Three Case-Saving Focus Groups to do in Discovery [Ep 150]
Our episode this week demonstrates why even small focus groups can go a long way towards saving your case.
Running focus groups in discovery can accomplish a lot in even just 50 minutes, giving you data and analysis that you simply wouldn’t have otherwise.
I outline three specific types of focus groups that can save cases: neutral narratives, timelines, and deposition preparation. Each type serves a unique purpose in helping lawyers understand their cases better, identify weaknesses, and prepare their clients for testimony.
We want our clients to do the best job possible, so why not give them a leg up and do a focus group test run, to help figure out where jurors will land on the testimony.
In this episode, you will learn:
- How focus groups can save your case during discovery.
- Understanding jury perception is crucial for case strategy.
- How fresh perspectives can break stuck thinking in cases.
- Identifying assumptions early can guide case direction.
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Supporting Resources:
You can watch this episode on my YouTube Channel: @ElizabethLarrick
Want to learn more about the virtual focus group Elizabeth does with lawyers? Schedule a free call:
Episode Transcript:
Elizabeth Larrick (00:01.346)
Hello and welcome back to the podcast. I’m your host, Elizabeth Larrick, and today we are going to talk about focus groups you can run in Discovery that can save your case. I know it’s a big statement, but these little focus groups, and you’ll see what I mean here in just a little bit, can help you learn so much in such a short period of time
to get you on the right track and avoid wasting energy and money on the wrong claims, the wrong stories, and starting in the wrong spot. So I’ve talked about this before in episode 139, doing focus groups in discovery so that you can be on the right track.
Today I want to use this episode to talk about three very specific styles of focus groups that you can use. And we’ll dive into the details, talk about what you can learn, and I have some examples to share as well. So you may be thinking right now, well, that all sounds nice, but these are generally pretty expensive little endeavors. And I usually wait until before mediation,
Elizabeth Larrick (02:27.242)
or after expert depositions to run focus groups. I hear you. But these focus groups are little, meaning they’re short. You can get them done usually in 50 minutes. And if you have a complicated case, you can probably still get it done in 90 minutes. And of course, as you know, all these can be done virtually, as I always encourage people to do. And we’re gonna give you the specifics here today. So let’s dive right in.
We have three specific focus groups and the first one I encourage people to do to save their high knees is a neutral narrative. Now, you may be thinking, well, this sounds pretty much like a traditional focus group. We just put together a statement. Usually you have a statement from each side, but in this situation, what I’m asking you or what is being asked of you is to put together a statement like you’re a journalist.
just the facts. We’re gonna give context, facts, and depending on the style of case that you have, you may put in what each person is saying happened, what your client says happened, what the other person says happened. But you’re gonna think of it like a journalist, and that way you can just basically read the statement or give the statement with a PowerPoint if you have pictures, and then ask them what they think.
Normally the mistake I see lawyers make when we’re doing a neutral narrative is to not give them very many facts, to give like five minutes of facts. And you get really stumped with that because what they’ll end up doing is just asking you questions, many, many questions about more information versus giving you analysis. And we want analysis here. So I encourage people to put together at least 10 to 15 minutes of a journalist statement.
including pictures if you need to, to help with context, and then just ask them what they think, what’s going on, what else they want to know, and let the ponies run and just see what the conversation is. These neutral narratives are very helpful in finding out hidden attitudes, hidden assumptions, the weak facts that you have, the strong facts that you have,
Elizabeth Larrick (04:48.55)
and generally maybe what could be missing. That’s super important if you’re starting out and you’re still in discovery and you want to be able to pick the strongest claims and go forward with them. And also it’s really helpful just generally to set up your discovery to know where your holes are, where things may be missing that you just didn’t even see it because again, we get stuck in our bubbles and it’s hard for us to see things from a non-lawyer’s perspective. That’s okay.
So my example of this is recently we had a single car crash. It involved a driver and one passenger, both of whom were 16. Now we ran a neutral narrative and set it up very neutrally and then just asked them what they thought. And the group almost totally, almost all 12, about 10 of them assumed that alcohol was involved without any mention of it at all.
That opened the discussion to, well, it couldn’t be just the driver’s fault. It had to also be whoever gave the person alcohol. It opened up the whole discussion talking about alcohol and intoxication. It was a really important assumption to learn because in the rest of the facts of the case, there is alcohol involved. And the lawyers realized,
This is going to be what people come in already written in their minds when they hear this case and it’s going to be something we need to navigate even if the judge says, we’re not talking about that. It’s not something you can consider. You would want to know that. That would definitely be a case saving assumption you would need to know before you walked into court. Now, you could do that focus group earlier and then figure out how to navigate depositions. We’re going to talk about here pretty soon, but
That is a great example of something you want to know what assumptions people are blindly making, whether the evidence is there or not. Our second focus group that I encourage people to do to save their case early in discovery is a timeline. Most of the time when I mention timelines, people automatically assume we’re talking about in a personal injury case, the medical timeline, right? What has been happening after the event. But really what this
Elizabeth Larrick (07:10.164)
exercise is about is using a timeline of events leading up to the injury or the firing if it’s an employment case. Because really what’s important for us to learn early in the case is where do we start the story? We always want to be focusing on the defendant action, but which one? And this focus group will significantly help you find where in time you should be starting the story.
it will also help you be able to pinpoint the moment or rather the event at which things could have been prevented and by who. Now, sometimes this turns out to be in our focus groups, your client, but obviously you wanna know that at what point they would be responsible for their actions before the ultimate injury or firing or whatever the event that’s causing the litigation. So these are really important when you have complicated
Facts with multiple defendants. men mal is a great example of a case to use a timeline focus group with because traditionally there are appointments before the surgery or the malpractice happens and it’s important to document those out and figure out at which point in time it could have been prevented. So that’s a great example, but the one that I have very specifically to talk to you about is a plant explosion.
Now this one happened a couple of years back and there were several defendants that were a part of the possibility of causing the explosion. And so we had several target defendants and we had several different themes. Was it the installation that went wrong? Was it the maintenance that went wrong or was it something else? And so we ran actually several different focus groups looking at the timeline of events and where to start the story.
So very important because in a case like that, it was easy to just blame the people who own the plant. And so we used several different five actually focus groups to help us figure out which point in time to start the story so that the jury was focused on the target defendant. Ultimately, in that case, the jury found $18 million in a verdict and put I think 30 or 40 % on some of our target defendants, which is pretty much what they needed to get in order to
Elizabeth Larrick (09:36.876)
Get over that hump, if you will, for contributory and comparative negligence and be able to collect. All right, our last focus group that I suggest people doing for case saving, and that is deposition prep. Now, I understand this is actually a little bit of a traditional focus group, but what I don’t want you to do is have your client give testimony live. What I would like you to do is pre-record with a Zoom. Now, when you’re able to do that,
you can obviously ask very open-ended questions. You’re not going to be trying to change anything that your client is saying, but rather you can ask a little bit easier questions than those deposition questions that sometimes come out of people’s mouths. It also allows someone else in your office with their voice to make the Zoom recording not yours. What I also encourage people to do is in a focus group like this, we wanna give a little bit of context, we wanna have a little bit of facts. We wanna play…
our clients, Zoom recording, and then you wanna have at least one or two other recordings to be able to show them. And those can be deposition testimony of the defendant or another witness, but it’s very important in order for an analysis to happen that they have a comparative as well. And that way you can get a good conversation going about what was their blink reaction, what is the credibility, what kind of questions would you have for this person? And it really helps the client also be able to have a practice session.
And then also knowing what the feedback is, be able to understand how people are perceiving them. It can be really difficult as a client who has never done a deposition to understand how a jury of 12 people would perceive you. Most of the time we think about, just how the person across the table is perceiving me. Also important, but we want to make sure that we are nailing down our testimony in a clear and credible way because
We normally just have one shot at this. And if we have some testimony that comes out unclear or comes out in the wrong way, it’s kind of sealed. I know you can try and correct it with a corrections sheet, but let’s be honest, it’s kind of stuck. We don’t want that to happen to you. I want you be able to have great, clear, credible testimony so you can check that box and move forward. This is super helpful when you have, again, a complicated
Elizabeth Larrick (12:03.148)
liability case or in my example, you have a client that feels very strongly about testifying a certain way. Whereas you feel very strongly they should testify a different way. You may be thinking, Elizabeth, how is that possible? There is only one truth. come on now. We know that that’s not true. But I’ll give you a good example and that would be there are times in certain cases where a client may need to take the Fifth Amendment. So they could take the Fifth or
they can answer the question. This is a great way to test which way they should go because it’s kind of like A-B testing. You make two different videos and use two different focus groups to figure out which way is gonna be credible and how damaging is it to take the fit? How damaging is it to answer the questions? It can be significantly impactful for obviously the client to know which way to go but also overall for the case in a situation like that.
But I’ve even seen it to where people do these, even just a regular car wreck case, just to make sure our clients give clear testimony on how it happened, on their injuries. But really sometimes with car wreck cases, the how it happens can get a little bit confusing for jurors. We just don’t want that to happen on the very front end of your case, because typically that’s kind of the first discovery that happens, maybe some written discovery and then jump right into depots. So I wanna make sure we have that clear and the record is straight. All right, overall.
As I mentioned earlier, all three of these focus groups can be done in 60 minutes, 50 minutes or less because we are limiting the amount of information we’re giving them and we’re also being very structured in how we’re doing it, giving all the information and then just going straight in for feedback, not adding more information after that.
Of course, these are all three great ones that you could do virtually. I actually host virtual focus groups every single month for lawyers and we do these exact styles of focus groups to help them find their blind spots, those assumptions that people are making, figuring out how to give clear testimony for our clients, where to start our stories, which are very important, especially when we have multiple defendants, and also just to get you on the right track.
Elizabeth Larrick (14:16.918)
It is amazing how much a fresh perspective can give you new energy on a case. Great ideas that weren’t even mentioned before and sometimes just break us out of stuck thinking that happens when we live with a case for longer than we want. All right, just to make a quick review, we’ve got three case saving focus groups you can do in discovery. The first one is a neutral narrative. Remember, we’re gonna put together a statement just like a journalist and read it to them.
Second one is a timeline. We’re gonna put our events on a timeline and throw it to them to figure out when it could have been prevented and where to start your story. And last one is depo prep. Depositions are so key. We want our clients to do the best job possible. So why not give them a leg up and do a little test round and figure out where jurors will land on the testimony. All right, I hope that this was helpful and we’ll move you forward in your cases that you’re working on.
And until next time, thank you so much.