Wyzga On Words

What Do I Mean When I Say "Power, Passion & Precision"?

 

Power.

            Passion.

                            Precision.

For decades now I have repeated my "3P Mantra" when speaking and teaching communication skills, story skills, and platform skills.  I use the "3P Mantra" on my office voice mail.

Power means coaching yourself to practice like you play.  The team plays to win.  The team practices to win.  You play to win - so practice like you play - with power.   A coach at my gym was training a member to get ready for her first tri-athlon.  It was the coach who kept reminding the trainee that she was getting ready for a race, a competition, to beat other people - not just taking a bike ride or a swim.  She took the advice and came in 4th in her class.

Passion means having life.  Does your case story come alive?  Or are you putting lipstick on a corpse?  Do you have a sense of affection for your work, for your client, for this case?  When my clients express exhaustion I always ask them, "For what do you have affection?  How do we marshall that for the task at hand?"

Precision means that state of being exact.  To be exact you must consider all the ways to get it right. To get it right you must develop the right story, right facts, right issues, right language, and right mindset. It can't be wrong when it's right.

Power.

            Passion.

                            Precision.

Lawyers are Suspicious of Stories That Do Not Come Packaged in Structures.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Click here for the 3rd post.

Nurses Hold the Space for Patients, Families to Tell Their Stories.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Here's the second post

Content + Context + Value = Emotionally Meaningful Story.

I am delighted to have been invited to join Kathy Hansen's blog, A Storied Career!

Just in case you missed us, over the next several days I'll be re-posting the interview she conducted with me and began publishing on April 9th.

Here's the first post:

Content + Context + Value = Emotionally Meaningful Story.

Q&A Tuesday: Do You Know That ASTC's 31st Annual Conference Is June 7th to 9th In New Orleans?

Q:    I heard tell that the American Society of Trial Consultants is holding its 31st Annual Conference in New Orleans.  What's happening?

A:    We are so jazzed to have the opportunity to learn, play, connect and succeed!

TIP:    Check out the ASTC website for an overview of the conference, registration and sponsorship opportunities.

TIP:    Get ready to let the good times role by reading through Conference Planning Committee Member Patricia Rhinehart's list of just a few things to do:

If you love music, New Orleans is the place to be! There’s music all over: people playing in the streets, on sidewalks and in the open-air cafes.

The best thing about the French Quarter is Royal and Chartres. Royal Street of course has great shops and all the fabulous art galleries. Check here for maps.

Stop at the Monteleone Hotel and have a drink at the Carousel Bar.  It's old, it's beautiful, and yes - it's a moving bar!

There's a great little restaurant on Orleans Avenue behind the cathedral - Orleans Grapevine - small, quaint, known for excellent wines.

Check out The Green Goddess. Something of a hole in the wall, but the food and the chef are SO worth it!!!

St. Louis Cathedral is a great stop for a beautiful church with pretty stained glass and even more history.   You may catch a wedding party spilling out into the square and second lining down Royal Street.

Frenchmen Street in the Marigny is New Orleans funky with lots of clubs for listening to music. Watch the clock for the Witching Hour!

Take the streetcar down St. Charles and get off at Lee's Circle.There's the Ogden Museum of Southern Art . A must see.

From there venture down Julia street and others in the Warehouse District  for Galleries and restaurants. 

For military buffs there is the National World War II Museum - a great and moving tribute to the service of the greatest generation.

Continue the streetcar down St. Charles through the Garden District  to Uptown and the University area. 

Stop at Carrollton Avenue and grab some breakfast or lunch at the Camellia Grill before spending some time shopping in the Riverbend area.

If you have access to a car go down Magazine Street for shopping and eating - where the locals go!

See you there when the good times roll!

Three's A Crowd But Not A Focus Group.

Two heads may be better than one and three may be better than that.  But if you think that three is a legitimate focus group research panel, it's not.  It's three folks sitting around a table and talking about your case. 

Is it wrong?  No. 

Can you rely on it for strategic decision-making?  Probably not.  At least not for any reliable, statistical and probative value.

What's got my knickers in a knot this time?  I was asked to set up and moderate a focus group after the attorney had done her own research.  The attorney found three people on Craig's List, brought them together for three hours and laid out the whole case before asking the trio a question: "What do you think about what you just heard?" And then she wondered why what she heard was misleading information contaminated by biases which did little to advance the case.

TIP:    Focus groups vary in size, style and content depending on what the attorney needs to accomplish.  Matt McCusker, blogging in Deliberations for the American Society of Trial Consultants (of which I am a board member and co-chair for this year's 31st Annual Conference in New Orleans), offers a viewpoint about focus group research, "Don't Call Me Fluffy: One Perspective On Mock Trials."  It's worth visiting before you do it yourself.

 

Q&A Tuesday: Haven't I Seen You Before? Oh, Right! Other Focus Groups.

 

Q:    Who here recycles their focus group research participants?  What's the cost?

A:    Many lawyers do; and the cost is diminished, if not faulty research value.

Half a decade ago I moderated a day-long focus group in a medical malpractice case.  The 21 research participants were carefully chosen  to represent the venire panel for the upcoming trial on the case.  When I excused them I anticipated that their role in focus group research was concluded.

Imagine my surprise to learn from the videographer of that project that the research participants had been reshuffled and recycled in subsequent focus groups in that city as lawyers chose to run their own projects.  How did the videographer know?  He was filming the focus groups and he recognized the players.  One woman in particular was noteworthy for telling the others, "I know how to get us out of here early.  Just give them more than they want for the case.  Make it millions!"

I'm all for free enterprise; but if you insist on moderating your own focus groups, pay attention to the basics:

TIP:    Preliminary Considerations

When you choose to invite a number of strangers to hear your client’s story, do you know who they are?  Where do they come from? How like your venire panel are they? Can they communicate? Will they keep the case confidential after the small group research process is concluded?  Are they focus group veterans, like professional blood donors?

TIP:    Invest in a Professional Recruiter.

This is not the place to compromise. Work with someone who will help design and develop the research  panel beyond mere demographics or statistics. Ideally, you want the research panel to mimic as closely as possible the venire panel you expect at trial. The best recruiters have a strong database and excellent people skills to sort out the nuts and wannabes from the legitimate participant. 

TIP:    Develop the Screener to Reflect Your Case.

Who you recruit should be guided by a carefully crafted screener to staff the research project, maintain confidentiality, capture the eligible participant from the pool who could participate, and sift out participants you would not want because they, their attitudes and biases are not relevant to this research.

TIP:    General Exclusions.

As a general rule - whether you recruit from a temp agency, online or with a research firm - keep out anyone who might even remotely have a personal connection to the case in chief (all sides); anyone who is or has a close family member in the insurance, legal, market research, media, or journalism professions; the clergy; occupations related to the case; or anyone who is currently serving on a jury, has served on a jury within the past 12 months; or anyone who has ever served on a legal research project.  You want to avoid a “Jury of One” or someone who knows how legal research is conducted and will skew the entire project.

TIP:     The Bottom Line for You .

A focus group run with carelessly selected and/or repeat research participants is not (1) reliably predictive, (2) comprehensive in measurement, (3) representative of the neutral venire panelist, (4) legitimate research; and (5) adequate or sufficient to predicate serious strategic or tactical decisions upon.   Focus group veterans know how the game is run and will not be the neutral participant you require for your research.  You may as well save your money and poll family, friends and business acquaintances.

Q&A Tuesday: Focus Group Research And Confidentiality Agreements.

Q:     I am a lawyer who wants to run my own focus groups.  What do I need to know about confidentiality?

A:     Three things: (1) Always Secure a Signed Confidentiality Agreement; (2) Pre-Research Orientation; and (3) Who Stays and Who Goes.

Always Secure a Signed Confidentiality Agreement.  The confidentiality agreement assures the participants that we will not use their private information in exchange for their agreement that they will keep secret the confidential information gained during the course of the research.  Typically each participant is asked to read, complete, sign, and submit a written confidentiality agreement prior to being seated for the project.  Do not email the participant a copy of the agreement ahead of time.  Present it to the participant after she has shown you her driver's license to verify who she is and has signed in for the project. 

The agreement should provide for at least the following:

In exchange for financial compensation, the research participant acknowledges and agrees that:

• The participant is being retained to help decide a real lawsuit;
• The participant will participate fully, thoroughly, and respectfully;
• All information received, heard, discussed, and seen during the course of this project is related to the project and is confidential unless and until required by a court of law;
• The participant shall not disclose any information, opinion, or details about the project in any manner or form whatsoever to any person, entity, business, or organization unless and until required by a court of law;
• The participant will be videotaped and/or photographed;
• His or her videotaped participation, comments, photographs, written questionnaires, notes, sketches, and the like generated during the course of the project become the property of the law firm; and
  
• The participant will pay reasonable damages if he or she breaches the agreement.

Pre-Research Orientation.  Always remind the participants of the importance of the confidentiality agreement that they signed and secure one last acknowledgment of their promise. My practice is to read a statement about the need for confidentiality, have the participants raise their right hand if they agree with the statement, and secure that agreement on videotape. This is also a good time to remind them that all notes, papers, and trash will be confiscated after the project. The trash can be returned to the law firm and shredded.

Only Lawyers and Firm Associates Attend the Research.  Many litigation consultants agree that parties and experts do not attend or testify during the research project. There is a lot of gray area about the confidentiality of focus groups with parties and experts in attendance. Many clients are too vested in the outcome or are simply unable to hear strangers discuss their cases. Your job is to listen and observe the proceedings; not hand-hold the fretful client.

Moreover, having the client or experts address the focus group destroys neutrality. Absolute neutrality is critical to receiving predictive and probative information. Typically, if the client appears for the purpose of being evaluated one of two things will happen: You will have folks who play the devil’s advocate and challenge you or, worse, you will have those who want to be your cheerleaders and advocate strongly regardless what the evidence shows. Neither role works and both hurt. You do not want to risk it.  Substitute a clip of the video-taped deposition instead.

 

Key Goal For Focus Group Research: Abandon "Predictions."

I am often asked about the value of focus groups, especially since many lawyers are moderating their own research.

3 TIPS:

1. As a communication and litigation consultant, my purpose in facilitating focus groups is to assess case issues and strengthen the presentation strategy. The overall goal is to gather insights and feedback about the issues from research participants representative of a typical jury in the jurisdiction where the case will be tried.
2. The savvy lawyer knows it is of paramount strategic importance to learn how jury members typical of this trial venue would perceive the case, and how those perceptions might drive the findings of liability and damages - before trial.
3. Are focus groups predictive? No. Focus groups are not predictive. Focus group research is a source of information for understanding juror perceptions and strengthening the case presentation.

Q&A Tuesday: What Makes My Character Or Client Believable?

Q:    What makes my character (or client) believable?

A:    For starters, no one is either all good or all evil. You need a bit of both.

The mistake many folks make when they create a character (or prepare a client for deposition or trial) is they want to err on the side of "my guy is all good and the other guy is all bad."  This sounds like something one would hear in divorce counseling. The truth is, even Darth Vadar and Lucifer started out on the bright side.

Generally speaking we like people like us.  Whether we are conscious of it or not, we relate to characteristics in others which are like those in  people familiar to us. These sense impressions inform the attitudes we have about people - before we even know them. 

In a real world setting like a trial, we want to know if the client comes across in a positive way - or do they turn off the members of the focus group.  What about the client is not believable?  And can this thing be truthfully and accurately corrected so the client is compelling and convincing? 

That does not mean we erase the flaws.  Not at all.  In fact, the case may require the lawyer to embrace the flaws while showing that the event had nothing to do with the flaws.  In the alternative, the flaws may be presented as having some part to play in the event but to a much lesser degree than that of the opposition. 

The key is to steer clear of generalities and stereotypes when preparing your client.  And remember you can't put lipstick on a pig.  Well, you can - but what are you left with? 

 

In the fictional world the same notion applies.  What makes characters endearing is that they have recognizable flaws and virtues.  We may recognize the flaws as belonging to someone else we know - not us.  But we recognize them just the same.  Give us a bit of both angelic and misbehavin'.

I was thinking of this concept while watching re-runs of The Big C, a TV series starring Laura Linney and Oliver Platt.   Linney's character has been diagnosed with cancer and she's trying to have the time of her life while there is life. Platt's character is her self-absorbed husband. But as you allow the characters to develop you come to realize that Linney's character is not all grace and sunshine.  She has a pretty selfish streak.  And Platt's character has a deeply feeling side you would not easily suspect in the beginning.

TIP: Create your characters or develop your client like the well-rounded human beings they are taking advantage of flaws and virtues as befits the situation.