Preparing for trial is an art.
You need different perspectives to know what you need to win your trial or whether you should take your case to trial at all.
On this episode of Be a Better Lawyer, I’ve invited special guest Elizabeth Larrick who specializes in helping lawyers prepare their cases for the best possible result at trial.
Our conversation covers a range of topics including:
- Why gaining fresh perspectives on your case is critical—and how focus groups can give you an edge
- The surprising mistakes lawyers make when prerparing for trial
- How to strengthen your case and build your confidence in your case
- What mindset shifts can help you find more fun and ease in your work—yes, even when you’re under pressure.
Listen in to gain the confidence and perspective you need to make the best possible decisions for your case.
Transcript
[00:00:00] Hi, I’m Dina Cataldo, a master coach and ex criminal prosecutor. I created Be A Better Lawyer podcast for driven lawyers like you who want more from life than sitting behind a desk. You’ve been playing by other people’s rules. Those rules have left you overwhelmed, unfulfilled and feeling like a hamster on a wheel.
I’ve been there. I was doing everything people told me to do to be successful, working late nights, weekends and trying to make everyone happy. So why wasn’t I happy? And I wanted more in life. When was I going to find time to find and pursue that? Well, I did. And I’m sharing with you my secrets to living a happier and more fulfilling life.
This podcast gives you a lifetime of wisdom, mindset, principles, and bedrock strategies to give you unshakable confidence, more time to pursue your goals. A powerful sense of purpose to uplevel your life in law practice and so much more. These are things we were never taught in law school. This podcast bridges the gap [00:01:00] between law school and life.
I’m so glad you’re here. Let’s get started. Hello. How are you doing today? So today on this episode of Be A Better Lawyer, we are diving into the art of trial prep and case strategy. And I’m really excited to have Elizabeth Larrick with me here today because she is a former litigator turned trial consultant who helps lawyers think more strategically about their cases.
And whether you are a litigator or not, I think you’re going to enjoy today’s episode because we share some personal stories and give you an idea of what you need to be. thinking about in your cases, even if you are resolving them before they ever go to trial. Elizabeth shares what she’s learned about creating focus groups, which are totally different from mock juries.
You’re going to learn how that is in this episode. She’s going to talk about understanding witness dynamics and planning ahead so that you’re not scrambling at the last minute. Plus, we talk about [00:02:00] how the mindset you bring to your work can transform how you practice the law. You’re going to learn why gaining fresh perspectives on your cases are critical and how focus groups can give you an edge.
The surprising mistakes even seasoned lawyers make when prepping for trial, how to strengthen your case and build your confidence in your case. What mindset shifts can help you find more fun and ease in your work. And yes, you can do this. Even when you’re under pressure. But before we dive in, I want to ask you a question.
What is between you and your dream practice? The one where you love your quality of life just as much as the revenue that you’re bringing in. A lot of lawyers think the key is having the time to do everything that they want to do. And while yes, having more time is fabulous and I help lawyers do that.
There is more to creating your dream practice than that. And that’s what I dive into with you during a strategy session. A [00:03:00] recent interaction I had with a lawyer really illustrates why having a coach is key to creating a practice and a life that you love. We were working on how she approaches client work in her practice so that she could give herself a raise this year.
While improving her quality of life, she noticed that she felt rushed throughout her day and was forgetting to bill. And we walked through an exercise to help her remember to bill and calm the tension she felt while she worked. And when she finished, he said, you know, this isn’t just about the money.
It’s about living. Better because yes, the work we do together helps you clean up problems, costing you money in your practice, like forgetting to bill. But more importantly, it gives you a better quality of life. You can make all the money in the world, but if you feel stressed and pressured and overwhelmed in your practice while you’re making it.
What is the point of living? If you want to create a practice and have [00:04:00] the quality of life that you’ve had in your wildest dreams, book a strategy session with me. We will talk about what’s really between you and having what you want and design a game plan to make it happen. You can book your call today at Dina Cataldo dot com forward slash strategy session because you can’t afford to put this off one more day.
All right, my friend. Let’s dive in to today’s episode. Hello, Elizabeth. It’s so good to have you here on Be A Better Lawyer. Can you please let our audience know who you are and what you do?
Elizabeth: Well, thank you so much for having me. Excited to be here. I am a former litigator turned trial consultant. Um, I live, work and play in Austin, Texas, but of course help people all over to get.
Elizabeth: Perspective. I love to help people do focus groups, and [00:05:00] I love to help people with challenging witnesses, um, and even just from a big 30, 000 foot view, help people organize and think through trial strategy.
I think that this is such a fun. Creation that you have in your business that you’ve done this because I worked in a totally different area, criminal prosecution, and we were really trying to get trials out as quickly as possible with the limited resources that we had.
And that would mean quick turnarounds. It might mean that We don’t really have a witness prep. And then of course our witness preps are very different in a criminal prosecution context versus a civil context. So we’re very like, it’s, it’s kind of a hands off yet. I want to make sure that you are presenting like someone who can say what needs to be said and do it in an honest way.
But I love the idea of having somebody [00:06:00] to consult with when you are litigating cases because there’s so much you don’t think of when you are getting prepared for trial. And it is a very different. Animal than doing things that are transactional. There are, yes, you might need another perspective when you’re doing transactions, but I think in litigation, there’s so many moving parts and they can move pretty quickly that you need that extra set of eyes.
And that’s something that you get to provide people who work with you. How did you get into this?
Elizabeth: Well, I always wanted to be in the courtroom as a lawyer and always found, you know, having a jury decide a case really fascinating. Um, I always pursued that in, in my career in the sense of plaintiff’s personal injury work is where I mainly went through for my job experience.
Elizabeth: And I had one experience in [00:07:00] particular where I was able to work with a nationwide trial lawyer and, To see trials, large trials on a large scale get done over the course of a year. So I got to come in as a lawyer and I got to, you know, do the things within courtroom, but also the strategy and the focus groups, and it really just lit me up on the inside.
Elizabeth: And I didn’t really understand it at the time. I just knew I love this and I want to do more of this in my own practice. And that’s what I did. I opened my own law firm, started to do those things and found that like, it’s exactly what you said. So much fun to me and kind of a burden for some other people that are working with.
Elizabeth: And so that’s how I started, I just started doing it on my own practice and, uh, collectively with other lawyers here in Austin, we were running focus groups and, and kind of helping each other out. And it just really kind of blossomed from there. And you know, I took. Kind of the big leap and just said, okay, you know, I’m going to start doing this full [00:08:00] time, um, and wind down my practice.
I think that’s beautiful because it can be a scary thing when you are making money in one area and then you are deciding, okay, I am going to go all in on myself, all in on creating my own business. Like what came up for you as you were making that transition?
Elizabeth: Well, when I decided to open my own law firm, I took about a month off and that was, you know, years ago.
Elizabeth: And in that leap, I made several mistakes about, you know, open your own business. And so I had a lot of background of relying on myself and understanding like, okay, it’s okay to try this. You love doing this more. So I really had the perspective of a coach looking and saying like, you can do this. You can try this and here’s what you know about yourself.
Elizabeth: You can rely on. And so it really, having looked at some of those [00:09:00] other mistakes that I made when I went out. Oh my goodness. Let me know what do you guys think about this. Let me know in the comments. Okay. Have a great week. Lawyers really love and appreciate, you know, giving an outside perspective and learning more about their case and how to teach others about their case.
Oh my gosh, there’s two things that came up as you were talking about that. The first is the mindset that you had going into that new endeavor. So important and so many of us underestimate that. I know that before I had a coach, I Really thought it was okay. I just need to grind and work hard, but so much of that went away and everything became easier when I got that mindset piece of, wait a minute, you can do this.
And like, you can feed yourself, fuel yourself with those kinds of thoughts [00:10:00] to help you do the hard things. It calms it. Everything inside of you so that you can do that work. So I’m really glad that you shared that. And then the other part of that is, is that this was very easy to you. It was something that was fun for you.
And I think that as lawyers, we tend to get into this habit of believing that it’s just hard. That the things that we do, they’re just hard all the time. And then we’ve got to kind of. Be kind of miserable a little bit. And that’s just what it’s like. That’s what life is like. And it’s really important that if you’re experiencing that in, and maybe you weren’t experiencing that, I’m not saying you were, but if you’re experiencing something that’s fun and easy on one hand, and it’s feels light and easy compared to maybe what you’re doing right now.
Consider that it doesn’t have to be hard, that that thing that is easy to you, right, if anyone’s listening to this, that that thing that’s easy [00:11:00] for you is maybe the thing that you’re supposed to be doing, that you’re supposed to have out in the world, and that’s very much how I felt about it. Coaching when I started doing it, I could, I was just like, wow, look at that.
Look at the results. Look at what’s happening with people and it’s fun. I enjoy it. It’s fun. And why not do that? So I just, I just think, I know this is about litigation, but I think this entrepreneurial resourcefulness and understanding yourself when you’re building a business, I think is key, even if you’re.
Litigating for a company like to have those kinds of resourceful attributes for yourself. So good. So I’m glad you, you brought those up. Yeah. Anything else?
Elizabeth: Yeah. Well, I mean, just this, the whole working hard. And that’s exactly the perspective that I had when I, you’re open a law firm, like. It’s time to grind it out.
Elizabeth: Like it is time to, you know, make as you make yourself, you know, as small as possible so you can put everything into the law firm and [00:12:00] in it, you know, there was nothing wrong with it. It was totally working fine. Like you said, but I had added this extra fun thing and I realized I spent so much more time on this fun thing than I did litigating that I was like, you know, I wonder if, and I had, you know, been getting outside of perspective, but I think it’s, we do as lawyers have that mindset.
Elizabeth: Like, it’s just hard work. Get over it. It’s supposed to be, it’s supposed to be hard and some days are going to get, it’s always going to be unenjoyable. And I just was like, but I have this thing that is fun. And if I get you involved and you get to watch like, You come, the light comes on for so many lawyers when they sit and they watch other people talk about their case and they’re just like, wow, and I always say it’s going to spark so much more excitement for you about your case, ideas, like things are going to make be easier for you, especially if you’re trying to case or going to mediation or, you know, even if you’re just doing [00:13:00] this to figure out, like, do we even really want to do this case?
Elizabeth: Um, it helps tremendously.
Yeah, and and there were two things that came up for me there, which is one of course perspective, right? Which is really what I think we’re gonna focus most of our attention on here in this In this episode together is gaining that perspective that you may not have about your case, its strengths, its weaknesses, the witnesses that might be involved, right?
So often we might go into a trial and not fully have prepped a witness or understood exactly the personality of a witness. And that personality is important to understand. And so that’s one aspect of it. But then the other is building confidence in yourself. And when you have an understanding of the pitfalls to look out for.
And how you can approach them, even if, you know, your witness isn’t going to change their [00:14:00] personality overnight, right? Like, even if they have that, you can spin that kind of a thing for your trial, like in your argument, you can spin personality in your argument. And I think that we might get caught up in, Oh, They were a bad witness and, you know, the jury’s going to hate them and it’s like, well, maybe they’re not supposed to like your witness.
Maybe that’s part of the story that you need to share and be honest with and transparent with with your jury. And when you have the confidence to address those things, I think it makes a big difference.
Elizabeth: Huge. And that is definitely one of the biggest feedback points that I get from people when they’re like, wow, I had so much more confidence after going through this focus group.
Elizabeth: When I went to go take that expert deposition, when I, when we went in, actually, you know, turned down that offer, like people will say, like, I just had confidence because I had heard how other people were talking about it. And even if it was different, right, we always come in with our own perspective, you know, our [00:15:00] own thoughts about how we think people are going to talk about things.
Elizabeth: And as lawyers, we, we generally miss the mark because we forget how regular people think. Right. It’s, um, it’s, it’s one of those things where, you know, it’s just like you said. People like, oh, it’s okay if they don’t like this witness and I was like, yes, yes, it’s okay. You know, if you don’t like this witness, that’s okay.
Elizabeth: Somebody on that jury may and what they have to give is the most important thing you need to keep your eye on the ball about. And that’s kind of where it’s like, okay, how do we keep Here’s our 30, 000 view, you know, don’t worry about this one witness that has a personality trait that You may not be able to communicate well with you know As long as they get the nugget that they need from that person like you’re good.
Elizabeth: Don’t worry about it, you know move on
Yeah, it really is a game of putting pieces together when you’re thinking about a trial because yeah They might say some other things that you don’t particularly like but if they say the thing [00:16:00] that’s relevant to what you’re trying to prove up That’s all that matters
Elizabeth: Exactly.
Elizabeth: And I think sometimes we as control masters, you know, lawyers want to control so many things, but the courtroom is like the Wild, Wild West. You, once you hit the go button, like you really have to lose and give a lot over to the jury. And if you don’t get in that space often, it can really be very jarring.
Elizabeth: And that’s why I really love focus groups to get you into that. It’s the best place to learn how to hear things you don’t like.
Oh, yeah. And
Elizabeth: keep a straight face.
Oh, yeah. Like, you have to have a poker face in trial, right? You can’t, you, you’ve got to go in knowing that, yeah, just unexpected stuff might come out of their mouth and you’re like, okay, let’s work with that.
Exactly.
Elizabeth: And I’m sure you’ve had that experience plenty where you’re just like, that’s not exactly what you told me before, but that’s quite all right. Oh my gosh. You’re like, oh my gosh.
Yeah. Yeah. Um, so I want to [00:17:00] cover some of the biggest things. You’ve seen that lawyers just miss, like they come to you, they want to understand their case better, they want to understand if they have a case.
What are some of the things that you see that they miss the most, they’re not really even looking for?
Elizabeth: Yeah, and I would say, you know, naturally, we all have. Blind spots. We just do. We can’t take everything in. So, you know, it’s just, I think naturally what I see lawyers missing is making assumptions, like really making assumptions about how much people know about a topic or even understand.
Elizabeth: And when we make an assumption like that, and we really begin to start to talk over the jury or over our witness, like it really, it really causes a lot of confusion. And so, you know, A lot of times when people come to me and they’ll say, well, I want to do this. And I say, well, I think we ought to check the [00:18:00] assumption that people even understand like what that even is or that there’s even a law against it.
Elizabeth: So sometimes it’s, it’s kind of that assumptions about what we. What we, you know, what we think people are going to see or even understand and then all the time, one of the biggest things somebody may have a piece of evidence, let’s say nowadays, it’s very easy to have a ring camera footage or some surveillance footage, you know, and you have this assumption like, Oh my gosh, this is the best piece of evidence.
Elizabeth: It’s super clear. We don’t have to worry about it. I’m like, let’s test that because what you may see it. Nobody else may see and so that’s one of the really, you know, big things is like with video footage or even pictures like That lawyers assume. Oh, that’s that’s cleared me and I’m like that may not be clear to somebody else.
Oh my gosh Yeah, we would come across this quite a bit in, um, prison cases, because I would try cases for, you know, we had, [00:19:00] uh, CDCR, it’s the California Department of Corrections here, and when there was a homicide, if there was an assault, those kinds of things, you’d have, like, a grainy video, right? Right?
And, and to us, because we’ve seen these a million times, oh, we can see exactly what’s happening, he’s grabbing the shank, he’s gonna, he’s stabbing the guy, like, you can see it, right? But it’s from a distance. It’s not as if they have cameras on the yard, right? Like they’re from a distance from one of those, you know, um, turrets.
So like when you’re, you’re getting that video, we can see it. And I had a case where I thought it was clear as day. I thought I walked them slot, you know, frame by frame even, and had a witness like really say, okay. Here’s frame by frame. This is what’s happening by some massive coincidence. This guy walks away, drops something, and that shank happens to be there, dropped away.
And then this victim is stabbed. So it’s like, how can you not see it? And it turned out, when I [00:20:00] found this out later, that there was one juror who, he heard everybody else saying like, I just don’t think there’s enough, right? And some of that is like, should we even care about An inmate, and that’s part of my job, right?
Is to really like talk about why this is wrong in any scenario. But there was one juror who fought and said, no, no, no, let’s go back to the video. And I’m like, thank you for that one juror. But I thought it was all there. Whereas 11 out of 12 at first couldn’t get there. So I think that is so important that we get.
That perspective because even if you think you’re doing all the right things there may be something that you could do To be able to explain it a little better to bring attention to something a little bit more clearly in a closing argument Let’s say even if it was just alluded to by a witness and you go back and you think oh I really should have put more emphasis [00:21:00] on this point.
You can go back and clean some of that up
Elizabeth: Absolutely. And one of the things you, you nailed as well that people assume is lawyers assume that jurors are going to care about certain scenarios and they just, you know, we’ve definitely done focus groups on on prison scenarios with, you know, very clear videos of people like, and it’s just, it’s really hard to get folks to care and.
Elizabeth: That happens more often than you think when it comes down to litigation and, you know, you kind of need people to be emotionally invested in order to make a decision. Otherwise, they’re going to sit back there and do the same thing you heard, which is like, well
Yeah, it’s like, well Yeah, and it’s really interesting, like, jurors will do just about anything to get out of making a decision.
so please say that again. So many people don’t realize that. I mean, if you just think about it with us. Right? Like if you think about, Oh, I’ll, I’ll do that thing later. Right? Like we’ll [00:22:00] always tell ourselves later. We’re getting out of making a decision about right now. And if we’re in a case, and we’re, you say, a jury, a juror on a case, and you’re not super invested in it, or you’re not even really interested in it, then it’s very easy to just say, Err!
So that’s, it’s important.
Elizabeth: It’s so important. And it’s, I mean, it’s, it kind of blows my mind. Sometimes we, we ask a lot of our focus groups, you know, how much do you care what happened just to see, like, do people really, you know, care. And I always tell folks when they get really low numbers, like we need to do something else to, to, to pump people up, to get them invested, you know, even just a little bit.
Elizabeth: Yeah, that would happen. You can weave a
story, you know, that’s what it’s about, right? It’s, it’s about thinking about, I had this case where it was a bank fraud case, right? Where this guy was, you know, having people, he was having [00:23:00] other people go to ATMs and cash fraudulent checks. And by the time you get the cash, you can’t even trace it.
It’s like, it’s gone, right? It doesn’t matter. It’s out of the bank. So. Nobody cares. It’s like a transactional thing, right? Nobody cares about it. It’s like, oh, well, the bank’s insured, you know, nobody got hurt. And it’s like, no, I’m going in there. And I’m like, look at this master manipulator. He manipulated these people.
He got them to do his dirty work. Like you, you’ve got to come up with something to grab attention and to really articulate that this does have gravity, that this is a, whether it’s a crime, whether it’s civil litigation, right? There’s somebody, a real human that’s impacted by what’s going on.
Elizabeth: Absolutely.
Elizabeth: And, you know, it’s so many times we do focus groups and it feels very neutral and like we’re not, and I’m just like, well, you know, when we actually do a little advocacy one, you’ll see whether people really get invested or not, or, you know, it’s [00:24:00] always. It, you’re many, many times people, how do you inject the golden rule at all times?
Elizabeth: And I’m always like, well, you know, we get, you know, that’s a big, no, no, can’t do that. Uh, but like you said, it’s storytelling, it’s, you know, there are so many other ways to do that. And that’s kind of where just having a little bit of strategy really can go a long way to help you keep your eye. On the target, like we talked about, you got that witness with a bad personality.
Elizabeth: We just need that gem from them. We know we need this document in and here’s the thing that we need to know that needs to be highlighted and more people need to talk about, you know, so it’s once you realize, you know, find some of these weaknesses, it’s like, okay, let’s make a plan around it. When we heard 12, eight people talk about it and tell us some feedback.
Elizabeth: Let’s, how do we squeeze that and understand that better?
Yeah, and I think along the line of what you were talking about in terms of how to really get people to care, one, and then [00:25:00] also not making assumptions. Another piece of that is sometimes you don’t have the evidence that you want. Like, it’s just not there.
So, for the cases that I would work, people always anticipated that there would be fingerprints. And I’m like, there’s not always a fingerprint. And so, even in jury selection, we’ve got to think about what are they going to want? And what do we have? And how do we question the jury and kind of give them that heads up?
Like, hey, you don’t need fingerprints to come to a guilty verdict if you’ve got all the other evidence, right? Like, if you’ve got other evidence that can point them in the direction that they need to go, they don’t need. Everything. Like, tell me your thoughts around that and what your experience has been.
Elizabeth: Absolutely. I think we call it the CSI effect. Oh, yeah. everything has a video and everything has ballistics. Yeah. Ballistics always, you know. Yeah. It’s just like, oh, [00:26:00] no. I mean. You know, these are, a lot of these are, they’re car crashes, you know, nobody’s like, you know, where are the, where are the skid marks and where are the, you know, no one took a picture of that, you know, it’s like, oh, no, but, you know, it happens.
Elizabeth: It happens all the time where people have this expectation. Oh, well, surely I’m going to see this. Oh, well, definitely they’re going to have this. And you, and as a lawyer, you one, you get really wrapped up in meeting your legal burden burden. Right. And you think, Oh, I’ve got the facts. So it’s totally, you know, and it’s like, well, but you may have this other total.
Elizabeth: bubble that’s hanging out of it. You need to either pop, we don’t have it, can we work with it? Or just say, okay, how do I work around this? And so we definitely see that all the time, especially when you have a commercial vehicle case every time. Right, because they expect. Everywhere, right. The commercial vehicle has a camera on the inside or somebody’s got a camera that was, you know, where’s the police, you know, dash cam [00:27:00] footage and she’s just like, uh, you know, so there are definitely a lot of evidence expectations and sometimes it’s like, okay.
Elizabeth: Do we talk about it? Because talking about it brings attention, right? And if you don’t have something, do you want to pay attention to that? Um, or does it, we have to talk about this, and we have to think of, be creative about, you know, where it is or why it isn’t there. And, um, it’s, it’s definitely one of those things where, if we have a missing piece that we know people want, or they tell us, hey, we want to see this, and we say, don’t have it, never going to have it.
Elizabeth: Could you ever make a decision? I mean, that’s where, in those focus groups, having those really small quality conversations go such a long way for lawyers. Because you could have one focus group about this particular case, but you’re going to learn so much about how people think you can take it along with you for all your cases after that.
Yeah. And I do want to talk more about the focus groups, but I, I want to ask you, because we have this come up all the time, where [00:28:00] it’s essentially one person’s testimony against another person’s version of events. And oftentimes, jurors are like, well, flip a coin. So how do you approach those kinds of situations?
Elizabeth: Yes, that is like, I mean, it’s the death trap for, for car wreck cases, right? I mean. I mean, it is, it is one of those, it is what is the hardest, one of the hardest cases to try as a car wreck case. It’s a he said, she said, because people just, exactly what you said, they flip a coin. Um, it was no big deal. So, I mean, typically what, knowing that going in, it’s like, okay, we know this going in, that people already have this, so we have to either empower them.
Elizabeth: With their decision making and they’re having a role or we need to help them understand, you know that. Yeah, this you may think this is a fender bender, but this is actually, you know, important key piece of storytelling, right? Um, and what we normally do is when we have a he said [00:29:00] versus she said. I know what the defense is going to do because they do the same thing every time.
Elizabeth: But what I have to do as a plaintiff’s attorney is get real creative with how do I back up my client’s testimony with other things. And it, it can be as simple as literally a Google Map. I mean, it’s one of those things where we overlook it because we are, we’re thinking, we’re so focused on it. It’s just, it’s the testimony, you know, and it’s like, well, okay, but how do we back that up?
Elizabeth: Eyewitnesses, the police, you know, even as simple as a, as a Google map and really sometimes just being a. Setting the stage very well, an opening statement can do a huge amount of credibility lift that so it’s not just left on. Oh, I have to decide between what these two people say, like, right, that makes it really hard for them.
Elizabeth: But if you really. Are in tune with, okay, this is truly, he said, she said, how do I really frame, how do I give them so many more tools and lift that [00:30:00] credibility up before we even get down to that battle that they’re already, you know, they’re already leaning one way.
Yeah. And I always like looking at what an amazing coincidence that this all ended up exactly like.
It ended up and always reminding the jury there’s no such thing as coincidences, right? So it’s like here’s the breadcrumbs. Let me put this in front of you. And there’s no coincidence that this is the way the breadcrumbs lined up to point to opposing counsel’s client. It’s like, ah, right. So important.
Elizabeth: It is so important.
Elizabeth: And I think lawyers sometimes shy away from pointing out the obvious. This is not a coincidence. It’s not magical that, you know, Oh, definitely something happened the day after the wreck to cause all this neck pain and this, you know, neat, like, definitely. Right. Like, Just some magical, you know, so it’s totally sometimes you have to be so clear with pointing out the here’s all the other [00:31:00] things.
Elizabeth: It’s not a magical coincidence and a lot of lawyers shy away from doing that.
Yeah, it’s a step by step process really thinking about. Not only what you think happened, but what does opposing counsel, what are they going to say that happened? What is the jury going to extrapolate? Because the defense could argue one thing or opposing counsel could argue one thing and you could argue one thing, but the jury might come up with a totally different story.
That’s another thing. It’s just to know there. Thinking from a different perspective to trying to come up with other plausible explanations. And so when they’re in the jury room, you don’t necessarily, it’s not like you’re in there able to focus their attention in the room. You’ve got to do that in advance by closing off some of these avenues of thought.
Elizabeth: Absolutely. And that’s just kind of one of those things where, you know, they’re going to start off on a different point of view and it, maybe it matches your client. Maybe it matches the opposing, but like, Or maybe it’s completely different, like you kind of [00:32:00] always got to be anticipating that it’s in speaking to wherever it may be, you know, because if you, if you don’t, and they’re creating their own story, it’s why I say, like, if you leave holes, the opposing counsel is going to fill it, but jurors love to come up with all kinds of,
all kinds of good stories.
Yes, they do. Um, and this also runs some parallels for litigators listening also. Listening to this step by step process as you’re building your business, for those of you who run your own business, or you have people you’re working with and you’re directing them to do things, don’t make assumptions about what they know, really think about step by step.
What do you need to think of from a hundred thousand foot view? Like your employee is coming to this project for the first time. What do you need them to be thinking about? What do you need them to anticipate so that you can teach them how to think? It’s that’s what I teach my clients when I’m helping them with that leadership aspect.
And when [00:33:00] you’re doing litigation, it’s the same. thing. You really want to think about that hundred thousand view perspective of this is a juror’s first introduction to this world. Maybe it’s their first time in a courtroom and you’re there as their guide to help them think like you do because you want them to think like you.
What do you, what do you see as, um, like what comes up for you when I share that? I’m curious like where that comes up in your practice.
Elizabeth: Sure. Well, I think 100 percent we, again, going back to kind of assumptions we make as lawyers, as bosses, as people running businesses, that, that somebody else is going to think like you, and it’s, you know, again, having gone through several, you know, different versions of my business and, and, and, you know, going from legal now, it’s, it is always amazing to me how I make such assumptions of people who work for me that I’m just like, okay, I gotta just boil that [00:34:00] back down because, you know, and it’s always fascinating to stop and just check in and be like, okay.
Elizabeth: And then just, you know, ask a very open ended question and just what you get back. You’re like, Oh, I totally missed this whole thing. That’s explained to you. Um, you know, and so it definitely, you know, Resonates with me in the sense of like, ah, sometimes we got to go back to, to step one and also just knowing like, oh, that point of view tool, what point of view is that person coming in from?
Elizabeth: What point of view do I have on this? What point of view does the judge and the jury like? It’s, it’s a, it’s a wonderful tool to use no matter where you’re sitting, whether you’re preparing for a case or preparing to onboard a new case. Thank you. Uh, client because they have to have the same. It’s just that they have the same wonderment and fascination and scaries about the legal world as, you know, a juror for the first time walking to a courtroom.
Elizabeth: It’s really helping people where they’re at. And I think we lose that sometimes as lawyers because we [00:35:00] get wrapped up in. Doing stuff with each other. Yeah, and conferences and talking to the judge and, you know, going to our, you know, continuing CLE meetings and we get talking with each other and we kind of, oh, wait, you know, and that’s why there are definitely people who in their business, like, just really shine at talking to clients, right?
Elizabeth: And it’s like, Oh, okay, know that you shine at that. And then you stick to it. It’s like, that’s why one of the things that I know for me, like, Oh, I can easily be neutral and reach out neutrally and get information and get more and listen well and really learn to ask a better question, you know, get more out of that person.
Elizabeth: Whereas sometimes we lawyers with our cross examination minds, just cross examining people.
And I think it’s so important that we get out of that because I definitely had that mentality for a really long time and boy, that’s fun when you have a relationship as being cross examined by a lawyer, [00:36:00] but when you’re, when you’re like, when you’re in that work mode and you are work, work, work, and even if you feel very focused and you’re, you’re in your job doing the things, if you’re not Present to how you feel, whether you’re feeling anxious or stressed out or anything like that.
It is going to make your job harder no matter what area of your job. And if you are doing the, the work of discovery and all of the things, and you’re a litigator, it’s even more important that you become present because you’ve got these two competing things. Because when you’re litigating a case. It takes all of your focus and your other cases don’t go away.
You’ve got to really be able to manage your mind around time, you’ve got to be able to manage your mind around different demands, and for me, it was really helpful learning that stuff and [00:37:00] then coming away with a plan when I was in trial to help me function at my highest level. Because I needed to make a plan for all my other work, have that all squared away, and then a plan for me to take care of myself, because I’m not going to survive off of candy bars and sodas.
Good Lord. I would never. Right. That was, that was definitely past me. Not now me, but it’s, it, you cannot. Have a thriving practice where you enjoy your life and your practice if you’re not taking care of yourself, and I’m curious if that comes up in your practice where you, you need to have those kinds of conversations.
Elizabeth: Absolutely. And, you know, I think one of the dangerous. Um, thoughts that is still kind of out there in the ether when it comes to plaintiff personal injury work is, or even, you know, employment and is, you can go try a case by yourself, go do [00:38:00] it. No, you just need to do it. And it just it. And I, I was there. I totally tried a case by myself.
Elizabeth: And it was. It was, it was horrendous. I mean, it was, it was terrible. But I, I walked out of that situation. I walked out of that courtroom. And I just thought, like, I did something so wrong. Like, and, and I didn’t know. You know, it takes you a lot of awareness and more experience. But once I then, Tried cases and worked with other, you know, lawyers and had this other experience.
Elizabeth: I was like, oh, and then it, you know, then people said, never try a case by yourself. Like, oh. And so when I hear sometimes to just go do it, you just need to go try that. You just go do this on your own. I’m just like, wow, that is not how we need to be practicing. And like, you need to make a total plan for, for yourself.
Elizabeth: And I always tell lawyers like. You know, I have a whole podcast episode on, like, you need to plan, like, where you’re eating lunch, who’s ordering [00:39:00] lunch, you know, if you need to have a war room, 30 days out, you rent a place, you find a place, you have one person on your whole team that’s dedicated to your client for the entire time, but no matter what your client needs, you know what I mean, like, you have to plan around those things, but then also, like you said, you need to plan around, okay, if you know you’re not going to eat lunch, that’s fine, but you gotta eat, you gotta have some kind of energy and, you know, Like some kind of wind down time and I feel like, you know, that’s something that is really hard to teach trial lawyers because We have so much extra stuff that happens during trial and we just have been
told like just do it You know, it’s very much the suck it up mentality that so many places teach us but it is not it doesn’t have to be that way and One thing while we’re on this note is the planning that you’re talking about It starts when you get the file when you get the file This is when you can start marking times on your [00:40:00] calendar, right, to get the war room, right, marking what needs to get done.
In my case, it was, okay, is this a victim sensitive case? Do I have a victim advocate assigned? Do I have communication with the client? With the victim like which witnesses do I need immediately start subpoenaing witnesses because I need to make sure I have correct contact information. I got to make sure that they’re available.
Do I need to anticipate anything coming up? Like what’s the evidence I’m going to need? How much time am I going to need to really make sure I have an evidence binder for myself like those kinds of things. So when you get a subpoena, File starting with the plan of here’s the checklist of the things. I know i’m going to need every single time I do a case.
This is what I need to do or have my assistant do so that is Fundamental anything you would add to that?
Elizabeth: No, I totally I totally agree and you know We already as lawyers live breathe and die by our calendars like
if you use when you would be surprised at how many [00:41:00] That’s a good way to miss a hearing and get a nasty call.
They might mark a hearing, but they don’t, they don’t make the time to actually prep for the hearing.
Elizabeth: They’re just like, oh, I’ll do it. Like, you know, if we, we live by our trial dates and our motion dates and our hearing dates, like go ahead and make a checklist for it. Please have you or your assistant put on like, again, like you said, prep time and a six month check in on the case.
Elizabeth: And okay, once we have this trial, because what I used to do is I had a check once we had a trial date. Here’s the checklist that has to go in, and it was, you know, the six month out, the 90 days out, like, and it wasn’t just the witness list, like you’re saying, or subpoenas. It was more like, okay, prep time, think time.
Elizabeth: Yes. You know. Yes. Do I have these, are these witnesses actually going to say that, you know, like you said, like, do I need to keep checking in and always having a team to help you do all those things and delegate? I mean, that’s a huge, a huge, and if, you know, if you have to get extra help, do it. Um, because [00:42:00] we can’t do everything.
Yeah. I mean, we’re not all like, as a, as a criminal prosecutor, you don’t necessarily have those kinds of resources. But as a litigator, you, you can do this in civil practice and oftentimes you have a ton of resources you’re just not taking advantage of because you’re not delegating. Big big there. I wanted to ask you about focus groups and tell me more about them.
How do you run them when an attorney comes to you and says, Hey, I’d like to run a focus group or I’d like to think through this case, like what do you talk to them about? How do, how does that relationship start?
Elizabeth: Yeah, absolutely. Well, a lot of times people think focus group, they think automatically mock jury, like that’s kind of one of what synonymous, um, and it is not the same thing.
Elizabeth: Um, and, and here’s really why, you know, when I started to do them again, I was a solo practitioner. We gathered up, I had two other solos and we all brought our resources together, right? Somebody gave us the conference room. Somebody brought the camera. You know, I [00:43:00] got the people and we, and so it was very much, it’s a very cost effective way to get a group of 8 to 10 people.
Elizabeth: And then we would just. Run neutral statements about the case, or maybe we had witness videos we need to show to get credibility thoughts on. But they’re really just small pockets of, you know, opinion marketing that you go and get. And to help you really solve very targeted problems. So a lot of people think, oh, focus groups, mock juries, they’re just going to tell you the probability of a win.
Elizabeth: Mock juries do that. Big data does that. But focus groups are so much more of a qualitative conversation, um, about a very specific issue or just maybe it’s just liability, or maybe it’s just the damages portion. Maybe it’s just causation. And, and so when you have it in this kind of a smaller pocket, Um, it makes it much more easier for people who are on solo teams, medium sized teams, small teams to put these [00:44:00] together on their own.
Elizabeth: And cause that’s how I started. And that’s really where a lot of my business grew out of was. Hey, are you going to trial? I’m hosting a, come on, I’ll give you an hour of this focus group. Come on down and run your opening, right? And so once we hit the pandemic, everything went virtual. And so now it’s even easier because we don’t have to have a room.
Elizabeth: We don’t have to pay people to eat. And all my participants love it. They never have to leave their house or their pajamas and they just hit zoom, right? And they’re just ready to, to work with you, uh, and tell you what they think. And so, um, that’s really what. It is, you know, a small qualitative group and, you know, we have a lot of flexibility with focus groups and that’s why I love the concept of them versus thinking, Oh, it’s only a mock jury, right?
Elizabeth: The mock juries are a lot, they’re a lot of work on lawyers and staff. And so this is a much smaller presentation, a lot more focused on getting conversation and feedback.
[00:45:00] Yeah. And I’m curious because I’ve heard both done, right? Like for some of my clients who are litigators, they do mock juries and it’s the whole shebang, all the prep, they do the work and then it, maybe they get something out of it, you know, because they’re getting some, some feedback.
But I’m curious, like, because the focus group, when I hear you talk about it, sounds like you’re getting to have these deeper conversations. I’m just curious how you might compare the two.
Elizabeth: Yeah, no, you, you nailed it. So with a mock jury, like I said, you’re going to have a large panel of people because you’re putting together almost a whole case.
Elizabeth: You know, it’s kind of abbreviated, right? But you’re, you’ve got both sides opening statements, some witnesses, and you’re polling them along the way. Paper votes most of the time. And. Then you have kind of this giant binder of data, you know, but you don’t really, you get to hear deliberation. Um, but, you know, I’ve [00:46:00] done mock juries where the deliberation, they just get in there and draw straws and you’re like, Oh my gosh, I just spent weeks preparing for this and you’re drawing straws.
Elizabeth: Uh, so you, you know, it’s kind of soul crushing. Um, but, you know, at the end of the day with a mock jury, it is, it’s, it’s what’s the probability of, of, of winning and with a focus group. You really dial back the information so that you can dial up the conversation, right? So you just, maybe it’s, I was talking to some folks today getting ready and, um, you know, I always love to create a little PowerPoint for them and we talk through it and walk through it.
Elizabeth: What does it need? Um, but typically we try to look at. Hey, we got an hour. Let’s pick three things. Okay. And then let’s have them enough information to talk about these three things and then just see where the ponies go. Right. And if we have extra time, we’ll talk about something else. But typically it’s, they’re open ended questions.
Elizabeth: What do you think? Right? And then you, you, the nice thing about having it virtual or you’re having small numbers even in person is like [00:47:00] you have the ability to ask each person and you’re not telling them, now you have to agree with the person sitting next to you. Nope, you don’t have to, right? That’s why I tell people right off the bat, like, you don’t need to agree.
Elizabeth: And so you really get eight or 10 different perspectives and you’re going to see where they agree and where they disagree. And so when we talked about that, we don’t have that piece of evidence, or maybe we have that piece of evidence. Like, we could spend a, you know, a good portion of a focus group, maybe 30 minutes just talking about that, you know, and getting 10 different thoughts on it.
Elizabeth: And you would be so surprised at how invested and creative people will get for you. Like, well, why don’t you do this instead? Or if you don’t have that, ask this question. It’s so awesome when people, like, they love turning on that side of their brains because they’re helping you solve a problem. People love helping people solve their other problems, not their own.
Elizabeth: Right. Uh, you know. And
I do think that, I mean, I have done, like, in law [00:48:00] school we had the whole mock trial and I remember they, you watched the jurors deliberate and you’re just like, Okay, I don’t understand what you’re thinking about. I’ve had, uh, lawyers tell me, um, when I was practicing, like, they came back out and they were talking about my clothes and what I was wearing.
Like, this is what I found out. Some of them were talking about. I’m like, oh my gosh. Like, how, What are they doing sometimes is what you’re wondering, but if you know the information that you need to present, then the other stuff doesn’t matter, right? Like if you’re, if you’re watching a jury deliberate, they’re gonna, they’re gonna talk about 10 different things, maybe even unrelated to your case.
But if you’re getting things that are focused on Information that is focused on what you need to know in order to best prove up your case that is just extremely valuable.
Elizabeth: Absolutely. I mean, the best example I have is there’s a individual I worked with this summer [00:49:00] and she went to trial and she again is a solo.
Elizabeth: So she did just these little one hour here and there and there and what she was able to gather from those focus groups is her opening statement had to have two things. If she got objections and couldn’t get anything else out, as long as she got those two things in, she was good. Um, and you know, what do you think happened?
Elizabeth: Of course they objected and they shut her down and she was just like. Persevered. I’m getting these two things in. Um, and what she was able to do is feel really confident and knowing that’s okay. Like, so, you know, having that calmness and having that confidence in the courtroom and being able to keep that poker face and just be like, I still got this was she said it just it really went so far and above and beyond any other trial she’d done of just having that confidence.
Elizabeth: And then, you know, she still used her opening statement. She couldn’t get to she put it in closing. And she said, Here’s what I’m going to show you that they wouldn’t didn’t want you to know, you know, she so she got eyes. But [00:50:00] yeah, I mean, it’s You know, she discredits those focus groups, those little one hour focus groups to really help her hone in on the two things she needed out of the thousands she could have presented.
Yeah. So important not to waste tons of your time when you can focus in like that. When what would you say is like your ideal person, like the person that you love working with the most, the people who would be a perfect fit. for working in a focus group?
Elizabeth: Um, I think lifetime learners and curious people are the best.
Elizabeth: I mean, because, um, there’s always a piece of us as lawyers. That’s a little bit of a know it all, but you know, I will raise my hand first. Um, but I think there’s always a part of me that is always still very curious and always learning. And so you really have to be an O kind of an open minded person to be able to sit down and allow a group of eight people to.
Elizabeth: you know, rip apart your case. Um, but I also love working with people like, [00:51:00] you know, again, solo, small firm, because I get it. I was there. It’s really hard when you have a tight budget and, and you’re, you’re, you can’t do that big mock jury you want to do, but you have this great case and you want to make it best possible.
Elizabeth: Mm.
Yeah. Okay. Beautiful. Now, I want to just wrap up by offering you the opportunity to share any words of wisdom that maybe we didn’t get an opportunity to bring out during this episode.
Elizabeth: Sure thing. I think, um, You know, I always a big part of my podcast and a big part of what I always talk about is helping other people start their own focus group systems.
Elizabeth: Um, and so there’s a lot of information on my website about that. There’s even a download. And, you know, I just tried to really put all that information in one place in my podcast. But, um, you know, That’s probably the best thing that I would say is we didn’t really talk about it’s easy to do your own and you know, especially with [00:52:00] virtual and how people are really gravitate to that.
Elizabeth: It’s very easy. That’s one of the greatest things that came out of pandemic is all of our clients. All of our people, they get it. They know how to do it. You know, it’s not a foreign concept to them. Um, and so that’s just a resource. I would really draw people to if you are interested and you want to know more, um, That is definitely.
Elizabeth: I just dropped two really long blogs on my website about how to do your own. There’s a part one part two and each of those blogs has the download. I have a free web resource that people have access to just to get them started.
Awesome. Okay. So everything that you mentioned, I’m going to put in the show notes, but give us a plug for your podcast because the people listening to this are podcast listeners.
Elizabeth: They are. Yes. My podcast is trial lawyer prep. Um, I talk about focus groups, witness prep, trial strategy, all these things on my podcast. And typically I’ll have, um, folks who have gone through trial and use focus groups [00:53:00] come in and just talk about their experience and how it helped, uh, just to give people a real life spin on.
Elizabeth: Things you can gather from a focus group.
I love it. And where can they connect with you on social media? LinkedIn. Perfect. All right. I will make sure to link to all of that in the show notes. And this has been a real pleasure getting to nerd out on trial strategy and talking about all this stuff because I don’t talk to anyone.
There’s hardly anyone about it anymore. There’s the occasional things that come up in my coaching practice, but really we talk a lot about business and growing business, but getting to have the opportunity to really chat it up around this topic is so much fun. So thank you for being here and helping me nerd out a little bit.
Elizabeth: Oh, well, thank you for having me on the podcast. And, and I love nerd natting on this stuff. I mean, it is, we could go on, I’m sure for a whole nother hour talking about funny stories and you won’t believe what happened, you know, kind of a thoughts, but yeah, it is definitely, uh, Yeah. It’s definitely been fun.
Elizabeth: So thank you so [00:54:00] much.
I hope you enjoyed listening to this conversation I had with Elizabeth as much as I enjoyed having it with her. She shared so many valuable insights about prepping for trial, working with witnesses and getting fresh perspectives on your cases. And there’s so much that you can really take away from her strategies and apply to your own practice.
So I highly recommend that you do so until next time, take care and I will talk to you soon. Next week.
