“We got a lot of good feedback on the mechanism of event and injury illustrations and the way they looked to the focus group. The focus group caught things in the illustrations that we missed or ways to improve the illustrations so they better communicated the point we were trying to make or emphasize. The focus group also gave us a lot of confidence in the fact that jurors would believe the illustrations demonstrated the life changing significant injuries he suffered compared to how he looked in his video deposition.”
Blake ErskineAustin, Texas
This case study is intended to reflect the ability of virtual focus groups to review visual aides, for both liability and damages, and enhance them to powerfully tell the case story.
Facts: A crash occurred at 3pm on a clear afternoon between a bicyclist and a last-mile delivery truck. The last-mile delivery truck was attempting to make a left turn from a driveaway across two lanes of on-coming traffic and a middle turn lane. The bicyclist was traveling straight in the on-coming lane closest to the truck. The truck started its left turn and struck the cyclist. The bicyclist was knocked unconscious by the violent crash. He suffered severe injuries, including traumatic brain injury, broken bones, and a significant hematoma on left hip.
The crash was witnessed by several other drivers and they quickly rendered aid. One of the vehicle passing in the area had a camera, which captured the bicyclist travelling straight and the position of the last-mile delivery truck in the driveway before the crash. The video missed the collision but the vehicle did an immediate U-turn after the collision and pulled up on the scene of the crash to capture the resting place of the bike, bicyclist, and last-mile delivery truck.
Lawyer: Blake Erskine Jr is 30+ year accomplished trial lawyer at Erskine & Blackburn PLLC in Austin, Texas. Blake has used in person focus groups and mock trials before to prepare his cases. He did not hesitate to use virtual focus groups and understood the ease & efficiency of the format. Blake and I have worked together for almost ten years with in person focus groups & virtual focus groups.
Problem: For this case, Blake’s main concern was damages – would the jury understand the severity of the injuries?
His secondary concern was strengthening the case against the company.
Blake brought the case for a virtual focus group after signing the case and getting the police investigation file, which contained the video footage from the witness. We then waited several months for filing and discovery responses before running the second and third virtual focus groups.
Solution: We completed 3 virtual focus groups (3 hours total) over the course of 25 months. An additional 1 hour was planned if mediation failed.
Each virtual focus group involved a planning call, creating a PowerPoint Presentation, presenting, and debrief/interpretation session.
1st Focus Group: 1 hour
The style was a neutral narrative of the facts. The presentation included map of the area, parts of police report, both stories of what happened from driver & cyclist, and the witness video footage. The purpose was to get baseline on the liability and damage, and to find any attitudes & assumptions about last-mile delivery trucks. The group was clear on liability against the delivery driver. Damages were unclear to them and they had a difficult time understanding how the cyclist sustained certain injuries.
2nd Focus Group: 1 hour
The style was to test the visual illustrations created. The first draft of illustrations from the medical records only. We created a PowerPoint presentation with illustrations, which included illustrations for mechanism of injury like showing where truck struck bicycle, dents in truck, and body hitting pavement. The presentation included a timeline of events from the client and witnesses at the scene. Also we had illustrations showing the twenty plus injuries to body. We got a lot of good feedback on the illustrations. The participants came up with ideas for more details that could be visualized in addition to what was initially illustrated from the medical record. The focus group caught things the lawyers missed and the illustrator missed but that they picked up on. We also learned from these illustrations the focus group thought the client was wheelchair bound, not working and almost non-functioning.
3rd Focus Group: 1 hour
At this point, the depositions of damages witnesses and the client were coming up and trial was 4 months away. In the planning meeting, we reviewed the previous focus group results and agreed this next focus group needed to test the injury illustrations compared against a clip of client to see he was functioning and even working. The presentation also included video clips of the before and after witnesses (a co-worker and neighbor) asking them what they thought about clients injuries and activity level. The goal was to test client going out and playing golf against doing his job (high level sales with travel) in relation to his injuries.
The focus group gave us ideas to go back to go get more information from witnesses. Some members of the focus group said well, he’s not going to be able to work and how much income he was going to lose. And that pushed the lawyers to getting statement video clips from the supervisor and boss at the client’s job, along with finding a vocational/lost earning capacity expert.
Tentative 4th Focus Group: 1 hour
Turn the attention towards liability and building a stronger case against company. Specifically the style of the focus group was going to be showing clips of defense witnesses and defense policies to gauge responses.
Result:
Blake and his team continued to build the damages model and prepared a solid mediation presentation that included clear illustrations, video clips from co-worker, supervisor and boss, and even focus group clips.
The parties settled at mediation for a confidential amount.
