically ward off, you know, these hard hitting [00:11:00] questions, hopefully that are not going to damage the case. But I also talked about a checklist for preparation.

I encourage you to go back and listen to that particular episode. But all in all, what I want to talk about here today is let’s just simplify this process for you and for the client. So many of the videos that I’ve watched in the videos that I watched to get ready for I’m talking to you today in this episode, there’s so much legal jargon and let’s remove that don’t telling a client.

Hey, if you walk in with notes, it’s discoverable what they don’t know what that means. It’s easier just to say they get a copy of it and hey, Some people may need notes. Some people may need to walk in with a timeline, and you know what? That’s okay. If they need a timeline, let them have a timeline. We talked about one of the things on our checklist was having a timeline in the file, and it can be just literally as simple as date, event, date, [00:12:00] event.

And, and I’m going to talk about this, uh, a little bit more in detail. I’m going to talk about the, um, the, uh, the, uh, the, the, the, the, the, the, the, it’s called the COPD. And it’s a, it’s a pretty weak term. was that the individual who fell had some pre existing conditions, some pretty heavy COPD conditions and we had a husband and a daughter.

And the daughter had been pretty well involved in going to doctor’s visits in 2018, a long time ago. So she sat down and thought, okay, and she said openly, Hey, I’m not going to remember all those dates or what the doctor said, or even in the hospital when she was there, like, I’m not going to remember all those things.

Give me the medical records. I’ll review them. And that’s one of those decisions we have to make as a lawyer. Do I want to give her those medical records to review? Does that open the door for defense counsel [00:13:00] to basically line by line in these medical records if she says she reviewed them? So we made the decision strategically, let’s just create a timeline and it, I’m telling you, it was so simple.

It’s just a word document. December 6th, follow up, December 10th, hospital admission, like really, really simple things so that it just jogged her memory enough. She walked in and used it, defense counsel got a copy. We’re not, there’s no secret sauce on the timeline, but it gave her just a little bit of confidence and also assurance, one, we listened to her.

She said she wasn’t a hundred percent sure on her memory, I could tell she wanted to do right, she wanted to do well in her deposition, she wanted to those medical records. strategically we decided that’s not good. Let’s just have a timeline made for her and have that, she can take that in there with her.

And that’s one of those things like, let’s just make it easier. But if we. [00:14:00] Keep with our legal jargon. Oh, I need you to read your interrogatories. And you said this in your request for admissions. Let’s just get out and put it in front of them. If that, if it is that important, right? And let’s make sure our discovery answers are correct.

That’s another thing we always try to make sure because we know they’re gonna ask questions about that. And that’s a good thing to review. But again, it’s if you throw something at them, let’s really try to explain like what’s the purpose of this. But also be asking, to make this simpler, like, what do they need?

What does the client really need to understand? And one of the things that I saw in these videos over and over again was just talking about logistics. Like, what Where to go, what to wear, how to sit, and all of those things can be sent in a letter, in an email, in a text, bundle that up. That’s the easy stuff.

Getting somebody there. We’re really just need to be talking about the rules of the deposition. How do we play this game? What are the rules? What are their rules? What are my rules? That’s what I want to know. What am I going to be asked? Why are we doing [00:15:00] this? What’s the reason for the deposition, right?

What are the weak points of the case that are going to be attack points? That’s really what we want to do is make sure we are simplifying and honing in. You don’t have a lot of time. You got a lot of cases, right? Clients may not give you a lot of time. So let’s make that time really easy. Fine tuned and full of the information that they really need to understand what they’re walking into.

And I wanna dig deeper into the rules of how to play right, the rules of the deposition to make it easier for you. We’ll do that in another episode, but again, just wanna look at, hey. Let’s set ourselves up a checklist. We talked about that in episode 44. Let’s set up a system where as soon as we schedule that deposition, we’ve got a letter that goes out, we’ve got multiple emails, and we even got text messages.

We need to be reminding people three or four times [00:16:00] about the logistics. That solves a lot of worry and concern on people. You can even tell people, Hey, we’re at a park. I mean. That’s just courteous. That’s easy. Anybody in your office can send you, can send that letter, that email out. But then also talk about the time factor.

So how do we make it easier on us? We talked about sending that letter out, covering the logistics. But if you have a lot of information to cover or you have something super heavy to cover, I say break it up. At least have a two part prep because you really want to be using your time wisely. You want to be really fruitful.

You want to see some results. You’ve got to give them information and let it marinate and then come back, test it out. Did their memory, did they get it? Do they not get it? Is there still some confusion? And I’m not talking about 30 minutes, one week. An [00:17:00] hour the next week, but giving enough time to see and marinate, Hey, is this stuff sticking?

Is it not sticking? But you really want to make sure that you’re giving them time with the information. I think when we shortchange our clients and we meet them the day before for 30 minutes, we see them the next morning for 30 minutes. They may have a legit problem. Major concern they may have come up with a question.

They really need you to answer and you need to take the time to think about, oh, Strategically, how should we answer this? How is this really going to impact? Because at times we think, oh, we’ll just fix, we can fix things in the deposition. No big deal. Some things are not fixable. I was talking to a lawyer the other day.

They talked about, well, we’re going to trial. Unfortunately, in the deposition, the client basically cut the knees out from underneath their lost wages claim because they told the defense lawyer they were going to retire at 62. So we lost five years [00:18:00] of lost wages. You know, there’s no coming back from that.

You can’t just get on the stand and say, well, you said in your deposition 62, but really, what did you mean? You can’t do that, right? So there are some things that cannot be fixed later. Let’s just make sure that we are leaving time for that because give clients some credit. They will accomplish some good stuff for you if you just give them some time.

All right, so I hope that this episode was helpful at the end of the day, we really need to be looking at, hey, times have changed. Things have shifted after pandemic. Things shifted again. Are we changing with the times? Are we preparing people the best way we can, making it easy and simple on us, setting them up for success and setting up our files for success, knowing that we know what’s on the grading sheet.

So let’s step up and make sure that we are covering all our bases and getting ready for mediation, getting ready for trial. All [00:19:00] right. Thank you so much for listening today. If you enjoyed the podcast, please leave a review or even click those little stars that will help other people find this podcast, or you can just share it.

I appreciate your time and until next time. Thank you.

Not sure about the case value of a case? Finding case values can be really difficult. Sometimes, cases are difficult to assess. Maybe you’re just not sure how to evaluate this case.

There are three sources lawyers generally tap into when it comes to evaluating cases. First, they could use their own experiences, which can be great, but at times, it can be limited. Maybe because they haven’t practiced very long, or maybe because the facts are unique or the case itself is unique.

Second, lawyers can tap into other people’s experiences either by asking other lawyers who have handled a similar case. They may also use a Listserv where they can ask other lawyers in the same profession or organizations. Third, lawyers could look into jury verdicts in their location or jurisdiction. 

In this episode, I’m going to share another way of finding case values, which is by running focus groups, and learn how you can use focus groups to get the most reliable data possible.

In this episode, you will hear:

• Understanding there are different categories of ways to run focus groups
• Using focus groups to find case value vs. quantitative studies
• Some cautions to think about when running the focus group
• Striving to learn more but also questioning the reliability of the data
• Different factors that determine the success of a focus group
• The challenge to stay neutral as a presenter to gather reliable data

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

If you have a question or a suggestion for an episode, please email me: elizabeth@larricklawfirm.com.

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 in today. We are going to look at a frequently asked question in focus groups. I get this question pretty much every time I talk to lawyers about [00:01:00] doing focus groups and that is. I want to use a focus group to find my case value.

Can we do that? Or rather, this is one of the goals that I want to use this focus group for is finding the case value. And I get it, finding case values can be really difficult. Sometimes cases are difficult to assess. Maybe you’re just not sure. And in our usual ways of thinking about, well, how to evaluate this case or how do I look at what the value is?

We normally use our own experience, which can be great, but at times it can be limited. Not because of anything. of our own, but just maybe because we haven’t practiced very long, or maybe because there’s unique facts, or maybe it’s just a unique case or case theory or injuries could be just a case that’s first for you.

You’ve not done one of these before. And I haven’t practiced very long. And I had many of those challenges when I would get a case in and wonder like, Hmm, I [00:02:00] wonder how do I get this case value? How do I even look at this? Because I’ve never done this before on this particular type of case, type of client, type of facts.

So if we don’t have our own experience, we generally try to use other people’s experience. So we just go ask lawyers that we know in working in a firm or mid sized firm. You’d have other lawyers to go look at, or maybe the firm has a track record that you could look at. If you’re solo, then generally we use a listserv to ask other lawyers in the same profession or organizations, Hey, I’ve got this case.

What are the recent settlements? Or maybe has anybody gone to trial recently on that? That’s always a good way to find what other people have been doing. You could also use a database. Most of the databases are paid subscriptions to go find settlements or jury verdicts, which the one caveat to that is in most of the [00:03:00] time, most settlements are confidential.

So they’re not going to get to go into those databases and sometimes they’re not, but it’s a great thing to have. access. Don’t get me wrong. That was something that I never had. I had to go ask lawyers, hey, will you look this up for me? That is a great place to go. Also. I think looking at jury verdicts that you’ve had in your location or your jurisdiction is also a really great place to find what’s happening lately or has this ever been a type of case in your jurisdiction.

Just using other people’s experience is another way to find a case value. And again, using focus groups, right? These are our potential jurors, or we hope that they’re our potential jurors, or meeting the same demographics. And so we want to know what they think. We want to get those, hey, what is the value of this particular case with these particular injuries?

And as a side note, there is a whole [00:04:00] subset of focus groups that is totally focused on finding case value. And it’s very quantitative, meaning they do studies and they’ll run the facts and those kinds of things. So, um, yeah. Okay. So um, um, what are the most common places that you can find, um, a, a data point where you can find the number, where you can find, um, a G I D A T E N T test.

So this is a, a, a fitting for a number. And so, um, we want to know what are the most common places where you can find data on which you can find a data point. And so, um, we’re going to be measuring, uh, data points, and we’re going to be measuring how many of them there are. Um, and we’re looking at the quality of the conversations and looking at that way versus having multiple studies where it’s just basically kind of a numbers game, literally to figure out what [00:05:00] it is.

And a lot of times when we run focus groups. As trial lawyers, we generally put it into one category of a mock jury trial, which is totally fine. And those work really, really great. And that is definitely a place where you are going to ask that question of them. That’s something they’re going to fill out as that mock jury.

And we’ll talk a little bit about having that mock jury setting is really helpful to get the jurors that are. Focus group people in the mindset and creating kind of a level of seriousness to the whole focus group. But of course, in also thinking about the way that I think about focus groups, which is yeah, mock trials are one category, but there are lots of other categories of ways To run focus groups and not have to be like this giant time and money investment of a mock trial, we can dial it back and just do, you know, one hour and look at things a little bit differently and just use our time [00:06:00] differently and also be able to be a little bit more efficient overall.

So what are some of the cautions I would say, whenever I hear this, Hey, Elizabeth, let’s run a focus group. I want to know what they’re putting on the value of this case. And I always say, Hey, let me just throw some caution at that. Just because at the end of the day, focus groups are just paid individuals who are there.

They’re not really invested in the process like a jury would be. And it’s not really real to them. A lot of times when I run focus groups, I’ll always. Okay, well, tell us what happened now, tell us really what the outcome was, and I always just kind of laugh because I’m thinking like, why would we waste all of your time, all of our time asking you about things that have already been decided?

We don’t want to go back and do that. We’re asking you first impressions so we can go take this information and do things better. But again, that’s just the [00:07:00] whole process. Like it’s just fake to them. They think this has already been decided. They don’t really feel like they’re in part of the process. So, you know, it’s fake money to them.

You know, they could throw 80 million dollars out there. Like it just means really nothing to them. It’s monopoly money. And that’s half the battle of a focus group. Just generally you, you’re paying them to be there. There’s already an incentive. There’s already a slight bias. You’ve got to get over that hump of them knowing, hey, I don’t want you just to sit here and tell me everything I want to know.

And that’s part of setting that neutral tone. And the other part of it is they don’t generally have a framework for it. And that’s kind of where, when we use our own experience, we have a framework, when we go and ask other people, other lawyers, based on their experience, there’s a total framework to it.

The amount of explanation you have to give is very little, right? They’re coming from that same place as you are, versus here. In a focus group, you could be having a lot of people who’ve never served on a jury. And even if you’ve got one or two, [00:08:00] the chances of them serving on a civil jury on top of that, again, it just really goes low.

So, you could spend a lot of time working through what is the framework and answering questions and spending some time on things that really are not getting to, I need this feedback. Focus group, I don’t really want you to keep asking me about, well, where’s the insurance and, you know, why are these people aren’t trying to work this out?

Just cut to the fluff. So, they don’t have a framework. And that’s generally always the pushback you get in jury selection. We get the same question all the time. Well, I don’t think I can do it. I don’t know how to do it. I don’t want to do it. That’s what we’re hearing and focus groupers generally will say, yeah, I don’t know how to do this.

Can you just tell me, do we just multiply by three or what are some other verdicts, uh, can you tell us about that? And again, they’re just trying to grasp this framework because in a focus group, we don’t have a lot of time to give that framework. And that’s at the end of the day, what I always want to let people know is we [00:09:00] can strive to learn more, You really need to be asking yourself, how reliable is the data?

How reliable are the numbers the focus group is giving you? And you have to be so careful and methodical. in your presentation to make sure that you’re not going to end up tripping the wire of the bias, right? There’s so many landmines out there in presenting to focus groups that if you tip your hat one way or the other, now you’re really worried about, is this really reliable?

Are they really just telling me what I want to know? So how confident can I really be in these numbers? And what I always tell lawyers is it’s think of it as It’s one of the one of the factors, right? Coming up with a case value, right? Let’s tap into all three of these sources, our own experience, right?

Our own trial experience. Tap into other people’s [00:10:00] experience. What have other lawyers done? What are other jury verdicts, right? And then here’s our third. Place to tap into, which is focus groups, potential jurors. All of those things need to be squished together, right as our data points to look at and then be able to feel, okay, alright, I’ve got more information.

I can now pick a number that I’m gonna feel confident and I don’t feel like is a risky number if I’m gonna get it from the jury and say this number. Now, just pause here for a second. There’s a whole other train of thought out there that says basically, you just come up with the number and you feel confident in that number.

And I totally think there’s a place for that, but my mind and the way that I work, I want more information. I want more data. I want to make sure that I’m looking at what potential [00:11:00] jurors Are thinking now and what they’ve done in the past with jury verdicts. There’s totally a different way to do it, but In keeping with kind of this particular podcast thinking and my thinking, which is, hey, let’s gather in all this information to let it help us create this number that we are going to give at mediation, or the number that we’re going to give at trial, which I suggest you could be two different numbers and probably are two different numbers, but at the end of the day, it’s a factor that goes into it because what you move.

Want to be asking yourself is okay. I’m gonna walk in this focus group. Do I know how to make this situation? feel real to the focus group meaning How do I get them into the mindset that what they are telling me or telling this? Speaking about the focus group is real It has real impact to the players because the more real it feels to them the more like wow My what I’m [00:12:00] saying is important and people are gonna listen to it and it’s it’s real It’s going to be taken into account, the more that they put thought into that number.

And it’s why you really have to try hard to make it real to your focus group. And do you really, do you know how to do that? Do you know how to provide enough information, but not too much information? So many times, this is always a teeter totter, right? Did I give too much? Did I give too little? How will I know?

Well, if you give too much, then generally you run out of time. That’s one of those things. If you give too little, then you’re dealing with too many questions. You’re not getting to the heart of the matter. So, do we really know how much information to present to get This number. Do you know what questions to ask to test the numbers with them together?

And that’s just to see okay. Well really we want to know what’s behind the number, right? So, okay, you’re telling me five million, Robert. [00:13:00] What, where does that come from? You really want to know and then test it against somebody else’s number. But do we know all the questions that we can ask to really test it to make sure did they actually take time or do they just throw something out there?

Or what also happens in focus groups is they just sit and read the chat or listen to somebody else and just say, okay, well, what they said. Okay, well, uh, yeah, I’ll take that number too, right? That means they’re not putting any thought into it, which can be very frustrating. And there are ways that we can use a private chat to make sure that nobody else sees it.

We can use breakout rooms to make sure that those conversations are private, and that’s, again, those are great ways to make the situation real, to test the information, make sure that it’s something really thought about, that it’s time consuming, of course, but also, can you truly be neutral as a presenter, as a moderator, to avoid swaying them, stepping on one of those landmines, or having the participants realize, [00:14:00] oh, you, you are involved here, because if they know that you’re involved, You’re automatically raising a flag to them, they’re either going to be saying things that they think you want to hear, which may not be their inner truth, or they’re saying things to the extreme opposite, which is like, oh, now that I know that you are a trial lawyer.

And I don’t like trial lawyers. Like, I’m going to go to the, to my extreme position. Maybe I’m always pretty in the middle and, but I’m going to go to an extreme. So either way, you’re really not getting reliable data and it’s money we’re talking about here. All right. Money just in general makes people nervous.

And now we’re asking, well, give money for an injury. And that’s a whole different principle that we’re asking people just to, Hey, can you just jump over that hurdle? And let’s talk about money. So again, Trying to be neutral is a whole nother part of it when we’re asking about, Hey, how much can you give?

Hey, how much money are you going to assess here? So [00:15:00] let me just run through an example because this happened recently. Running a focus group, I am running a focus group for another Um, and then we’re going to test damages and we’re going to try and get all that done in an hour, which was quite the feat.

We realized we needed more time, but we had done a focus group previously, but tested liability to the max and we’ve got over that hurdle. So in, in coming through material for this focus group, we really kind of skinny down liability. It’s a commercial vehicle case. It happens at night. And. I have presented this case before, so I know a little bit about it, but we’re working in front of the second group with liability, and the group gets stuck, meaning they’ve got extra questions, and they are getting very confused on the information, and at the end of the day, the group has really stuck 50 [00:16:00] 50, so 50 percent responsibility on the commercial vehicle, 50 percent on the other vehicle.

And as a moderator, you kind of got to be thinking on your toes and know, okay, do I proceed forward with my original presentation and we just start straight into damages and say, Hey, here’s how this guy got injured and how much money. Or, do I need to pivot? Do I need to switch? Do something very different to make sure that I am remaining a neutral party in this thing.

Because here’s what can happen very easily in a blink of an eye. Is if I turn and said, okay, now we’re going to look at how much money you’re going to award. They’re going to be thinking, well, Elizabeth, didn’t you just hear us? We don’t think, we think it’s this guy’s fault. We’re not going to give him anything.

You know? Okay, so, because that would be a waste of a focus group. So, you want to make sure that it is Depending on the feedback you’re getting, how [00:17:00] do I make sure we can have reliable data on the value of the case? So I did an instant change of direction. I did a pivot. And what we did was, we looked at the injuries through the mechanism of harm.

Meaning, okay, here are injuries. Tell me how this happened to this guy. Let’s look at these pictures. Are these injuries you would expect? How could that injury have happened to this person? What would you, you know, what would you expect the recovery to be, the impact of it? And then we turn to his inability to work.

Right. So he had this injury to his right arm, but now he can’t, he’s got arm weakness. He’s got, and does that make sense? What are we missing here medically that you would need to see? And then, then we stepped it into talking more about the money side of things, but again, keeping the cover of hay. This guy had this injury, he’s not able to work, he can’t do [00:18:00] X, he can do Y, but he can’t do X.

I mean, he can’t do annual labor, and he’s 27. So, could you allow a lifetime of lost earning capacity? Now that’s a great discussion, and we totally, what would you need to see and understand, and for a lot of people, the hang up was, he’s 27, he can go back to school, he can go retrain and do something different, and Uh, the divide on that was not completely shocking, but a little bit.

Our younger jurors said, Hey, you know what? It’s the era of the internet. If you want to learn to do something different, just go look it up on the internet. Most of the time you can learn how to do it for free or it’s a lot cheaper than going to college. And a lot of the, my older jurors said, well, no, if he, he needs to be, this is the injury and he can’t do the job that You know, he was making good money at, and he can’t find a job that’s even remotely similar because he can’t [00:19:00] do manual labor, then no, he needs to have a lifetime of lost earning capacity.

But that’s a great discussion. Gosh, that’s a huge part of damages. So, that information was To me, extremely valuable because we’re listening to basically what would be a deliberation on, okay, give them a lifetime of lost earning capacity or not, right? Past or future. What is it going to be? And what are people’s attitudes and thoughts and experiences?

What’s going through their mind? Great discussion. Do we really need to know what the number is? No. It could be a million, it could be 40 million, but That’s not the hang up. The money wasn’t the hang up. The money was his age. Could he go retrain? Could he go get re educated on something else and make more money?

And manual labor is making 35, 000 a year, so people are like, well, yeah, go do something on the internet. Make a whole lot more money than that. So, good [00:20:00] discussion. And, you know, what I gathered from that in the sense of Moderating and putting the focus group together was, I did not want to push them to get numbers.

How much money would you give for this traumatic brain injury? Because they would totally see I’m disregarding their 50 50 on liability and that basically I don’t care what they’re saying on liability because I want to talk about money. Let’s talk about this money. And I just, I always want to provide reliable information at, at all costs.

Because if you can’t rely on a focus group feedback, You just flush time and money down the drain. You can’t get any, you can get money back, but you can’t get your time back. And that’s just frustrating. We want to use focus groups to remove surprises, to find assumptions, to know how people think and feel about a lifetime of lost earning capacity for a 27 year [00:21:00] old.

Or a 6 year old. So whatever the age may be, what are their thoughts that’s going through their mind so that you can either Ask about it in jury selection or just know that it possibly is there and you talk about in closing. So, all in all, right, using focus groups for case value, finding that case values.

Definitely always put up some caution lights, right, just to let people know that, hey, it should be a factor. Focus groups can help you learn about damages. Understand what is on the jurors minds when you are talking about damages. These type of injuries, lost earning capacity, lifetime medical care, the cost of lifetime medical care, what is confusing to them about those things, or the numbers.

You can ask people to look at numbers and just talk to them about it without saying, well, how much money would you give? Because knowing [00:22:00] what’s on their minds when they’re seeing those numbers is just as important as how much that they’re going to give. Because you got to navigate that part of it.

Right. Before they write that number out, you got to navigate what’s on their mind. So I think it’s totally a factor, but again, we, you got to make sure that we are getting reliable information feedback we can rely on. And just knowing that it’s one. What’s one tool that we have in our arsenal to help us understand more about case value for our case?

So I hope this podcast episode was helpful. I have a feeling that we will be revisiting this topic multiple times because it comes up often or frequent and there are lots of ways that we can look at how to test And make the situation real for focus groups, because I know that this is a factor. We should be using focus groups to help us learn more about damages so that we can know how to talk to jurors about it and to feel confident when [00:23:00] we ask that number in the courtroom.

All right, thank you so much for tuning in. If you enjoyed this episode, please leave me a rating on your favorite podcast. Leave a review. That is how people can find this podcast, if it has ratings. So please go do that for me today. If you have any questions or you have any suggestions for a podcast episode, I would really appreciate that.

My email is going to be in the show notes to shoot me an email and I will get back to you. All right. Until next time. Thank you.

Are you using objections as a band-aid for a lack of preparation? 

You may be sitting in a deposition where you’re taking the deposition of the defendant. Then as you’re asking tough questions or questions that get to the heart of the case, the defense lawyer would suddenly pop up and say, “Objection Form.” Defense lawyers use this as a tactic to send a message to the witness. The defendant would then respond by saying they don’t recall. 

This is a cycle that we see pretty often in depositions and it can get frustrating as a lawyer. But what happens when you’re using the objection form as a band-aid for preparation? 

In today’s episode, we are going to look at this very mechanical piece of depositions: objections. Specifically, we’re going to be looking at the objection form used during a client deposition. In Texas practice, for example, this is the only permissible objection under our civil procedural rules, and this is the same way in most jurisdictions. 

And so, you want to make sure that the client gets the questions that they can answer, or at least neutralize them. But you don’t have to jump in and hit the Objection Form button. That’s why it’s very important to have a checklist of things so you come to depositions confident and prepared.

In this episode, you will hear:

• What happens if you don’t have enough depositions
• When you’re raising the red flag, everybody sees it
• The importance of creating a checklist for deposition
• How to create a checklist to prepare for deposition

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Supporting Resources:

If you have questions or a suggestion for an episode, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

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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.

This is a podcast dedicated to lawyers who are going to trial, who are getting ready for trial, who are preparing cases to win, and also with the mindset of knowing what is [00:01:00] on the jurors minds. In today’s episode, we are going to look at a very mechanical part of depositions. Objections. And specifically, to narrow this down, we’re going to be looking at objection form that you use during a client deposition.

And in Texas practice, under our civil procedural rules. This is the only permissible objection. And it’s that same way in most jurisdictions. That’s the same rule. But I just want to let you guys know we are not going to venture down the road of impermissible objections as we could be here all day. And this This podcast is focused on your client, your case, and how you can prepare it better.

So not going to talk about using objections for defense witnesses or experts [00:02:00] because what we’re really looking at today is are we using objections as a band aid for a lack of preparation? So what am I talking about a band aid? What do you mean? Well, Let me just set the scene here for you because we’ve all experienced this where you may be sitting in a deposition and you are taking the deposition.

You’ve got a defendant. And what I am thinking of is a situation where I’m sitting, taking a deposition of a driver in a commercial vehicle case. And when I asked tough questions or questions that really got to the heart of the case, like, do you accept any responsibility? The defense lawyer would pop up and say, objection form.

And then The driver would respond. I don’t recall. I don’t know. And that’s it. That would continually happen where basically tough question, objection form, defense response. I [00:03:00] don’t know. I don’t recall. Very frustrating as a lawyer, but what obviously is a tactic by the defense lawyer to send a message to the witness.

So what happens when we’re using objections as a band aid to preparation? Well, So what we’re really talking about here is giving the opposing counsel a second bite at the apple. Therefore they’ll keep refining their question until they get a clean question. And this is super important when we have cases that are styled, where motions for summary judgment are regular practice.

So a couple episodes back we had Michael Neff who joined us as a guest and he talked about how important it is in premises liability cases. Nearly every single one of those cases will face a motion for summary judgment. So So, having the clear testimony in deposition [00:04:00] is really crucial. And that’s exactly what we’re talking about.

We want to make sure that the client gets the questions that they can answer or at least neutralize, but you don’t have to jump in and hit the button, objection form. So then you’re sending a message and the client will hopefully fend off or we don’t really know. But the point is that we’re using that basically as, Oh geez, I forgot to talk to them about this.

Right. really tricky question or this particular part. So I’m just going to say objection form and we’ll just fix it later. That’s the problem. You may not be able to fix it later, right? That’s that motion for summary judgment we’re talking about. And premises liability is a good example, but A lot of other cases also face the same thing.

Employment cases are another place where motions for summary judgment are pretty well standard. I had another lawyer’s talk to me, mold cases, and on specific issues as well, where motions for summary judgment may come for your specific [00:05:00] claims. So we really want to make sure that we’re not using the objections as a band aid also because it kind of makes your client look bad, right?

They’re going to lack credibility because they can’t really stand up on their own. Again, because you’re trying to protect them with this objection form. And, naturally, if it’s done enough times and enough depositions, then you gain a reputation, which will either have People reacting the same way, giving you the same thing in return, or may take you to the judge altogether.

Now, you may say to yourself, Elizabeth, now maybe this happens to me every once in a while, but it’s not something that I Regularly rely on and you may not even realize that you’re doing this because we are busy people. We have lots of cases. If you are a practicing plaintiff’s trial lawyer, you have a big caseload.

That’s just the nature of the work that we do. I’ve I was speaking with a lawyer this morning [00:06:00] and he, we’re risk takers. We front expenses, we, we take on cases. We got to have more than one or two. So we have a big caseload. We can get distracted. We have multiple things going that we’re getting ready for preparing and thus preparing clients can get shorter.

Sometimes it’s the morning of maybe it’s the day before, but usually we’re just not as organized as we’d like to be. And this may mean that we are skipping out on organizing our file, reviewing it, laying out the hardest areas a client may face in deposition. So these are those hard questions that challenge the core of the witness, which is where we jump in with that objection form.

Because the question may be fine, may not be fine, but either way, we’re sending up a red flag here and it’s very obvious. The defense counsel is going to see the red flag too. Remember ponchos? We used to use, if you’ve ever eaten at ponchos, they used to [00:07:00] raise the flag and they’d bring over sopapillas or whatever you needed.

You may not have ever had that experience and I’m sorry, it was a wonderful place, but that’s what I’m talking about. You’re raising that red flag up. Danger, everybody sees it. Defense counsel and the witness. So let me give a real specific example. When a client is faced with this kind of situation and in, in a car wreck case, I saw this many times where maybe we had a client who failed to go to all the recommended treatment or maybe they missed appointments and then they start to get these questions from the Defense counsel opposing counsel that dance around this insinuation that you must not have been hurt or Was it important to you to get better to take care of your health, right?

Because you’re skipping out You’re skipping out on these things and that really puts the client in a difficult situation, it’s like an emotional gut punch that they are ready for. And when they get that gut punch, it really clouds their minds and any [00:08:00] logic they could use to answer the question. And therefore they’re going to respond emotionally or defensively.

And generally. They’re not even going to answer the question because they feel attacked, they are therefore going to go on attack. This is where we jump in and start objecting those questions. But again, here we go. Here comes the opposing counsel. They’re gonna rephrase and go back at it again and give them enough chances.

They’re gonna get the berry in the bucket. Which means they’re going to get that clean question. They’re going to get that damaging response. And at the time of trial or in a motion for summary judgment, that judge is going to look at that question and say, Hey, that’s a clean question. That’s going to come in and it’s going to be damaging.

So we really want to make sure and look at, Hey, am I doing this subconsciously? Maybe I don’t even know, or am I, how could I do just a little bit better? preparation to avoid having that situation where the client goes [00:09:00] through it and we’re having to objection form and just basically use it as a band aid and think, Hey, I’ll fix it later, but some things just can’t be fixed later and it’s going to come in.

So what’s our alternative? Well, I like to think about it in a checklist, right? So when I’m going to sit down and get ready for for preparation of a client, I really want to be organized. And there are things that you’re just going to repeat and do again. And some of the things on our checklist, you can ask somebody else in your office to do a paralegal, a legal assistant.

You can even find a third party that will do some of these things for you. The important part is if you have somebody else do the work for you, you still got to put your eyes on it. You still got to review it. So. Let’s talk a little bit about our checklist here. Think about it in your mind, like a list of things, a little checkbox, right?

And so one of the check marks may be a list of case documents, right? That may be for you medical records. It may be the employment file. [00:10:00] And you really want to make sure as a subset that the list of case documents that the client has reviewed Or looked at. Because again, we want to make sure if this is something that came from them, we definitely want to highlight that.

Make sure that we look at all those documents the client has had their eyes on, brought to you, or a part of. That could be emails, documents, contracts, depends on the type of case. You always want to make sure you’re reviewing a timeline of events. And this is one of the things that I generally do when I get involved with a I create a timeline.

I create a timeline so that the client can look at it and, oh, hey, oh, yeah, I forgot about those things. We can fill in the timeline together. One can be done already. And there are maybe times where the client will take in a timeline to the deposition with them. And again, it’s one that we’ve looked at, we’ve crafted it.

There’s no secret sauce that’s. On our timeline, it’s just really a very basic link of events. And [00:11:00] generally, if you’ve done it, it’s going to help the defense anyhow because they haven’t done one, right? So that’s, you’re putting together, you’re creating a visual aid that’s helpful for everybody, but really mostly helpful for your client when they’re going to be deposed.

I also like to look at on our checklist summaries of other testimony in the case. Again, this also depends on when depositions are happening. Sometimes your client is first. Sometimes they are last. Just really depends on where things are. If you have other testimony, I like to look at those summaries. And I always like to review discovery responses.

Again, this is something in the case that involves your client. At times, the discovery responses may have been 30 days ago. Sometimes they’re 3 years ago. I always want to make sure we’re getting our eyes on there to look at it. I always like to look at the current pleadings. And then, if we’ve survived motion for summary judgment, I always like to look at the defense.

Motion for summary judgment, To see where they have placed the weakest points of our case. And that’s the whole point of working through this checklist is to spot the weak points, [00:12:00] but then understand and get eyes on that supporting evidence the opposing counsel has, right? What is fueling the weakness?

Because that is the thing. If it’s a document, if it’s a medical record, we got to get that thing out and in front of our clients in preparation. And we want to make sure that we’re creating the hard hitting questions that the client is going to get. And we’re going to drill them on it, challenge them before they get into that deposition room.

Now, there can be a hesitation to talking and giving your clients these hard hitting questions, these insinuating questions, because they really, if done right, like, they really can challenge, like, the core of what the client thinks about their case. That’s hard to do. Right. It’s hard to deliver as the person.

You’re their hero, right? You’re their warrior. They chose you to help them [00:13:00] can look like you’re also challenging, right, their case. And so we will talk about using hard hitting questions in a future episode, but just want to plant that seed where it is. I know that that can be hard to do, especially if you have clients, maybe they also lack confidence in their case, or maybe they are having a challenging time with something else in their lives.

Or. They’ve just had a challenging time with the case, filing a lawsuit. These are all things that are new, scary, and they just don’t like. So you coming in and challenging them again can be a problem. We’ll talk about that in a different episode. But Bringing it back, right, to our objection form as a Band Aid, we would just want to be going through our checklist and at the very least, you want to talk to the client.

You want to give them the ability to see that supporting evidence, to understand the twist, [00:14:00] understand that emotional gut punch, before they get in there. where they at least have the ability to neutralize that point, reduce that emotional defensive reaction they may have, and they’re going to be grateful that you did that.

But you know, the case overall is going to be grateful that you did that. So we just want to make sure that we are recognizing, hey, do I use this as a band aid? How can maybe I. Make this better. How can I avoid that? Give myself a little bit of peace, give the client some peace, right? And ultimately we just do not want to give, right, opposing counsel a second chance.

We don’t want to raise that red flag by using that objection form basically, again, to send any signal to your client or opposing counsel. All right. Well, I hope this was a helpful discussion for you. If you have questions or you’re curious more about how do I, how do I even know I do this, right? How can I look at this?

And again, [00:15:00] even if you’re just starting today and you’re thinking, all right, I’m going to create this checklist and I’m going to do these things. And if I can’t make the timeline, if I can’t make the summary, so I’m going to have somebody else in the office take some time to do that. So then I can look at it, prepare myself very quickly, take 30 minutes to read through all this stuff.

Know what it is before I sit down with the client to remind them, educate them, and teach them also about the weaknesses in their case. And I hope that this was helpful. If it was, please give us a five star review on your favorite podcast platform. Write a review so other lawyers can find this. If you wanna share this episode, that would be great.

The more the merrier, if you have a topic or suggestion, please don’t hesitate to email me. My email will be in the show notes. And until next time, thank you. I’ll see you [00:16:00] later.

People say that a picture says a thousand words, and this holds true when you have illustrations during the trial. That’s the power of visuals – they tell a story, simplify complex concepts, and educate the audience in the easiest and best way possible.

In today’s episode, Annie Gough, an independent Certified Medical Illustrator, talks about how medical illustrators work and what it means to you in your practice. With over 20 years of experience in traumatic injury, medical malpractice, wrongful death, and product defect cases, Annie provides anatomical and surgical illustrations along with visual exhibit consultation on demand letters, expert depositions, mediation, and courtroom presentations. 

As trial lawyers, we want to be able to let the jury go into the story of the client. They may not have personally experienced going to the emergency room or having neck surgery. But being able to educate them with visual aids will help bring them into the experience your clients have had. Even just a single illustration can set the stage and turn it into a story or a movie so the jury can truly visualize it.​​

In this episode, you will hear:

• Annie’s path to medical illustration
• The most difficult things to educate people on
• The best way to show an injury
• The importance of animation in medical malpractice cases
• What it’s like to work with a lawyer
• How lawyers can benefit from reading her book

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

You can buy Annie’s book here.

Visit her website: www.agillustrations.com 

Want to work with Annie? Send her an email at: anniegcmi@gmail.com

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their businesses and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of Trial Lawyer Prep with me your host, Elizabeth Larrick.

This is a podcast designed and dedicated to trial lawyers who wanna learn more and do better in the courtroom. This episode, we are going to have a guest, Annie Goff, join us. She’s a certified medical [00:01:00] illustrator, and she popped up in one of the cases I was working in. And I thought, what a great opportunity to bring an actual certified medical illustrator to come talk to us on the podcast.

Annie has over 20 years experience doing medical illustrations in Personal injury cases. So she brings a lot to the table. I’m excited about the conversation that I had with her and I hope you are too. So let’s jump right in. Annie, I am so excited that you are here on the podcast with us. And so certified medical illustrator, and you are going to help us meaning us trial lawyers that are all listening to understand, okay, how on earth do you work?

And what does it mean? Because We’re lawyers, we’re not doctors. So let’s just start it off. Like, tell me a little bit about how on earth you got started down this path. It’s a very interesting story. There are not very many medical illustrators in the world. A lot of us have a very similar career path. We grew up loving to [00:02:00] draw, being artists.

But we also like to dissect frogs, and we like the cadaver lab, and it’s a very unique mix of science and art. I actually started, I wanted to be an art major, and this story is actually on page 16 of my book. Anyway, I wanted to be an art major and my mother would not let me for many obvious reasons. And I said, well, no, it’s okay.

I’m great at art. I can be an art major and change my mind later. And she was like, no way, not having it. She’s like, what else do you like? I was like, well, I love my anatomy class. We got to go to the medical school. We got to work with the cadavers, blah, blah, blah. And she goes, why don’t you go pre med? I was like, cause I do not want to be a doctor.

I do not want to be a surgeon. And you know what she said to me? You can change your mind later. Of course. Of course. Thanks mom. [00:03:00] Yeah. So I finished pre med and then I spent about half a year doing autopsies for the County coroner. And still did not want to be a surgeon, but knew that somebody had to draw all of the pictures in all of the anatomy books that I’d studied from for years.

So all the way from gross anatomy to like molecular biology, how does DNA replicate? All of these things are all taught with pictures. And so it took a little while to find the path of medical illustration. Wow. That’s pretty crazy though. Like as far as working in a coroner’s office, at what point you decide working with the bodies is just not what I want to do.

Actually, that’s the part I really liked, which is really interesting, which is how I ended up working in law at the time when I went to graduate school. school. There were six medical schools in North America that offered a masters of medical [00:04:00] illustration. Then there were four and now there are five again.

But so to be a medical illustrator, and this is the general path for most medical illustrators. You don’t have to do it this way, but you apply to one of the medical schools that offers the illustration program. They take between eight and 12 students a year. And you go to medical school with the medical students for the first two years, learning all of your art and visual storytelling and 3D animation and all that stuff alongside that.

And my professors knew that I had a background in autopsies. And they knew that I had this like forensic twist. So when we’re all getting ready to graduate with our masters, my professor got a call from a lawyer that wanted an in house medical illustrator, a medical illustrator to work in his law office every day on all of his cases.

And they just came [00:05:00] straight to my desk. And they were like, Annie, you have to apply for this job. And that’s how I started in legal work. Oh, wow. And that was, that’s totally my question is like, how does that, cause I mean, what did normally medical illustrators, what kind of, after you get your degree, what do you do with it afterwards?

Like what kind of jobs do people normally go to? Most medical illustrators work in healthcare. So you imagine Every single graphic design thing you’ve ever seen in the world for a hospital or a pharmaceutical company or a surgical device company, medical illustrators work. There’s five medical illustrators at the CDC, and one of them created the COVID molecule that we’re also used to looking at now.

There’s medical illustrators at the National Institute of Health. Every teaching medical school has medical illustrators. The Mayo Clinic has amazing medical illustration department. They work in surgical planning, 3D printing for [00:06:00] facial prosthetics, you name it, veterinary work, and just regular publishing, like anatomical books, radiology books, oh my gosh, and gaming.

There’s a lot of medical gaming and virtual reality and AR simulation in teaching. And in the military, there’s a lot of medical illustrators that work in teaching medics. And creating solutions for treating soldiers in the battlefield. Yeah. It sounds to me like you already said, there’s a really limited amount of people in this world that have gone through the training and do it.

So it sounds like there’s a lot of positions for it. Are there, is there a need for it? Yes. So I think with, we graduate right now, 44 medical illustrators a year with the master’s degree. Okay. And we can estimate that there’s about 2000 medical illustrators and animators in the world. And only 20 percent of us do legal work.

So that’s about 400 [00:07:00] medical legal illustrators. And it’s funny when I was researching for the book, I was like, if there’s only 400 of us, how many lawyers are there? And I wasn’t able to get like a perfect answer, but the closest I could do through my research is that there are 94, 000. Injury lawyers in North America and 400 of us to do their illustrations.

Yeah. You got to think the number’s bigger than that too, because the stats or polls always just normally get the full time people, but there’s so many part time lawyers and that’s a little crazy. So how long did you work at the lawyer’s office? I was there for five years. And then you got the itch. I did.

Well, you know, it’s funny. I was working at the law firm and a lot of what I do is I work hand in hand with the medical expert that’s going to be testifying to make sure that we’re creating the right visuals to tell the right story. And the medical expert in the case asked me to [00:08:00] create something that I had not created before.

He asked me to create a digitized fetal monitor strip. And it was a birth trauma case. And immediately in my mind, I was like, okay, I can scan it. And this was a while back, obviously I can scan it in. And I was imagining how I could create it in my mind. And he goes, no, no, no. He was, you don’t need to recreate the wheel.

I know a company that does these. So you can just send the fetal monitor strip to them and they’ll digitize it. Yeah. So I contacted that company and ended up developing a little bit of a working relationship with them. And they asked one day, how much do you like living in Texas? Would you rather live in Colorado?

And I was like, Oh yeah,

they stole me away and made me their art director and I didn’t love it because I was just managing the other illustrators. I [00:09:00] wasn’t working one on one with the attorneys or the experts anymore. And I really wasn’t illustrating, I was just managing. So I didn’t stay that very long. Gotcha. Gotcha. Gotcha.

So then. Now we’ve got your own. Yes. And so now it’s just me. So when you work with me, I’m not a salesperson. I’m not at an exhibit booth. I am the person that will read your medical records. I will review all your radiology images. I’ll work with your expert. I’ll create your images. I’ll walk you through the illustrations and your presentation.

And then I have to wear all the hats. So I also do the billing and everything else. So I’m a one girl show. I get it. I get it. I there’s so many Melissa’s podcasts that totally give it sounds to me like you really love working one on one with lawyers. I mean, that sounds to me like something that really fits with your personality.

And it sounds a lot like teaching too. It’s very much like teaching and lawyers don’t go to medical school and they [00:10:00] don’t have the anatomy background. But the lawyer’s job is to teach the jury anatomy that they don’t have the background. So I spend a lot of time teaching the attorney how to teach the jury.

And that’s why the images are so important because they simplify it greatly. Yeah. And that’s, I was going to say, like when you’re teaching lawyers and you know, they’re to go teach. A lot of people who don’t have any medical training, let alone really like to go to doctors just generally. How do you weave that process in with the images and like just the education piece of it?

Yeah. Well, for example, I was working on a complex medical malpractice case with the lawyer and the client had a colloid cyst in her brain, which is a very unique ball of epithelial cells that hangs in the ventricle. And it’s technical and we needed to understand the technicality of it and the medical [00:11:00] terminology of it.

But in reality, the jury just needed to know that there was something in her brain that shouldn’t be there. And the doctor decided to take it out and he didn’t take it out. So what we did with the attorney, we went through all of the medical records, all of the radiology, all of the brain imaging, and we created the illustrations to where the cyst was accurately placed.

It matched her anatomy exactly the surgery exactly, but I colored it yellow and it was always yellow in every single image we showed. And we just called it the yellow jelly bean. And all the jury needs to know is that she’s got a jelly bean in her brain. The surgeon went to get the yellow jelly bean out.

He missed. He stabbed another very technical structure within her brain and later on said that and told the family that she was fine and she was in recovery and she was going to come out. And the truth is she’s still in the [00:12:00] hospital. He never even got close to the yellow jelly bean. He catastrophically injured her brain.

Wow. Okay. So where’d the yellow jelly bean come from? How’d you guys come up? Like that’s some creative work right there. Yeah, well, just whenever the terminology is really difficult or it’s hard to pronounce, it’s easier to just come up with a color or a thing that you can call it. An analogy sometimes works.

And then when the full slide deck presentation was created for trial, then we sat down to go through it almost like I was doing trial prep for the attorney. So I was prepping her and we recorded it. And then she was able to listen to the recording whenever she wanted. She had listened to it driving around in her car and keep saying in her mind, okay, colloid cyst, epithelial cells, thalamus.

Like how do you say these words? It’s just, it’s just super helpful. [00:13:00] Yeah, that’s such a great idea that I think it just bears repeating. Listen to it, record it over and over again. And it’s so helpful that you do that for your lawyers. Right. Preparation, preparation, preparation. I always say when I first give the attorney the set of slides, I’m like, please practice with this.

Look at it a lot before you really decide what order do we want to put the slides in? What do we want to delete? What do we want to label? And practice is key to everything. Yeah, absolutely. So I have a little bit of a challenge for you. What do you feel like as far as like the realm of injuries? What do you feel like is one of the most difficult things to educate people on?

The brain is very difficult, often because injuries to the brain are invisible. You can have a catastrophic brain injury and nothing show up on the MRI. That’s very difficult. And I think that if you tell someone my client was driving a motorcycle, he was hit by a truck, he broke [00:14:00] his leg and his femur was broken.

Most people maybe know what a femur is, but you can always say a broken leg. And that’s pretty easy to imagine. And that’s usually really easy to see in an x ray. That can be simple. You might not even need an illustration, but then if you have multiple injuries, like if it’s voluminous, if you have more than three or four injuries, I feel like that is when seeing it on one page really brings everything together and clarifies it.

Because if You’re standing in front of your jury and you’re like, okay, Mrs. Smith had a left femur fracture, a left tibial plateau fracture, a right ankle dislocation, a right distal fibula fracture, blah, blah, blah, blah, blah. You get lost. And you can’t see it, but if you just have it all on one page, if there’s a lot to show, then an illustration is very [00:15:00] helpful.

Yeah. I think as trial lawyers, we want it sometimes like, Hey, I’m just gonna put this in a list form and it absolutely gets lost because it’s just word on a page. And I think from working with focus groups and doing trials, like sometimes one word can trip people up and they don’t get to the rest. Right.

Yeah. So having this overall picture. I think always really solidifies like Whoa, this was a lot and holy. Cause I think some people don’t put it together. If you just tell them, well, they broke their right leg. They broke their left leg. They’re in the hospital for a couple of days. Okay. Then they see it and they’re like, Oh, they couldn’t walk for a couple of like, probably months.

And like, it’s like, Oh, like I think so much more comes to their brain because it’s like, You’re stimulating that visual part of their brains, right? It’s like, Oh, wow. It like broke through the skin and it tore the muscle. And when you see it, it’s just, it actually [00:16:00] holds an emotional value and emotional impact.

Sometimes that’s key to just getting the jury to pay attention. Oh yeah. And that’s, I was going to like, as far as getting them to pay attention, what are some of the things or tricks that you do to get people to like, Whoa, all of a sudden snap up and pay attention. Yeah. One of my favorite things, and actually I do it in all my cases now.

I mean, I’ve been doing this for 22 years and about five years ago, I realized that. The best way to show an injury is to first show normal. So what you do is you show the leg normal and then on the next slide you break it. So it gives this amazing 2D animation effect and you can go back and forth between the both slides as fast or as slow as you want.

and literally break the leg visually again and again and again. So showing normal, it also gives the attorney that opportunity to introduce the anatomy didactically, then begin the [00:17:00] story, introduce the client and then break that leg. And that really holds the jury’s attention. And they also like 3d models.

So a 3D print from radiology or just a 3D visual. We had a case one time, medical malpractice case. And the client was sent home after an abdominal surgery with a very high fever. She should never have been discharged. And she was accumulating a massive amount of pus in her abdomen. And they drove her literally to the next emergency room that was down the street.

And when they opened her up, they, well, they didn’t aspirate it. She spontaneously ruptured with 3000 CCs of purulent fluid. And you can say that. But what is 3000 cc? How much is that really? And it’s three liters of fluid. So I took a whole liter coke bottle and I took the label off of it and I filled it with, [00:18:00] I made like fake purulent fluid with, I used applesauce and shampoo and conditioner and coffee creamer and a little bit of chocolate sauce.

And I mixed it into this horrible fluid and we had it in this jug. And if you show that to the jury, they’re just like, wow, that’s so cool. So disgusting. And they never forget that fact of the case. Yeah. I love that. You get, you’re getting into it, right? Like, do you make fake blood? I want to know about this.

I do. I do.

Oh my gosh. Okay. Tell me, you got to tell me a fake blood story. Tell me how that came about. Okay. A medical malpractice case. It well, no, I have to, I have some really good ones. First. I had a medical malpractice case where a man, they, during his abdominal surgery, they ruptured his inferior vena cava. like the size of a nickel, a hole in there.

He started bleeding out, bleeding out and [00:19:00] they’re calling for more blood. They’re calling for blood transfusions. And as they were pumping him full blood, he just continues to bleed out and he bled out 17 liters. So we made 17 bottles of fake blood and use those. And then there was another one where a man, he was like a paratrooper or something.

He went in for a neck fusion that was not related to a jump or a car crash or anything. He just actually went in for a regular ACD. And afterwards he developed a post op hematoma. And so the hematoma started growing in his neck. It displaced his airway, cut off his airway. He’s complaining. I can’t swallow.

I can’t breathe. Blah, blah, blah. They’re ignoring him, ignoring him. The surgeon actually says, give him a volume. He goes into cardiac arrest. They take him into the surgery to remove the hematomas too late. He died. [00:20:00] And in most operation notes, and it’s important to look for this, if you work in my mouth, but look and see how much fluid was aspirated at the end of the operation note, it’ll say like the sponge counts were correct, blah, blah, blah, blah, blah.

There was 150 milliliters of fluid collected. Well, what’s 150 milliliters of fluid. So I took a baking, a little Pyrex. Glass jar that you use for measuring liquid when you’re baking and I took it to one of my special effects gurus So I have a friend that is like the king of making fake gore and he works for the Walking Dead And does zombie stuff and all these kinds of things.

That’s called moulage in the medical term. But I asked him, I was like, can you fill this little Pyrex measuring cup with 150 milliliters of blood clot? And we had the best conversation. He’s like, well, how much of it was liquid and how much of it was [00:21:00] congealed? How do you want the texture to look? And sometimes it’s really fun.

And so anyway, we did, we made the fake blood in the measuring cup and we were able to pass that around to the jury. And they could imagine like literally holding their hand, the size of the clot that was stuck in our client’s throat. Wow. They cannot get it out of their brains. That’s so awesome. And I mean, yikes.

So that just makes me too. Holy crap. We’ll go all the things you guys that you can do. Do you just like absolutely love being super creative and being like, Oh yes, let’s try this. Let’s do that. I do. Sometimes I love a good break from just doing a bunch of car wreck cases or a bunch of broken ankles.

It’s nice to have a break and be able to be creative. There was also a testosterone overdose case. And so we came up with these three jars that we filled with different colored M& Ms based off the different levels of testosterone that were found in the [00:22:00] blood. Sometimes it’s just really fun. And it’s fun to figure out how exactly are we going to act this out in front of the jury.

How are we going to play it out? That’s why I love, I went to one of the Mark Lanier conferences and he gets so excited and I walked in one day and he’s got this water balloon wrapped around his neck and he’s talking about this case and broken seals and stuff. And I’m just like, I love this. This is what storytelling is about.

Oh yeah. And just. Absolutely. Getting them involved, right? Like you want them to pay attention, but that gets them involved in the story and visualizing it. So question. A lot of times people talk about animations. Tell us a little about that. I’m sure you’ve run into that quite a bit. So tell me. Yeah, so medical illustrators also animate illustration and animation.

They all were all the same people. We come out of the same department. But what I find is that animation is very critical when time is a factor or three d motion is a factor. [00:23:00] Other than that, animation is very expensive. I do believe in animating car crashes. I believe in animating different steps of a surgery if it’s medical malpractice.

But because I’ve been doing this for so long, and some of my attorneys I work with, I’ve worked with some of these people for 15, 18 years, and I’m not going to try and sell them on a really expensive animation if we can do everything with drawings. And if all of your illustrations are in a PowerPoint.

And you practice with it and you know how to page up page down between your slides, you can actually create 2d animation. So a lot of my exhibits work like animation, even though they’re not 3d animated. Yeah, no, that, that makes sense. And also worked a little bit with animators on things. And there’s a lot of space between what you want and what they actually create.

So tweaking it is. A lot. Like you said, it takes [00:24:00] a lot of time versus I got to assume you have a drawing, like there’s not as much time and effort and software or whatever that goes into tweaking things. Yeah. Animation can be very laborious and very expensive because. You’re probably changing a 3D model and you’re changing the camera angle in your changing lighting source, and then it has to render through the computer.

The other thing that’s really tricky with the animation is if the other side objects to it and gets thrown out, it’s gone. But if you have a slide presentation with 60 slides and the other side objects, you might still get to keep some of your slides. You can always throw one away and the jury still has something to look at.

If you put all your eggs in the animation, you might end up with nothing. So it’s just something to be aware of. Yeah. It’s super scary because you know, they’re going to object to it. And so it is [00:25:00] correct if that’s all you’re going to have. Well, that leads me to like, how do you, like, how do you normally work with lawyers?

I mean, you’ve given us some great examples of how you do it. Like the creativity and the, here’s how I teach them how to do it. So tell us a little bit, walk us through kind of the steps of what normally means to work with you. Sure. What usually happens is a lawyer will email or call or text nowadays or an Instagram message sometimes.

And they’ll tell me that they have a client and hopefully they won’t tell me that they’re going to trial in a week because that usually means that they’re not prepared and anything that I spend all night preparing for them, they still will not be prepared to use. So typically the attorney will call, they’ll tell me that they have a client that’s been injured Or malpractice.

And we will talk about dates. First of all, have you already designated an expert? Do you have a deposition? Do we want to create something for your expert deposition? When’s your [00:26:00] mediation? When’s the end of discovery? All of these things. When do you have to exchange exhibits? Then I will get all of the key medical records.

So I’ll want operation reports, radiology reports, EMS reports, any like police statements, descriptions, video surveillance, if there is photographs, if the family took pictures of the person in the hospital, like even if it’s just pictures of scars, a lot of times that’s helpful to know the length of incisions and things.

So I’ll ask for all the key medical records, definitely the radiology images. So these are very tricky, bothersome little files that come on a CD ROM from the hospital that are called DICOM files. I’m going to want all of those because sometimes we can find stuff that has either been covered up or not shown, or we can find a black and white smoking bullet.

Like, it’s awesome. And so [00:27:00] photographs, Anything important to the case, I’ll review that. And then I will usually have a phone call. This is what I’m imagining, or if it’s really straightforward, I’ll just create the illustrations and then we’ll go over them together. We’ll find, tweak them, and then we’ll send them to the expert and then we’ll find, tweak them for the expert.

And. Yeah, if the attorney wants to record a walkthrough, we just did one yesterday. The attorney called it a guided tour. So we all got on a zoom together, the illustrators, the expert, the attorneys, and we did a share screen and we went through all the illustrations. We did a guided tour and that can be recorded and you can listen to it again and again.

So People may have this thought in their minds, like, okay, well, is any really going to create something specific and special just for my case? So she just have a file where all the ACDF surgeries are and she just gets it out and just [00:28:00] puts my client’s name on it. I don’t sell any stock and the library of old work that I have, I would only use to open and change and make clients specific to your case.

So I try to put your client’s face. on all of the illustrations, and I find that that makes it very personable and it brings the jury directly into that person’s body, especially if they see them sitting there in the courtroom and then they see their face. with their spine, with the surgical tools, they can imagine more what the person endured.

I’m not a fan of stock art for multiple reasons. I have a good story, a good chapter in my book about what happened when an attorney was getting ready for trial and he bought some stock art and all of the images of the anatomy were drawn over a white male that looked like [00:29:00] a Ken Barbie doll. And his client was And I think it’s a fairly well fed Hispanic man that didn’t look anything like the illustrations and the attorney knew it was a problem and he didn’t use them.

He’s like, I can’t even use these. And we did, uh, oh my gosh, emergency helped me out and made everything client specific. And I think it can make a difference. or break the sympathy of the jury towards the client to know that it was really them and that the attorney spent the time and the money to have illustrations that are truly about the case.

Yeah, I think personalization definitely gets them more involved in the story. I mean, that’s what we’re always trying to do is get them involved in the story. And I also in doing focus groups, no, like juries actually really expect us to do like the CSI kind of stuff, like the pictures and actually have it look like the person.

So that’s their expectation. We really should meet it. Right. Yeah. [00:30:00] The CSI effect is true. Yes. Yes. Yes. I’m always impressed. And so you have a book. So tell me a little bit about the book and what made you decide to put it together? I lecture a lot to it. Well, I don’t lecture that much to attorneys. I feel like I should be lecturing more to attorneys.

I do a little bit, but I teach a lot to medical illustrators. And to law students, and I’m always teaching the exact same thing. So when you have a very unique profession, like medical illustration, you almost have to describe it once a day, like, Whoa, what is a medical illustrator? And so I’m teaching the same thing a lot again and again.

And I was thinking I need to write all of this down. And what I should do is I should just take like my 10 best cases and make 10 chapters. And it would be a book that I would give to the law schools. Okay. where a law professor could pick it up and be like, okay, I’m going to do a summer elective for all the law students that are interested in injury.

And we’re going to go through these 10 cases and we’re having any [00:31:00] come in and teach us basic anatomy. And I was so excited. I’m like, okay, I’m going to write this book. This is what I need to do. I need to educate young lawyers and I need to be teaching basic anatomy to look to young lawyers. And then I realized why I really need to be promoting the profession to other medical illustrators.

And I need to be letting, um, medical students know that if you’re a medical student and you’re going through four years of medical school and four years of residency and all this stuff that you really just want to animate or you really just want to make games, there’s a whole other profession for you that nobody knows about.

So I wanted to promote the profession. I wanted to teach law students. And then I started writing the book and it got really autobiographical. And then it started to get very gory and it got very funny. So I did create the book. I published it with CRC Press, which is the same as Routledge Textbooks. And the book is broken up into sections.

So there’s a section about what in the world’s medical [00:32:00] illustration. There’s a section about, okay, who am I and how did this happen? And how do you become a medical illustrator? Then there’s an entire section that’s all just for lawyers, like these are ideas for certain cases, and these are good solutions that happen for specific problems in cases.

And then in the end, there’s another section where I talk about emotionally engaging the jury and sort of the more emotional and finer points of what it’s like to work in injury law every day and almost deal with the secondary trauma. Of all of the injuries and all of the horrible things that happen to people constantly.

It feels like something is constantly horribly happening in my life because it’s all I’m working with. Sure. It’s you draw on it every day, right? I’m sure every other day, at least. Yeah. Awesome. Okay. So. I’m sure the other question people are [00:33:00] wondering where to get the book, which I’ll a hundred percent put all the links and everything in the show notes, but it sounds like this would be something if let’s say you’re a trial lawyer, or maybe you’re just going back to trials.

Like this would be a good resource to say, maybe I’m not a hundred percent sure about medical illustration. Like this would be the book for them to go by to learn like, Oh, this is the problem that it solves for me. This is how it helps me. Right. The book will definitely help you solve problems. Visually figure out when you need something visual to tell your story better, and it will inspire you to maybe.

Oh, maybe I can make a bowl of spaghetti for this case, and it’s going to help my jury understand something. So I have food analogies in there, but it’s inspiring. Of course, it’s a bunch of war stories. But it will help you think about your trial prep. I know we talk about like war stories and sometimes we end up going to see these and it’s just a bunch of war stories, but we as human beings learn from stories like we gather [00:34:00] so much from everybody else’s experience.

So I’m all about learning from other people’s stories. And I think that’s how we like. That’s how we gain some of these things that we may never happen to us. We can still know that. And that’s what the jury does too. Like they may never experience having to go to the emergency room or having a neck surgery.

You said it brings them into the story and then also brings them into that literal experience of the clients have had. Right. And even just a single illustration can set the stage. And turn it more into a story or a movie like they can truly visualize it. There’s a cool quote in the book. Actually, it always makes me think of this.

There’s a PhD named Marshall Hennington. And he says, without visual aids, counsel counts on each juror to imagine the information presented. With 12 jurors, There are likely to be 12 pictures, [00:35:00] so if you have 12 jurors and you’re telling them a story, they’re all going to see it differently based on their own experiences.

But if you show them a picture, all 12 of them are going to be thinking about that picture, and it gives you control of your story. Absolutely. And I love that you made it super simple because I know again, talking to other people and in how to work with illustrators, like sometimes it’s like, Oh, you have to use this many and this many slides and this many and the simplicity of just having one can really make the case.

Exactly. Fantastic. I think we’ve talked about everything that you do, which is pretty amazing. Jelly bean spaghetti, liters of blood. Is there anything we haven’t covered that you do? 3D printing. So we can always do a 3D print from your client’s actual radiology or CT, which can be Super effective. I also do just traditional trial boards.

So back in the day when we just took a big poster [00:36:00] board and illustrated on the poster board and put it on an easel, there are still certain venues in certain times when that is really effective and having a lot of experience and using a poster board. When is that good and bad? So If you’re convinced you want to walk around with a small board and approach the jury closely and talk about the anatomy or if you just so this is something that happens in court.

If you have these giant trial boards, they’re really bulky and they’re really heavy. You never want more than three because you can’t lift them. But They’re hard to hide. There’s sometimes nowhere to put them in the courtroom. And so I suggest taking your favorite slide out of your slide deck and printing it on a large board and just having it in the courtroom so that the juror that’s bored, that has the wandering eye, that’s just like looking around, wishing he was on his cell phone.[00:37:00] 

They have that giant board to look over at. And so they’re still seeing what you want them to see, even if it’s not on the screen at that moment. So 3d printing, super awesome. I love the idea of having boards because I’ve definitely been in venues where it’s a projector. It is not, does not look good.

Grainy Elmo kind of situation. I know there’s a lot of courtrooms in the Southern part of the United States. are still in the back on technology. But it sounds to me also like you’ve got a pretty solid network of people. If there’s some kind of creative thing that you guys are thinking of, you probably know somebody who can help.

For sure. Yeah, my network is huge. And I spent four years on the board of governors for the Association of Medical Illustrators. And even though we’re 2000 people were only 2000 people, so I very often can find someone to do something if I cannot do it. Like I said, I don’t animate, but I know a [00:38:00] ton of animators and I know animators that excel in birth trauma.

And I know animators that are really good at crashing planes. So whatever happens, I can usually find someone to do it. And when I’m very busy, I also have other medical illustrators that are very talented. and trustworthy. And sometimes I will give an entire case to them and I can you can decide as the attorney whether you want me to art direct with that other medical illustrator or not.

And essentially it can be put together anyway you want. And with anyone that we need to use within the network. Yeah. And the other thing I want to point out that you talked about too, when you know, how to work with you and the timing of things is you talked about mediation, getting somebody involved like you early.

So you can bring that to mediation. I mean, That’s gotta be powerful. I’m sure you get calls from attorneys that say, Oh my gosh, Annie, like we [00:39:00] settled because this amazing illustration like totally sealed the deal for us. Right. And during mediation is your opportunity to be slightly inflammatory. So you can show everything.

There’s a beautiful quote that says don’t save the gold for trial. So if you know you have an opportunity to go to mediation. Show the other side, show the insurance adjuster that you’re completely prepared for trial, that you have all this cool stuff to show the jury. They’re going to be engaged.

They’re going to be excited. They’re going to see this horrible, gory thing, or they’re going to see this. And often, If you are preparing everything for mediation and you are that well prepared, even if you don’t settle trial feels like a breeze because you’ve already, you have all of your weapons.

assembled and in mediation for the other side to see that you are that well [00:40:00] prepared, lets them know that they are not prepared and can also force a settlement. Absolutely. I love the idea of let’s not reinvent the wheel. Like also let’s make an exhibit for my expert who’s going and then I get to use it there.

I can use it mediation and then I’m gonna use again at trial. Like I’m getting a lot of bang for my buck here. A lot of miles for this. A lot of attorneys are concerned about demonstrative aides. Not being able to go back into the jury box. They want it all to be demolished of evidence And so if you use your medical illustrations in your expert depositions and you have your doctor mark on them, they become an exhibit to the deposition.

And then when you introduce those in trial, they are demonstrative evidence. So anything you have your expert work with during a depo can go into the jury room. Usually if you present it if you are thinking in advance how you’re going to present your exhibits, you can get them in as evidence. Yeah.

Fantastic. [00:41:00] Awesome. Did we miss anything? No. The most important thing for an attorney to know is if you are, have voluminous case or intimidating medical records, just call a medical illustrator sooner than later. Let them in on the case. Even if they just review the case with you and don’t end up creating anything, it will be so incredibly valuable to understand your medicine and your anatomy and your case from someone that is.

It’s prepared and trained and visualize some fantastic. Tell us again where we can go get the book on Amazon, Amazon, of course. Of course. Awesome. I just want to let everybody know who’s listening and tuning in. We’re going to have all of Annie’s information in the show notes along with the link for the book, which I encourage you to get it.

If you haven’t already. I’ve never tried or use a medical illustrator, any idea what they do. I’m gonna put a link to her website too. So you can go see some of her work, but I know firsthand, I’ve seen it myself. We’ve used it in focus groups. Like [00:42:00] it is really helpful and it is so easy to work with Annie.

So again, Annie, thank you so much for joining us today. Thank you so much, Elizabeth. It’s been really fun. Awesome. Glad to have you. Thank you. Thanks again for joining us with this episode, interviewing Annie Goff, our certified medical illustrator. All of her information and contact will be in the show notes, but I want to take a moment to say thank you so much for listening.

I appreciate your support of this podcast and would love it if you could rate and review it on your own. Podcast platform. These reviews and ratings really help other people find this podcast. And also if you could share it with somebody who would enjoy it. Thanks again.

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

Courtney@tyneslawfirm.com 

Tynes Law Firm

Pascagoula, Mississippi

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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.

The client deposition has a significant amount of weight when it comes to deciding case value. However, one of the most common problems trials lawyers have is dealing with clients who resist preparing for deposition. 

These are clients who actively avoid giving time for preparation. Whether it’s because of their work schedule, family commitments, or they’re just too busy to dedicate more than 30 minutes with you. They just don’t seem to have any time other than the day of the deposition. 

There are also clients who subconsciously resist. They either show up with the kids for deposition prep, or they tell you they’ve had an emergency so they have to leave early. These are little subconscious things telling you that they’re not going to give you their full attention. But why? 

In this episode, we delve into why clients resist deposition preparation and how to tackle this resistance. This is a big deal because failing to prepare for deposition can potentially hurt or damage the case. Therefore, this is the way to the end. This is the necessary step we have to take right now because if we don’t take that step, the case value significantly plummets. 

In this episode, you will hear:

• Why clients resist and why this is damaging to the case
• Asking for time commitment
• Some examples of disasters that happened due to client’s resistance
• Resolving resistance in a call
• Educating clients why they have to put effort in a case

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Supporting Resources:

Do you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.

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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. Thanks for tuning in. This is a podcast dedicated to tips, how to’s and strategies you can use right now to improve your case or client relationship. Today we are going to [00:01:00] tackle a common problem, a common question that I get, which is what do I do when my client is resisting Preparing for deposition and this is really common happens to me often happens to lawyers that I work with and this is really a common question that I get when I am speaking about deposition preparation or witness preparation.

What we’re specifically talking about is clients who actively avoid giving time for preparation. Examples would be they resist giving you any time because of their work schedule or their family commitments or just all in all, they’re just too busy to dedicate more than 30 minutes with you or because they take up time for the deposition, they really don’t have any time other than the day of the deposition.

I’m also speaking about clients who subconsciously resist, and these are the clients that show up with the kids for deposition prep, or they show up, but then they tell you they’ve had an emergency and they have to leave [00:02:00] early. Just those little subconscious things that pop in where they’re really not going to give your full attention, despite making a promise that they would, and they break that promise.

So why is this a big deal? Like, how would this really make a big deal for depositions, or how could this really damage your case? And I think that it can significantly damage the case because they walk in unprepared for any of the difficult or hard hitting questions. Lots of surprises. And if you’ve ever been surprised by a question, you generally don’t have an answer and you’re going to end up creating one or the default, which is the, I don’t know, which some of these questions they’re probably going to have answers to, but that dreaded, I don’t know, I don’t know, I don’t know, can kind of become a broken record, which can really hurt the case.

At times I have clients who basically, Hey, I’m busy. I got this thing. I’m going to do my own thing. No big deal here. Well, they end up maybe stretching the [00:03:00] truth a little bit or embellishing when they don’t have to. Or, again, like I said, if their own route, I should say, their own decisions about how to prepare may go the wrong way and they end up just shutting down.

Either way, it’s really not going to probably fit with your case strategy about what they need to do in this deposition. It can make it extremely difficult to fix, especially if your client has really important factual information that needs to come out. And ultimately, you could be looking at having a case that is difficult to settle and definitely is settling for less value.

So we really don’t want to damage the case that way. If you Work like I work, which is I’m a plaintiff’s personal injury lawyer, which means I work things on contingent. I take a risk, right? I take on cases and it takes a little while to, to get paid. You really want to make sure that you put in the effort at the [00:04:00] right point in time that will increase value.

And in my mind, the client deposition is one of those value adding places where, wow, They’re going to put more value into the case when my client does an excellent job, explains things, tackles hard hitting questions, no problem. Now I know some lawyers don’t believe that the client deposition has a significant amount of weight when it comes to deciding case value.

So they don’t spend a significant amount of time or really a lot of time at all, maybe 30 minutes with the client, maybe send them their answers to discovery to read. This is probably not the podcast for you because we spend a lot of time on this podcast talking about the I’m going to be talking about client relationships and witness preparation and spending the extra time to educate our clients to build confidence in our clients.

And [00:05:00] have our clients basically step up to the plate at deposition and knock it out of the park over and over and over again, to the point where our defense counsel’s like, wow, okay, well, I guess I’ll have to go back to the carrier and tell him. But also you got it in black and white and that depth in transcript.

So. Back to the conversation at hand. Why would clients resist? What are some of the causes that we have probably seen as to why clients are just going to avoid doing this either actively or subconsciously? And sometimes it’s just they’re uneducated. They have a failure to see the significance that they play because they’ve hired you.

You’re the lawyer. What’s going on? You’re going to do the job that they don’t have to. That’s why they hired you. Why you’re getting paid. And like I said, a lot of that is just um, uneducated, meaning they just don’t know. And I’m not saying that They’re, have a low IQ or they’re not very smart. No, no, no, no, no.

I’m just saying, like I said in a couple of podcasts back [00:06:00] about lawyer jargon, we live and breathe in this world and it’s a pretty weird world to anybody else looking in. So that’s why I say it’s important for them to just be educated about, hey, how does the deposition set up the case and where does it work into getting case resolution and why are they so important?

They don’t know that. It’s not something they regularly do, so it’s very important that we take that moment to just educate them, to give a little bit more information about it so they can see, oh, okay, I get this. A lot of it also comes from fear. A lot of people in this world operate based on fear, and if something is fearful, they just don’t do it.

We just put our head in the sand, and we just move on. And there are lots of things that we do this in our lives with. It could be for certain relationships, or having to do something different, change, this is something I’ve never faced before. So, that’s another huge cause of basically resisting. It’s just like, hey, this is, this is new, and you’re telling me I [00:07:00] never have to do it again, so, like, why do I have to do it now?

And a lot of times Anger also is something that I get out of people when they don’t want to spend some time getting ready for the deposition. Why, why do I have to spend more of my time? They’re the ones who cause this whole thing and anger, just drill down, it’s all kind of a little bit going to come back to fear.

And there are people out there also who are just extremely busy. And that’s okay. There are people who work two jobs or they work a job, they take care of their parents or they get kids take care of single parent homes. Those people do exist as well. And I work very hard when I have people that way, because I see, hey, these are hardworking people.

They’re doing the best they can. How can I work with their schedule? Maybe we can spend some time on a Saturday or spend some time on a Sunday. But one of the things that we’re going to talk about here in a minute is the commitment. We’ve got to get a commitment from our clients to do this. [00:08:00] And it’s also our commitment to them.

We’re spending the time as well. And That’s another part of the education. They don’t understand. Hey, I’m here to make this commitment to you because of how significant your deposition is. I need you to commit to me. And when we do that, I always say, hey, listen, I’m giving up something too here. Like I’m giving up time that I could be doing something else, but because it’s so significant, that’s why we do this.

I’ve had people who switch schedules on me at the very last minute. Whoa, we got, this is the only day we have together and I can’t spend it with you. And okay, just know quid pro quo here, right? Tit for tat. Like I’m going to then ask for more commitment on a different day. That means you’re going to take up time off work and we’ll talk a little about that.

I’ve had somebody, uh, how to handle those people who say, well, I just can’t take off work. So anyhow, let’s go back, take a couple of paces to go to how can we tackle this resistance that we’ve got going on? One of the things I think is a really easy [00:09:00] step to implement is before you flip that switch to go into litigation, before you file that lawsuit, you have a conversation with them pre lawsuit to get a commitment about what their time commitment is going to be when it comes to this lawsuit.

I, I think, Almost always do this when it comes, especially for discovery responses and deposition time. And it’s basically, it’s a promise, right? That, hey, this is what I’m committing to as your lawyer, and this is what I’m going to ask of you as well. And making that commitment, making that promise, that does something in our brains.

There’s neuroscience studies that basically say, hey, this is a psychological mechanism. That’s going to foster cooperation and trust. So get that on the front end. You want future cooperation. You want future, you know, hey, help me facilitate getting this done for you. And I always think that’s a very good time to [00:10:00] walk through with them, to get that commitment from them.

And that’s basically always a backstop. So when I ask something of them, I need you to give me a list of 10 people for before and afters, you know, that, whoa, whoa, whoa, whoa, whoa, you, now you’re invading my personal space and I don’t like this. And it’s like, Hey, we actually talked about this. We made a commitment together.

It’s like, okay, you’re right. So it always creates a really nice backstop. Now, if you don’t do that, hey, this is a great opportunity to start implementing that today. You can still make the request for a commitment or a promise. And then I normally do that before I’m actually going to schedule the deposition.

So anytime, you know, I get that email or that letter or get that call from a lawyer, hey, You know, we need to prepare this witness. What deposition dates work? What do you want? Okay, great. Well, let me just get on the phone with the client right now before we schedule this thing to talk about the [00:11:00] commitment that it’s going to take to figure out where is this thing going.

Resistance is going to come from with this client. Is there any resistance? And basically explaining, hey, what does the time commitment look like? And that’s me making the commitment to you and you making the commitment to me. As far as making this call, I also like to do educating. Right? Talk a little about what I know are common fears.

What are they going to ask me? Well, I say that, but I just, I go ahead and take that objection off the table. We are going to tell you what they’re going to ask you. I don’t need that. That’s so common enough that I just take that off the table right away. That objection. And I spend some time again, educating on the purpose of a deposition.

And again, one of the things that I always hear really, really common from clients is, Hey, I just want to get this thing over with. I don’t want to file a lawsuit. I don’t really want to be in the lawsuit. I’m not one of those people. I just really want this over with. Well, [00:12:00] let me give you. The road to the end, which requires your deposition.

It’s necessary, but it’s a step towards the end. Don’t you want to move things forward, right? They may not know that. And then they’re thinking, oh, well, it’s just the necessary evil. I just show up and tell the truth. I don’t really need you to tell me that in preparation. That’s where the other part comes in.

Hey, let me tell you why this is so significant. What is the importance of your deposition? What is the purpose? So let’s open the door to a little bit about why we spend time together because you are going to get hard heading questions, because they are going to evaluate you. What you say has a lot of weight in the value of the case and without it, we can’t move forward.

We will have a significant loss if we don’t have your deposition and we try to settle this case. And we also want to make sure that we, like, like I kind of talked about before, that fear, what will they ask me? I’m going to put that right out in the beginning. [00:13:00] I don’t need someone to tell me, Hey, I want to know what they’re going to ask me.

That’s total fear of the unknown. I’m just going to front load my conversation with that. I really like to think of this in the sense of, I’m trying to sell them on committing time for me to make that commitment. I’m trying to get that commitment from them. So how do I do that? Well, I need to remove objections off the table.

If fear is what’s standing in the way, I’m going to put that out there right away. We are going to tell you what they will ask you. We will practice what that question, what those questions look like. Well, if it’s, I, I’m too busy to do this, we can’t, we just do it without my deposition. Let me tell you.

This is the way to the end, right? This is the necessary step we have to take right now. And if we don’t take that step, case value significantly plummets. And we may not even be able to get it settled without it. So a lot of little bitty pieces of education go into this, this call. And [00:14:00] that way I’m tackling the resistance I may get.

The active resistance. Well, I don’t have time, Elizabeth. I can’t take off work to commit to this. I have a family, I have to pick up my kid. Or that subconscious part of it, which is just like, well, I may just I’ll just leave early or I’ll just bring the kids with me or all of us have them in the room with me.

When I zoom. No, that again, we’re in this little conversation, trying to tag away all those little things that may be there and asking for that verbal commitment. We’re, that’s where that brain science come in. we want that psychological mechanism of cooperation. I’m making a commitment to you, you’re making a promise, right?

That’s our social contract here, that’s the world we live in, so we want to make sure that we plant that seed. And exploit, talk about it on the front end. You don’t have to ask a question about it. You already know. So here are some of the disasters that i’ve encountered when I thought well It’s no big deal if I don’t get to make this commitment call or give them a little bit of [00:15:00] education or talk about this Okay, so i’ve had somebody zoom basically from a campground turn on the zoom and Sitting out at the campground going camping family’s running around And i’m just like oh Okay, this is really, uh, subconsciously she’s telling me like, I really want to prepare.

I’m going to be really distracted. At that point, it’s on me. I should have asked for the commitment and clarified, Hey, when we do these zoom preparations, you need to be in a quiet space that’s undistracted so that we can really spend some time and dig deep and work on these hard questions and work on organizing your truths.

All right. I’ve also had husband and wife show up together. And I just tell them, Hey, I got to work with you one on one, right? We can’t have you both sitting in on each other because each person’s deposition is significant. Boy, howdy. They’re frustrated with me. Just like, and then I’ve also had the client who joined zoom.

[00:16:00] Using some earbuds because she wanted to complete cutting hair for a client. She just wanted to keep working through our meeting and surely she’d absorb all the things that I’m saying. And they’re frustrated because they’re thinking, well, I made the time commitment. I’m frustrated because I’m thinking I made the time commitment.

And sometimes it’s just that really simple phone call to get that commitment. So you can avoid some of the frustrations. Now, most of the time, the resistance can be resolved in a call. So I kind of call this my level one resistance, right? Where we just have a phone call, have a little bit more education, a little bit more understanding.

Great. And that can normally solve Solve the issue. Occasionally, I got to go to level two, right where the clients doubling down. No, I cannot do this. No, I will not take off work. I’ve already had to take off work this much. I live paycheck to paycheck. Generally those people have given some kind [00:17:00] of feedback of frustration, why is it taking so long, or I have this expectation that I need to get 200 000, or I have to get 1 million or whatever this case, value expectation is.

Most the time, these people have told me this before, and then when my level 2 call like to recall that and repeat it back to them and say, Hey, you wanted X amount of dollars for your case. You’ve told me that multiple times. This is the place you can go and prove that this is the case value. But if you don’t prepare, you’re not going to know how to answer those questions because As much as you like to think you can totally handle all the questions, there’s going to be things that are surprising to you, right?

So, if you have this expectation of a return on this case, or this case value, then that is the type of commitment that you need to put into the case. If you’ve got, if it’s a million dollar case, I [00:18:00] need a million dollar effort. Okay, because I’m here, that would be great if we get a million dollars. So I want to put in a million dollar effort, but you have to do the same.

So occasionally I have to go back through and say, okay, Hey, what have I heard in this case? And how can I recall and repeat their words back to them to say, Hey, this is what you’re asked. That’s just what you’ve been telling me. You want, you want this case over with you. You don’t want to deal with it anymore.

Hey. That’s great. I’m giving you the road to freedom here. Let’s get on it and I’m committing to you and I want you to commit to me. They’re level one, level two. And this particular example that comes to mind for me is sitting down to work with a client who resisted acknowledging she had a brain injury and was very hesitant to commit time to prepare and really Did things against doctor’s orders, but was [00:19:00] adamant that her case was worth two million dollars, just to put that number out there.

Now, we were able to get her to commit, but that was only after I had a long conversation with a lawyer who told me, Hey, these are things I’m hearing. This is what’s going on. I said, okay, well, you need to get this commitment from her, but this is how you do it. She’s been telling you X. She’s been telling you Y.

You take that right back to her and you say, hey, listen, you’ve been telling me these are things that you want. Well, I need you to prove it. We got to have that level of commitment and so she showed up and there were things that she just still was very adamant about and again, there are times where it’s just like, okay, how can we make this?

How can we compromise and make this work? But it’s one of those things where you have to know why you’re committing to preparation and when you’re steadfast in that, they’re going to also see your commitment to it. And that’s really what you want to do is just make sure, Hey. [00:20:00] Why are you committing so much time, lawyer?

Well, that’s because it’s so important, right? Let me tell you a little bit about it. So client resistance is all over the board, especially I feel like now in post pandemic world, people don’t want to make time to come even sit in person. And I mean, I live and work in Austin and I have people who, my clients here in Austin just say, yeah, no, I don’t, I don’t have time to drive over there.

And I think, well, you have time to drive the deposition, you’re going to sit face to face with them, don’t you want to practice the same way? So, again, I’ve got to educate them, right? Why the time investment you’re making now is going to infinitely increase the case value, okay? So, let’s just try to translate that and help them understand that.

Most of the time, you can see this coming. This is not, Something that you’re not, it’s going to come out of the blue for you, and maybe it does, but most of the time you’re going to see it coming. You are going to know what the danger is to the case if you let this slide, right? Avoid my mistakes. Avoid the frustration.

Because when I [00:21:00] cause frustration because of something I know I should have done, and I didn’t do it, because I’m trying to cut a corner. That’s really going to impact my client relationship and I really can’t be frustrated then because it’s something I knew how to fix the problem. So that’s kind of what we’re talking about here, but again, you don’t want to waste your time with that.

So let’s just think about this and are removing fears, educating, using our call to make a commitment. And if worst case scenario, we got to up the ante, right? By going to our level two and using the words and basically helping them again, translate that into how does that become case value for them? So.

Alright, if you have any questions or you have maybe a client who’s being really resistant or you’re trying to work around their schedule, that kind of stuff, you need some ideas, don’t hesitate to email me with the email will be in the show notes. I really appreciate being a listener of this podcast. If you would rate and review on your phone.

favorite platform. And if you could leave us a review, that’d be great as well. That really helps other people find the podcast, [00:22:00] but of course share to people who you think would enjoy it. All right. Thanks.

There are a lot of emotional landmines when it comes to premises liability cases. For instance, summary judgment is an issue in just about every premises liability case. A lot of lawyers have this mental shortcut that if they beat the summary judgment, then the case is going to settle. 

But in premises liability cases, damages are not enough. You’re going to need to navigate through that, especially because insurance companies will always try to look for opportunities where they can take advantage of them. 

Now, we can’t stress enough that the preparation of the clients for deposition is key in these cases. The client has to be prepared to tell his or her story clearly so there’s no ambiguity, no landmines, and no rabbit holes. There are no missing pieces to it. 

In this episode, Michael Neff joins us to talk about premises liability cases, which he has been doing for 15 years out of 30 years that he has been in practice. Michael emphasizes the lawyer’s responsibility to eliminate the legal risks where they can, and that means anticipating where problems may arise. Remember, the trial is not about the trial lawyer, but about what the jury wants to do for these parties.

In this episode, you will hear:

• The importance of client preparation in premises cases
• Factors that can derail premises liability cases
• Minimizing additional harm to your client
• Why damages are not enough in premises cases
• The importance of working with a consultant
• Being efficient in how you present your case

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

https://www.premisesliability.org

Email Beth@premisesliability.org  for a 1-year free membership to the National Association of Premises Liability Attorneys. 

Premises Liability: https://www.trialguides.com/products/premises-liability 

Advanced Premises Liability:  https://www.trialguides.com/products/advanced-premises-liability

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of trial lawyer prep with your host me, Elizabeth Larrick.

This is a podcast dedicated to trial lawyers who are trying to connect better with juries, get their clients ready and prepare cases better. I am super excited for this [00:01:00] episode because we have an awesome guest who’s going to come talk to us. about something really specific and I love when people niche down.

That’s what I love to do. So I’m excited to have Michael Neff join us today. So hello, Michael. Thanks for joining us. 

Michael Neff: Thank you so much for the invitation, Elizabeth. 

Elizabeth Larrick: Fantastic. Well, for some of our listeners who may not know, let’s talk a little bit about where are you based out of? What’s your niche? How’d you get into that?

Michael Neff: That’s a story. So, I am in Atlanta, but I have found myself working on cases throughout the country in the last couple of years. I started Working on premises, liability cases, probably 15 years ago. And when I was in law school, I actually thought I was going to be a real estate lawyer and maybe a real estate developer.

And I’ve always had a big interest in real estate. In fact, I got my real estate license in New Jersey when I was 18. And that was a summer job for a couple of years. Real [00:02:00] estate has always been an interest of mine. And then the intersection between property rights. and property responsibilities appealed a lot to me.

As a tort lawyer, I had to come to realize that although they’re very different, a car wreck and a premises liability case, they are united by the fact that there are both rules of the road. There’s both safety rules. And if they’re followed, keep people safe. And if they’re not followed, needlessly expose people to serious danger.

It has been an evolution because there’s lots of emotional landmines and premises cases. that I didn’t appreciate coming out of law school and didn’t need to appreciate working on and trying to correct cases, but they’re there. 

Elizabeth Larrick: Absolutely. Not to mention the rigorous legal jump hoops. You got to jump through just to survive, to keep those cases [00:03:00] going.

Michael Neff: Absolutely. Yeah. Summary judgment is an issue and just about every premises case. Lawyers that want to work in this arena definitely need to factor the risk and time that is different than in a car wreck case. 

Elizabeth Larrick: Absolutely. We met here recently at Tennessee Trial Lawyers. You had come and were speaking and I was doing the same and we kind of found each other intersecting at this, the importance of having client preparation.

in premises cases and why it is so important. So let’s talk a little bit about that. You know, what you’ve been doing this for 15 years. Why is it so important and what specifically somebody’s not done these before, or maybe they’re not knowing about the landmines. Why is that prep so important for deposition?

Michael Neff: It’s interesting. I’ve been practicing about 30, but it’s in the last 15 that I really started doing more and more premises work. And the thing that I didn’t appreciate [00:04:00] in a premises case is the ways that you, that you as a lawyer can come up with a disappointing result or a loss. And one of the big ways is if your client’s not able to tell the story in a way that the jury understands that there’s no comparative fault, that the client’s not able to tell the story clearly.

And ambiguity for a plaintiff’s lawyer is really death. If something can get interpreted two ways, it’s usually Interpreted the wrong way from our perspective. So I really learned to appreciate that the client has to be prepared to tell his or her story clearly. And so there’s no ambiguity. There’s no landmines.

There’s no rabbit holes. The jury understands A, B, C, D, E, F, G, [00:05:00] and there’s no missing pieces to it. From multiple focus groups and from learning lessons the hard way, we have invested more and more time prepping our clients both from a legal perspective here’s issues and perhaps more importantly psychologically or emotionally.

Hey, what do you need to feel comfortable? What do you need to own the story and not be shaken by nerves or guilt or whatever a witness might be going through? 

Elizabeth Larrick: Absolutely. And I think one of the things, having done a little premises viability back in the day was, It gets so detailed on like the mechanism of the event, like left foot, right foot, right wrist, left wrist down to the T.

And I love that you pointed out because if there’s any ambiguity, the jury is going to skew it [00:06:00] against us. 

Michael Neff: It seems to work that way. And it’s from a lawyer perspective. I think part of our responsibility is to try and eliminate legal risk where we can. And that means trying to anticipate, hey, where could we have problems?

And one of the problems. is uncertainty or ambiguity about the story. And another is frequently a client having some type of subconscious guilt or self blame or something like that, that can really contribute to them torpedoing the case. And when you boil down to it, a lot of times the emotions in my experience have resulted because they didn’t understand the importance of the safety rules.

They didn’t understand what the [00:07:00] property owner should have done. And therefore, they’re hyper focused on what they did, which is what the jury frequently does. If we don’t tell a compelling story, about the safety rules. And we don’t tell a compelling story that they can conclude that the defendant knew or should have known about the safety rules.

Newer should have known about the hazards and newer should have known how to eliminate or minimize the hazards. And that’s part of the challenge. You really need to plan out your opening statement and your direct exam and your cross and your documents. It’s much less intuitive than a car wreck for everybody involved.

Elizabeth Larrick: Absolutely. And I think one of the things that you talked about, which is, I think one of the biggest hurdles in premises cases, because it’s not as obvious as, you know, driving down the road. You got to get a license. You got to learn the rules. Like [00:08:00] jurors focus groups always are like, well, what do you mean there’s rules for grocery stores?

Like, and so there’s a huge education level. And I’m really glad that you pointed that out because our clients don’t know that when they don’t spend time to learn that they’re still stuck in that same mind frame of, well, gosh, I should have seen where I was going. Uh, show was worn flip flops, you know, the all the things that we normally hear from focus groups They’re still in that mindset.

So 

Michael Neff: yes, well, I think the the good thing about car wrecks for younger lawyers Is that we all generally have driver’s licenses and all the jurors generally have driver’s licenses So when you walk into a courtroom, it’s not uh, it’s not something that’s complicated for the fact finder It’s not something that’s complicated for the lawyers You But when you get in to premises liability cases, unless you have a security background or a product or a management background or a safety training background, you don’t [00:09:00] intuitively grasp.

Oh, wait, this was unnecessary. Oh, wait, this person shouldn’t have been hurt. Oh, wait, if only they had done this. Instead, in my experience, The jurors tend to look at if only and say, geez, if only the plaintiff had done something differently, but once they learn the rules Then I think they are empowered to say, well, geez, the property owner didn’t do what they should have done.

And why is the plaintiff lawyer expected to be a security expert or a property management expert? That’s not fair. 

Elizabeth Larrick: Gotcha. Absolutely. So what I want to kind of talk about is when we think about responsibility and like getting them their story straight. Is this just just kind of survive summary judgment or are we thinking more like, Hey, we’re setting it up from jump street from depo to make sure we’re going to knock it out if we end up going to trial.

Michael Neff: I definitely think that if you’re taking the premises case. A [00:10:00] lot of lawyers have the mental shortcut that if I beat summary judgment case is going to settle. And one of the things that I think COVID hammered home to a lot of plaintiff’s lawyers is that insurance companies look for opportunities and they take advantage of them.

And that from their perspective is being a good business person. But what I think that means is we need trial skills and we need to always be thinking about trial. And what I’ve found and what’s been taught to me is that in order to get a good verdict, a jury has to understand your case and they have to like and want to help the play.

And sometimes a plaintiff can be sympathetic if they’re uncertain or hesitant or scared, but sometimes it can be construed differently and their uncertainty can be viewed [00:11:00] negatively, like they don’t know what happened or they’re believable. So I think I always look at taking a premises case or any case as if I take it, I need to be ready to try it.

And, you know, if I’m going to invest time and money and emotion and effort into a case, it needs To be ready to roll all the way and I think it’s just so Underestimated how important it is that the jury like respect trust and believe your client You could be a really good lawyer, but if they don’t want to help your client You’re not going to get a great result for them So we need to remember that the trial is not about the trial lawyer The trial is about what the jury wants to do Forward These parties.

Elizabeth Larrick: Absolutely. And that’s one thing I always talk about is, hey, when we’re [00:12:00] doing anything, what does the jury want? What does the jury need? Yeah, for sure. Absolutely. It’s as much as I like to think it’s about that awesome cross exam and getting to what does the jury want to hear? What do they really want?

Michael Neff: It’s interesting because Hollywood and TV shows tend to make lawyers Paul Newman in The Verdict and Tom Cruise in A Few Good Men and Matthew McGonaghy in A Lincoln Lawyer. You’ve got these dashing lawyers that save the day or win the day. Gregory Peck to Kill a Mockingbird. With my cousin 

Elizabeth Larrick: Vinny. I mean, hello.

Michael Neff: What’s that? 

Elizabeth Larrick: My cousin Vinny. 

Michael Neff: Oh, I love My Cousin Vinny. Yeah. Or you could go with Legally Blonde. Yeah. So the lawyer is the star in those shows. And lawyers are important, but it really, really, really, really matters that they like and respect and believe in [00:13:00] the plaintiff. And I think they don’t teach you a thing about this in law school.

And they really don’t teach you about it in a lot of books. I’ve read a lot of trial guides books, I’ve written a couple, but no one really encapsulates and brings you this story that it’s about the plaintiff. One of my favorite books is 12 heroes, one voice by Carl Bettinger, which is about empowering the jury.

And that’s a little bit about the lawyer’s role as a Sherpa, but there’s not a, a great book that I know of about client prep. It is just not either understood or focused or appreciated or maybe it’s a soft science and a lot of people don’t really understand it, but it is hugely important. 

Elizabeth Larrick: Yeah. And so I have a pretty [00:14:00] specific point of view on this particular point.

A lot of people disagree with me and that is. I treat deposition preparation just as important or if not more important than trial preparation because I feel like that’s the time my client needs to get it all out. 

Michael Neff: Yeah. A lot of 

Elizabeth Larrick: people disagree because they think, no, no, no, no, no. We got to save it for trial.

So what’s your point of view on that? 

Michael Neff: Well, I think there’s a lot there, but I think the thing that most importantly jumps out to me is you have to get out any guilt that the plaintiff might have or any doubt or any self blame because really good defense lawyers hone in on that and they take advantage of that and they extrapolate that.

So if your client isn’t really Sure about all the factors, and it gets really sensitive and complicated, particularly in a sexual assault [00:15:00] case where self blame can come in into play. You, you as a lawyer have an obligation to your client to. minimize additional harm to them, to protect them, and to help get them through the process.

And I think especially in sexual assault cases, you need somebody good to talk to this client and help this client Get beyond this thought that they somehow are to blame for it. 

Elizabeth Larrick: Well, sure. Absolutely. And I think that’s I mean, I call it your depositions or emotional warfare because this is the Opportunity that they can sit there for six hours if they want And just ask and ask and ask, ask, and you got to be ready that they need to feel ready to be able to know what to [00:16:00] expect.

And like you said, especially with the self doubt and the guilt and the other emotional warfare that comes in with being just sit in front of them. So I have another question. So a lot of times we have premises liability cases, we’ve got clients that come to us and they say, yeah, I don’t know what happened.

I think maybe that’s the thing, or maybe it’s just some water. So do you take those cases, not take those cases? What do you do with those fines? 

Michael Neff: Those are very dangerous cases practice predominantly in Georgia, but in Georgia, if you can’t explain why you fell, you are very likely to lose on summary judgment.

So there has to be a clear causal connection between any purported breach of duty and the reason for the injuries. Yeah, that’s that case screening is hugely important. Damages are not enough in premises [00:17:00] cases. You’re going to need to navigate through that. And so case selection, it starts and then depo preparation, it escalates.

But you’re right, if the depo doesn’t go well, you have a lot of problems, particularly you might not be trying the case, or you may have a really difficult, if not impossible time saving your client’s credibility. And that’s worse than losing on summary judgment is losing a trial for a lot of reasons.

Elizabeth Larrick: Sure. Sure. Sure. So tell me, walk me through any kind of example. If you pick a case example where you took the case in, went to depo prep and work through some issues and had some really good testimony that made a good impact on the case. Can you give us an example? 

Michael Neff: I can kind of talk about the process in our firm.

So we have four lawyers and we all have different job responsibilities or strengths. [00:18:00] And I am not the best person to do client prep in my firm. So Dwayne Adams is a partner and he is fantastic at it. And so is Susan Kramer. She’s a nurse lawyer with our firm. And Susan is like fanatically good at looking at all the medical details and going through the medical history and kind of spotting potential issues.

And Dwayne is like one of the best human beings I’ve ever met. Very patient, very poised, very very calming influence. So people feel safe with him. And we also do use a trial consultant in Atlanta who is also remarkably good at this. This is what I consider a soft skill, but an essential one. And my professional strength is cross [00:19:00] examination, which frequently is Being aggressive and sometimes being impatient and being persistent and being unrelenting and all of those things.

So that’s what I tend to do. So what we do in our firm is have a combination of Susan and Dwayne sit down and talk to the witness frequently in conjunction with a consultant. And one of the things that I think is helpful about working with a trial consultant. Is that they have fresh eyes, which is a benefit.

They don’t have tunnel vision. They can view the case from multiple perspectives, but they don’t have an emotional investment in the case, the way someone that has a contingency interest has, or someone that has a lot of professional, uh, pride. I want to beat this defense firm. And there’s a lot of emotions that go in to what we do.

And I find it really [00:20:00] helpful to be able to bring into our team somebody that doesn’t have the same stuff that we do, the same issues that we’re dealing with, the same pressures that we have for a lot of reasons. So I think working with a consultant is a really good thing to do in cases that financially warrant it.

And there’s a lot of pros and cons. but mostly pros. So those are some of the things that we do. I also find litigation a lot of times being a male dominated, traditionally male dominated work that a lot of male attorneys can benefit from getting a different perspective. professionally and personally, your jurors are going to be both.

And as much as I like to think I’m right all the time, I’m not right all the time. And as much as I like to think I get the pulse of everybody in [00:21:00] the courtroom, I don’t always do that. And so having, having some diversity, having some different perspective, having some different life experiences, And having different emotional baggage really helps.

So that’s how we do it. I’m not great at the details, but I am involved in the big picture. 

Elizabeth Larrick: Gotcha. Okay. That makes sense. Well, tell me kind of, as we kind of wrap up here, any other kind of. input that you would have kind of on client prep or things that you have seen recently with the change of pandemic or anything like that that you would suggest to lawyers that would be listening here?

Michael Neff: Well, it’s interesting. Since COVID ended, we had one trial with a lot of COVID protections and the trial was a Spanish speaking individual. And one of the [00:22:00] things that it brings to mind having to work through interpreters is being aware of the need for more time and being extra efficient in reducing unnecessary questions because of the time lag.

So I think that’s something that is universal. And I think with a COVID protections and COVID protocols and people spacing out, it takes a lot longer to get through the process. So I think that’s the big deal. I think also people are more anxious. Since COVID, they’re more impatient since COVID. And as much as we want to be thorough, we also want to move through things as quickly as possible and get momentum building.[00:23:00] 

And I think from a witness prep perspective, being efficient and helping them appreciate being efficient is really important. And from a lawyer perspective, even now more than ever, being efficient in how you present your case is hugely important. 

Elizabeth Larrick: Absolutely. And that’s, I mean, that’s something we’ve had.

So folks on who’ve had trials who’ve just said the level of impatience in jurors is just through the roof. And they’re telling you about it, rolling eyes and do all kinds of stuff. So I appreciate you mentioning that. 

Michael Neff: I think there’s a certain stress for a lot of people just being out in public. And the longer they’re out in public, the more stress they feel.

And even they’re not able to say, Hey, I’m stressed because I don’t really want to be here. If you can keep it moving, you alleviate that. And the less stressed they are, the better it is for us generally. 

Elizabeth Larrick: Absolutely. [00:24:00] Awesome. Well, I know that in your quest for premises liability cases, you’ve written a book and you’re putting together a group.

So tell us a little bit about the book and we will put the link in the show notes to find it. And we’ll also do a link to the organization, but tell us a little bit about the book and the organization. 

Michael Neff: Well, actually it’s been two books now. So trial guides published. Premises liability, a guide to success in about 2000 and I think 19.

And then during COVID, we published what is advanced premises liability, a guide through trial. So the first book is about premises cases A to Z, from case selection and intake up until trial, but not a lot. And advanced premises liability is mostly trial and really advanced deposition work. cross examination [00:25:00] skills and direct examination skills so that you’re able to convey the information that you need in order to prove your client’s case.

So they’re both available through trial guides. And that second book was a COVID project. And the other COVID projects that I had was the creation of NAPLA, which is the National Association of Premises Liability Attorneys. And it’s an organization that only focuses on premises liability, whether it’s falls from height or trips or slips or nursing homes.

Or unfortunately, inadequate security shootings and sexual assaults and things like that. NAPLA is on the web at premisesliability. org and we do monthly webinars and we are looking to do our first annual next year, June of 23 in [00:26:00] Chicago. So if anybody listening. To the podcast, the plaintiff’s lawyer wants to join a nap up, send us an email and we’ll be happy to give you the first year for free for listening to the podcast.

Elizabeth Larrick: Awesome. What’s the email address? We’ll make sure and we’ll put it in the show. Beth 

Michael Neff: is our executive assistant. And so Beth at premisesliability. org and you can find out more about the website at premisesliability. org. 

Elizabeth Larrick: Awesome. Well, thank you so much. I really appreciate that. I know our listeners will appreciate that too.

Thanks for joining us. I think can’t stress enough, right? That the preparation of the clients for deposition is really key in these cases for lots of reasons. And of course for trial. So thank you so much for joining us. I appreciate your time. 

Michael Neff: Thank you, Elizabeth. I appreciate it. Well, 

Elizabeth Larrick: I hope that you enjoyed this interview with Michael Neff and just know that we will put all of his contact information and that free opportunity to join his organizations [00:27:00] for premises liability.

In the show notes, if you found yourself counting how many times I said the word, absolutely, just know I was too. So we’ll get that corrected. Just remember, we’re all still in the new phases and new parts of. starting a podcast. So I appreciate your patience and just know that any review, any rating is always so helpful for the podcast.

So whatever platform you’re listening on, please rate, review the podcast, share it with somebody, you know, and again, thanks for listening.

Losing points with the jury is the last thing you want in your trial. At the end of the day, the jury will scrutinize your client more than anybody else in the room. So you want to bulletproof your client before they even get up on the stand. 

Compassion fatigue is not unusual in a world where we are constantly bombarded by horrific news. You should not repeat the same testimony over and over again. You risk wasting their time and losing their patience. 

Therefore, make sure you’re keeping things as organized as possible. Organize your topics, have bulletproof questions and be able to shift and pivot after the defense opening or other witness testimony. 

In this episode, learn how to organize the direct exam of the client. One of the first steps is to create a topic list. Your questions are more likely going to be based on this. It will navigate you through the process of preparing your client for when you put them on the stand. Also, this is a process that you can start very early and take care of the other more important things you need to do for the trial.

In this episode, you will hear:

• Why you need to come up with a topic list
• The point of view of the jury
• Topics of liability and damages
• Other witnesses and order of proof
• Considering the possibility of compassion fatigue
• Time management strategies
• Preparing your exhibits

Subscribe and Review

Have you subscribed to our podcast? We’d love for you to subscribe if you haven’t yet. 

We’d love it even more if you could drop a review or 5-star rating over on Apple Podcasts. Simply select “Ratings and Reviews” and “Write a Review” then a quick line with your favorite part of the episode. It only takes a second and it helps spread the word about the podcast.

Supporting Resources:

Did I miss something for client direct exam? Do you have further questions? Send me an email: elizabeth@larricklawfirm.com. 

Episode Credits:

If you like this podcast and are thinking of creating your own, consider talking to my producer, Danny Ozment.

He helps thought leaders, influencers, executives, HR professionals, recruiters, lawyers, realtors, bloggers, coaches, and authors create, launch, and produce podcasts that grow their business and impact the world.

Find out more at https://emeraldcitypro.com

Episode Transcript:

Elizabeth Larrick: Hello, and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.

This is a podcast designed for trial lawyers who are looking to get better in the courtroom, to connect with jurors and their clients, and all in all, just. [00:01:00] And I hope that you will share this podcast with other folks, even particularly, we always talk about focus groups, how to use focus groups, how to do your own focus groups, client preparation, and those types of things to help us be better lawyers in the courtroom.

Today, we’re going to talk about organizing direct exam of your client. I recently was asked to speak at Texas Trial Lawyers Tact College, which is basically a trial preparation CLE. It’s really awesome. And It’s a great opportunity for folks who’ve never tried a case. They basically take it from all the way from the start, all the way to the finish through a trial and go through each of those teaching on each sections.

And then also having basically an on your feet time to practice doing all those things immediately. So it was a great opportunity and I appreciate that. And I was asked to come talk about direct exam of the client and also [00:02:00] plaintiff’s expert. And as I started to put the presentation together and think about it, it really came down to me as like apples and pencils.

Okay. Clients are the apples and plaintiff’s experts are the pencils because experts, there are rules and we have to go through, we have to jump through all the hoops before we can get them even into the case. They have to have qualifications. They have to have experience, knowledge, training, and then They’re gonna do a report.

It’s very much, very structured. What they’re gonna come in and talk about is very structured and the attack on the expert can also be very, very structured. And most of those times those experts who have testified in court, they have a way of doing their thing and sometimes they’re not gonna be flexible.

And I like to think about our clients and even before and after witnesses as apples. Right. It’s very organic. Sometimes you make an apple pie and sometimes it’s a strudel or sometimes it’s all different kinds of things, but either way, [00:03:00] it’s organic and there’s tons of types of apples. And I just love all the things that you can do with your client.

So that’s what I can think of as apples and pencils. So we’re going to focus on our apples because that’s generally what I have done in my experience is. I’m going to help clients get ready for trial testimony, and what I really want to do is help give a template or a way to organize that direct exam that you’re going to go through with the client, because I feel like this is something that is vague.

We’ve got not a lot of structure when it comes to the client. And so what I want to do is really talk today in this episode about how do we think about that? How can we come up with what I call a topic list? Because from that topic list, that, you’re going to take that directly and prepare your client on the topic list.

You’re going to take that list yourself. You’re going to go create questions on it. And it’s going to guide you through the process of preparing the [00:04:00] client, And when you put them on the stand, being able to go with that topic list. So what I always want to be thinking about, though, in this organizing stage is, okay, what is the point of view of the jury?

And also, what does the jury charge say? What are the questions the jury is going to answer? And specifically when it comes down to clients, depending on the type of case, you need to know, Hey, what is it that my client is going to give or provide to the jury in order to answer a question? Sometimes we have clients who pretty much everything they’re going to answer is just going to go towards a damages jury question.

Sometimes we have clients that have to answer for liability and damages, but that’s really kind of the starting point for me for organizing is, okay, let me get out the jury charge. Let me look at liability, question one, damages, question two, what parts of my client going to have to answer for liability?

Yes or no. Is there anything in there that my client Yes. The jury must [00:05:00] answer to the jury. Right? That the jury point of view is I need to hear that client get on the stand and tell me how this wreck happened, or maybe not. So depending on where your client was, another example in a bedMAL case, clients not going to be able to tell how the surgery happened.

They’re completely knocked out, right? It’s still an important fact, but it’s kind of one of those things. Okay. Well, how much can they really answer on liability? Well, thinking about the POV of the jury, jury wants to know about this person’s prior health. They’re in a really good position to talk about that.

So we’re thinking through all those things at this point in time. We’re thinking about the POV of the jury, point of view of the jury. We’ve got our jury, charge out. Now we’re just looking at our topics of liability and damages. What in liability do they need to answer? What in damages do they need to answer?

Okay. Now let me add a third thing here that we’re gonna be thinking about, which is our other witnesses and our order of proof as well. So most people don’t put their client on as a judge. [00:06:00] Number one. First witness. Okay. They’re put them in there somewhere in the shuffle or sometimes at the end. So I always like to look at, okay, thinking about the trial from a 30, 000 foot view, what is my order of witnesses?

Okay. Now let’s also think about what exhibits, what documents, are also going to be coming in, in my proof. Okay, so I’ve got a couple of before and after witnesses that I’m going to give to my client before my client gets there. I’ve got a couple of before and after witnesses, are they going to tell stories that my client is involved in as well?

Okay, so maybe those stories need to be off the list and just give them to that particular witness. Maybe that witness doesn’t have any other purpose other than to tell that story. That goes to the blank on the jury charge. Okay, great. We’re, again, we’re just organizing. We want to see, but we also want to know, okay, what is it that only my client can answer for?

Only my client can answer for when it comes to liability or damages. And also thinking about, okay, what’s already been coming into the jury at this point that maybe we don’t [00:07:00] need to repeat again. Because jurors don’t want you to waste their time and they certainly don’t feel bad For your client, right?

So at the end of the day, and this is not just post pandemic, this is before that, but I think even now people are even more impatient is, we’ve all experienced. At some level, some kind of compassion fatigue, because we live in a world where we are bombarded constantly by horrific news, by horrific things that are happening in the world constantly.

Open your phone and if you’ve got Android or even Apple, you’re gonna get whatever that news is and it’s gonna be some kind of horrible, awful event. And what happens is, it’s really hard to keep some compassion for people when we’re constantly bombarded with these just like super over negative Like just, wow, this world is full of just horrific tragedies and there’s nothing I can do about it.

And it’s also like, well, what about me? That’s the other part of our world we live in [00:08:00] where it’s allow a lot of places, many platforms, I should say, for your personal opinion to be projected everywhere and on to other people whether they like it or not. So, and also all this is coming into this compassion fatigue.

That we’re all experiencing this kind of burnout, right? And then add that fact that the jury probably doesn’t want to be there, right? For 7 a day or 10 a day. Keep that in mind when you’re thinking about what topics, what stories, right, your client’s gonna give and your witnesses and repetitive information.

So we’ve got a lot of things that we’re organizing in here. What I love to do is just take a sheet of paper and just write it all out, everything out, all the topics, okay? I’m not saying questions, your topics. Now compare it with your Order of proof with your other witnesses, with your other documents, thinking about where that comes in a trial.

Can you eliminate some things? Is there somebody, is there a piece of evidence that’s stronger than having it come out of your client’s mouth? All right, cool. Let’s take [00:09:00] some things off their plate because we want to make sure we want to manage their time on the stand. That’s the fourth thing that we are adding to this list now is time management.

Where are they coming in the order? How long do you want them up there? And how long is cross going to take as well? You’ve got to average that in when you’re thinking about how about how long you want your client on the stand. So we’ve got four things on our list. POV of the jury, point of view of the jury.

Our jury instructions, our jury charge, specifically our questions. Our order of proof. And now we’ve got how long do I want to keep this person on the stand? How do I manage the time? So now that we’ve got all this, we’re going to look at, okay, with our topic list out there, comparing to other topics, can we eliminate some?

Is somebody stronger? But now you just basically got the bullet point of the list. And what you want to do now is you want to add in cross exam points. And you’re going to go find those cross exam points from client deposition. [00:10:00] Gone right through it. Gone right through it again. Highlight the question and the answer.

You want to make sure you have that documented so that you know where that goes on your topic list, how to build that in, but also be thinking about what else have you heard? What did you hear at mediation about your client? What has the defense lawyer been telling you about your client? What does the insurance adjuster been telling you about your client?

Put all those things in there because when it comes time to trial, there’s not going to be a magical new list. It’s going to be the same items. So you just want to build those into your topic list. And if it’s not on your topics, then you need to add it into your topics. Because what we want to make sure that we’re doing is we want to get all our points That we need to score, but then we also want to insulate our client before cross exam to just deflate that balloon.

We don’t ever like aha moments, right? Surprise. I got you. The jurors looking for those. That gets them all excited. We [00:11:00] want to deflate that. We want to make sure, hey, we don’t leave somebody up there on the stand all high and dry. We want to be able to give them some protection beforehand and give them that opportunity to explain before cross exam comes up there.

We also want to look at building in exhibits. Right, so we got our topics, we’ve built in our exam points, cross exam points, and we want to put in our exhibits. What exhibits do they need to cover? What are exhibits that we can use with them to help make it easier to testify? For example, I’m working with an individual going to trial on an employment case, and she has a tendency to over explain, if you will.

So, in order to help with that, Avert that compulsion that she has. We’ve worked through and we’ve role played with the exhibit specifically about a text message string. So she doesn’t have to feel like, okay, message one, blah, blah, blah, reply, message, because she’ll do it verbatim. We just put that up there, [00:12:00] put that exhibit up there.

Now, at this point in the trial, the jury has probably seen this thing 20 times. You’re not putting it back up there to walk back through it again. You can just put it back up there to confirm that’s what happened. Yes. Great. Now you get to move on. But we want to make sure that we’re using exhibits, we’re keeping things moving around the room, we’re keeping the jury interested, we’re putting things into evidence that maybe they need to go in there.

Got a car wreck case, you need to talk about bills, you need to talk about medical records. By all means, just do it. Put it in there. But you want to build that list as well so that you can prepare your client as well on those exhibits. But build those in there as well, and then think about how can you work in a demonstrative.

Another example, working with a disemployment trial. You did a lot of dates. And they wanted to create a timeline, that’s great, but maybe let’s create a calendar, right, and so they’re going to have her walk through the demonstrative calendar to show how much [00:13:00] time has passed, what’s going on, great, that’s fantastic.

And then how, if worst case scenario, you don’t have even any photos or any demonstratives to go through, just create one with them. Right. At the end of the day, most clients have to testify on some level for damages here in the state of Texas. You have to have your client testify on very specific pieces of the jury instruction to make sure that it gets into the record.

Let’s get real specific physical pain. We’ve got to have testimony about physical pain. We’ve got to have testimony of stress, frustration, right? That mental anguish portion of it. It’s a good way to get things turned over. So create a demonstrative, make it something that’s digestible that, hey, best case scenario, get to use it again in closing statement.

And it’s just a way to visualize things with the jury, with the client. We’re all working together and we’re trying to put something up on the board to keep [00:14:00] things interesting and flowing. All right, putting all this together in my experience doing client direct exam is a lot of lawyer preparation. I think it takes so much more organization on our part, digging into, doing research, re reading those depositions, going back through our notes for mediation, going back through our call notes with adjusters and what defense have said, on top of it.

Looking at the order of proof and the exhibits and it’s a lot of organization and then on top of that thinking, okay, how do we have questions that avoid objections, right? What are my plan A and plan B on questions with people? And then ultimately being able to shift, if you have to shift the defense opening then is now putting more weight on a different point.

It’s okay, you’re, you’ve organized it so that you can do that. But we want to organize our topics, we want to have questions that are bulletproof, and be able to shift and pivot after the defense opening or [00:15:00] other witness testimony. At times, I’ve had this happen to me where we put on the before and after, and something happens and the before and after does not get to testify to their three points.

Maybe they have three stories, maybe they have four stories, and all of a sudden the judge decides, nope, nope, not coming in. One story comes in. You’re thinking. Well, okay. How do we get those other points in? We really want those in. So sometimes you got to shift and you got to have put more things on your clients.

Sometimes you shift and take things away from them. So trials are always maneuvering. A good point though, about this is these are our clients. We have access to them well in advance so we can start this process very early. We can start organizing that order of proof early, find other people to help carry the load when it comes to testimony.

And then ultimately, we can test, we can test our client’s testimony, have them create a five, seven minute zoom clip, [00:16:00] play it in front of a focus group to see what they think, what’s the strengths, what are the weaknesses, we have a lot of control over this element, and we can start very early, which I would urge you to do that, because once it’s done, you can set that down and keep looking at something else, because as we’re going into trial, Whether it’s waiting for a pretrial, or waiting for exhibits, or last minute motions, like, there’s just a lot of things, other things that have to go on into organizing and creating.

You can do this early, because you don’t want to lose points with the jury when it comes to your client. And, at the end of the day, In that courtroom, the jury is going to scrutinize your client more because they’re like that person more than anybody else in the room. So you want to make sure, all right, you bulletproof it before your client gets up there.

So hopefully this was a helpful episode in thinking and organizing for your client direct exam. If you have questions or maybe you think, hey, Elizabeth, you totally left out this thing for direct [00:17:00] exam, please let me know. I would love to add it in here or maybe make an episode. So my email will be in the show notes.

Thank you again for tuning in and supporting this podcast. I would love it if you could rate it, review it on your favorite podcast platform. And of course, I really love it when you share this podcast with other people. All right. Thanks so much.

Sometimes, we live with our cases for years, before we can find any kind of resolution either through settlement or trial. Now, this creates a tunnel vision where we can put these blinders on. There are blind spots everywhere that we just can’t see. And it gets worse when we block out any other theory or possibility. When we do this, we take on a whole new risk because we are holding the case back. 

A focus group is a laboratory. It’s to gather research. Sometimes, you’re going to hear good things, but you’re also digging in to hear the bad things about your case. Focus groups are going to give you fresh eyes in terms of approaching your case and getting you to a whole new emotional movement in your case. 

In this episode, I’m going to talk about some reasons lawyers would hold back a case and why you should start considering focus groups to help get you to the next level in solving problems. Ultimately, you have two options here – either stay in the blind spot or be open to learning and eliminate a huge risk of getting a zero on the case.

In this episode, you will hear:

• How people make decisions based on emotions
• What shapes the filter system of jurors
• Finding the problems you can see and you can’t see
• Creating multiple ways to solve the problem

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Episode Transcript:

Elizabeth Larrick: Hello and welcome to a new episode of trial lawyer prep with me, your guide, Elizabeth Larrick.

I am excited to have this podcast and to broadcast tips and tricks for trial lawyers trying to get better to connect with the jury and connect with their [00:01:00] clients. Today’s topic we are going to look at, are you holding your case back in the mindset or in the frame set of I’m going to be talking about the concept of focus groups.

Are you holding things back? And this can happen. I see it happen all the time. It happens with me all the time. Not as much anymore because I’m using some focus groups. But what happens is when I think about this question, I have lots of examples to talk about today. But why would a lawyer hold back a case?

It’s not anything they want to do. I love what we do. We love our clients. We want to help them. We take on a risk by taking on their case and not getting paid till the end. So where could this happen that we end up holding things back? We live with our cases sometimes for years before we can find any kind of resolution either through settlement or through a trial and that creates a tunnel vision where we can put these blinders on and we can’t see [00:02:00] things like blind spots everywhere that we just can’t see because we have tunnel vision.

But what I’ve also seen is it can get even worse than just tunnel vision where we block out. Um, Any other theory, any other possibility. And when we do that, we take on a whole new risk and we, I truly believe are holding the case back. So we have focus groups every week, several a month and different styles.

Sometimes people come in and present themselves. Sometimes I’ll present things. Just a variety of things, and it can be any kind, like either we’re just doing an opening statement, or maybe we’re just having a neutral discussion, kind of with a snapshot of the facts. And at times, the moderator will end up trying to either argue with a participant, or try [00:03:00] to add facts to change their minds, or maybe repeat facts to try and change the participant’s mind.

I’ve also seen where after the focus group, there’s a blaming of the participants, there’s blaming the bad questions, there’s, hey, we should have told them this thing over again and repeated things. And I just kind of scratched my head because a focus group is a laboratory. It’s to gather research. It’s yeah, sometimes you are going to hear good things, but you’re also really digging in to hear the bad things about your case.

And a lot of times what’s happening in these focus groups is this whole other level in your case that you have been either putting those blind spots on or putting the block out, not even seeing it. It’s this whole emotional movement in your case. We go to law school, we’re trained, let’s look at the logic, let’s look at the rational thing.

Okay. That’s what happened. This is this, this A to B, B [00:04:00] to C. Okay. It’s the law, right? Black and white. Take the facts, apply the law, we’re all good to go. If you’ve done any trial training, or trial lawyer training, or any of that good stuff, over and over and over again they talk about, well, people make decisions based on emotion.

Not just in what we do in marketing, making decisions about all kinds of things. Really, we make decisions on the subconscious level. And when we have a case, and we get this tunnel vision, and we really block out what other emotional movements can be going on, we really end up Doing a huge disservice to the case and the client jurors Focus group participants will ignore logic and just use right emotion They’ll use their belief system about the world and it’s just this filter right it.

I’m not creative Someone else has come up with this, right? it’s just this filter that basically all the facts come through in the filters shaped by the experience and Sometimes experience is really broad Right? Think about things that are regularly on [00:05:00] TV or movies or how we get the news. That can be a really broad experience.

Everybody had to go through the pandemic on some level, and that’s a big experience we’ve all had. And then there’s also smaller experiences, right? People who have been in a car wreck or people who have had family members who’ve experienced a medical malpractice, and that all shapes their belief system that basically that filter system.

And then once it comes in, the facts are going to either go support it or not. And so, what happens if we start to ignore that filter system or just decide we don’t even want to know about it? We are really doing a disservice. We’re taking on a whole other risk on the case that we just don’t even know about.

Let’s just talk about this. I’m sure we’ve all heard of an example of you’ve got somebody who went to trial and it’s a run of the red light, crash, and the whole thing’s on tape. The red light’s on tape, the car going through [00:06:00] the red light is on the tape, and they lose. Defense verdict. Zero. Like, how on earth could that happen?

Very logically. Look, we can see there’s a red light. We can see the vehicle running the red light. All the facts are meeting up with the law that says don’t run the red light. But people will make their own decisions. They’ll create those things up if it doesn’t match with what’s in their emotional minds.

So, as I see it, we have two options here. One, we can stay in the blind spot, we can stay in the blocking spot and just say, You know what? I know what I’m doing. I have experience. I know what’s going on here. I got this, right? Just stay where we are. I’m just going to ignore it. I’m going to take the risk that I may get a zero out.

I may take a risk that I’m going to get lower value case. And maybe I understand it, maybe I don’t, but I’m just gonna move on to the next one. Or you could choose the other option, which is [00:07:00] being open to learning, asking other people, trying to find out what is that emotional movement in my case? Is it on my side?

Can I move it to my side? Can I neutralize it? Right? Or at least can I minimize it? But when we find That problem, at least we’re aware and we can know how to fix it. Sometimes it’s not fixed and you do need to settle the case, but that still eliminates a huge risk of getting a zero on the case. So, here’s what I’ve seen in lawyers gaining more information about the problem, right?

The emotional movement in their case, whether it’s for them or against them. Maybe it’s something that they haven’t ever heard about, maybe it’s something they have, but What I always tell people is, even if we’ve heard about it, right? Like, hey, you’ve got a videotape of what happened in this case. It should be slam dunk, no problem.

You, test that out. You [00:08:00] still want to go and look at, what do other folks think about this video? To try and find out, what is the lens that they’re looking at this thing? And what are the snacks? What are some hangups? Once we learn that and can look at all those ways, we can go to work on the problem, trying to create multiple ways to solve the problem.

This kind of emotional hangup that can be there. But once we have more information about where this is coming from, what experiences is having people lean this way, what is, what’s the concern here? And it could be something completely, totally off base. It could be something as simple as having a fact inserted into.

The opening statement got a good group of folks that we do focus groups down in Houston. And they talked about how they had run, it was an explosion case in a home. And one of the most important things they gained from the whole focus group was that [00:09:00] they believed that the plaintiff was smoking, even though there’s no, no evidence anywhere, no medical records, no, nothing, nothing about anywhere was introduced that this guy was smoking, but they created that in their mind.

That he was smoking. He caused the ignition, which then caused the explosion. And they were like, wow, totally worth running the focus group to understand like that whole thing was there. We never would have seen it otherwise. And I totally believe that along with finding the problem and pulling it apart, understanding it as much as you can.

I truly believe that focus groups can go to the next level and help you even solve the problem. But it requires you to understand. to have kind of a level of curiosity that you are able to ask the question in a neutral way. And then you’re able to listen and not argue or talk back. Right. So most of the time, the best kind of questions we can have in [00:10:00] focus groups are open ended questions and then following that up, but tell me more Okay, great.

What did you hear or see that, that brought you to that, right? You just want to understand, hey, where is it coming from? What’s going on? Because that’s where you’re going to learn, okay, well, let’s just think creatively. Let’s just think outside the box. If to move the needle, what else would need to be in this case?

What else would need to be in this fact pattern? What facts or other things? And they’re going to give it to you. Now there are things that they’re going to say that you’re not going to be able to get into evidence. And that’s okay. Think about maybe what they’re saying more, or if you know right then that that’s not admissible evidence, you don’t need to say, well, that’s not admissible evidence.

Tell me something else. They don’t understand the rules of evidence. Most lawyers don’t understand the rules of evidence. So there’s no point in telling focus groups about the rules of evidence. Just say, okay, great. What else? So that what other things? And if somebody says, well, that’s just the absolute one thing and you think, Oh, okay, great.[00:11:00] 

Now it’s telling you something about that person, right? We’ve got to have lots of ways and choices to solve problems. Okay. People are one minded, one mind that should tell you something else about, Oh, okay. Well, we need open minded people here to serve on juries, but either way, it’s going to give you information.

So. At the end of the day, we are problem solvers. That’s our whole job. People have a legal problem. Family law, criminal law, personal injury law, workers comp, employment. And we can get stuck in our own mindset, in our own place. And smart lawyers learn constantly. We want to learn more about our cases.

We’re not going to say, Oh, that’s just like the other case I had. You know what, it’s perfectly the same. It’s not. It’s really not. And I guarantee you, jurors and focus groups will tell you, Oh, no, there’s this one little thing right here. But you want to find the problems you can see and the ones that you can’t see.

Because you can [00:12:00] handle all the ones you can see and know about and reduce the risk of those problems. We don’t want to put blinders on, we don’t want to put blockers up, because we want to be able to know the problem in order to reduce the risk of the problem. Otherwise, we already have a lot of risk in a case, but if we put blinders on or we block outside opinions, block outside beliefs about our case, we’re really taking on a whole other level of risk that we don’t really want to do.

So, I challenge you to think about the cases that you have. Is there a case? That maybe you’re standing in the way. Your particular belief, or you think, Hey, this is easy, open and shut. Do you need a fresh set of eyes? Take that case and go ask a non lawyer and don’t ask somebody in your family, right? Ask a complete non lawyer about the facts and just listen and see what they have to say.

And if you’re so inclined, put together your own focus group and put things [00:13:00] together and ask the focus group what they think about stuff. Have somebody else, you’ve got to have somebody else moderate them do that. If you need to read from a list of questions and by golly do that. But the options for finding out more about your cases are really available.

They’re doable and you don’t have to pay somebody if you don’t want to. You can totally do it in house, but at the end of the day, you got to ask yourself, Hey, am I missing something? Is there a risk that I’m just missing altogether? And also, Hey, is there something that I’ve heard that I’m just blocking out of my mind?

So. I hope that this episode was helpful to you. If you have any questions or comments, please feel free to email me. My email is in the show notes. Thank you so much for listening and for being a supporter of the podcast. I would love it if you would rate and review on your favorite podcast platform so that others can find this as well.

Thank you so [00:14:00] much.