I am hearing from some attorneys that the judge is allowing live witnesses to wear masks. This presents a big problem in that jurors have a need and a right to judge the character of a witness. With masks covering the bottom half of a person’s face, jurors cannot get a reliable read on a witness’ demeanor. Therefore, be prepared to argue against masks for testifying witnesses. Most communication is non verbal – much more than 51%. This means that for a civil case, the jurors cannot decide if their burden of proof is met when the majority of that witness’ testimony is not discernible. In a criminal case, this is even more egregious.
There are other options to ensure the safety of those testifying. The witness is more than 6 feet from anyone. Clear face shields or walls can add extra protection. If a witness is still uncomfortable, consider having them testify remotely instead. Have a discussion with your witnesses ahead of time to ensure that they don’t show up expecting to wear a mask. Give them the options and discuss this ahead of time with the judge. With all of the options we have, there is no reason to compromise the integrity of the jury system.
COVID19 has changed the legal landscape. Some things will go back to normal once courts reopen but some will likely remain with us permanently. With courts shut down and juror views in question, resolution of cases has changed. We have found that attorneys are not making the shifts they need to thrive in this new environment.
Before COVID19, most cases settled. Now, even the small percentage of cases that would normally go to trial are settling. This is due to the uncertainty of obtaining a trial date, as well as, concerns over the willingness of jurors to give large verdicts under the circumstances. Your practice and your client rely on your ability to get the maximum value out of a settlement. But most attorneys are walking into mediation unprepared. Attorneys are drafting mediation statements and negotiating, but to be successful at mediation now requires more than this. We have found that when attorneys can present evidence rather than speculation about the strengths of their case, opposing counsel has no choice but to reconsider their position. Further, the mediator has reason to push back against the opposition. This results in benefits beyond the mediation table as discussed further below.
”We settled the case today and your jury research proved very valuable in our evaluation and lent a ton of credibility to our arguments.”
~ Miguel Chapa, NM attorney
It has become necessary to conduct online studies, which we will use to gather juror feedback about your case. We utilize our experience with hundreds of focus groups and over a decade of consulting experience, combined with new technologies to get you the best results possible. We will provide you with video and sound clips of jurors that can be used in mediation. On their own time, jurors login to an online platform to review the case information. We ask for closed-ended and open-ended responses to questions as they go along and a verdict at the end. They can evaluate videos, graphics, and case information. When they are finished, we Zoom interview a select number of the participants to ask follow up questions.
You walk into mediation with data showing evidence of juror leanings, open-ended responses about the liability of the defendant, any comparative negligence claims against the defendant, and how trustworthy jurors find your client or key witnesses. We also provide clips of jurors talking about how strong your case is and why. This information helps to validate and strengthen your negotiating position substantially. Until now, normal practice has been to reserve these research efforts for a later time. Now it is imperative that attorneys conduct this research before mediation.
Beyond the value of this research at mediation, there are a multitude of other benefits:
If you don’t settle the case, you are much better equipped to move forward with discovery as you will know what questions to ask and what issues to focus on.
You will have a head start on any other focus groups or further work we do on a case.
You will have a good idea of whether or notyou need to settle the case. If the research shows that your case has substantial weaknesses, you will save yourself a zero verdict (as a plaintiff) or a large verdict (as a defendant).
By helping to settle the case, you save yourself and your client potentially hundreds of thousands of dollars in experts and man hours to work up the case. But you do not want to simply settle. You want to settle for maximum value which is what this will help you to achieve.
By working up the case ahead of mediation, you signal to the opposition that you are already ahead of their preparation and scare them into a larger settlement with the anticipation that you will do further research if the case moves forward.
From a cost-benefit analysis, it has now become imperative to perform this research pre-mediation. Costs range from a few thousand and up depending on amount of information you want to present and number of respondents. A good range is between $5000-$8500.
Below are some examples of data that you can show during the mediation:
With courts still closed, many cases are headed to mediation that may have otherwise gone to trial. This means that your client’s future depends on how well you do at mediation. To maximize your outcome, you need to put effort into preparing for mediation just as you would for trial. What do I mean by that?
Mediation is a back and forth argument over what your case is worth. “Worth” is determined in part by the potential outcome if you did hold out and wait for a trial (among other things such as your client’s need to settle or willingness to go to trial). To convince opposing counsel (and their clients) that you will prevail at trial, you need more than a simple self-serving statement that your case is strong and that you are likely to win. You need evidence of your claims, just as jurors would want evidence of what you claim in trial. That means asking “jurors” about their views on the case and presenting that evidence to opposing counsel at mediation.
In non-pandemic times, we would run some toned-down focus groups for the purposes of mediation. In current times, we do the same, but move them online. While there are some drawbacks to online research, those issues are very minimal when you are looking to do something that is on a smaller scale than a full blown mock trial. For example, we can recruit 20-100 individuals to review written statements about the case and answer online questionnaires about their opinions. This information can be given to opposing counsel to show that jurors are likely to find in your favor and that the range of damages are closer to your figures. We could also conduct a mini focus group online where jurors view video footage and evidence and are given the chance to give independent feedback along with a short group deliberation. If the information you learn is not favorable, you never have to mention it but it will still guide you in whether you have to settle and for what amount. If the information is favorable, you can present it during mediation. These online projects can be extremely affordable and tailored to your budget.
With so many cases settling in this climate, you need to maximize the opportunity for yourself and your clients.
Times are changing (hourly, it seems), and we are changing with it. We have moved our focus groups to an online platform until this passes. Clients still need our help and trials will move forward in a matter of a few months. Take this delay in schedule to strengthen your case. Do the things you didn’t have time to do before. Your clients depend on you, probably more now than before, so waiting this out is not an option.
I have been working with online platform options for focus groups. These platforms allow jurors to partake in research from their own homes through a webcam. They can see one another and interact. We can show them videos, exhibits, and data. Attorneys can get real time results of questionnaire data. I can moderate groups the same as if we were in person. The rates for the online platform are extremely reasonable (often cheaper than in person) and includes a copy of the video footage, notes, and questionnaire data.
These online focus groups are also useful for testing a case before intake. We can test small, focused issues to find out if a case is worth taking on or if you should pass on it.
We can test exhibits or client deposition video by showing them to jurors and asking for their individual feedback. This requires even less equipment and can be very streamlined.
Other services of ours were remote to begin with and we will continue to offer those services. These include:
Opening Statement Edits
Voir Dire prep
Witness prep (this can be done in person or over zoom. In person, it is easy to keep a 6 foot distance and sanitize everything so we will adhere to you and your client’s preferences on this)
Please contact us for specific quotes and questions. Stay healthy and let’s make it through this together. email@example.com
As Coronavirus and fear spread, and as authorities make decisions about travel and quarantine, we at Trial Dynamics are thinking ahead. At the moment, we are still conducting in-person mock trials and travelling nationally to do so. We are offering some extra precautions to make jurors comfortable, such as having an extra person on hand to consistently wipe down surfaces and door handles. We will serve only food that is boxed and nothing will be communal, including coffees and waters. We will also ensure that recruits are not sick and that they don’t have any family members actively sick. We will check that recruits have not traveled outside of the US within the last few weeks. However, if travel bans are implemented for national travel and participants become too afraid to show up in person, we have backup options.
We are working with online platforms to create a virtual focus group option. Most likely, this would allow participants to partake in the focus group/mock trial from their homes using a webcam. They can still hear the case and respond to questionnaires as well as deliberate. While there is a drawback to having a webcam instead of being in a room with other jurors, this may become a necessary step during this time and we are confident that we can get good, accurate, useful feedback. If you are interested in running a focus group or mock trial but are hesitant of losing money on expenses if this virus continues to impact business and travel, let us handle your case online. More details of how this will work coming in a few days.
We have re-branded and are excited to announce Trial Dynamics, a full-service, national trial consulting firm. For current clients, DON’T WORRY! Nothing is changing that will impact you or our service to you. The Hoffman Brylo Consulting name was created when the firm was first founded. We were small and local and people knew me, the owner, from my maiden name, Jessica Hoffman. Through the years, we have grown and there is no longer a need for the Hoffman name as I am well known as Jessica Brylo. We now have a larger national presence and the growth seemed to require a more adequate name.
Please do TWO things:
Update your contact information for us as the email will slowly switch over to Jessica@TrialDynamics.net
Check out our new website! (And as with anything new, there are bound to be kinks, so please bring those to our attention so we can iron them out): www.trialdynamics.net
What does Trial Consulting have to do with Family law/Divorce/Child Custody matters? A whole heck of a lot! In the consulting field, we prepare expert witnesses and clients for testimony often. It’s a known fact that the way your client presents at depositions or trial can easily make or break the case. Why would this be ANY different in family law disputes where the stakes are, arguably, higher than in other civil cases? What if I could perform short-term miracles on clients in a divorce? What if your client could come across as genuine and likable without the anger and feeling of betrayal? What if I could shift their thinking to realize that the way they are viewing their circumstances are not in line with a mentality needed to “win” their case (money, rights to the kids)? And yes, I do this work in general civil cases as well and it is highly effective. Please contact me to discuss this further.
Have you ever had a trial where you found out after the verdict that one juror had something in their background that biased them against you and may have lost you the case? Most likely, it’s happened many more times than you realize as it’s rare to talk to jurors in depth after a trial or to find out things jurors may be hiding. Doing some deep digging on jurors BEFORE trial is a necessity in today’s litigation world where jurors sometimes have agendas and lie in court. In fact, it almost constitutes malpractice NOT to do some background searching on jurors if you have their names in advance. While many attorneys will try to Facebook search jurors pre-trial, Facebook is simply not enough. There are numerous social media pages that need to be searched and cross-referenced. Photos need to be searched for facial recognition to find other sites where the potential juror may have posted. Background searches can reveal past criminal activity, sometimes in an area related to the trial itself. These are things you should not overlook as it can easily cost you the trial and you would never know. At Hoffman Brylo Consulting, we now offer juror reconnaissance as a service. And for existing customers doing other work with us, we discount the work. Contact us to find out more: firstname.lastname@example.org
In an effort to allow access to my consulting help for cases where there would otherwise not be the budget, I am rolling out “Concierge Consulting” as a service. Similar to concierge medicine, you would pay me a set amount per month to have unlimited access to me and the services you personally find most valuable, along with lower hourly rates on additional services you may need on a less frequent basis. The amounts could be billed toward clients when there are specific cases that time is being devoted to, allowing you to recoup most, if not all, of the monthly fees. Fees range from a few hundred dollars a month to a few thousand dollars a month depending on what services you in particular want included. I will customize a plan that works for both of us and which will allow us to get help to every single one of your cases. After we work together, my clients almost always tell me that they didn’t know what they didn’t know, they wish we had started working together sooner, and they wish they could use me on more cases. I have thought long and hard about how I can direct my services to more cases and this will accomplish just that. If this seems to be of any interest to you, please reach out so we can talk further.
I came across this article on Establishing Credibility in Plaintiff’s Opening and, with no disrespect meant toward the author, I was shocked at the amount of misinformation. She starts by saying that the goal of opening is to establish credibility with the jury. That is a statement with which I certainly agree. However, the author’s method of doing so, in my opinion, is extremely ineffective.
The suggested opening begins:
“May it please the court, counsel, and may it please you, ladies and gentlemen of the jury:
As you know, if you haven’t forgotten since last Friday morning, and to repeat, my name is Judith—Judy they usually call me—Cartwright, and I represent, together with Mr. Michael Mills, Norman Ames, the plaintiff in this case….”
This is useless information to jurors at this point. They’ve already been introduced to you and they care about why they are there (or at the very least it’s your job to make them care about why they are there) and not about who you are. You lose their interest in starting this way and you’ve said nothing useful.
Next, the author suggests stating that “with reference to everything that I tell you, that we will have substantial evidence for each issue or each point that I mention to you.” Now you have changed your own burden from preponderance (slightly more than 50/50) to beyond a reasonable doubt. Jurors already are programmed to evaluate evidence based on a much higher standard than you’re legally bound to. Your job is to constantly remind them that your legal burden is only to prove “more likely than not.” There is a way to do this while still ensuring jurors that you plan to make a stronger case than slightly more likely right than wrong. This is an art. I rarely see it done correctly and the author’s suggestion is a step in the opposite direction.
Finally, she suggests a full paragraph explaining who else will be trying the case and how much experience they have in the case. Jurors could not care less. This does nothing to advance your case. This author’s goal is admirable and, I believe, correct: Establish credibility with the jury as soon as possible. However, the effective ways of doing so are opposite of what this article suggests.
If you need help editing your opening statement, contact me directly at email@example.com