Revised Focus Group Cost Share Project

A month or so ago I offered a chance to take part in a cost-share focus group set. I had a good number of people interested but very few contracts and deposits were received by the deadline. In following up with people as to why they did not send in payment, I received feedback that prompted a change in plans in order to try to meet everyone’s preferences, concerns, and wishes.  Instead of doing a cost-share with individual slots, I will be running focus groups on the following six (6) topics and recording the groups. I will then sell copies of the focus group DVDs to anyone interested either individually or as a set. Pricing will likely be:

 

$275 per focus group DVD

$1200 for the set of all six (6) focus group DVDs

 

Topics:

  1. Premises Liability
  2. Mild Traumatic Brain Injury
  3. Low Speed Impacts
  4. Expectations of Doctors and Care Providers (Communication, Diagnosis, Compared to Patient’s Responsibilities)
  5. Products Liability
  6. Insurance Companies & Bad Faith

 

I will be doing three topics at the end of August and three at the end of September. I will keep you all appraised as to when DVDs are ready for sale.

 

IF THERE ARE ANY QUESTION OR SUB-TOPICS YOU WANT INCLUDED IN THE FOCUS GROUPS, PLEASE EMAIL ME YOUR QUESTIONS OR TOPIC AREAS. If they are testable topics or questions, I am happy to include them in my scripts.

 

If you have any questions, please feel free to contact me.

 

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Focus Group Cost Share Details

For those who were potentially interested in the focus group cost sharing, here are the finalized details. I want to stress that YOU DO NOT NEED TO DO ANY PREP WORK, NOR DO YOU NEED TO SHOW UP LIVE. The main benefit is in receiving the DVD footage of the focus groups as well as having the opportunity to request an individual slot to test something specific to your case for only $500. There is some confusion with people thinking they don’t have time on their schedules but otherwise would be interested. This should take no time on your schedule. You may attend one (or more if there is room) focus groups live but that is certainly not required. Here are the details:

 

1.      Setup: There will be a total of 8 topics tested. Two will be tested at a time with the same jury. This means that each month, on a Saturday, there will be a group of 6-8 jurors present. Jessica Brylo will lead hour-long discussions about 2 of the 8 topics. The next month, with a different jury, another two topics will be tested and so forth until all 8 topics have been tested.

2.    Cost:  $1695 for all 8 topics (that’s $211 per hour-long focus group! Including costs!!!). Individual sessions are extra (see below) but still GREATLY discounted from what it would cost you on your own.

3.    Dates, times, & topics tested: 4th Saturday of each month. The focus groups will usually run from 9am-11am. However, if there is an individual session that needs to be run before the topics (this will depend on what is being tested) then the topic testing may be moved to 10 or 11am. We will let you know of this change a few weeks before the session. YOU ARE NOT REQUIRED TO SHOW UP. YOU ARE BUYING DVD COPIES OF THESE FOCUS GROUPS. You will be guaranteed a right to attend one focus group live IF YOU WISH and maybe more if we have room.

     a.    July 26: Mild Traumatic Brain Injuries & Products Liability (the need to go above mandated standards, responsibility of owner vs manufacturer, etc)

     b.    August 23: Expectations of Doctors/Care Providers & Insurance Bad Faith

     c.    Oct 25: Premises Liability & [Tentatively] Feelings About Attorneys/Legal System

     d.    Sept 27: Low Impact Car Crashes & [Tentatively] Hodgepodge of Smaller Issues (i.e. pre-existing injuries, aggravation of injuries, suing the well-intentioned good people, etc)

4.    Rights to view live: We cannot fit everyone in the viewing room so you are guaranteed a right to come watch at least one focus group. If there is room, we will send an email to alert you ahead of time and if you would like to attend another focus group live, you may ask to come. Spots will fill on a first-come, first-serve basis. We will fit as many in the room as we can squeeze.

5.    DVDs: You will receive DVD copies of all focus groups. If you attend live, you may have the DVD before leaving. If you do not attend live, a copy will be mailed to you.

6.    Individual slots: There will be a maximum of 8 individual one hour slots up for grabs. This means that we will recruit jurors to stay for an extra 1-2 hours after the topic testing in order to test your case issues. This is NOT enough time to do a full focus group on a full case. It is helpful, however, if you are early in your case and want guidance for discovery on some issues, testing exhibits, doing some voir dire practice, etc. For more information on this, contact Jessica Brylo directly. Slots will cost an extra $500/hour to cover extra juror pay, video fees, and consulting time, plus an extra $275/hour for any time Jessica Brylo spends coordinating ahead of time with you to create the focus group script. We need to know 3 weeks ahead of time if you want to reserve an individual slot in order to recruit the jurors. The $500 payment will be due 3 weeks ahead as well. And remember, the spaces are first-come, first-serve so they may fill quickly.  Everyone is not guaranteed an individual slot. 

 

if you are interested, please contact me ASAP. Trialstrategist@gmail.com

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Focus Group Opportunity

This is an opportunity to get focus group feedback at a greatly discounted price by sharing costs among numerous attorneys. I will be coordinating this venture locally in Denver but it is open to anyone nationwide. There are two opportunities:

1. In this initial series I will be covering 8 different general topics with various groups of jurors, two topics per month for four months, and converting the footage to DVD. Examples of these topics include:

  • Expectations of doctors or care providers regarding coordination of care, asking questions to elicit a proper diagnosis, wait times, etc.
  • Expectations of stores regarding safety of the premises: How often do they need to be checked for safety? Does the expectation differ depending on the store or property type? What is reasonable to expect?
  • Feelings about corporations and profit motive
  • Feelings about federal standards in product manufacturing and the need to go above standards
  • Attitudes about insurance companies
  • And more topics…

I will give each topic 50 minutes and will be leading concept focus groups on each of these topics. I will be gathering a number of interested attorneys to share costs of these focus groups. Depending on how many attorneys are interested, the expense for the full 8 topic set is likely to be in the $1,000-$2,000 range.

2. If you want other things specific to your case… would like to reserve a 1-2 hour slot following one of these focus groups, I will test anything specific to your case and the fixed costs will remain low as they will have already been split among yourself and the other attorneys. This means no extra fees for venue, recruiting, food for jurors, etc. It will require an extra $25/hour per juror for their time, a very small fee for extra videographer time, and my hourly rate for the prep time and the extra hour of focus groups. This will save you a significant amount in both time and money. It is meant for smaller issues, such as:

  • Testing exhibits
  • Testing case issues very early on to get some opinions which can guide discovery
  • Testing your voir dire
  • Testing case-specific issues that are not included in the 8 group topics

Does it matter that these are Denver-based jurors?

Yes. It always matters from where you recruit. You ideally want to test your case issues on jurors in your venue. That being said, feedback is still feedback. Is this going to give you a full picture of issues for your case or your venue? No. But it is similar to going to a mall and asking people their opinions. It’s helpful to get any opinion. But if your case is not set in Denver county, you do not want to rely only on the feedback from these groups. You will want to follow up in your own venue or at the very least understand that this is just SOME information, not full information. That said, the more jurors you can watch deliberating about any topic, the better your skillset as an attorney. This is an inexpensive way (likely a couple hundred dollars per topic!) to hear juror feedback.

If you think you may be interested or have questions, contact me quickly as spots will be limited.  

303-653-2233

email: Trialstrategist@gmail.com

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New Monthly Flat Fee Consulting Service! First Come, First Serve

As my consulting practice evolves, I’m finding that a good deal of my time is spent on the “smaller” tasks – which is wonderful considering that my goal is to bring some level of consulting to every size case. While most attorneys I work with don’t have the budget for focus groups, they often call asking for a couple hours of my time to talk through a case and strategize, sometimes as early as case intake and as late as a couple days before trial (obviously, the earlier I’m contacted, the more helpful I can be as I’ve been known to completely change the direction of a case and at some point it’s simply too late to implement).

During a case analysis, various issues related to the case may be discussed. Generally the conversation takes on a life of its own but feedback often spills into areas such as suggestions for opening or closing, jury selection questions, areas where jurors are likely to have problems, how to fill in gaps in evidence, what themes to focus on, how to articulate damages, whether to have a client present at court, order of witnesses, which issues to bring up early, formulation of Rules, and many other such topics.

I also get asked to edit opening statements which takes anywhere from a couple hours to 10 hours of my time going back and forth with the attorney to hone in on the details that make such a huge difference.

Because of the outcry for these services, I have started offering a new service package on a first serve basis. I have a couple of local clients but am now opening up the offer to anyone else nation-wide who would like to partake. I will only take on a couple more firms or individuals for this offer.

I have always argued that consulting should not be only for high end clients, but should be of benefit to every size case and even for mediation preparation.  If attorneys had a better idea of how jurors are likely to react to their case, settlement offers would be more advantageous depending on what hidden dangers or benefits were discovered early in the process.  This is one of my attempts to benefit all sized clientele.

WHAT IS THE PROPOSAL?

The proposal offers a base monthly fee for unlimited case strategy/case analysis and editing of opening statements. Note that this is not meant to be an on again, off again agreement for months when you feel you have a high volume of work. This is meant to be ongoing – for you to have me on hand in your back pocket on every case. Rates range from $1,250/month and up. There are different ways to structure the pricing – by firm or by individual – so contact me and we can discuss how to tailor this to meet your needs. Services beyond opening statements and case analysis are not included in this proposal.

 WHAT YOU GAIN:

  • Unlimited access to me for all your cases. No need to wonder if your small case has a budget to allow for a consultant – it will already be paid for.
  • No need to hesitate to pick up the phone or send an email with any quick or complicated question about the strategy of your case.
  • Assist in case intake to know the problems, or unique solutions needed, with your case before you accept it and questions that need to be answered before investing your time and resources.
  • Help with a critical part of trial, opening statement (to get jurors on your side early) will already be budgeted and paid for.
  • Get feedback before mediation so that you know what to argue and what a jury is likely to have problems with regarding your case. This can help you hone in on a reasonable settlement value.

WHAT OTHERS FOUND BENEFICIAL:

Attorneys have found that integrating these concepts early in cases, as part of mediation and in smaller cases has great benefit.   There is simply no reason why trial strategy should be limited only to large cases.  Here are some quotes about these services from attorneys I have worked with:

  • “I have been doing these trials for more than forty years and I can’t tell you the number of times Jessica has unlocked the powerful secrets in one of my cases…She quickly gets beyond the legalese and gives you the themes needed to catch the jury’s attention.”   Jim Gilbert
  • “I just want to strongly urge/suggest that if you are headed to trial, spend the money – even an hour or two, on Jessica to go over some aspect of the case…It’s going to lead you down a path or provide you with some insight, viewpoint or strategy that you never considered because you can’t see the forest through the trees. It will be worth every penny. As a sole practitioner, I can’t afford to focus group every case, but I certainly intend to use Jessica for even the middle cases and consult with her for a few hours on the smaller value cases…If you use any of Reptile, Rules of the Road, or David Ball in your case, you NEED to at least get on the telephone with her even if you initially don’t have an idea of why or how it will help. It will help your case and translate into real dollars that will be far, far in excess of what she will cost.” Todd Travis
  • “Jessica helped craft my voir dire and opening statement. If I can take one positive from this case, it was that the jury reported being convinced by the end of my opening statement that the Defendant was negligent and focused on damages from the beginning…I made a promise to get her involved sooner on the next case.”  Andrew Newcomb
  • “It was extremely beneficial to be able to talk to Jessica about framing the damages argument in a case where the non-economic damages were the most difficult aspect to enunciate. I found her thoughts on the subject to be cogent and outside the box and I used much of her input in trial.” David Webster

This is a great way to bring in a consultant on any sized case. Because you will have already paid for my time on a monthly basis, you do not need to consider whether any one case has the budget for some consulting help – you will have the help in place for all cases. Please call with any questions or issues you’d like to discuss, including ways to individualize this to your firm’s needs.

 

 

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Do You Really Win or Lose Your Case In Jury Selection?

It’s been said many times that you win or lose your case in jury selection. But is this really true? Is jury selection so critically important that it will make or break the verdict? Yes and no.

Jury selection is critically important. No doubt about it. However, I do not believe that the jury you have seals the fate of your case. Of course evidence matters, but that’s not even what I’m referring to. Jury selection is a misnomer. We all know it’s really about de-selection. And that implies something – it implies that you’re not choosing the jury that’s best for you, you are eliminating the worst on the panel. That’s all jury selection can do – give you a better chance at a good verdict than you had before you started eliminating people.

In most jury selections I take part in, there are more “bad” jurors for our side than good. While cause challenges certainly help, judges are often hesitant to grant them even when a juror outwardly states that they cannot be fair and impartial. This often leaves you with 4 strikes but 7-8 bad jurors. And those are just the bad jurors that you know of. How much do you really know about the person when your voir dire is limited to 20 minutes? Sure, sometimes your opponent may strike a bad juror or two for you if they also believe they are harmful to their case, but more times than not, you will have more jurors to strike than you have strikes and you will likely be left with one or two jurors that were more quiet whom you know little about.

This brings me back to my original point. A great majority of the time (maybe even all of the time – but I hate absolutes, so we’ll say over 95% of the time), you don’t win or lose your case in jury selection. Even if you think you have a good jury, you never know what answers you would have gotten if you’d had more time to talk to the jurors during voir dire. During jury selection, you can only improve your chances of a good verdict but always go into trial assuming that you will have a few bad jurors left on your panel.

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The Various Shapes, Sizes, and Costs of Focus Groups

Over the years, I’ve come to realize that a good majority of attorneys believe that there are only one or two variations of focus groups – a full-blown mock trial (of varying lengths and levels of detail) and possibly a limited focus group to test exhibits. In reality, there are many more uses for focus groups. Whether you do them yourself or call in a consultant to help with all or part of a focus group (some consultants will work in a piecemeal format and help with some aspects and allow you to do others in order to save money while others may insist on doing the entire project themselves), you should be aware of the various uses. Broaden your horizons!

Below are just some suggestions for the use of focus groups along with the pros and cons of each:

1.     Deliberation Groups. This is the one you are most likely familiar with. Mock jurors hear a Plaintiff’s statement, a Defense Statement, and possibly view some exhibits and watch some videos of parties or witnesses. Questionnaires are administered between statements and videos to track jurors’ reactions as the case progresses. At the end, jurors are left alone to deliberate (yes, this means you have to get out of the room. Do NOT stay in the room while they deliberate. Your presence will influence their discussions consciously and subconsciously). Although this may seem very straight forward, this is one of the types of focus groups where you should really consider hiring an expert to help you. The details of the statements and questionnaires are important. As with all focus groups, you should conduct these before the end of discovery (jurors will often want to hear from people you have not designated as witnesses or see things you had not considered disclosing) but far enough along that you have a very good idea of the other side’s story of the case. Never do less than two groups because you need a control group. Four is ideal.

  • Pros: You will learn about group dynamics. You will see what jurors are likely to do with your case without direction from you or a facilitator. This gives you a good idea of how jurors will view your case, what issues they will have, and what problems your case has before you go to trial.
  • Cons: This is generally the most time-intensive type of focus group to prepare for and also tends to be the most expensive. Further, if you are early in the case, the feedback may  not be helpful if you don’t yet know what the other side is going to say.

2.     Concept Groups. In general, these are run more like you would imagine a product focus group where the facilitator stays in the room with the jurors the entire time asking questions. The order of questioning and the format of questions is important. You don’t want to lead jurors in their responses or give away which side you work for. Again, never do less than two groups. You would be surprised at the influence one “atypical” juror can have over the group.

  • Pros: This type of group is helpful in the earlier stages of your case to find out juror responses to general topics (such as how they view pre-existing conditions of your client or views on product manufacturing overall). It can be very helpful in directing your discovery.
  • Cons:There is an artificial nature to this type of focus group. Jurors in real trials are not fed pieces of information and then questioned along the way. Your questioning can influence how they view the rest of the evidence. Further, you will not see how jurors interact with each other on their own without guidance.

3.     Testing Exhibits. Focus groups are often used to test exhibits or Day In the Life videos. Often you may want to show an exhibit and ask jurors what they think it shows. You may find out that the exhibit displays something completely different from what you had hoped. Jurors may also notice things you did not in the background of a photo or video.

  • Pros: These can be very informal and easy to put together. Further, you can show jurors exhibits from multiple cases in one sitting, so it can be very economical.
  • Cons:Realize that jurors do not view exhibits in a vacuum but that does not detract from the usefulness of testing the exhibits to determine what they show. If testing how impactful they are, you may need to embed the exhibit in a more formal mock trial with evidence.

4.     Testing Witnesses/Parties. Show mock jurors video depositions of your client, the other party, or key witnesses. You may think someone is likeable while jurors think they are lying or exaggerating. Find out whether jurors think your key expert witness is credible and whether they understand what is being said.

  • Pros: These can also be very informal, although you probably want some questionnaires to get individual feedback before the group processes silence those who may think differently from the majority.
  • Cons:Be careful about brining your client in person. There isn’t much case law to save you if your opponent finds out that you conducted a focus group where your client spoke to mock jurors.  Although you are likely protected by being there and having jurors sign confidentiality agreements, it is possible you could lose some privileges.

5.      Testing Voir Dire. In the past year,  I have been offering to help attorneys hone their voir dire skills. With some mock jurors in the room, practice your voir dire. If you have a consultant with you, they can interrupt and change the format of your question or explain why certain questions are not working or how they could be reframed to elicit more truthful responses. After dropping in on random trials on my days off, I’ve come to realize that many attorneys think they are good at voir dire because they have been trial attorneys for years but they don’t realize that their questions are virtually useless. Others have decent questions but the wording is confusing to jurors such that they get blank stares. Practice (and critique) makes perfect.

  • Pros: Since we don’t care about the content of the jurors’ answers, you don’t have to be strict on matching demographics when recruiting. This can be very inexpensive to run since you only need jurors for 2-3 hours.
  • Cons:None. You need to be practicing this!

6.     Testing Opening Statement. Rehearse your opening to find out what jurors think the case is about by the time you finish and how they would lean. In the interest of being neutral, it’s advisable to also read an opening for the opposition. This balances the information jurors receive as well as hides your stake in the game.

  • Pros: You likely don’t need jurors for very long so juror pay is fairly inexpensive and you can fit in a few groups in one afternoon.
  • Cons:While jurors to start to make initial leanings after opening statements, the rest of the trial does matter. Look not for jurors’ end votes but for any questions they have, parts that were confusing, what parts were most important, etc.

There are many other variations of focus groups. They can test just about anything – other than verdict numbers (you can only trust ranges, not actual figures). Just keep in mind that the quality of the results can only match the quality of what goes in. If you do your own inexpensive focus groups during discovery, you should hire a consultant toward the end of discovery to conduct a larger focus group or mock trial where the details become more complicated.

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Beating Preponderance – The Trouble With Battling Experts

I consult on many different types of cases from medical malpractice, insurance bad faith, personal injury, wrongful death – the list goes on. While every case is different, I notice a common theme in many of my consults. As I talk through the case with counsel, I look for potential holes. I try to see the case through the eyes of the worst juror for that side. Through asking questions, I often discover problems in a case that the attorneys never knew existed – sometimes so substantial that attorneys have had to settle the case or, if they’re lucky enough to still be in discovery, make some drastic changes. But even on the “good” cases, the ones that were worked up well and have a strong base from which to build on, I often see attorneys blinded by their story of the case.

Here is an example of the conversations that I seem to be encountering over and over:

Me: What is the defense side of the story?

Attorney: They say X, Y, Z. But they have nothing to back it up.

Me: Well what does their expert say?

Attorney: They will say A, B, C.

Me: How do you know that’s wrong?

Attorney: Because our expert says so.

While cases often are a battle of the experts, you need more than that. If you are the plaintiff, you must prove preponderance. If at trial all jurors hear is your expert versus theirs, that often ends in a toss-up. You may think your expert is better qualified or more likable and sometimes that’s true, but unless there is a glaring discrepancy between the quality of your expert versus theirs, changes are that jurors will count it as a tie. As a defense attorney, a tie may be enough. Legally, a tie would signal less than preponderance. But combined with other aspects of the trial such as your client or how the judge rules on evidence, you may still fall behind. No one wants to be in the position of trying a case that you win just by the skin of your teeth because that means you could just as easily have lost.

So what’s the solution? You need to present your story of the case, but you cannot ignore the other side’s story. You need to address it and not just by having an expert who says their side is wrong. Why is it wrong? What steps did their expert miss in doing the analysis? What inaccurate assumptions did their expert base his/her opinion on? Why is your expert’s analysis more valid? When testing for a TBI, did the medical examiner follow all protocols regarding lack of distractions during testing? Did they rule out other causes of the symptoms? Did the police create a report by following proper police protocol in terms of being unbiased and interviewing the parties? Did your life care planner take into account the fact that once someone lives to a certain age, they are more likely to live longer whereas their planner relied on life tables? You need to explain to jurors why the other side came to different conclusions. In most cases, both sides have paid experts. To point out how much the expert is being paid is fine but it usually equals out between the two sides and jurors understand that experts need to be paid for their time. You need to address not only your story but disprove theirs. This is not always possible, but I see many cases where it is possible and the attorneys simply haven’t taken the time or thought to figure it out. Don’t assume that having an expert who counters the other side’s expert opinion is enough. You need to show why they are wrong.

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