ep 4 podcast thumbnail

The following is a transcript of Episode 4 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: Welcome to the Championing Justice podcast. My name is Darl Champion. I am a personal injury attorney in Atlanta, Georgia. I started this podcast for personal injury lawyers to provide insightful information about the industry. 

Today, I am very privileged to have Jessica Brylo as our guest. She is a national trial and jury consultant who will be talking about the type of work that she does and what she’s learned from doing this type of work. Thanks for joining us, Jessica. 

Jessica: Thank you for having me. I’m honored. 

Darl: So as we get started, I’m just really curious on how you got into this industry because I think it’s really fascinating people that do the kind of work that you do. So just tell us a little bit about how you got into this line of work. 

Jessica: Sure. So coming out of college, I had intended to go get an MBA. I thought that I would do focus groups for products and do marketing in that world, in that arena. But because most MBA programs require that you work in the working world for a couple of years before you get to the MBA, I needed a way to get into school without having to go to work yet. 

And so my way into that was to go and get a law degree along with the MBA. And I felt like that was also going to give me a leg up because there are a lot of MBAs out there, but not a lot with a joint degree. So I went to law school with the intention of using that as a background to get into focus groups for products and marketing. 

Within the first semester in law school, I heard about jury selection, they did a one day thing on jury selection, and they mentioned David Ball’s name because I was at Duke and David is in North Carolina, so he was right there. I had no idea that the field existed. And so when they mentioned it, I thought, well, that’s a really nice fit. I mean, instead of doing focus groups for products, I could be doing focus groups for legal cases and do marketing basically in the legal world. 

And so I, not knowing, you know, at the time—this was years and years ago at this point, but even at that time—David’s name was big. And I didn’t know that, you know, I’m just a law student and so I had no shame in calling him up directly and saying, “Hey, you know, I think I want to do what you do and would you mind having lunch?” And he agreed. 

And so we sat down and talked and he liked me enough that he agreed to let me shadow him for the next three and a half years while I was in law school. And so I shifted my focus from the MBA to a master’s in psychology. I actually grew up with a father who was a neuropsychiatrist, so I’ve sort of been around psychology, psychiatry, been analyzed my whole life. And so this was nothing new to me. But it was a better fit for the field. 

And so, while everybody else was doing things like moot court or law journal, I would go and sit with David at coffee shops or at his house. And he would say, you know, “Put your books down and come work on this opening statement with me.” Or, “Here are some focus group videos, watch those tonight. The client comes in tomorrow when you’re done with class, come over, you can meet with the client, give me your feedback.” And so that was sort of my training in getting into the field. I was just really fortunate, you know. Right time, right place, and, you know, looking back on it, it just seems crazy to me, but that that was my entry into it. 

Darl: Yeah. So here you are and doing absolutely nothing that you intended to do.

Jessica: Yeah. 

Darl: Working on legal cases, you didn’t go to law school with the intention of being a lawyer or working on the cases, but now you are, and you’ve certainly made a name for yourself. And I’ve been very impressed with a lot of the things that I’ve seen from you that you put out there.

Jessica: Thank you.

Darl: Just tell us briefly, you know, the types of cases that you work on as a jury and trial consultant and any geographic areas that you find yourself in more often.

Jessica: Yeah so I am one of the very few who does only plaintiff’s cases. I will do defense if it’s a contract type of dispute, and so the side doesn’t really matter, but coming from David’s training and having access to all of that, I had made him a promise that I would not switch to the other side. And that’s then where my heart and my training always led me. 

And so I only take plaintiff’s cases. I take them in medical malpractice, personal injury, wrongful death, trucking; I’ve done civil rights actions, some tort cases, mass torts. So sort of I run the gamut of it and I work across the country. I actually do a lot of work in California, a lot of work in Texas, not as much in Colorado—it’s just a smaller market—but I do go everywhere. 

Especially with Zoom these days, I feel like that’s so much easier. Really I’m traveling for trials, but for the prep work and even most mock trials these days, most of that is now online. So I think it really bridged a lot of that gap.

Darl: So when you’re doing your trial consulting, are focus groups always a part of that? 

Jessica: No.

Darl: Or just tell us a little bit about what your approach is to trial consulting. 

Jessica: Yeah, I think everybody has a specialty. And while I do everything—I do jury selection, I do opening statements, closing arguments, witness prep—I do all of that. And I certainly run focus groups. I’m really, really good at framing cases. And so, that’s sort of where I just have more of a natural talent in doing things. And some of that all flows together, right? 

So when you’re framing a case, focus groups help to frame the case. And once you have the case frame, that sets you up for voir dire and for opening statements. So that’s sort of my starting point with everything. And working in plaintiff’s world, there’s not always the budget to have me run focus groups or mock trials. And so, while I always love to see them and I think that they are always helpful, I have yet to do one where I wasn’t surprised by something that they said. 

But that’s not always a feasible thing for attorneys to hire me to do. So I really advocate for you learning how to do them and doing them correctly, because often what will happen is somebody will have run their own focus groups and come to me and say, “Well, here we ran these studies and here’s what yours said.” 

And I say, “Well, can I see what you presented them with or how this was run?” And I find out that, you know, it was very clear who was running the study, that the statements were very unbalanced, that they recruited off of Craigslist. And so all these things that, now I’m trying to advise the client and I have to be the bad guy and say, you know, “You wasted your money on this study. I can’t really rely on any of these results.”

And so when there is money for focus groups, we definitely do run them. We like to see what jurors think about the case. I think they’re super important to have. But I work around that. We can do case framing without that. We can write opening statements without it. We can do voir dire without it. 

Darl: Interesting. Yeah. My view of focus groups is: no focus group is better than a bad focus group. Because I think the bad focus group could give you information that you then use to build your case around, and it’s just total garbage. And, you know, if it leads you in a wrong direction, it’s done more harm than if you have no focus group at all.

Jessica: Yeah.

Darl: But I wanna come back to the case framing, because that’s really interesting. There was—I can’t remember who wrote the book—but I think there was a book out recently called Case Framing or Framing Your Case or something that. It was a trial guides publication. And I thought it was really, really interesting how they talked about working up the case and framing the issues. 

But tell us, what do you mean by case framing when you talk about that and talk to lawyers about it?

Jessica: To me, it’s how you’re presenting the case and the story you want to tell. And so we have facts no matter what, and we can’t change what the facts are. But the story that we tell about those facts makes a massive difference in outcomes of trials and how the case is perceived by jurors.

So to me, case framing is telling the story a certain way with, you know, where do we start the story? What is the focus of it? What are the rules that we actually want to focus on? You know, because sometimes you have eight rules that were violated, but some of them don’t really matter. And some of them really do matter. And so like, where do where do we start? What are jurors going to be most angry about? And how do we accept the bad parts of our case and make them either wins for us or at least, you know, minimize the damage from them? 

Darl: So—and I’m just thinking out loud here—an example, maybe on a causation or damages issue, if you have somebody with preexisting conditions,  framing the case in a way that presents it as an aggravation as opposed to, “Hey, this person was completely not injured and then this happened,” and then there’s some incongruent storytelling at trial between what happened. And that’s certainly just one example on causation of damages. 

But on the liability standpoint, I think that was a good example. You talked about rules. So case framing could be the truck driver who just fell asleep at the wheel or didn’t break in time. That could be one part of the story, but it could be a broader systemic problem, and you frame the case that way. Is that how I was talking about?

Jessica: Exactly. Yes, and even within those systemic problems, I think sometimes there are things that companies do that, yes, they violated the rule. Yes, it may have contributed to the harm. 

But I think attorneys often get stuck on, “They violated this and we must present this evidence.” And that’s not necessarily true. And you might present it, but when you make your case hang on an issue that is disputed—that either we say one thing and the defense says the other—and if jurors believe in the defense, then you kind of lose. 

That is not the way they like set cases up. I think you need to let go of the things that aren’t really strong wins for you and present them, but sort of flow through them and really focus your case on a couple of really big violations that they have no way to work around.

Darl: Right, right. That’s a great point. 

So this is kind of the struggle that I always have is, you know, how do you frame the case and when? You know, you get a new case and—with governmental entities, we can send Open Records Act requests and get discovery pre-suit through that mechanism—but a lot of times,

 you know, we’re finding out stuff as we go along. 

And maybe we want to frame the case a particular way and try to approach depositions that way, but then we learn new documents or new evidence along the way… Do you have any recommendations for attorneys in that kind of pre-suit phase on the best way to go about doing that? 

Because, and I’ll give you one example, there’s some cases where, when I don’t get documents and they’re withholding stuff, I’m like, you know, “The hell with it. I’m just going forward with depositions. If they turn up stuff later and sandbag me, I’ll just redepose the witness.” Other cases, I’m like, “You know what? I want to wait and make sure I have all this so I can build the case around that as I go through these depositions.” 

And I know that was the long-winded way of explaining that, but how do you advise attorneys on working up their case pre-suit to find the story, so that they can determine how it is going to be framed? 

Jessica: Yeah, and I think some of that is judgment-calling, going with the flow a little bit. I mean, stories do change as you get more information. And sometimes you might go into it with five different possible stories and the evidence sifts out a certain way. And so then by the end, you sort of have a better idea of what you’re looking at. 

But even once you think you’ve got a good story in your head, once you run it through some focus groups or we talk together with, me or different consultants, sometimes that frame shifts even then. And so I don’t think you can go into it feeling like you have the right frame, but you’ve got to go into it knowing the things that you’re looking for, and then you can put the pieces together later. 

You just, you at least need to have the pieces. And that’s sort of, I think, where people fall short sometimes and get into trouble as they get closer to trial. And we realize,”Oh, this is a systemic problem. Like this isn’t just this incident, but nobody went to go discover the systemic problem.” And so just knowing those bigger things to look for, and then you can fit it together the way you want it later.

Darl: When we talk about case framing, and when you’re talking to lawyers, what are some common mistakes that you see lawyers make? 

It sounds like you mentioned one, which is sometimes they focus on issues that may matter to the lawyer, but don’t really matter to lay people. What are, you know, if you have a top three or top five, whatever, list of mistakes that you found that lawyers make when framing their cases?

Jessica: Yeah, I think it comes down to—well, maybe it’s personality type, and maybe it’s just working up the case, and you’re so deep into it—but letting go of things. That, I think, is hard. I think, again, when you have an argument that you think is strong, and you’re having somebody say, “Well, let’s let that one go,” I think that that’s difficult to swallow, but sometimes that’s the best thing for you because you don’t want to make the case that complex.

So I think, you know, the complexity of it is one of the things that I see that you sort of want everything in, but when everything’s important, then nothing’s important. And so that’s sort of the trouble that you run into when you have too much in there. You really want to focus them in. I know, you know, like Joe Fried does a lot of speed trials and I think that’s fantastic. 

Like you, you’ve need to focus it in on a couple of major things. And not that you ignore completely everything else, but again, what you spend the most time on is what they think the trial’s about. So the jurors are going to get an idea of what that case is from what you spend your time on. And if you are constantly batting down defenses, and you’re playing defense too much, then that’s what your case is, is trying to defend yourself. 

If you can come at it and just say, “Here’s what our theory is, and this is why none of this matters. This is all red herrings,” and orient yours to that in the beginning. That “You’re going to hear about these things, and this is why none of that matters. So as you go through trial, see what else you can find that actually matters to this case and to this issue,” and set it up that way from the beginning. Then I think you have a much stronger frame. 

Darl: I think that’s the sort of the fundamental problem with how we’re trained as lawyers, is in law school, it’s all about issue spotting. You know, when we take exams, it’s how many issues can you spot? Even if they’re like not great arguments or whatever. And I realized that pretty quickly. 

And, you know, I still remember I had a constitutional criminal procedure class and I took this exam and I was just throwing out every potential issue. Like, even if it didn’t make any sense, I got like a 99% on it and it’s like, “Wow,” you know, “that’s what I’m supposed to do.” 

But, you know, I think as lawyers, it’s really hard to have something and be like, “I’m going to give it up.” And, you know, I see it a lot with issues in a case that are going to be litigated. It could be a lost wage claim where somebody’s disputing—and it’s not that much money—but they’re fighting about maybe, could the person have gone back to work or not? Could they have found a replacement job doing something else, but a little bit less? But the case becomes about that. And I’ve made a conscientious effort to try to avoid that. 

Aside from just that overall need to kind of hone in on the issues and simplify things, how do you recommend lawyers go about doing it? Because that’s the other thing. We’re lawyers and we’re thinking like lawyers. Obviously, focus groups are one way to do it, but every case can’t really get a focus group, whether it’s the economics or logistics or whatever. 

Do you have any non-focus group recommendations for how we can identify and maybe cut through some of those issues and figure out what’s really important? 

Jessica: I think you know, ask yourself, if you step back from the issue, think to yourself, if this was done properly, would it have changed the end result? And if the answer is “Well, maybe,” or “I don’t know,” or, you know, “Probably not,” then that’s not really your issue. 

I mean, if in a med-mal case, if they forgot to take the blood pressure, okay, well, that’s a rule violation, depending on whatever the rules are, what the case is about. But if it didn’t really matter in what they did later, how their train of thought progressed, let it go. 

You know, that’s not—you can use it to show sloppiness. I think that’s where attorneys sort of get confused, is where to use the issues. I think some of those things are used to show cutting of corners, sloppiness, dishonesty. And so you can put them in for that purpose. But you have to be careful about how much you’re using it and where you’re using it.

And so I think you take a step back from it. I think also you can talk to friends and family. Again, I would put that in sort of the “be careful of what you listen to” focus group type of advice, but you can sort of get a feel for what people think is important. Talk to strangers whenever you have a chance and throw the case past them, but just be wary that you don’t get too invested in their responses. You can use it to sort of direct you a little bit, but don’t take too much head in their overall response.

Darl: I think that’s the one thing that I’ve always been amazed by as a lawyer in trials is the things that make me upset. And it may not even be like an evidentiary issue. Maybe the conduct of counsel, maybe they’re like calling my client a liar, either overtly or just kind of their overall demeanor. I’m like, “Man, the jury’s gonna be pissed off at this. They’re gonna hate this person.” 

And then they’re like, “Well, whatever, I don’t care.” 

And I’m like…it makes absolutely zero sense to me.

Jessica: I’m currently doing a monitoring of a trial right now where I’m reading every day the transcripts of the trial and advising counsel. And the one issue that they think is their number one issue is just not. 

And we know from focus groups jurors aren’t gonna care. And so, you know, you’ve got to just be careful of that. And that the more you push it, the more it becomes the main issue, and then you lose based on that issue.

Darl: I think the one example—and I don’t know if this really falls into a case framing type category—but, you know, certain insurance companies use like, the same doctors on causation in every single case. And the plaintiff’s lawyers approach the cross the exact same way: it’s all about bias and proving bias. 

And I’m amazed like the jurors don’t seem to care. Like, they could have used the stock doctor 10,000 times. They think it means the doctor’s great. “Hey, they must have…” you know, “If they’re testifying this many times…” 

Do you have any recommendations for approaching that situation—where you have an expert, maybe, whether it’s causation or some other issue, who’s clearly biased—on how we as lawyers can present our case through them, as opposed to just attacking them on bias and getting nowhere with it.

Jessica: Yeah, and I think you can do a little bit of the bias stuff ’cause some jurors care and some don’t. But I agree, I think you have to go to their methodology more so than their bias and show where they were wrong. Because even if somebody’s biased, they might still have the right result. And so I think you have to attack where they faltered, but just be careful that your expert didn’t falter in the same way. 

Darl: Right.

Jessica: And we end up with the same problem. You know, sometimes you’re attacking their expert for bias and then we’ve got docs that we only hire, or they’ll only testify for the plaintiff, and then it just cancels itself out. 

So I think you just have to be careful of when you use that, and really use them to agree with the points that you know they’ll agree on or that they’ll look dumb disagreeing with. And then push them on, you know, how they did their methodology and then have your expert explain why that methodology is incorrect, preferably before, you know, their expert gets up and says that. 

Darl: Right. I think the one thing is, you know, talking about case framing, you know, doing a constructive cross examination of the expert, maybe getting them to agree with your points that are part of your case frame. That’s something, from a causation standpoint, if you have a client who didn’t have back pain before, get the doctor to admit that. You know, get them to admit that the back pain started on this date in this wreck. They have no way to refute that and just kind of walking through that way.

Do you have any recommendations for how to use defense witnesses to advance your frame, or to get them to agree with your frame or however you’re framing the case?

Jessica: Yeah, I think you can ask them some of those rules. Because sometimes they’ll agree with the rule, but they just disagree that it applied in your case. And so you don’t need to go there with them. 

Sometimes your cross can only be a couple of minutes long. It’s okay to have a short cross, use what you need and then get off. I mean, again, the more you spend time with an adverse witness, the more time they take up, the trial becomes more about what they said. You know, I think if they said a lot of things that you’ve already set the jurors up to know was irrelevant to the case, then you’ve already preempted that, right? 

And so you can just show and ask them, “Well, was that relevant to this issue?” and “Was that relevant to that issue?” and stick with the points that you know that they have to agree with you on. I know Fried has a lot of stuff again on how to use those witnesses within a really short timeframe, which I think is important to do. And don’t feel like you have to combat every point that comes out out of their mouths. 

Darl: Right, absolutely. 

We’ve talked a little bit about focus groups and kind of the problems that those can present and the benefits you can get from them. How do you approach focus groups? I mean, are you doing them in person? You doing them by Zoom? Do you do a narrative-style focus group? Do you do mock trials? Tell us a little bit about your approach. 

Jessica: Yes, yes to all.

Darl: Okay. Do you do all of them sometimes in one case? Like if it’s a big case and the budget justifies it, you’ll do it all?

Jessica: Absolutely, yeah. I think in cases where you do have the budget, I think it’s important to sort of do it all. I use the narrative focus groups, if I have the choice on budget, I use those earlier on to guide my discovery. I think that those are helpful for giving you sort of pinpointed answers to certain topics that you want answered. 

But the problem with guiding the discussion is that you are therefore in the discussion, and by putting emphasis on certain questions, you are leading those jurors. And so had I not asked a certain question, would that have even come into their minds? We don’t know. 

And that’s the danger of doing that kind of focus group, but they are very inexpensive because there’s not a lot of prep time that goes into those. And they can be very helpful if you need to know: “Who do you want to hear from?” and “What documents you need to see?” and “Is this document persuasive or not?” or, you know, show something and what do you get out of it? Test exhibits through them. I think they’re very helpful, but you have to use them properly. 

And then as you go along, you really want to hear what jurors have to say in a deliberation without you being involved in it. Give them the facts, let them deal with it, see where they come out. Where are they confused and how are they convincing each other? And that’s where you sort of find what arguments are most persuasive to them and where they’re the most stuck. 

So as you get closer to trial, that’s what I prefer to run, is more of a what I would call a mock trial or at least a focus group with deliberations. 

Darl: If you have a case that, you know, maybe it’s a moderate six-figure case, you really can’t go all out and go bonkers on a bunch of focus groups, but you just had to pick one type of of focus group that you’re going to do… What would you recommend that the lawyer do?

Jessica: I would probably say you want a days worth of—I always run two groups. I think if you run one group, undoubtedly, there’s one really dominant juror in there. Sometimes they’re way far off and you don’t know how the group would have turned out without them. So minimum of two groups. 

And I would run about four hours per group. You know, give them a couple of hours of presentation, give them a couple of hours to deliberate. And, you know, with a smaller budget on a lower value case, that’s what I would find as a good middle ground. So you get some deliberative answers from them. You’re not taking a whole half a day to give them information or sometimes a full day to present a whole trial. You know, you’re giving them enough that they can get a feel for it and you can get some feedback. 

Darl: And if, you know, when we talked about narrative focus group and—as I understand, I’m certainly no expert on focus group, I do not run them, I have other people do them for me—as I understand it, a narrative focus group is just where you have sort of a neutral recitation of the facts that recites the facts and then the respective positions on them. Is that an accurate…? 

Jessica: Yeah, to me a narrative focus group is more of what you would think of for a product focus group. So, if you have people in a room and: “What are your backgrounds and opinions about this issue?” 

And then present a little bit of information or show a video. “What is your feedback? What did you see? What do you think of faults just having seen the video?” Then, you know, little by little, give them more information and ask some more questions. 

Darl: If you have somebody reading, let’s say reciting the positions—you know, “These are the plaintiffs’ arguments, these are the defendants’ arguments”—is it okay in a focus group to have the same lawyer doing that? Or do you recommend that somebody be the plaintiff’s lawyer, somebody being the defense lawyer, when they’re giving that recitation? 

Jessica: Yeah, I actually prefer it to be one person. There are benefits and drawbacks to both. I think the problem with having two different personalities in the room is that now you’ve introduced an extra variable. 

So, if we’re talking from a scientific standpoint, you now can’t can’t isolate a variable, which is feedback on the case and your verdicts. You can’t pull that apart from attorney personalities and who the jurors liked best. So now we’ve got too many things in there to sparse it apart. 

The drawback to that is that sometimes you do need to have an attorney get feedback on how they present. Now, ideally, that’s a separate focus group from when you’re testing the facts. But I think, you know, it makes for a more dynamic presentation for the jurors, which is nice, but not necessary. And it also allows you to sort of—if you’ve got an attorney that you feel like may not be very clear, you know, to the jurors, if we’re presenting it in a very clear fashion, and the reality is that the trial is not going to come out real clear—then it may be beneficial to have that attorney present it so that they get the feedback and you can see what is actually coming through. 

So there are instances where I think it’s useful to do that, but you are introducing another variable and I think you have to be conscious of that.

Darl: What’s the best method of finding focus group members?

Jessica: So when I first started this, I used to do my own recruiting for focus groups and I quickly gave that up because it took so long to find quality recruits. You know, we put things in newspapers, we would send out random mailers, we’d wait for the responses. It was, you know, a six week process to get these jurors. 

Darl: Wow.

Jessica: I do not do that anymore. I hire a recruiter. They will pull from, you know, voter records and driving records and various different places where they post ads or databases. And so they’ll get a mix.

I certainly don’t like to recruit off of Craigslist or to hire unemployment agencies to give you jurors, because those are not your jurors. And, you know, recruiters can be a little bit more expensive, but, you know, you’re treating your time for that expense.

So, you can do it on your own and, you know, I’ve got a free guide on how to do them—focus groups—it tells you in there how you can do that. And you can start building a database so that if you, you know, get it going, it can be useful. But it is, it is time-consuming.

Darl: You mentioned the free guide. Where can people find that free guide on focus groups?

Jessica: They can either email me for it—my address is jessica@trialdynamics.net—or you can go onto my website and there is a link there. I think it’s under About, and it will say “free guide” or “free book” and you can get it that way. 

Darl: Awesome. And we will have links to all of this in the show notes, as well, for anybody who wants to get it. I am definitely planning to download it and review it. 

Do you ever, as a service, provide training? Like can lawyers, can a law firm pay you to train their people on how to run focus groups?

Jessica: Absolutely, I’m happy to do that. And some people will hire me for parts of it. They might say, “Let me have you coordinate the recruit and help me to figure out the statements,” so we craft statements together, but then they’ll go in and present it and then they might send me the video back to edit and to review to give them feedback on it. So there’s pieces of it that you can sort of pick out and have help with as well. 

Darl: What are some, you know, garbage in garbage out—I think—is the name of your book Junk In, Junk Out?

Jessica: Yeah. 

Darl: And it’s true. I mean, we talked earlier, you know, I think a bad focus group is worse than no focus group. What are some of the biggest mistakes you see lawyers make to really torpedo their focus group and make it completely worthless?

Jessica: Yeah, I think usually it starts up at the front. So, you know, the recruit. Most people are doing Craigslist or they’re doing unemployment agencies. And, unless you have a jury full of people who are students, retired, or unemployed, that’s not going to do you a lot of good. 

And a lot of people on Craigslist are repeat focus group participants. So they know the drill and they for sure know that this is a real case, but they know it’s an exercise. And that’s not what you want. 

And then it’s all the little things like when you’re recruiting and you’re talking to jurors, is your email address coming from the company? Is your phone number linked to the company? Can they look up your name and find out where you work? Are you handing out pens and paper that have the company logo on it? Are you sending them to your office, into a suite, so they already know that that’s from this law firm? And there are some tricky ways to work around that if you have to use your office space, but you really wanna be conspicuous. 

Darl: Right, you wanna be neutral. You don’t want them to know that you represent the plaintiff in the case because the fear is they’re gonna say things that you want to hear.

Jessica: Correct, yeah. And for sure they’re Googling it as they’re walking in. They’ll figure it out.

Darl: Right. 

Jessica: And then I think, the presentations, it’s hard to be neutral when you’re the advocate because your real role is not to be neutral, and so trying to bolster the other side, even more than yours, I think can be hard. 

Sometimes it’s helpful to have somebody—either somebody else in the firm or a defense lawyer friend of yours—to help you with those statements, with the presentation of it. I think that can be really helpful sometimes, because you do need to sort of step outside the box and see things that you wouldn’t necessarily always see. 

Darl: Sure.

Jessica: Even tone of voice, you know. I’ve watched people do it and send me video clips where they were trying their hardest to be neutral and I said, “Well, you were so much more animated when you were talking for the plaintiff and then you sort of died when it turns to the defense.” 

Darl: I did that recently. I was doing a focus group and I was reciting the plaintiff’s position. I was just really passionate about it. And when I recited the defendant’s, it was like monotone voice, like nothing. I was not passionate about it. There was no inflection in my voice. And it, you know, I kind of caught myself halfway into it and got a little more animated, but it is hard. 

And yeah, I think that’s a great piece of advice. I think that’s something that I probably need to keep in mind is to have somebody else in the office who’s completely detached from the case or somebody outside the firm do it.

Any difference between Zoom and in-person focus groups that you’ve noticed? Like any pros and cons to either?

Jessica: Yeah, I think there are differences. I haven’t noticed a difference in the sense that I feel like the feedback that we’re getting is unreliable. I think that there are differences in that their attention spans are shorter online. There’s a, there’s a in-person focus group feeling that you’re missing when you’re online. You know, being in a room with people just feels different. It’s just different. But but I don’t think that’s affecting the results. 

I think you can’t tell when people are searching Facebook versus listening to what you’re saying. The discussions are a little bit harder to navigate because, while we don’t want jurors talking over each other in an actual deliberation room together because you can’t hear anybody, there’s still this awkwardness on Zoom where you can’t talk over each other because everything explodes. And so I think that sort of influences how that plays out. 

And so if you’re going to do a longer presentation, you have to be conscious of: cut as much as possible, maybe put in some questions to make sure that they’re still with you and are listening to the evidence, give more breaks. You have to just think of those things. But if you navigate it properly, I think you still get great results and the costs are so much lower that I can’t say that you have to do it in person.

Darl: Right. What about, if you’re doing it remotely, is there any problem with them being from a completely different geographic area?

Jessica: Well, there’s a problem just in the sense that you need to focus your case in the venue that it’s gonna be tried, because you want those jurors. So you have that problem. 

Darl: Right. You don’t want California jurors or Los Angeles jurors on a rural— If it’s a rural North Georgia case, you know, is it okay to get jurors from Tennessee, for example, or The South? 

Jessica: Maybe. It depends on the case. I mean, if it’s a med mal case against the local hospital, probably not. 

But, you know, there are a lot of cases in these smaller rural communities where it’s so hard to recruit anyway that the recruiters really can’t just use that county. And we have to find comparable counties. And in those cases, it really does open it up for the recruiter, because we can give 10 different counties and we don’t care where the person is located because they’re all just logging in.

Darl: And these recruiters we’re talking about, they specialize in recruiting people for focus groups or they do other things?

Jessica: Yes.

Darl: Well, how would one go about finding these agencies? Do you have a free guide?

Jessica: I don’t think they’re in my free guide, but you can contact me. When I’m recruiting, I don’t mark up the recruiter’s cost so I’m happy to give you the recruiter that I use and you can certainly contact them. 

I think, you know, sometimes if you’re in a certain location, there might be recruiters near you who have a more local database, which might be more helpful, but I can certainly give you the one that I use the most. And you’re welcome to contact them. 

Darl: Awesome. I could talk all day about every single topic we have to cover. But I want to move on to the next one, because this one is also incredibly interesting to me. 

And it used to not be. I used to not be really crazy about opening statements and I don’t know what it was. But you know, I guess it’s, you know—cross examination—it’s adversarial. It’s like, that’s so much more fun than direct examination; closing argument is so much more exciting than opening statements for a variety of reasons. 

But your case is really won in opening, in voir dire, from my point of view. Is that kind of your school of thought too, that you’ve got to come out of the gate and win them on opening?

Jessica: Yes.

Darl: I know where you’re probably gonna go with this, since you’re big on case framing: It sounds like the opening statement, really probably voir dire where you frame your case? Is that accurate? 

Jessica: Yes. I think that yes, but it’s a little bit trickier in voir dire because of course you want to find the jurors you need to get off. And so you have to frame it around issues, and you can’t push too hard or you’re losing your chance to find jurors who might not be great for you. So it is, yes, but opening is really where you get to lay out your case.

Darl: Right. 

I’m a big David Ball fan so I probably do things similar to the way that you recommend them being done. When you’re talking to lawyers about opening statements and helping them craft them, because that’s part of what you do—

Jessica: Yeah.

Darl: What are the common mistakes that you see where you’re like, “Why are you doing this? Like, what is going on here?” 

Jessica: Yeah, I think it all sort of falls back on the framing. I think that simplicity is missing from a lot of opening statements. 

I think people are afraid to admit some fault. And, you know, it comes down to, “Well, what percent fault do I have to admit?” Well, I don’t think you have to do that in opening, but I do think that if there is likely to be some percent put on your client that it’s helpful to say that in opening, that, you know, “We’re going to accept some portion of responsibility for what we did because we agree that there were some things that weren’t ideal.” 

And it puts jurors at ease so that when the whole trial and defense is harping on, “Your client did this, your client did that,” the jurors can sit there and say, “Well we know, like, you already said that there was some fault there so now, you know, what else?” 

And so, I think, you know, thinking through the order of it and thinking through what do you want up front which, you know, from a David Ball perspective would be the rules, right? And I think 95% of the time that’s correct. 

I think there are times when, if your liability isn’t quite as strong, and you think that there are going to be some issues about your client that you need to head off up front—some biases they might have,the clients overweight and we’re talking about health issues, or things of that nature—that sometimes you might want to hit those up front. 

Because, if you feel like jurors are getting stuck in that, then you can remove that bias by giving some explanation for it up front, about who this client is, they didn’t get overweight till after this wreck happened, or things of that nature, that they’re still exercising every day. It kind of puts it out of jurors mind so that they can then focus on what else you have to say. And so I think sometimes you have to think through those things. But for the most part, I would follow the traditional—

Darl: Yeah. I follow the kind of traditional violation outline template that he has and—I think it’s just three—and this is the one question that I’ve always had is: 

When you have a medical malpractice case, is there a risk—sometimes if it’s a medical issue and the jury is not going to know what they’re talking about—that if you’re jumping into the rule you’re going to lose them? And maybe you educate them first in opening and then bring out the rule?

Jessica: Yeah, I think you might have to. Sometimes I think you have to. I like to avoid that if I can but I agree sometimes in a medical case, you know, you’re talking jargon and things that they don’t even to have a context for yet. And so, you know, as simple as possible though. You don’t need to do 20 minutes on educating them. Make it short and simple and then get back into the rules and things of that nature. 

I also think where people fall apart sort of is the story, I think in two ways. One is that the story is too long. People want to say way too many things in their opening story. And not that you don’t get to that later in opening but, upfront, jurors can only handle so much. You know, Rex Parris talks about cognitive load, and you’re just way overburdening their cognitive load and trying to track all these things.

And so focus on the things that you’ve picked out, those few rules that they violated, and highlight that in the story, and then you can fill in the gaps later. But that’s one issue that I see with how people are portraying it. 

And the other is they don’t go far enough back in the timelines. So again, when we’re talking about system errors, their stories usually start when the incidents started happening. And if we have a systemic failure, we’re starting 40 years before and telling that story. And I think that sort of gets lost sometimes when you’re trying the case. 

Darl: So talking about opening statements, do you recommend that the plaintiff’s lawyer throw out a number that they’re going to ask for in damages during opening?

Jessica: I recommend that they throw out an anchor. That’s a little different than throwing out a number. I think the number can change throughout trial, and so I don’t think you have to be tied to a number, but I do think that jurors need, early on, a range of what we’re talking about. 

If we’re talking tens of millions, if we’re talking hundreds of millions, if we’re talking between 10 and 30 million… I think they need to know that up front. Because the sticker shock will wear off throughout trial, and if you bombard them with that at the end… 

And I think some attorneys say, “Well, we’re gonna say it’s a really big number.” Well, yeah, but really big to some people is like $100,000.

Darl: Right, and then you ask for a million.

Jessica: Right. So they need to know that, and preferably in jury selection. Because sometimes there are jurors who will say, “Wow, I mean, no way.” There’s just that “never in my life, it doesn’t matter what happens, there is no way.” 

And so I think you can get some of that discussion out early on, and then you can move into the opening with it. 

Darl: In terms of opening statements and throwing out this number, are there any other ways that you recommend trying to anchor the jury during opening, besides saying what you’re going to ask for?

Jessica: Yeah, well, you can anchor with anything. So any number anchors. David told me this years ago when I was training with him but you don’t have to use just money to anchor. There’s studies all over the place that, if you throw out a large number here, then it impacts a different number in a whole different situation over there. 

So if the company is worth billions of dollars, that’s an anchor. If they have how many tons of trucks, that’s an anchor. If they violated X number of rules that they have. How many clients or how many trucks do they have on the road? All those are anchors. 

And so you always have to be careful too: Are you anchoring yourself low? You know.

Darl: Unintentionally, right? 

Jessica: Mm-hmm. And sometimes you can change the number. Well it’s 60 trucks, but let’s talk about how many miles those trucks drive on the road instead of the number of trucks. And so I think you have to think through ways that you can make the numbers bigger. But throughout trial, the more bigger numbers you can throw out, that helps to anchor. 

Darl: With closing arguments, I think, again, it’s where a lot of lawyers view this as like, you know, their time to shine. 

And I think I was reading a book about Clarence Darrow one time and it talked about like a multi-day closing argument he gave one time. And that used to be like the big thing. Like you would go to the courthouse and watch these lawyers give their summation and that’s what they did. 

And you know, maybe it was different then. I’ve always been taught that you’ve either won or lost your case before closing. 

Jessica: Yeah.

Darl: And closing is just arming your favorable jurors with what they can use for your bad jurors. Is that kind of an accurate way of viewing things?

Jessica: Yes, I very much agree with that. I think, if you haven’t convinced them over days or weeks of trial, you’re not convincing them at the point that the judge says, “This is argument,” and you get to be the attorney up there that they don’t trust arguing for your client. 

I think the best you can do is to pull things from trial that will help your good jurors to have the facts ready and the arguments ready to fight against the ones that are against you in deliberations. 

Darl: Do you have any kind of template or structure for how you recommend lawyers formulating their closing? I mean, again, is it going back to the rule violations, reminding them about that? What’s your overall approach to that?

Jessica: You know, closing doesn’t have to be as rigid. You know, even David says in his book, like there’s no specific structure and flow you have to follow for closing. I think by that point, you know, again, their minds are made up. It’s not going to matter as much what order you do things in. 

I just think it’s important not to rehash the evidence and marshal the evidence again. Jurors get bored, they think you’re wasting their time, which you are, and they don’t need it. I mean, they’ve heard it. 

So pull the few nuggets that are going to be helpful, teach them how to go through the verdict form, walk through it with them, explain the jury instructions. You know, “Negligence means this, it says X, but it really means Y and here are some examples of that.” That’s what they really need, is your guidance on how to work through the process. 

Darl: When the plaintiff’s lawyer is asking for a number in closing, because that’s the time to do it, right? And—well, I guess, let me back up—Some people don’t ask for numbers. And I imagine there’s some jurisdictions where I don’t think you can. 

Jessica: Yeah. 

Darl: But, you know, in the jurisdictions where you can, I assume you strongly recommend the lawyers do ask for a number, or at least a range?

Jessica: Yeah. 

Darl: Is there are preference between asking for the exact amount you want versus the range?

Jessica: No, I think it depends on the case. I think if there’s a reason you’re asking for a specific amount, sometimes you anchor it with the specials and then it doesn’t sound like a round number and it seems less random and you can certainly take that route. 

You can do an amount for the day of the incident—I know a lot of people do that—and then an amount for three months after and then the next 10 years and then maybe as they get older, you know, they tierate and it’s a different amount. 

I think there’s a lot of different ways to do it. I think jurors don’t like being told what to do. So if you are giving a specific number, I think just be careful of how you frame it and how you voice that because they don’t want to be told, “This is the number you must agree to.” 

I think you can say, This is what we think the case is worth and here’s why, but we trust you and we picked you for a reason and we trust that you will do what’s right and if this is too high,

 you’ll knock it down and if it’s too low, you know, you’ll push it up.” 

Darl: You talked a little bit about strategies on how to ask for the number and everybody I talk to is always, you know, anytime there’s a trial, they’re asking for that magic bullet, you know, “How did you ask for this?” as if there’s like a magic form. 

And I’ve heard like 25 different—or probably more—ways to ask for it. Have you seen any where you’ve been like, particularly impressed by that one? Where you’re like, “Wow, that was really effective and I’m gonna recommend that the lawyer do that one?” 

Jessica: You know, these days there’s so many opinions on all parts of trial, right? Which is great. I mean, there used to be nothing. 

Darl: And a lot of them are conflicting. 

Jessica: Yes, and there are a lot that are conflicting. And so usually when I start working with an attorney, one of my first questions now is “Who do you follow? Do you follow Keith Mitnick or do you follow David Ball or do you follow Nick Raleigh? What’s your style?”

Because everybody sort of picks a person that they feel like is their style. And I’m not going to knock you off of your style just because I, you know, my background is with David. I’ve been in this for so many years on my own, too, that I can flow with whatever style you have. Other than, I think there’s a few that just don’t work so great, you know. If you’re going to be combative, I don’t really, you know, love working with that. 

But I think there are so many ways to do things that you have to find what works for you. I think what’s most important is finding a number that you can own because if you go into the courtroom and you are trying to stutter around that number and jurors can see that you’re not really comfortable with it and you feel it’s a little high, that’s what’s going to hurt you way more than what analogies you use for the number. 

I mean, I think that’s really what you have to come to terms with is, you know, how do you feel about money and why is this the number to you? And then, you know, I like the day-of and things, but it fits certain cases and not others. You know, if there’s a really bad, painful wreck on that first day and they are screaming in pain, and that’s the day that they, I don’t know, they got paralyzed, I mean, there’s a certain number that that day is worth more than the whole rest of their lives. 

And so, you know, people think, “Well, over time, you get used to it, and then your life acclimates.” Well, okay, maybe that’s sort of true. So for this amount of time, it’s worth a little less. But then it catches up to you, right, as you get older. And so this acclimation period is worth a certain amount, and then this large period in between, maybe a lesser amount. And then here it increases again. You give them rationales and reasons. But it comes down to what’s comfortable for you. 

Darl: Sure. Yeah. I think the one method I’ve liked to use is, we have a jury charge in Georgia and it’s on the factors a jury should consider when evaluating pain and suffering. And there’s nine categories. And like one of them is shock of impact, there’s fear of extent of injury, you know, actual pain and suffering, it goes on. 

But that’s where like, the shock of impact, especially when there’s smaller damages cases, but where maybe it was a really bad wreck, really horrifying, you thought the person was dead, you can put like a decent number on that. But again, it also depends. Like some of them may sound a little duplicative and the jury may not really understand. And I’ve had a couple of trials where the jury is like, “Can we get a description or a definition of what this particular category means?” 

It’s like, “Well, I really didn’t intend for you to get that far down in the weeds on this.”

But, I think the one sort of tried and true method is the sort of per diem argument, like you’re talking about. Like for a particular period of time, this is what this is worth. I think the one thing I’ve always liked about that too, and talking about the future, is it can be really hard to get jurors’ heads wrapped around everything that’s going to happen that hasn’t yet. 

You know, the stuff in the past is fine, but if you’ve got a client who is 40 years old and they’re going to be suffering when they’re 80, pointing out how many days that is, and they can’t come back later and ask for more money, can give you a big number, but then even just adding up those hours, minutes, seconds can give you a big anchor. 

Jesscia: Right, right. I think you use that more for the anchor. You know, you can do a per diem—I guess there’s different ways to do per diems too, right?—So that you could do a per diem as an hourly wage. And I think in some counties that’s probably where you need to go. You know, if it’s a more rural county and people all make minimum wage to have it show like, “Isn’t this worth at least working minimum wage?” And I think that that can be useful in those areas. 

In other counties—if you’re in Los Angeles and they’re throwing out big numbers—I think you can go more holistic on it. So you have to sort of know your jurors in your area and your case and pick one that fits the case, but also fits you.

Darl: Given your kind of philosophy on anchors, it sounds like if there’s a low economics number and you’re gonna be asking for a large non-economic number, you would say just waive the economic damages.

Jessica: Yeah. I know that’s hard to do, you know, you’ve got to get the client’s permission to do it. But it is a low anchor. 

I think there are some ways to work around it. You can say, “This is the tip of the iceberg,” and have a drawing, “and here’s what’s underneath it.” But no matter how you do it, you’ve thrown out a low number and it just is what it is. 

Darl: I think my general philosophy on that is, it’s really like, what is the ratio? Is it in somewhat proportion to what you’re going to be asking for? 

I’ve also had cases where maybe they sent me an offer of settlement and, in Georgia, if they send us one we have to get at least 75% of what they sent us in order to avoid having to pay their fees. 

If we send them one, we get 125% of the amount we send it for, they have to pay our attorney’s fees. Sometimes those economic damages can make the difference between that. That’s mainly on your lower value, your five-figure, your low six-figure cases, where that can really swing it one way or the other. But on the higher ones, again, I’ve always been kind of conflicted on when to waive that or not. 

I do think the one piece of advice that I would give lawyers is: when you’re working up your case pre-trial, you can waive the specials at trial, but the insurance company is definitely factoring in your economic damages. 

Jessica: Right. 

Darl: So don’t just like waive it before trial. If you’re wanting to get your case settled, don’t tell them, “Oh, I’m not claiming economic damages.” That’s a great strategy, wave it at trial, but I’ve seen some lawyers who are like, “Yeah, it’s only $20,000 in lost wages or whatever and the damage is this.” Like, well, that may move the needle on getting the case out.

Jessica: Yeah. And I think when you do leave that stuff in, you need to preempt some of that in jury selection and talk to jurors about, “Is the value of life, of having no pain, of living a certain quality of life, is that tied to what somebody earns and what their lifetime income would be? Is it tied to the value of their house and what their lifestyle standards are? Or is this a completely different thing? Are these untied to each other such that somebody who makes little could end up with a large verdict for things that are impacting their life? Or are we saying that if you make only a little bit of money that your pain is therefore worth only a little bit of money and somebody who makes more, you know, their pain would be worth more?”

When you sort of get jurors to think through it, you can get them to detach it a little bit, but you have to preempt that. Because I think a lot of times in focus groups we see, “Well, I don’t want to put them in a better position than they were already in in life.” And that doesn’t make a lot of sense, right? Because then, so somebody’s pain is worth a lot less when they have a lower quality of living. And they’re just not thinking that. They’re not understanding what they’re saying.

Darl: I think the biggest takeaways I’ve had from our conversation are: frame your case, try and push back the negligence as far as possible in time, find the systemic issues, really focus on narrowing down the issues and presenting the case efficiently. 

When we’re talking about questioning witnesses, though, in whether it’s cross or direct, any simple tips? Because it’s so hard where like the lawyer wants to ask these questions and get it all out. And they’re like, “Well, I just can’t have the witness on the stand for 10 minutes, they got to be on there longer.” 

I mean, is there any way to, or any simple advice you have for that? Or is it you just got to cut out all the noise? 

Jessica: Yeah, I think you just have to think about why you’re asking all those questions. I mean, what are you getting out of it? Because if it’s not something that’s really important, then it’s not important to the jurors, and it’s just making it seem like more to wade through to find your main points. And you don’t want to make it that hard for them. 

It should be easy for them to see your main points. And the longer you go, the more they have to sort through. So I’m not saying cut everything, but focus on what’s really important and let go of some of the rest.

Darl: I really appreciate your time. This has been very informative for all of our listeners. Make sure you go to her website and download her free guide, Junk In, Junk Out, so that you can make sure you’re doing your focus groups right, and that you’re not doing things that are actually going to harm your case. 

If you do want to consult with Jessica on a case and retain her, you can certainly reach out to her. She’s very accessible. She was easy for me to reach to set her up as a podcast guest. 

Jessica: I answer my own phones. 

Darl: She answers her own phones, that’s great. 

Jessica: It’s my cell phone on the website. 

Darl: Oh, perfect. And her website, again, it’ll be in the show notes, but it’s trialdynamics.net. 

Jessica, this has been very informative. Every time I do one of these, I become a better lawyer. So thank you for that.

Jessica: Yeah, sure. You’re welcome. Thank you.

Darl: I look forward to retaining you on a case. I’ve got several that I’m already kind of tossing around in my head that I wonder what Jessica thinks about this. So this was great. Thank you for joining us.

Jessica: You’re welcome. Thank you.

🔙 Return to main podcast page.