I will have one day of “down time” between a trial and a speaking engagement where I will be stationed in Los Angeles on June 2nd. If you have ever wanted to work with me, this is an opportunity for some in-person consulting help without having to cover travel costs.
This is a chance to work on skills that don’t transfer as well over Zoom, such as voir dire coaching, witness preparation, opening statement practice, or even focus groups for a fraction of the normal cost.
If we have never worked together, I will offer any remaining slots to new clients for free initial consults. This is your chance to get some help in preparing your case for trial, finding persuasive themes, and properly preparing for voir dire and opening statement.
Slots are first-come, first-serve. You can reach me at Jessica@TrialDynamics.net
Are you bad at “picking” juries? Perhaps that’s not the issue…
First, there is a valid debate these days on whether we select or deselect jurors. If you follow Sari De La Motte, your goal is to invite jurors onto your jury who share the vision of your case, and deselection is a byproduct of that process. If you follow more conventional methods (David Ball and others), you search for “bad” jurors to remove from the panel.
I would argue that jury selection should be a bit of both, weighted to one side or another based on your personality, the time you are given, and your skill level (all of which can be shifted and improved, but not usually within a week of trial!).
But far more critical than those considerations are your comfort, skills, and abilities when it comes to (1) crafting useful questions and (2) delivering those questions in a manner that elicits truthful responses, incites dialogue, and gains juror trust. This is no easy feat, and perhaps because of the time and devotion required to learn how to accomplish these two “simple” things, most attorneys gloss over it.
Instead, they ask, “who should I eliminate?” or “Do I have a good jury?” or “Did I mess up by leaving someone on?” However, none of these questions matter if you have not yet done the work to learn HOW to do a proper and effective voir dire. The vast majority of attorneys who hire me to come and “pick their jury” have yet to learn these skills and, though it would be more work, should be putting money into having me (or someone else qualified to do so) train them on delivery, methodology, and connection, rather than focusing on the end goal. You must first pave the path before you can meet that end goal. Will a jury consultant see the good and bad jurors better than you? Perhaps. But, we would have a lot more information if you conduct a clear, connection-based voir dire. The vast amount of information you can gain from a carefully crafted voir dire that is ALSO delivered well may be shocking if you have never done so.
Critically important is the fact that voir dire is essential not only for selecting your jury but also for setting you up for opening and the rest of trial. Aside from the jurors you pick, a poorly conducted voir dire will taint the rest of your case.
Don’t focus on the strikes…yet. Instead, focus on the skill, and the strikes will reveal themselves. In addition, you will then have set the foundation for trial.
I am giving away one admission ticket to the Trial Lawyers University Live conference October 26-29th at the Mandalay Bay in Las Vegas (worth over $1200). I will be hosting a workshop on Saturday morning on Case Framing where every attendee will have time to work one-on-one with me in a small group setting to find the story of their case. Often, the story we think we need to tell is different from the story jurors need to hear. In this workshop, we will discuss the case background, break the case apart, and rebuild with a much stronger focus. You will walk away with a new focus as well as tips on how to present the theme through opening and voir dire.
If you would like to attend, please contact me at jessica@trialdynamics.net with one thing you want to learn to better yourself as a trial lawyer and who you most want to learn from at the conference. I will gather names and pick one out of a hat by September 22nd to redeem the free admission.
I would love for you to attend my workshop. I am not making that a requirement of winning, though it may give you a leg up 🙂
*Conference is ONLY for plaintiff’s civil or criminal defense attorneys. You will be responsible for booking your own travel and hotel (there is a conference rate available), but I will cover your admission.
As COVID restrictions have lifted and courts are back in session (with massive backlogs), I have found myself busier than ever before. I took the downtime during COVID to create a free e-book called “Junk In, Junk Out,” which is a guide to conducting your own jury research – correctly. I often have attorneys approach me with their focus group results, hoping that I can use the data to reframe the case or develop an opening statement strategy. Unfortunately, when I review the focus group, I often realize that the results have been compromised and cannot be relied upon. No one wants to waste time and money. My hope in creating this book is to prevent the common pitfalls and teach you how to run a focus group reliably and validly. If you would like a copy, please reach out to me directly (Jessica@Trialdynamics.net). There are no catches or gimmicks – the book is free.Â
Here are what a few attorneys have said so far:
“David Ball created a monster in you, Jessica. I’ve been using an older version of David’s and it works but this guide you created is awesome. It is updated and streamlined. Can’t wait to try it. Definitely the best content find on LinkedIn to date.”
“It’s very well done. Thank you.”
“This is extremely helpful. Thank you for sharing.”
“Very well organized and comprehensive. This is very helpful.”
Due to increasing demand of help at the front end of a case, I have decided to add a service that every case, regardless of size, can access and which can set the tone for the rest of litigation.
Have you ever have a case that you’re not sure if you should take or if you do take it, where to focus? For a small flat fee, I will discuss the possible pitfalls, send you away with questions that need answers or information to gather, or tell you if the case is simply too risky to take on. Sometimes, cases are lost at intake as not all cases are winnable. Others are winnable but are set up with the incorrect focus from the start. This can direct your discovery and save you the heartache and financial difficulties of a loss. Contact me for more information or to set up a consult.
You don’t know what you don’t know. Did you know that?
I come across this often in my practice. Attorneys unwilling to try something new. Attorneys who feel they don’t need help (which is always possible, but never certain). Juries never cease to amaze me and after over a decade in the business and having talked to several thousand mock jurors, I know one thing – I don’t know what I don’t know. Case in point:
I ran focus groups on a med mal case years ago. The woman had pre-existing health issues and died 10 days after a surgery. Notes were missing from a segment of time during surgery and the process did not go well. There were the usual contentions: plaintiff claimed that the doctors did something negligent and defense claimed the pre-existing conditions caused the issues. Pretty straight-forward for a med mal case…until we tested it on jurors.
Jurors in TWO separate groups were hung up on the fact that the plaintiff had brought a copy of her living will to the hospital before the surgery. To them, this meant she had given up on life and was prepared to die. She was to blame for her own death because she didn’t fight hard enough to live.
Would you have seen that coming? Don’t let trial be your test run.
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:
Case Analysis
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. jessica@trialdynamics.net
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