The following is a transcript of Episode 7 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: On this month’s episode of the Championing Justice podcast, we’re joined by my good friend Alex Hoffspiegel. Alex is a personal injury attorney in Atlanta who also runs focus groups for other lawyers. And that is what we are going to be discussing today. 

Perhaps more importantly, Alex is also a top fan of The Champion Firm Facebook page, for which he received a trophy. We’ll have to put up a picture of Alex receiving that trophy, but thanks for joining us, Alex.

Alex: Thanks for having me. 

Darl: So I actually met Alex through his focus group practice. We had a trampoline park case where a lady was injured on a mechanical bull and I knew that Alex had had an amusement park case close in time to mine. His case had gone to trial and I had heard they ran focus groups and there were a lot of issues in my case that I really wanted to have analyzed as we were getting it ready for trial. 

And so I contacted Alex and we’ve become good friends since. I’ve used him to run a number of other focus groups on my cases, as well. So Alex, before we dive into the focus group side of your practice, tell us a little bit about your personal injury practice and the types of cases you handle. 

Alex: Sure. So I practice with my father and my wife. She used to be a defense lawyer, but came over a few years ago. For a few years after my go-kart case, I was sort of specializing in these amusement-ride cases, which thankfully I’m not anymore. 

We’ve got a small practice. We carry sort of a, I would say, medium case load, like to litigate our cases a lot. And all types of injuries, you know, obviously a lot of auto wrecks, premises, and a little bit of med mal, too. 

Darl: No more amusement parks? 

Alex: You know, I just settled a go-kart case. That may be the last one I have, but it’s a tough way to make a living when every case is gross negligence. 

Darl: Yes. Assuming the waiver is enforceable, right? 

Alex: Yeah. 

Darl: So how did you get into the focus group area and start doing those for other lawyers?

Alex: So in college, I worked for my mom during the summer, which she was a commercial litigator. And then after my first year of 1L, started working for my dad. 

One of the first things he did was give me a David Ball book on focus groups and said, “Figure it out, put a few together.” 

And those first few I did, I thankfully do not have the videos for them any longer and I put so much time into putting them together. But from there, I did some for his friends and sort of by word of mouth, it’s taken off.

Darl: How often are you doing focus groups now? 

Alex: This year, I’m going to do, if I don’t get any more booked in the next three weeks, I’m going to do 77, I think.

Darl: Wow.

Alex: So, you know, there are slow times of the year and then there are times of the year where I’m doing three a week.

Darl: Has this been a continual increase since you started doing them?

Alex: I would say so. The last two years or so, it’s been about the same every year. I don’t market my services. It’s all word of mouth. So I think I’m sort of at critical mass of what I can handle. 

Darl: Do you only run focus groups for Georgia lawyers?

Alex: No, I’ll run them for anywhere. But I think I’m pretty much known in Georgia for these. 

Darl: Sure. And I know that when COVID started, everything kind of went remote. And I think the focus group you and I did on our trampoline park case, that involved an in-person focus group. I think we did several in-person. 

Are you still doing them in-person or are you running them on Zoom?

Alex: No, I only do them on Zoom. I’ve sort of used up anyone that’s accessible to my office.

Darl: You were getting like the same people showing up all the time?

Alex: Over and over again. And so now this allows me to recruit people from sort of similar geographic areas. For example, if I have a Fulton County case, I can get people from Metro Houston or Tampa or Charlotte. So I can get new people. We are in a city of transplants after all. 

Darl: How do you find your focus group participants?

Alex: So up until fairly recently, I was using Craigslist, but a past participant of mine started a recruiting firm basically, and I’ve been using her and she’s been doing great. 

And so I’m not sure where she gets everyone from. It’s not from mailers, as some people use, but interestingly, she had someone on recently that had done the same case I was focus-grouping before, for a group recruited by another professional focus grouper.

Darl: Interesting. And you and I have talked about using Craigslist before, and I know some of the people I’ve had on my podcast have said that’s not a great way to find focus group members. But I think you’ve tended to disagree with that. 

Alex: I would push back on that. You have to know who you’re looking for when you do Craigslist. After you’ve done enough of them, you can sort of glean out from the responses whether they’re going to be a good juror. 

Sometimes there’s people not even from the States who will lie in their responses, but the same kind of person who’s going to respond to a mailer is the same kind of person who is looking on Craigslist for focus group gigs. 

Darl: And for anybody listening, don’t hire your paralegals off Craigslist. For those who know about my story and my experience with that, it might be a good place to find focus group participants, maybe not the best place to find employees. 

How often are you doing your own focus groups for your own cases? Because you know, you’ve got this amazing in-house resource at your firm, this ability to do this. And you know it’s something we’ll talk in a little bit about—how lawyers might be able to do their own as well—but how often do you have a case of yours and say, “You know what? I want to do a focus group on this one.” 

Because you don’t do all of them, right? Do you run all your cases through a focus group?

Alex: No, I don’t. I don’t. I have to admit that lately I’ve been sort of the plumber who lives in the house with leaky pipes. And I’m actually running three on the same case over the next few weeks that we think is going to trial. 

But I just, honestly, I do not do as good of a job focus grouping my own cases as other people’s cases. It is hard for me to see both sides of a case. It’s very easy for me to tear apart another plaintiff’s lawyer’s case. It’s more difficult for me to tear apart my own. 

Darl: So tell me about your process. How do people get in touch with you? How do you get this whole thing set up and how are you running your focus group?

Alex: So people start with a call or an email and then we set up a Zoom meeting, talk about our goals. Usually, I’m doing one of two things: I’m either doing a narrative-style focus group or a, sort of a very abbreviated, mini-trial. 

So if it’s the narrative-style focus group, I work with the lawyer on crafting a 20- to 30-minute presentation of the case. And we’re going to talk about neutral presentation of the facts, putting any issues that are sort of in dispute, giving the defense the benefit of the doubt most of the time, then giving plaintiff’s position and defendant’s position, giving some evidence, maybe some video depos in there. 

There are a lot of different nuances. For example, if I want to focus in that focus group on certain pieces of evidence, I put them up front. So all sorts of different things we do there. A clopening style focus group is where the lawyers each give, you know, a combination opening and closing, they each get max 20 minutes, and they can each speak.

Darl: When do you do the narrative versus the—did you call it a mock trial or mini-trial? 

Alex: mini-trial. Yeah. I like to say that your mini-trial should not be your first focus group and that you really only want to do that once the PTO has been entered and you know trial is going to come soon.

Narrative focus groups, I say do them early and often. I have done them before accepting a case. I’ve done them during discovery so I know if there’s additional discovery I need to run. I’ve done them after discovery while I’m framing the issues, primacy of evidence, that sort of thing. 

Darl: When you’re doing these narrative focus groups, how are you ensuring that the lawyer is giving you a neutral presentation? Because you mentioned, right? I mean, when you’re doing your own, it’s hard to see both sides. 

And so as lawyers, we naturally get that commitment bias where we just kind of put our blinders on and see that side of the case. Is there anything you do to ensure that the lawyers are being neutral?

Alex: Sure, so I ask for any filings and any dispositive motions and orders, deposition, transcript excerpts, and I look at it with a very critical eye. And I think, “If I were defending this case, how would I defend it and try to push back?” 

And usually if I’m pushing back on an issue and I’m getting a lot of pushback from the plaintiff’s lawyer, I usually know I’ve hit on something that we need to address. 

Darl: And that’s a key point. The purpose of the focus groups isn’t to make the plaintiff’s lawyer feel good about their case. It’s not to make them feel like they’re going to win or to tell them that they’re going to win. It’s to identify the potential problems with the case, right? 

Alex: Right. If you feel good after a focus group, I hope it’s not the first focus group you’ve done on a case. 

I’ve had a lawyer, when I was doing them in person, storm out of the office and I thought, “Oh good, I’m doing a good job for you today.”

Darl: Right, if you leave mad, it was a good focus group. And I think that’s critical because,

 you know, as plaintiff’s lawyers, when we’re working on cases—and they may be dragging on years and years—if you get a bad review of your case, so to speak, and people aren’t buying what you are believing in, it can hurt. And it can make you feel self-conscious about it. And why did you take this case?

But the goal of the focus group isn’t to make you feel good. It’s to give you information you need so that you can better prepare the case. 

One of the things that’s been interesting to me in doing focus groups with you is I kind of hear different issues that people raise that I would have never thought of as a lawyer. 

And even when it isn’t like a common thing—like no two cases are the same so this case, you know, a med mal case, they may raise some issue I never thought of, premises case they may raise some issue—it’s allowed me, I think, to be a sharper lawyer because now I start thinking of things. I can kind of get in their mindset. 

Tell us a little bit about how running focus groups has helped you as a lawyer, not just on that specific case, but the types of information that you’ve learned from it. 

Alex: So first of all, it’s getting to the point and addressing what’s important. And you know there’s a movement amongst some really good plaintiff’s lawyers to speed up your trial. Not speaking in legalese, just talking like a normal person, which we forget to do within probably three years of graduating from law school.

And a lot of the time things that are not legally important are still important to the jury. If I can give an example: where the money’s going to go. Juries want to know what someone’s going to use their money for.

If you have an irresponsible client or some issues with that, you need to consider in some cases a conservator or something like that. I’ve learned that’s really important. 

Darl: What are some common things that you’ve heard jurors raise in cases? I mean, you just gave one example like, “Where’s the money going?” 

What are some common issues that you’ve kind of seen repeat themselves over cases that you never thought of as a lawyer, but you’re like, “Hey, this is kind of a common theme”?

Alex: Sure, well, this is not original to me. This is something that Don Keenan has talked about for years, but negative attribution. I think Rick Friedman talks about that kind of thing as well. 

So, blaming your client. People don’t want to think they could be sitting at a council table with you or me in a terrible position in their lives. So they’ll think things like, “I would have gotten a second opinion. I wouldn’t have been driving late at night. I wouldn’t have taken that way.”

So you need to address why your client made a reasonable decision given all the circumstances. 

Darl: It’s a defense mechanism. It’s people don’t want to think that they would get hurt.

Alex: Absolutely.

Darl: There’s this world where bad things happen to people and you don’t want to think that it’s outside your control. So you attribute to the victim some quality or trade or action that explains why this bad thing happened.

Alex: Absolutely. 

Darl: And I didn’t realize the power of that until I started reading it in books and hearing it in focus groups, where you’re like, “Wow, I would have never thought that I need to explain why my client drove this path or why they were going this way or why they were doing this.” 

And it doesn’t take a lot to do it, but it’s to me—one of the things I tell the lawyers is you need to normalize the conduct, is to make it normal. This is the same thing that they’ve done that everybody else does as well. 

One of the things that I’ve heard too in dealing with medical malpractice or nursing home cases with older people is, “How often did the family visit them?”

Alex: Oh yes, huge in nursing home cases.

Darl: So people don’t really think about that. When you’re screening a case as lawyers, we look at the hyper-technical, “Oh, are the elements of duty breach causation damages present?” But nobody thinks to ask, “Did the son or daughter actually go see their parent?” 

And people care about it because that also gets into “Where’s the money going? Is this going to do some good? Are these people trying to get rich off of something that happened to, you know, a family member that they didn’t care for, didn’t see?” 

What about in your slip and fall cases? Is there anything that you’ve learned from doing focus groups on those that would be helpful to lawyers?

 Alex: Another one that I think definitely applies in those cases is getting up and accepting some fault when you’re on the stand as the plaintiff. 

It is, if you wanna be brutally honest with the jury, sometimes it can be important to own that you’re partially responsible for this. And frankly, if you’re getting up on the stand and owning it and suggesting a number you think you should get, that might tend to help you later on.

Darl: Do you recommend that the plaintiff actually throw out a number and say, “Hey, you know, I think I was 10% at fault, 20% at fault, or whatever?

Alex: I think it’s a case-by-case basis obviously, but I do like to average the numbers that I ask the jury and maybe present that to my client and say, “Do you feel comfortable saying that or do you feel comfortable with something less?”

Darl: So when you say the numbers you’re averaging with your jury, so when you’re doing focus groups and you give them, do you always give them a sample verdict form? Whether it’s the narrative-style or the mini-trial?

Alex: Not necessarily a sample verdict form, because most of the time, I don’t have them deliberate without me present. 

I do give them immediately after the presentation a survey to fill out. And so I ask a number of questions and often it’s a percentage fault on the client. 

Darl: And that’s information you then share with the plaintiff’s lawyer so they can kind of make that determination?

Alex: Oh, yeah. I’m giving it to them immediately after it’s done and then we’re talking about those survey results with the jury in real time. 

Darl: Sure. What about—you mentioned putting or accepting some fault as the plaintiff—what about cases where there’s multiple defaults? 

And you’ve got one target defendant that’s really the culpable one, you know, and maybe they are also the ones with the deepest pocket and so that’s the one that you believe is at fault. You’re going to be marshaling all your evidence in support of that claim. 

Do you recommend that the plaintiff’s lawyer address that or just let the defendants fight it out and say who’s at fault and who bears what percentage of blame? 

Alex: Plaintiff’s lawyer definitely needs to figure that out. One thing I will tell you I have really learned is that we as plaintiff’s lawyers sometimes think a deposition has gone so great for us, and the jury says, “Eh.”

You know, we think we’ve generated so much heat on the case and when it’s so unlikable, you play that for a jury and they don’t see things the same way. 

Darl: Yeah, that’s something that’s been interesting to me too that I’ve seen in trials, not just from depositions, but things that I think a jury will get angry about, they don’t get angry about.

I’m like, “How could you not be pissed off at this?” And you know, there’s something that comes to mind years ago, I mean, this was probably 12 years ago, I was second-chairing a medical malpractice case that involved a dentist. And he just outright lied on the stand. 

I mean, he said something in his deposition about the condition of our client when she came for the dental procedure that was completely contrary to what he said at trial. And we impeached him on it and the jury could have cared less. I mean, they did not care.

And I see that happen a lot in other cases, where the defense attorney will say something that I think is like inflammatory, like accusing your client of lying or whatever, and jurors are like, “Eh, I don’t know.” 

How do you tap into those areas where you think a jury might get angry and actually identify what will upset them? Because it, to me, it seems incredibly unpredictable.

Alex: I think the best way you can do it is by video depoing these people that you think you may have some heat against and then put that lie up front. You know, “try the lie,” as, again, Don Keenan says. 

And see if that generates some heat for you because a lot of the time juries are just basing their impression on how they view someone, how they look, their demeanor, how they act. 

Darl: Yeah, that’s one of the things that I found, too, in voir dire and talking to perspective jurors is, when you ask them how they feel about defenses and frivolous defenses and things like that, they’re like, “Yeah, you have the right to say anything to defend yourself.” 

And I don’t think necessarily everybody feels that way, but I think that’s something to be aware of. When you’re doing your narrative focus group versus the mini-trial one, in the narrative one, are you putting up some of this video deposition testimony and showing maybe the defendant testifying? Or the expert for the plaintiff or defense? To show the jury what they have to say and how they’ll present?

Alex: Absolutely. Sometimes if the narrative is going to be longer, sometimes they’ll play it later on. Or if we’re just focusing on witness impressions that day for that focus group, that’s what I’ll play. But less is more. 

You really don’t need to show more than five or 10 minutes. 

Darl: And how do you pick what you want to show? I mean, are you going for—are you asking the plaintiff’s lawyer, “Show me the parts where you think they did the worst, or the parts that you think are going to anger the jury”? 

Or are you just doing that yourself and reviewing the transcript and identifying what you want played?

Alex: I don’t usually have time to read all of the transcript if it’s a lawyer who tends to take, you know, a couple hundred page long depositions. So I’ll ask them to give me a few things.

I don’t want to waste a lot of time with sort of useless intro stuff, but I think the jury gets the benefit of seeing an expert just talking more generally before you show stuff where you think you’ve gone for the jugular. 

Darl: Yeah, yeah. To see what they think right their demeanor and evasiveness and things like that.

Have you ever done a focus group where you just played deposition clips and said, “Tell me what you think about this person”?

Alex: Oh, yeah, I’ve done those, I’ve done them where I just showed them timelines or demonstratives. 

And the good thing about doing those is, since they’re shorter focus groups, I can usually help the lawyer do two or three in one three-hour session. You can split the cost up. 

Darl: You mentioned these three-hour sessions, is that how long a typical focus group is for you? 

Alex: It is. I’ve found that it is quickly diminishing returns. The first hour is worth more than the second hour. And by the end, you’re sort of circling the drain. 

The group is either folks who are in the minority have talked themselves into their position or not moving, and the majority has sort of come together and coalesced what they want to say. And they usually tend to, the more it goes on, the more they really, really bite down on their position.

Darl: One of the things that I think a lot of people don’t know is how, cost-effective focus groups can be. In certain cases, they can be very expensive depending on the type of focus group you’re doing. You can get quotes for $20,000 plus for one focus group.

Tell us a little bit about your cost and fee structure and how that’s different from other lawyers.

Alex: Sure. So I definitely am in a position that is much different than those high-end focus groups. My services are aimed at a different thing. You can use my focus groups for lower cost, lower value cases, and you can split it up among a few. 

So inflation has hit focus group compensation. Where a few years ago I was paying $60, now I’m paying $100 for each juror. 

I charge a little over $2,200, and that includes me recruiting the jurors, you know, soup to nuts, and then we just recruit 12 jurors and, you know, 10 to 12 will show, and we’ll pay them at the end and pass that cost on. 

Darl: So for $2,200 a lawyer gets a three-hour focus group?

Alex: Plus paying the jurors.

Darl: Plus playing plus paying the jurors. So how much all in is that?

Alex: You’re gonna be at $3,200 – $3,500. 

Darl: Okay, so for a little bit over $3,000 you get a three-hour focus group. And that is something that could be for the narrative focus group or the mini-trial one?

Alex: Yes.

Darl: But you recommend how many narrative focus groups before somebody does a mini-trial? 

Alex: It depends on the case. If it is a really complex case, you’re gonna wanna do several and you’re still spending a fraction of what you would with more high-priced service providers. 

On a more straightforward case, to the extent those exist, only one or two is necessary really. 

Darl: Yeah. What is a mini-trial focus group? And how is that different from the narrative? 

Alex: So that is where the lawyers—I have at least two lawyers, and sometimes I can play the role of one. I prefer not to since I’m the moderator, but you give both sides of the case. And I usually like the attorney who is going to be lead counsel for the plaintiff to play the defense lawyer in the first group. 

And you give a clopening, so you know, not too much advocacy and don’t go overboard, but give a real brief summation of your trial. 

I always tell lawyers, stay under 30 minutes for each side. Very rarely do they follow my suggestion, but that’s what I try to do.

Darl: Clopening? Was that a word you came up with?

Alex: No, that is not original to me. None of this is original to me.

Darl: Okay. Well, you know, and I think earlier you mentioned that this is great for lower-value cases, but you’ve worked on some big ones too.

Alex: Yes.

Darl: You’ve had cases that you focus grouped that have been seven-, eight-figure verdicts, right?

Alex: I’ve done a lot of eight-figure cases. And there, you know, there was one where I ran six or seven focus groups on it.

Darl: What is the deliverable that the lawyer gets from you after you do this focus group for them? I mean, obviously, they’re sitting in it and hearing what the people have to say, but what do they get after? 

Alex: Afterwards, I like to sit and talk about the case with them, send them the video. It’s all recorded on Zoom, both in gallery view and speaker view. And then I use an AI service provider to generate a transcript—and I can tell you that AI will not be replacing us anytime soon based on that.

Darl: I imagine you have to go back in and clean it up?

Alex: A little bit. You can click in and play the audio. I think the video is the most important part. 

Darl: Sure. We talked a little bit about negative attribution and some of the ways that it’s affected your approach to cases. Anything else that running focus groups has affected about how you work up your own cases? 

Alex: Sure. I think you have to normalize yourself and normalize your client. And sometimes the defendant is not the villain that you make them out to be. 

If we need to pump ourselves up for a case, we really need to villainize the other person in our head, but the jury may not see it that way and sometimes you need to show compassion for the other side. 

Darl: And that seems challenging because there’s a lot of information out there about kind of angering the jury or trying to get them angry and feeling like this was some horrible person that committed the act or whatever. 

When you’ve got a sweet little old lady on the other side or a compassionate company, how should people handle that on the plaintiff side?

Alex: Well, first of all, you need to take that into account when you’re valuing the case. But it is not always necessary to villainize not only those people, but people who have done bad things, but are not necessarily bad people. Beating up on them doesn’t necessarily advance your client’s interest. 

One thing lawyers, I’m finding, do not always do is separate the admissible from the inadmissible early on. And you need to stay laser-focused on what’s actually going to be heard by the jury.

Darl: That’s amazing to me. I mean, amazing to me from the standpoint of a lot of people don’t focus on what’s admissible in evidence. I see it happen on the defense side too.

Alex: It is a really weak spot on both sides of the bar. And I just don’t get it. I don’t get it.

Darl: I hear it too. I mean, I will say this: I mean, there’s certainly times when there’s inadmissible evidence that I take into account when I’m arguing, you know, or negotiating with the defense because it leads me to believe there will be something else out there that’s admissible. 

Or maybe it’s like a character stain on the defendant. I’m like, “Hey, if they’ve done this or this is the type of person they are, like, they’re probably not going to present well in front of a jury.” But what you’re talking about is just some critical fact or piece of evidence. It’s just outright inadmissible. And either the plaintiff or defendant not acknowledging that and still taking that into account, which is again, interesting to me. 

I think part of that may be due to the fact that, I mean, trials are so rare. I think a lot of people, especially with settlement mills and how many big TV advertisers are out there—and I don’t know if any of your clients are not so I won’t talk badly about them. 

But you know I think there becomes a tendency for people to just talk about things as if like they’re the ultimate decision-makers. They’re the decision-makers in terms of: what are they going to accept and what’s the other side going to pay? But they’re not the ultimate decision-makers. And I think that gets lost on a lot of people. 

One of the things that I have found is particularly effective is driving a wedge between the defendant and their attorney, because a lot of times there’s this huge disconnect, especially when it’s an insurance defense attorney between what the adjuster’s wanting them to do and what their client actually wants them to do. 

And so, you know, pointing out that the lawyer said this, the lawyer did this, “Did you know your lawyer said this?” You know, “Your lawyer’s denied fault in responding to this lawsuit.” And there’s all sorts of ways you can do it, but I found that can be particularly helpful when you’ve got a compassionate or likable defendant.

Alex: And I will tell you, listen, most defense lawyers I get along with, we all know there are some—and it’s the same with plaintiff’s lawyers, I’ve never done defense work—who just the way they litigated makes you very uncomfortable and it’s not a good way to live your life.

If you try a lot of cases, you know that even the most obstinate opposing counsel is going to not be that way when they’re in front of a jury. They’re going to behave. So you need to keep that in mind and use what they’ve done earlier to drive that wedge.

Darl: Sure. Yeah, I think for me, it really comes down to the positions they take. You know, it’s that they’re saying something that’s completely contrary to the facts of the case. 

And, you know, I can think of a trial we had last year in a pretty rural venue with a likable defendant and the defense attorney—and they just can’t help themselves—they’d like to pick and choose facts. 

This is an area where I think plaintiff’s lawyers really don’t seize the opportunity to do this is: when your client gets cross-examined after they pick and choose these selective facts is redirecting your client. 

Pointing out, one, why they took those facts out of context, but two, pointing out facts sometimes that are on the same exact page of the record they showed them that support the plaintiff’s case, and pointing out how they didn’t show that.

And I think there’s some very good defense lawyers—and don’t get me wrong, I’m not saying that they’re all bad—there’s some very, very good ones. But a lot of them, you know, we say, “Play chess, don’t play checkers.” There’s a lot who aren’t even playing checkers. 

Like to me, they’re like playing Candyland or GoFish or something. I’m like, “You guys, I don’t even know what you’re doing here.” And I think that’s where you can think three, four, five, six, seven steps ahead and outmaneuver them. 

Alex: It’s the object-aholics. I just came up with that.

Darl: Object-aholics. All right. Alex came up with his own word today. We’re gonna trademark that. Let’s look that up after the episode’s over and see if it’s been trademarked.

Yeah, I mean, I think denying the obvious. You know, I’ve got a case right now and it’s ongoing. I don’t mind talking briefly about it, but over 20 people have slipped in this particular area and their own records say that it’s slippery. 

What does the defendant do? “It’s not slippery.” I mean, it’s unbelievable. 

And defense attorneys, they can’t help themselves. They’ve got their MO for how they defend the case. And in some cases, it works but they don’t tailor it to the facts of their case most of the time. 

It’s cookie cutter, it’s packaged, and this gets into another area I wanted to talk to you briefly about, because I know you’ve done a lot of work in the reptile field, right? Reading the literature and things like that. 

And I’ve seen that sort of become the scapegoat for large verdicts and I think that’s misplaced. I think reptile is sort of a specific application of just a broader psychological concept. 

But to me what drives a lot of these big cases is, I mean, some of it too is the unlikeability of the defendant, but it’s the inability of the defense attorney to actually objectively analyze the case. 

Alex: Yes.

Darl: Which they could use focus groups for!

Alex: Yes.

Darl: Well, not you, but somebody else because you only do plaintiffs.

Alex: Well, the problem is that their insurance company won’t pay for it. They’re not paying for time to strategize and that is what makes all plaintiff’s lawyers cases a lot better.

Darl: This is why they’re not playing chess. They don’t get paid to strategize. They don’t get paid to think about a case. They only get paid for doing.

Alex: Can I go back a second? I don’t want to just pick on defense lawyers here. One thing plaintiff’s lawyers tend to do sometimes is—and I’m going to quote my litigation professor from law school, David Wolf—is “tend to use an anvil when a feather would do.” 

When you’ve got that key piece of evidence, you don’t need to spend 30 minutes or an hour hammering it home. The jury may feel insulted that you’re sort of speaking down to their intelligence. 

You give it to them, you know, not necessarily on a silver platter, they’ll figure it out on their own. And let them take the raw meat and rip it down. 

Darl: Yeah. And I think the same thing applies to the jury anger stuff is: I’ve seen a lot of times where plaintiff’s lawyers get angry. They get enraged at something. Something, again, that the jury may not care as much about as the plaintiff’s attorney, and they make it personal.

And the plaintiff’s anchor comes out and, you know, you’ve got to—I try to avoid that at all costs because you want to give room for the jury to be angry and to allow them to develop that emotion without you telling them. 

And if it’s appropriate, they should get angry. But again, you can’t always predict it. So you getting angry can also create this disconnect. It’s like, “Wow, this plaintiff’s attorney is just angry.”

Alex: It is, and this is a little bit far afield of focus groups, but one thing the reptile taught me is preparing your client for deposition. And the litigation process can be cathartic for your client, and you wanna get that anger out.

It’s good for your case, but it’s good for their well-being too.

Darl: Sure, and you’re talking about not letting their anger show through their deposition.

Alex: Yes, staying on topic, not letting their anger show both through the incident and, frankly, if the defense lawyer is trying to get under their skin.

Darl: Sure. 

When you’ve got plaintiff’s attorneys who are able to do these focus groups all the time—again, subject to the cost restrictions—but on the defense side, I know they do them sometimes. I mean, obviously, there’s people that specialize on the defense side for doing them. But that seems to me to be where there’s a big disconnect, where I think the plaintiff’s attorneys have a clear advantage.

I heard somebody explain it to me one time that the defense industry and defense lawyers, their case is like a large cruise liner and the plaintiffs are like speedboats. They can easily maneuver, change course, do things, whereas on the defense side it’s like, “Well, we’ve got to do a report to the insurance company. The adjusters’ve got to consider it. They’re going to round table it.

 They’re going to do this.” And I think that’s where plaintiff’s attorneys can really have a huge advantage. 

One of the things that—and this is a piece of advice that I think everybody’s been given—is try your good cases, settle your bad ones. Which is easier said than done because most of the time you’re getting offered good money on your good plaintiff’s cases. 

But I think there’s a lot of lawyers on the plaintiff side that settle them too early. Their good plaintiff’s cases. 

Obviously, it’s a problem with settlement mills because that’s all they’re trying to do is just get cases in and get them out and flip them. But one of the things I found though is that if you’ve got the great factors that make a good plaintiff’s case, just go full speed ahead and march towards trial. 

And that includes a likable client, or a likable plaintiff, bad liability facts for the defense, including like other incidents where this has happened, and serious damages. And you add in a defendant that refuses to accept responsibility, and that’s where I think a lot of these verdicts end up being large. 

The defendant, the insurance company, aren’t taking full responsibility. The plaintiff is saying, “I’m going full speed ahead and preparing it for trial.” And, you know, to me, this is probably a bigger criticism of the insurance industry as a whole where they apply a cookie-cutter approach to everything.

It’s, “Well, these are your bills. These are your damages. We’re offering X.” And they don’t have that ability to step outside the box and analyze it. 

I want to talk to you about lawyers doing their own focus groups. And is that even a thing you recommend? You talked about, you don’t like doing it for yourself and you’re a professional at this. You run them and you don’t even feel comfortable doing them. Do you think other lawyers should do their own focus groups or hire somebody?

Alex: Yes. 

But I would not do my first few on their own. Hire someone, me or someone like me, to do them. But I tell lawyers, there are lawyers who hire me all the time because it’s just the cost-benefit of doing it on their own is it’s better for them to just have me set it up. I can do it much more quickly. 

But if you’ve done a handful with someone who knows what they’re doing, you can absolutely do them on your own. That’s how I got into doing it. You just need to be really, really careful in knowing how to pick the right participants and how you put your case on.

Darl: So if a lawyer does want to pick their own participants, run their own focus group, how should they go about doing that? 

Alex: When you’re picking your own participants, you need to be able to glean from the juror advertisement you put up whether they’re going to be someone who’s going to pay attention, whether there’s someone who is lying about where they’re from. 

A lot of people I’ve found in foreign countries who’ve applied, and the only reason I can’t choose those people, even though they’ve been great participants, is they’re not used to the American jury system and sort of our culture.

Darl: It’s going to taint your results.

Alex: Absolutely. You said this in another podcast: Bad Data In, Bad Data Out. 

Darl: Sure. I didn’t come up with that, by the way.

Alex: No, that’s right, that’s right, your guest.

Darl: I know, I’m joking. 

So, but what’s the, like, I guess, procedure or source for these people? I mean, Craigslist could be one, but, I mean, are there other similar websites or platforms people could use, or services that they can use to find their participants?

Alex: I know of some lawyers who have their own website set up and that they’ll use return participants from that. I’m not sure how the high-end recruiting agencies do it. 

I will say do not use staffing companies. Early on I used some staffing agencies when I did some really rural venue cases and you just don’t get people who are representative of the jury panel. 

Darl: Is that because everybody’s unemployed? Or for the most part?

Alex: For the people for the staffing agency? 

Darl: For the staffing agency, yeah. I mean, the reason that the staffing agency has their information is they don’t have jobs or they’re looking for temp jobs, right? 

Alex: Right, and frankly, if you’re getting a focus group participant anyways, occasionally you’re gonna get teachers on summer break when you do them during the summer. When there have been government shutdowns, I get a lot of government employees, that’s great. And occasionally people between jobs.

There’s a lot of people who just do focus group and market research surveys to earn money. Gig economy workers. So you’re getting that subset of potential people anyways.

Darl: Sure. So when you know, you’re running this focus group, you’re getting the applicants in, and then you pick which ones you want, I assume to try and make like a good mix of people?

Alex: Sometimes the lawyers are looking for a specific group of people who they think might be biased, but usually I’m just trying to match it to the venue. And in a rural venue where I’m unlikely to get anyone that lives in that county, I’m just matching demographics and just sort of the type of person you might see on your jury panel. 

Darl: And obviously I know you’re running them on Zoom, but do you have any recommendations for Zoom versus in-person and when lawyers should consider an in-person one?

Alex: You know, I tried doing one in-person after the pandemic. It sort of wained a little bit before it picked back up again and I’m just not going back to it.

Darl: Yeah. Does it have something to do with the logistics of it? 

Alex: Sure. Logistics, you know, I could go to a major metro county and get people just from that county. If I’m doing a rural venue, I’m not going to get a full focus group from just that venue. 

Darl: Sure. You’re gonna have to pull from multiple counties, which then makes it difficult for all of them to go to one location.

Alex: Right. But your good participants are going to find the process in the focus group, in the case really interesting and they’re going to stay engaged anyways. You always are going to have a few followers, you know, just people who are just there for a few bucks, but you have that on your real jury anyways. 

Darl: And if you’re, again, if you’re a lawyer running your own focus group, you submit the ad or use whatever service or platform you want to get your participants, you get them in, you set a date, you do it on Zoom or in person, and then you just do your narrative or mini-trial style focus group, and then get that feedback and take from it what you are able to incorporate into your case.

Alex: Right. 

Darl: Now, it seems pretty easy, but I know it’s a lot harder than that because I have not tried to run my own focus groups. I’ve thought about trying to run at least one just to kind of see how it goes, but I’ve definitely felt much better using professionals such as yourself. 

What are some of the common mistakes you’ve seen lawyers make? I don’t wanna talk now about running their own focus groups. We’ll talk about that in a second. 

But the lawyer participants who are coming to you for a focus group, what are some of the common mistakes you’ve seen them make?

Alex: One is thinking that they’ve done such a good job in a deposition that the witness is totally discredited. And you and I have talked about this before, and that’s particularly true with IME witnesses. 

Two is being too aggressive against one party. 

And three is focusing on something that’s inadmissible like we’ve talked about. 

Darl: Now, on that first part, you mentioned thinking that something will be more, I guess, appealing to a jury. I know you and I have talked about this with the IME stuff. We tend to think as lawyers like, “Oh, this person’s bought and paid for, they only testify for them.” 

But the jury doesn’t care for the most part. I mean, they may care if you can attack them in some other way, then they can use that to justify, “Oh, well, that’s why they came up with that conclusion.” 

But just getting up and saying, “Well, you only testify for them, you get paid, this is a huge mistake.” You’ve got to point out why, you know, some of the facts—like I like doing a constructive cross, all the facts that support your case that they’ll agree with, and then any problems with their opinions and how they just don’t make any sense. And then going into the biased side of things.

Alex: And you better make sure that your expert witness is not a guy who only does one side because that will come back to bite you big time. 

Darl: Yeah, I mean, I think when I see plaintiff’s lawyers criticizing the doctor—and it’s one thing when they only testify for one side, and there’s several in the Atlanta area that only testify for one side—but you know, to talk about “Well their deposition fee is this and you’re getting paid this.” 

Well, even the treating doctor is getting paid a deposition fee and they’re pretty high too, so yeah just focusing on that isn’t great in my opinion. I like to focus on the facts that they’ll agree with, point out why the facts are on our side. 

Now, when it comes to lawyers running their own focus groups, what are the big problems you’ve seen?

Alex: There’s a lot of nuance that they don’t pick up on. And that’s, for example, the way you talk about different parties. 

So when I’m talking about the defense position, I use language I would never use. You know, “The hired and paid experts by the plaintiff allege this,” that sort of thing. You really need to think like the other side would think and speak that way too.

Darl: Yeah, and that gets to what I would imagine is probably the first mistake is letting the focus group members know which side you represent because they’re not supposed to know that.

Alex: Right, and you know, that’s one benefit of doing it, even if you’re doing it on your own, teaming up with a colleague and doing it. I always tell jurors when I do mine, listen, I’m a plaintiff’s lawyer. This is not my case. I don’t have a dog in the fight. I’m not gonna tell you who represents me because my goal today is not for us to hear what we wanna hear. It’s to hear what we need to hear.

Darl: Sure. Now, if you’re running your own focus group, seems kind of hard though to keep that from the jury. Right? 

Because they’re gonna look you up. Like if we’re running an ad and we ask somebody to show up at our—I mean, obviously we can’t do it at our office. But could we make it so anonymous that we don’t… I mean, this is kind of sketchy, like you just get a Craigslist ad: Show up at this hotel, we’ll give you 50 bucks or something. 

Alex: Well, you can always set up a Gmail address instead of your work address to respond to advertisements. I do know some very good lawyers in other states who set up their own LLCs just for that purpose.

Darl: Interesting. So it’ll be called like Georgia Focus Group LLC or something like that?

Alex: Yeah, something really generic. 

Darl: And they’ll just say, “Hey, we’re running a focus group.” But I imagine they’ll still look up the person and realize they’re a plaintiff’s lawyer. Which, you know, again, I think can be a problem. 

One of the concerns I have in getting feedback was like, are they going to be honest about me and my delivery and the things I said if I’m like right there?

Alex: That’s why you need to have a moderator that really is not you. So if you’re gonna do them on your own, do them with a colleague who can be a neutral for purposes of the case. 

Darl: When you say colleague, are you talking about somebody within your firm, outside your firm, a defense lawyer?

Alex: I wouldn’t say a defense lawyer unless you’re just buddies with them and it’s a totally different case. And I’ve seen that done just once. But usually I would say someone from outside the firm if you can. If you’re doing the mini-trial, you can have a younger associate do the plaintiff’s side.

Another thing that I think is really helpful on Zoom is I like it even better when the lawyers send me a prerecorded statement than when they do it live. And if you’re going to have your witness, your plaintiff come on, your client come on, do it prerecorded, don’t have them come on live because that’s—you’ve just totally tipped your hand. 

Darl: I personally would feel more comfortable doing a pre-recording, trying that, and just not even being present when they give the feedback. Because I felt like they would be way more honest than if I’m sitting there on the Zoom looking at them. 

Alex: Well, when the lawyers come in, I change their name to something generic like Observer. 

Darl: Yeah, we’ve changed my name. I’ve been a few interesting names. Daryl. Daryl’s a common one. I think Carl’s another one we’re trying. 

So have you ever done focus groups just to determine value of a case? Like, people come to you and they just wanna know, you know, not necessarily about a particular issue, but how are jurors gonna evaluate these damages? 

Alex: I have. If you’re just doing one or two focus groups, I tell you, you know, value is the least valuable thing I can give you. If I could tell you what your case was worth, I’d be charging you a whole lot more.

Darl: Right. 

Alex: And we’d be doing this remotely, and I’d be in the Bahamas. But you can get an idea as to whether a case is, you know, nominal value case, a six-, seven-, or eight-figure case. 

I’ve had a lot of cases, including of my own, where you think, “Oh, man, the jury is so hot and bothered about what happened.” But then they want to give you $10,000. It’s a statistically insignificant number you’re getting back from these juries. 

We always talk about “If we try a case 10 times, what we’re gonna get…” You’ve only got 10 or 12 people telling you what your case is worth. I know there’s a group you’ve used out of… Colorado?

Darl: Yeah, I can’t remember what state. I know the guy’s name is John Campbell and I don’t know that John listens to this podcast so I apologize if I forgot the name of your group. 

But I used them on a case that settled. It was a wrongful death case, had some great facts and they do what I call big data focus groups. Maybe that’s the same thing they call them. But they have a much larger sample size and are able to gauge juror feedback on particular issues, but also value. 

And Drew Ashby, who’s in the building here with me, he’s used them on some trials and they’ve been pretty accurate.

Alex: I know some other people have and they’ve been helpful. Now, if you run the same focus group right before trial—and I’ve done this before six or seven times—you give the same presentation, then you let them deliberate, you start to see a trend and if the numbers start to trend along a certain line you can feel pretty good about that, I would say. 

But you really need a lot of people. I would run it by at least a hundred people.

Darl: You know one of the things that I got when I did my big data focus group was like a fully delivered report. They had all the data and they give it to you in a way that you can use it in negotiations and I think that’s something that can be helpful. 

If you’ve got a lawyer who’s doing a focus group with you and they’ve done it several times and let’s say the jury keeps coming back saying, you know, $1,000,000 plus and the highest offer is $250,000, do you recommend the lawyer like tell the other side, “Hey we focus-grouped this case ten times and it keeps coming back at this,” and then also how is the defense lawyer gonna know that that’s accurate and that you’re not bluffing?

Alex: So I recommend you show them the video clips, but I also recommend you be ready to show them the presentation of the case so they can know you’re not bluffing. If the defense lawyer is going to say you’re just using paid actors, then you’re not getting through to them no matter what you say. 

But be prepared to show them the whole thing so you can make it clear that you’re above board. 

Darl: Interesting, yeah. So I would imagine when you’re showing the clips, you’ve got to be careful about the clips you show them.

Alex: You do.

Darl: Or if you’ve said anything that could be considered—I mean, it’s obviously all work product, right—but you’re agreeing to show it to them for some kind of leverage.

Alex: If you’re using it as a mediation clip, you know, be prepared to show everything. I’d like to always act in good faith when I’m doing these. 

Darl: Yeah, no, that’s a good point. 

What future plans do you have with your focus group practice? I mean, it’s evolved since we started working together. I think our first one was 2019? It was right before COVID, that’s the only reason I remember, because we were on a trial calendar. 

What’s the future hold for your practice and what are you looking to do with it?

Alex: You know, I don’t know. I struggle with it because I love working on my own cases, litigating with my father and my wife. So I struggle with whether I want to do it. 

I might join an organization of trial consultants someone suggested I join, but every focus group, it’s like being a mediator and being a lawyer full-time. It just sort of takes away from it. 

So I like the balance I have now, but I’m constantly struggling with it. 

Darl: Sure. And maybe you should hire somebody. Get Melissa on board. Get your wife. 

Alex: I could, but I love doing them myself. It makes me a better lawyer.

Darl: Sure, yeah. Real quick, you ever had your wife play defense lawyer? Because she’s a former defense lawyer.

Alex: I have, years ago. She demolished me. She’s much smarter than I am. 

Darl: Anything else that lawyers should know about your focus group practice before we go, and how they can get in touch with you?

Alex: Just call the office if you want to reach me. I’m always happy to talk about these.

Darl: And we’ll have Alex’s information in the description. You can also reach out to me if you need to get linked up with Alex and he’s, again, somebody that I’ve used focus groups with, I’m going to continue to do them. I’ve got some cases we probably need to talk about at some point soon because they’re getting heated up. 

But thanks for joining us today, Alex. Always great talking to you about focus groups, always learn a lot. 

Alex: Thank you for having me.

Darl: Awesome.

 

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