Focus Groups as a Trial Preparation Tool with Elizabeth Larrick
*This blog post and podcast episode originally aired on May 16, 2024.
Preparation is the key to winning at trial, and focus groups are a powerful tool for ensuring that a case is trial-ready. In this episode of the Texas Appellate Law Podcast, hosts Todd Smith and Jody Sanders visit with Austin-based trial lawyer and consultant Elizabeth Larrick of the Larrick Law Firm. Elizabeth shares her passion for helping lawyers prepare for trial using focus groups and jury feedback, detailing her journey from practicing personal injury law to becoming a trial consultant. Tune in to learn how focus groups can enhance trial readiness and help lead to successful outcomes.
Our guest is Elizabeth Larrick of the Larrick Law Firm here in Austin. Welcome to the show, Elizabeth.
Thanks for having me.
I’m going to preface the conversation by noting that Elizabeth is a practicing lawyer, but she focuses on trial consulting and assisting trial lawyers in getting their cases ready for trial specifically through focus groups and jury preparation. Elizabeth, let me not botch the introduction. Tell our audience a little about yourself.
We’ve known each other for a while and watched each other and been in circles. I’m excited to join and talk about trial consulting but what I love and what makes me super excited to work with other lawyers is in the case preparation lead-up. Yes, the trial window is super exciting. We have jury consulting and mock trials, but I also love helping folks start early on and be able to shape not just their case, but their discovery and depositions and knowing we’ve got that jury feedback along the way to keep us on track. That’s where I have this year and a little last year tried to target helping lawyers get to that point and knowing that it’s available to use in your cases before trial.
You’re niching down even further than the general description of being a trial consultant.
Yes. What I found is when I wanted to dive into doing this and helping lawyers, there’s a wide swath. Some people do just the jury, and some people do just this opening. There’s a big wide gate and it’s confusing and so that’s why I was like, “This is what I love and this is what I want to help other lawyers get to, which is doing these focus groups virtual or live early on to help them hone in their cases.”
We’re going to dive into the details of that because I’m looking forward to hearing more about what you’re doing and how you’re working with trial lawyers in those focus groups and so forth. Before we go that route, let’s talk a little bit about you personally. Tell us about your background, what attracted you to law, where you grew up, where you went to school, those sorts of tidbits.
I have to confess, I’m not a true Texan, but I got here as soon as I could. I was nine months old when we got here. I try to say I’m a Texan, but if you look it up, I’m going to be fact-checked. I grew up in the town of Granbury, Texas, outside of Fort Worth. At first, I wanted to be a pharmacist because one of my neighbors growing up was a pharmacist and that seemed like a cool job but then it turns out I am not good at science.
I wasn’t great at it. Law seemed to be something that I was always interested in. A lot of growing up had different family members have run-ins with the law and saw this whole system that is very confusing but a lot of people got to get through it. That is what attracted me to it and I loved the research stuff. I did moot court when I went to North Texas and loved doing moot court, then went to law school knowing I wanted to be in the courtroom. I knew it.
There are a few facets that you can do, family law, criminal law, litigation, and personal injury. Personal injury is where I fell in and loved it. I did a lot of internships, criminal, and public defenders. I loved the aspect of working with people through this very difficult period in their lives, but getting them through and getting them back on the horse and back into their lives.
That’s where I stuck and I’ve always loved it. I went to OU, got out, worked in Oklahoma for a couple of years, and then knew it was time to come back to Texas. I made my way back and made it to Austin and still always love personal injury, but found myself drawn to helping lawyers with focus groups and witness prep and got immersed at the time it was called Reptile. Now it’s called the Edge. I got immersed in that group, teaching for them and doing seminars. That gave me a solid framework for doing what I do now. Focus groups, witness prep, trial organization, and openings. That’s a long way of telling about my background.
I happen to know that Granbury is in North Texas, not too far from Fort Worth where Jody is and you went north of the Red River, which I’m sure evokes some strong reaction from some people.
I came to Austin. I beg for forgiveness.
Jody and I are both TCU grads, so not nearly the same amount of animosity toward folks north of the river is a lot. I’m curious about how you wound up in Austin having gone to school at OU and gone to college in North Texas and being from North Texas.
At the time that I graduated was right after the ‘O8 fallout. It was a tough market and I’d done some internships in Texas and knew that eventually I’d come back. I ended up at the time to land and waited for an opportunity to come back. At the time my sister was living in Austin. I was like, “Fort Worth or Austin?” I’m going to go with Austin. That’s how I made my way down to Austin and found a job here and was working with Lynn Gabbay, doing some personal injury stuff here, and then eventually side-open my own shop.
Lynn is a very good personal injury lawyer. I think that’s when I first met you when you were working for Lynn and it’s been interesting to watch your career from a distance and watch what you’ve done because I first thought, “It’s Elizabeth. I know her. She’s a PI lawyer.” I see that you’ve gotten into these other elements of legal practice that in some ways are very similar to what Jody and I do, working with trial counsel.
You mentioned the program formerly known as Reptile, I guess I’ll call it and now known as EDGE. I mean, that’s something that even us appellate lawyers have heard about. If I remember correctly, the defense side of things has its own anti-Reptile or I don’t know what they’re calling their program these days. For those who don’t know what that is, will you give us a quick rundown?
It started in 2009. They put up a book, Reptile Revolution, by David Ball, Don Keenan, and a couple of other folks, What came of that then was seminars, helping personal injury, even criminal defense, put together their case with very clear outlines. Here’s the way to do a depo. Here’s the way to structure the opening. Here’s the way to structure all around like psychology and then David Ball brought in his presentation stuff.
That eventually evolved into very structured CLE classes you could take. You still can take those classes but become a mode and a method for putting together a case, doing a trial, and putting together all those pieces of a personal injury case. Of course, it’s a spinoff. We’ve got employment now and a little bit of criminal stuff, but that’s what it is. It’s one of those ways to put together a case. There are lots of other books out there available, but that’s the ones that I was drawn to, was sent to a seminar and said, “This makes so much sense.” It’s a very easy template to apply to my personality and how I want to try cases.
I guess it gives you a roadmap on how to present the case and how to connect with potential jurors.
That is a very good way of putting it because you always start off thinking about how the jury thinks about your case. You start off with that mindset of whether they care because most of our cases are settled. However, you always want to make sure that if you got to go roll the dice now at the courthouse, you’re not bringing something up that people are like, “Ugh.” I’ve seen that happen recently. You don’t want that jury.
I bet you’ve seen a lot, considering all the work you’ve been doing. You mentioned Mr. Keenan. I happen to remember, too, that you’ve had some specific involvement programs that he’s put on. I think Keenan Fellowship was that particular program. Tell us about that.
I had opened my law firm. I took a year and went in and worked at his law firm as a lawyer. We ended up doing three trials, Kentucky, Washington, and Las Vegas, Nevada, three very different premises, MedMal, and then another wrong with a commercial carrier. Three very different cases, but we got to work those up, get them ready for trial, go to trial, and then also his practice has evolved into co-counseling.
I got to a lot of attorney workshops and saw a lot of cases go through this roadmap, as you talked about. We got hands-on training. It’s one of those things where you don’t have to do that, but the warp speed with which you move through that material and understand it on a level was mind-blowing. It’s an experience that I’m so glad that I did because it boosted my growth and understanding of that roadmap.
You said he was co-counseling a lot. Is he getting brought in? Is he in Oklahoma? Remember that?
He is originally from Georgia, and I think now he’s down in Florida.
You hear about trial lawyers who are known on a national basis, and you see them trying cases sometimes far away from their own jurisdiction. I guess that’s the thing he’s doing now is getting involved in more of a national sort of practice.
Yes, he’s had a national practice for many years, probably 20-plus years. That’s not unusual. There are a lot of big names out there who do the same thing. Nick Rowley does the same thing. There are a lot of big folks and it opens your opportunity up to work with other folks and then help them get the verdicts.
Once you’ve got the basic skillset, I don’t even call it basic because this is a next-level skillset to me, but you can apply that clearly across jurisdictions. I can imagine that jury pools are different in different jurisdictions. That may be where someone like you comes in or maybe another jury consultant, perhaps, to help discern what the jury pool might look like. I imagine that Mr. Keenan is not responsible for developing the case from the ground up. He’s going to be the guy who comes in and talks to the jury and applies his expertise in that area.
That’s what is the cool part of working with one-on-one. They do take stuff right from the beginning, then you get to see the full roadmap. That’s why I think a lot of my understanding and drive comes from doing these focus groups early because that’s how they do them. They know what that jury pool or what nuance there may be, and what’s going on because of what’s happening now when you start a case and you’ve worked with PI lawyers, they can be five years.
The nuance and the change in things that happen in the real world still affect how people think and feel about stuff we may go to the courthouse with. Having those along the way was something that was impressed upon me so that when you get there as a lawyer, you already know pretty clearly how people are going to react to the facts and things that you’re saying instead of waiting or depending on somebody like a jury consult to tell you. You feel like, “I know this, I’ve absorbed it.”
One of the old saws that a lot of us were taught in law school in the trial process is to start with your jury charge, which as an appellate lawyer starts with your jury charge. I know in reality that doesn’t happen but looking at it wearing your trial consultant hat and your focus group hat, where do you think someone ought to start with a case? What would you like to see someone who comes to you have already done? Maybe what do you help them with? Where do you start a case?
A lot of lawyers, we’ve always been told to start with that jury instruction, but, I think for us, we are also programmed in law school to investigate. I love it when lawyers have done that investigation. They’ve gotten all the videos they possibly can, and they went and got and talked to those before and after witnesses.
They know so much about like the investigation stuff, because then when they come to me, it’s like, “We can’t take it all with us to the courthouse but let’s now figure out you’ve got this awesome amount of information.” Let’s figure out what the jury cares about so that you can also now hone in and be like, “These facts are the stuff that people want to know about, let me take those and ask them to depositions.” Maybe sometimes it’s like, “We need to get an expert on that now.”
What I love is what most lawyers naturally do, which is wanting to dive in and investigate. Let me get the background on that company. Sometimes it takes some time. Sometimes people say, “I feel more comfortable if I get to go do some subpoenas or grab those cell phone records and stuff.” I get it. That’s how I love this. I want all the details I can get.
That’s typically where once you get as much as you can, then now we can filter through that focus group and help you hone in. You don’t have to pick everything. You can’t take it all with us. We can’t all focus on it. We’d have eight-hour or nine-hour depositions. We don’t want those but that is where naturally people are.
Sometimes what we have though is like what you pointed out, that jury instruction, sometimes lawyers come to me and they say, “I don’t know what to do with this jury instruction. I don’t know what people think about it.” I say, “Let’s bring it. Let’s focus group it. Let’s see what immediately comes up in people’s heads and then work with what we get.”
I love that. The idea of focus grouping on a jury charge. We appellate lawyers sometimes do think, the trial lawyer even thinks about the jury charge ever in this case, because sometimes it does seem rather post hoc that things are being put together. It’s because we come at it from such a different perspective. The appellate lawyer is always thinking about what’s the legal issue. You talk about if one of us had to do an investigation into a case, we wouldn’t even know where to start, at least.
I wouldn’t, so I like to think about it in terms of everybody having their lane and it’s best sometimes if you stay in your lane. That’s certainly what I intend to do in my career but the idea of, “Let’s investigate the case. Here’s what we think the charge is going to look like.” How do we think the jury might respond or a jury might respond to the issues that are raising the charge? Have you conducted a focus group specifically on that?
What people more frequently come to me on with the jury charge is, “Do we have enough for punitive?” Do we have enough? That’s one we do a lot but I also have employment law where we put up that independent contractor and they put up the facts and does this meet it? We always want to get first impressions of like what’s their blink reaction to reading what the law says about independent contractors. Now, trust me, we don’t sit and put negligence up there. That’s not, but more like, “Does this punitive damages, does this meet it?” That’s a lot more of what we do is like, “Do we have enough to get over there?” We think it’s great, but does the jury think it’s going to meet that burden?
That seems like a very good investment on the part. I assume you’re working primarily with plaintiff’s lawyers. That seems like a great investment of time and money. Where are your clients coming from? Are you getting most of them through referrals or lawyers that you’ve worked with when you’re more actively practicing P.I. law as a lawyer? How does that work for you?
When I had a full-time practice, I was doing focus groups already. We were, “Hey, Blake, Hey, Joe, I’ve got something I need to focus group, I don’t need all the time.” We would get together and split things. It naturally progressed where I was like, “I’ll help you do them.” I already had a lot of people who knew I was doing them, happy to do them for people. I had a pretty good background in connection with folks with the Reptile and the Edge as far as doing it nationally. A lot of people that I work with outside of Texas are from that connection, then people who give referrals or come around or maybe see me on LinkedIn or come to a webinar.
You’re very active on LinkedIn. I’m trying to do better with LinkedIn myself, but you’re one of the people that I would hold up and say, “This is what you can do with LinkedIn because your target audience is on the platform. That’s a great platform for you to be not aggressively promoting, not being self-promotional, but being educational, which is what I think it’s supposed to be. I think you’re doing a great job with that.
Thank you. It’s a labor of love, as I’m sure you know any social media platform, you always try to work through those algorithms while you’re also talking to people.
I think maybe this is the right time to say if someone is interested in what you have to offer as a trial consultant. I guess it’s more accurate than jury consultant, but then your LinkedIn page and some of the things that you’re posting there would be a good resource.
Follow me and we’ll connect either way. That’s a great place because I’m always talking about what we’re doing or how it’s working out for people.
I think I saw maybe you even mentioned, that you’ve got a webinar coming up that this is not intentionally designed to promote that.
We did it this week. There’s another one that we’ll pop out there but virtual focus groups are still a, “Not so sure.” That’s trying to help people understand how we’re using them. That’s what the webinars are about.
I was going to ask about virtual focus groups. Was that something you had always been doing or did that shift during COVID? Everything else has gone virtual. When did that change for you?
It’s so funny because I use Zoom never for a focus group, but then the pandemic ended any opportunity to do it in person. I very quickly at the time realized I’d got to figure this out. If I’m going to stick to doing what I’m doing, we’ve got to find a way. The nice thing about it was everybody else was on the same page.
It’s easy to find participants who know how to use Zoom, who’ve used it for doctor’s appointments or to meet with their kids’ teachers. It’s not unusual, people can do it and it’s easy to find people who are willing and able to hit join from their house for a couple of hours with me and then close it out and go on with their day.
How do you find the focus group participants? That’s always been a mystery to me.
It’s the question I get all the time. No, it is.
Unless it’s a trade secret.
I don’t think so. It’s always grown. We first started in 2020. It is like fish in a barrel. Everybody’s at home. We don’t know what’s going on. There are lots of opportunities, but it’s always changed over the last couple of years. I always say it’s a wide net. It’s Facebook, it’s Craigslist, it’s Nextdoor. We also do a lot of referrals with our participants. You had a good time for somebody. That has helped us build on another layer of getting people to come in and join us.
How do you ensure to have a representative group for what your jury pool might look like?
In Travis County, it’s pretty easy because I’ll go down there and be like, “Okay.” Now it’s not always super easy to get what may be showing up at the courthouse last month. However, we can use statistics from the Department of Labor to make sure but most of the time, I do a good mix of people. Instead of feeling like, “It’s Austin, it’s going to be a group of very liberal people.” No, it’s not. You would also be surprised that we may try very hard to put together a super-conservative group, and then they don’t.
They’re turned out like this set of facts, this circumstance hits them in a way that they’re doing something opposite of what we thought that they would do. I always try to have a mix, but when in doubt, if I’m doing something for somebody in California, I’ll go pull, I’ll talk to them. Who are you seeing show up? I want to make sure I mirror that, then also like who would not show up. A bunch of people drive an Uber. People always get a little worried that they’re not going to show up. I’m like, “That’s true, but you’d be surprised.”
It might depend on the time of day. Don’t do it during a surge period. That’s so interesting. You mentioned Travis County specifically. If you’ve got a case in Williamson or Bell, your approach might be a little different because of the demographic. It may be a somewhat reasonable assumption that the Travis County jury might be a little more liberal, but I think the assumption could go the other way. Once you get a little bit north or maybe a little bit south, although I think that demographics have been changing too recently. How do you even keep up with it?
I know that being here and living here helps and paying attention to what’s going on. That’s why I say we cast a wide net because people don’t always use Facebook, so maybe it’s next door. Staying ahead of that and knowing that we’ve got to pay attention and see the changing demographics and make sure that we grab people where they are, and not just sit back and hope that this one advertisement is going to get everybody we need.
Is there a trade association or something similar for someone who directs focus groups or how broad does something like that go for the kinds of things that you do?
It gets so broad because there’s so many facets of it. You could go find a recruiter. That’s all they do. Now that of course was spun out of like all the polling and stuff like that, which telephone polling that they used to do but now they do recruiting that other stuff. There is the American Association of Trial Consultants, but that’s a big net for everybody. That bucket catches focus groups and witnesses prep and jury and all the little other facets of big data. There’s a big bucket that people can join into as far as an association.
I’ll have to check that out because it does sound like a big bucket. American Association of Trial Consultants, that could cover a whole lot of ground. We’ve mentioned a couple of the other focuses and you’ve gone through some of the other. When I think about a trial consultant, I gravitate toward the notion of a jury consultant, which is something that you have done.
I guess still do to some extent, despite your focus on focus groups. I keep coming back to your focus on focus groups. Try to find another word. I think it’s great. What is the gamut? You’ve got somebody who will counsel on the formulation of the lawsuit. Is there any limit to it? You pick your nation and market to it. How does that work?
That’s why as I said, it’s a big bucket. Especially it’s like what you guys do. You have to meet people where they are and know who you like to work with and what your strong suit is. Personal injury, right? I was in that courtroom, I did all those things. Watch some of the greatest lawyers do them too. It’s like, “That is my strong suit.”
Now I’ve been there, so I’ve been down that road. I know where you may get stuck. It’s well before that question of like, do we go to trial? It’s like, “We got stuck here on this fact or this thing.” That’s why for me, focus groups are what I’ve drawn into right now to push people to do them, and set them up on their own. I have a lot of podcast episodes about doing them on your own and how Zoom allows you to do that.
When you pull back and people come to you for trial, most of the time, discovery is closed. We’re not doing more depos. We are now in organization mode and clearing it down and getting someone to hone down on, “What do we have to prove?” That’s why I always tell people, cause we get lost sometimes as trial lawyers and I always, when helping somebody with a witness.
Maybe it’s our plaintiff. It’s like, “What must this person do?” There’s a whole gamut they could do, but that’s where coming men and being able to trim things down and look at what the order of proof needs to be. We sometimes forget that because we’re so busy building the case. That’s where also like, “Now you’re getting up to trial. These are questions you need to answer. These are the organizational thoughts,” beyond “I got to win this motion. I got to write this. I’ve got to go back and I’ve got this.” Other things still hanging out there. It can be a lot and that’s why having a trial consultant is a 30,000th view. Come back with me and now go back into the details, but knowing what that big picture is helps people be able to manage their time.
The biggest thing I think for trial is expenses of course, but you’re going to trial. You’re in it for the expenses you already know. It’s that time management factor where people can blow a lot of time on opening. It’s like, “We can figure that opening out.” Put these focus groups, and then you move on to setting up your crops and setting up, getting ready for some other things that may happen in the trial.
That sounds very familiar to those of us who do appellate work at trial. Let’s see what tasks we can take off your plate. How can we help you refocus on that stuff?
Exactly, because I always ask people, “Where are the jury instructions? Who is helping you with those?” Especially if we know that it always comes in for a premises case or employment. I’m like, “Who’s helping you?” You want to stay in your lane, but you want to shine and you want to do the best thing you can do. A lot of the lawyers that come to me are amazing at cross-exam. I wish I could do a cross-exam like that. Great. “Let’s get other things off your plate. Let’s delegate the rest of this so that we can make sure everyone else on your team is shining in the way that they can.” It creates the best case possible.
Where are the overlaps with your role and maybe other providers like outside appellate counsel or jury consultants? What do you see or I guess where do those roles overlap?
I think a lot of times, it’s you don’t know what you don’t know. That’s where that focus group comes in. It’s like, “You need to go get some visual aids.” Guess what? Go find somebody who will do it so you don’t have to. Maybe you’re not great at creating a timeline. You know what? All kinds of wonderful people make amazing timelines and get it done for you.
Same thing with, “We’re seeing here that there’s going to be a struggle. Here’s the law and here’s where people are thinking. Can we get them together on that?” I don’t know, but maybe you ought to get an appellate council to go in and answer that question for you. That’s the way I always use the appellate counsel. I know early on this could be a hard thing to hook up to our facts and our law. Let me go get that answer because I don’t want to spend time, energy, and effort if I’m going to get poured out at MSJ.
A lot of times if I’m seeing like, “Are you sure you’re going to make it?” Go get somebody, like I said, “Get those brainiacs to answer that question for you.” I think the jury instructions are a great place. I would like to say what I’ve seen in the progression is that people are much more understanding of, “I’m going to trial.” This is the place where we could lose it if these jury instructions are not clear. There’s going to be a gamble on what the law is, or maybe I’m not up to date on it. That’s where I go get some help.
I would still be able to say, “Delegate it.” I know that you’re thinking that they don’t have time or whatever. You don’t. Go delegate this to somebody else who can get those answers for you so you can move along or have some comfort. They’re going to take care of it and I can now focus on doing that cross-exam.
That’s the classic example that I use all the time is that the trial lawyer, should you be focused on your objections to the charge or should you be focused on your closing argument? That happens in such close proximity in the trial that I value the idea of focusing on what you do well or hopefully better than anybody and building a team around those concepts.
In some ways, it sounds almost like the role that you might play with trial lawyers is a case coach, helping to be that sounding board, and being that objective set of eyes to help them see the holes in their case. We do that a lot, from the legal standpoint. I always wondered because we’ve talked offline about how our client avatars are the same.
It makes sense that we would have this conversation, even though this is a Texas Appellate Law podcast, but as our audience knows, we don’t limit ourselves to talking about appellate law. It’s always so interesting to us to hear about these other adjacent practice areas that have far more in common with what we do than you would think.
They do. That’s the thing is that getting into practice on my own, I ran into a case where I was not sure, I got to go get to it. I don’t have time or even know where to look. That’s the thing too if you don’t even know where to get started, somebody else does. Go there and help get them to help you with that. You mentioned team and I think collaboration is key for what we do and the solo trial lawyer, you’re going to miss something.
Even though you think you can do it all, you can’t. You will inevitably miss something. That was always impressed upon me when I worked with Mr. Keenan and the teams we put together and then the delegation. Everybody’s eyes came back to talk about what we saw the jury do today because everybody’s take is going to be different, but it’s going to create this good picture for us that one set of eyes is not going to get.
That’s why like always be building your team and be thinking about who’s going to do this and who’s the best at it. I love working with lawyer teams where we have opposite personalities because I know then that or that person’s doing damages and that person is doing liability. There’ve been times when I’ve had to tell lawyers, “I know that this one is your client, but this guy’s going to be way better at doing direct than you will be.”
That’s sometimes a conversation we have to have with, this is what the juror like they’re going to be much better. The jury’s going to like it much better. They’re going to get more out of it versus if you try to do it and that’s those rules sometimes we have, “It has to be this on the jury charge. It has to be this argument.” There may be more things out there beyond our usual rules and blinders.
There’s this famous phrase, “We’ve always done it this way.” Talking about your rules. I think what you’re describing, that collaborative approach to trying a case, you can’t do it the way it’s always been done. I’ve also heard the phrase, “What got you here won’t get you there.” I think in today’s world of trying cases, you can’t afford that.
Long gone are the days when the lawyer picked up the file on a Monday morning, took it down to the courthouse, and tried the case. There’s too much at stake for cases that are going to trial. That collaboration approach, especially now when we’re seeing so many advancements in technology, and one person can churn out more work products than before, especially when you’re focusing on the things that you do well.
I think it’s super interesting that you’re able to cultivate this interest that you have in focus groups and turn it into not only a significant part of what you’re doing, but it seems like the majority and that there’s a market for it. It bodes well and also reflects on how many cases we have in active litigation going to trial and follow-up to the pandemic.
Having a team has always impressed me. I was a solo and I was like, “What do I do?” That’s always the lovely thing I think about the plaintiff’s bar is, we are good. If you reached out to somebody, “Can you come to help me pick the jury or do witness?” People are good about chiming in to help somebody else on that.
That’s where, as you said, that next set of eyes is going to see something. That’s why, again, you guys have all this law floating around in your brain. We have all these facts floating around in our brains, right? That’s where it comes together in this very happy marriage of, “You’re missing a fact on this hook, this piece of the law that you got to have.” We have to get that right. That’s very helpful.
What is the earliest point that you’ve been hired in a case? Has somebody had the foresight to hire you before filing the lawsuit?
People try cases differently. It’s different personalities and I have a lawyer who every single case she’s going to file, she’s pretty well certain it’s going to go to trial. We do a focus group or if she has an unusual fact pattern, we have a school district, and maybe this incident that happens and a reaction, “Is this enough?” We always like to do it and she explains, “I like to get a good framework before I jump into discovery and depositions.”
Once she gets all that, then we come back and we do another one. We’ve got this backdrop now of what our original framework is because again, you’re going to have more information after that first focus group, but with what you got before filing to know, do people care? What’s confusing? What do they want to see? What do they want to know? Instead of assuming, “It’s this type of case. I’m going to send this discovery.”
Maybe it’s a little extra or maybe there’s something else out there. She likes to do them before and I have other people who do them as well right before filing, after filing, or after that first round of discovery. You get those disclosures or you get that video, the dash cam video, then that’s always a good time when people want to know, “Let me get a blink reaction to this information before we jump into depositions.”
When you’re hired before the petition is filed, do you help craft the story of the case, because it seems like that could be useful to do.
Yes, because we love details. We want them all in there. We’re going to bore them to death. Keeping that engaged presentation and knowing what to leave in and what to leave out. A lot of it is what you would expect. We’re not going to go into a focus group and tell them, especially in Texas, that this driver didn’t have a driver’s license. We’re not going to say that because that doesn’t come into the courtroom.
Sometimes, “Why would I put that in there?” It’s not going to come in at trial. We have to make sure we balance some of these things out. That’s one of the things, I’m an editor when it comes to that, “Why don’t you hand it over here and I’ll help you edit it down and make it a little more even-handed.” That’s also where I come into even this out. It’s not fully one-sided. We’re all totally pressing on one side of the scale.
In the scenarios where you’re helping out with the filing, do you think about media, social media, and how that’s going to play, especially in some of these bigger cases?
Sometimes, but not really. I wish I could predict when the media thinks something’s exciting because I’ll miss the mark on that all the time. It is like, this is going to be and then it flies off into silence and nothing happens. I do think some lawyers do a very good job of that though. You may have one of these cases where you can use the media and social media. I don’t know how people do it, but it gets done. I will always be impressed when people know how to harness that. Sometimes people do but most of the time, unless I see something that would be interesting, it generally doesn’t cross my mind too much.
Maybe a media consultant on the team is a good idea, talking about having folks that fit those specific kinds of roles. What’s the real purpose there? In the end, if you have the forethought to think this case is going to go to trial and it’s on an important issue of public concern, then it would be appropriate potentially to speak out publicly about it. It seems so dangerous though because there the ethical rules that you have to be careful about, then the idea of whether are you going to influence the jury pool. Is that the ultimate goal sometimes as far as you’ve seen? We appellate types don’t like to talk to the media. We don’t want to.
I think I’m getting the vibe from you. I’ve seen people do it well. I’ve seen people do the interviews and the press releases well, especially when it’s like large cases where if it’s a Johnson and Johnson towel pattern, guess what? That’s going to be on commercials, people are going to see that no matter what. There are other times where we’ve had cases that are going and it’ll be like a business litigation where it’s confusing what we’re going to be doing, what the jury is going to have to decide, then in the midst of all that, we’ve got this political campaign going on and so it’s like, “How is this going to weigh in on people because if it’s a non-election year, it wouldn’t even cross people’s minds.”
A lot of times we want to look at what’s happening in the world. We like to think, “We’re going to put out this news interview and everyone’s going to see it.” They don’t. People are so busy and news and everything flies so fast at you that unless you’re paying attention or you’re going on that news media every other week, it’s rare. Unless you have a smaller jury pool. Someone’s rarely going to come on and most of the time what I get on focus groups is, “That’s the guy who’s got his face on a billboard.” That’s sometimes more what we get than a news media outlet or something like that.
I was thinking that it seems like a lot of those wind up being far more about promoting a lawyer than about anything to do with the merits of the case or the social importance of whatever the issue is. Some people play well into that, as you say, it works for them. It’s a foreign concept to me, but that’s super interesting.
I think it all depends on the issues that you’re dealing with and what’s going on. Of course, there’s always a little bit of marketing behind all that.
Speaking of marketing, you too are a podcaster. Let’s talk about that a little bit. Tell us about your podcast and how you got into that.
Trial Lawyer Prep is my podcast. I’ve been doing it for over two years now and a mutual friend, Attorney Ernie Svenson had me on his podcast. I was talking to him about marketing and he said, “You are a lawyer, you already like to talk, you should do a podcast. Don’t worry about trying to do a blog.” I was like, “This is a good point. You know what, I’m going to do it.”
It started with solo episodes and then added some guests. You watch it and see what people like, but start by trying to cover the gamut of what you would do in preparation. Witness prep, we took focus groups, and we talked about organizing a trial. We had a series last year where it was lawyers had been to trial post-pandemic. I had a guy who had six continuances and it was like, “How do you gear back up? How do you get excited again?”
He had a co-counsel and they would get back together and do these Zoom meetings to get excited again about the case, then I had other people come on and talk about what’s the template they use before and after a direct exam or preparation. This year has been a lot more about focus groups and getting lawyers on who’ve been using the focus groups and the Zoom focus groups post-pandemic. I enjoy it. It’s sometimes I think nobody wants to hear what I have to say about this, but I’m going to talk about it anyhow. I enjoy it. I’ve done it every single week and now I’m back on every other week.
Todd and I know every week is tough, except during the pandemic, we got lucky then, but it’s hard to do every week’s content. We know what you mean because sometimes it does feel like you’re shouting into the void.
You said it before, but I always think, “Okay.” What’s funny is I use somebody as a producer to help me put it together because I don’t know how to do this and I don’t need to learn. I delegate this to somebody else, but they always help me with, “This is where your engagement is.” Think about what content you did and how that worked. They’re very good about giving me pointers about saying, “Here’s what the world of podcasting is doing now.” “You’re going to put it on YouTube now.” It progressing forward with what other people are doing.
That’s great to have that backup, someone who knows what they’re doing in that area. I’ve always been interested in talking to other podcasters and hearing their focus and how they got started. It was always the origin stories are always very interesting. Ernie had something to do with it naturally. He was on our show, I guess about a year ago or maybe a little bit more.
I can’t even keep track anymore.
Me neither, Jody, but we had Ernie on to talk about AI in the very early days when Chat GPT was first taken off. I’ve always found what he has to say very practical and useful. He’s still at it. We’ll refer back to that episode and drop a link in the show notes to have a lot of good memories of Ernie. I know he’s helped so many other lawyers and he would advocate for you niching down into what you’re doing with focus groups.
Now I’m in his circle community. I think that he’s very thoughtful, What I also love about Ernie, not to plug about him, is that he will try a piece of technology and then tell you if it’s good or bad. I appreciate that because I don’t want to be the guinea pig in trying out new technology. Although I will.
Just to give Ernie one last little plug, we’ve talked about your focus being on personal injury and that tends to lend itself to the solo and small firm structure more so than other practice areas. That’s where Ernie shines, is in trying to help folks who are in that category do things like what you said, Elizabeth.
He wants to be the sherpa to guide you through so you don’t have to learn everything about the latest technological gadget. I would highly recommend if there are solos or small firms here who want to have a resource like that, check him out because he has a lot of offerings and adds a lot of value. He’s a good guy on top of that.
I endorse that too. I endorse Ernie as well for all of that because he’s got a lot of great things that he has done that are very helpful.
Jody, do you want to ask for the tip or war story?
Sure, I can do that. My tradition is to ask our guests for a tip or a war story and you mentioned you had one to share. Let’s hear it
Lots of stories that come out of focus groups but the one that I thought of for you all and this podcast was that I was recently working with a lawyer, not in Texas, but still totally applicable. We were doing a two-hour virtual focus group, and the set of facts was about a worker injury, and the feedback was very strong on the sub. Naturally, she wants the GC.
We get through the focus group and then we get into a debrief. Where we talk, “What did you hear? What did you see?” Of course, everyone’s conclusion, all our lawyers in there were like, “What are we doing about the sub?” It then became, “What’s the law?” She’s coming up on trial in May. This was pretty recent.
I was like, “This is in your bread and butter, which you’re a trial lawyer so maybe you ought to get somebody in here to help write these briefs and be able to argue it and get it done.” You have a nice little bow on it so that you don’t even have to worry about it. If it’s super clear law, it doesn’t still mean you can write those briefs. You still need somebody in there because you don’t want to change it.
That’s what we told her was like, don’t change it because if they get stuck on there and they’re on that jury charge, you may get nothing, then we put 80% on them and 20% on your guy. That’s my recent, “What’s the law?” Get somebody because you’re too close in time to make sure you’re doing all the trial things you need to do, do this motion, do it right, make sure it’s going to get done, and then the order was signed in your favor.
Not a paid endorsement here, by the way. I think that fits with the overall conversation about doing the things that you do well and the things that you don’t do well, or maybe you’ve got a blind spot in your case. That’s where someone like you comes in, Elizabeth, and can help point to that blind spot, knowing that the consequence of not doing this is potentially devastating like getting zeroed out potentially with some upfront work and investment. You get another set of eyes on it and get some good advice from somebody that can help with issues that you as a trial lawyer are not necessarily as familiar with.
Also if something happens and you don’t win that motion, you still need that brain now to come and help you craft those jury instructions or be able to keep re-arguing. That’s one of those things that because it didn’t happen with plan A, you got to have B, C, and D. If you’re going to trial or you’re going to try it every day to stop that from getting on that jury charge.
Also what else do I find to continue to plug? You guys have such good knowledge, you all. Not you, everyone who on judges, and that’s something that we sometimes are good with our trial judges but we’d get, especially in Texas where it’s like, “You think you’re going to be appealed here? Oh, no your case is now going over to El Paso. You’re asking, “What happened?”
You guys have that knowledge fresh and ready with like oh here’s what I can predict well this judge like this way and we wouldn’t know that. We would never be able to find that either so that’s why I tell people if you can’t even try to go look and find it that’s when you need to delegate and find it. Get another brain on there.
That’s great to hear and appreciate that tip. Elizabeth, thanks so much for spending the time with us. We appreciate it and look forward to putting this episode out in the world. Hopefully, people will check out your podcast, which I can attest is great to listen to and makes me think about things that I don’t usually think about. Thanks again for being with us.
Credit to Butler Snow and their awesome podcast team.
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