Wyzga On Words

Q&A Tuesday: Why Invest In Focus Group Research?

Q:   Why should I invest in focus group research?

A:    Reconnaissance.

I am often asked what is the worth of investing in focus group research.  The answers are as many and as varied as the lawsuit you have filed or are considering filing:

1. learn attitudes
2. learn opinions
3. learn biases
4. learn notions
5. get ideas for discovery
6. get ideas for strategy
7. test the legal story
8. test the experts
9. test the experts' opinions
10. test the other side's story(ies)
11. test the visuals, demonstratives
12. test your own platform skills
13. ferret out the landmines
14. learn all the ways you can (or might) lose your case
15. learn whether you should even file a lawsuit
16. value of the case
17. whether alternative dispute resolution is feasible
18. ideas for direct and cross examination
19. witness preparation
20. whether and how to go to battle
21. and so on.

Still, lawyers are not convinced that they should invest a reasonable amount of money to learn what is bad and worse about their cases, their clients, and their own strategy.

So I am forced to go to a movie to plead my case.  The other night I was watching Steven Spielberg's Academy Award nominated production, "War Horse" based on the novel of the same name.

Early on in the movie, British cavalry officers listen to a report from their scouts about the location of enemy German soldiers.  The Brits learn the number of German troops, number of mounts, artillary, best positions of attack, strategy for attack, risks of loss of men, and so on. 

As the Brits prepare to attack the German soldiers, the officer in charge tells the scout, "Time spent on reconnaissance is time well spent."   

And then they went to battle. 

Do You Or Do You Not Scroll The Text When Playing Videotaped Deposition Testimony?

Typically, depositions are now recorded in some mode of videography to preserve the testimony in real time.

Later, during focus group research, mock trials, settlement conferences, mediations and courtroom testimony clips of the witnesses' depositions may be played  for a variety of purposes.  For example, the litigation consultant may wish to test the credibility of a particular witness; the attorney may wish to show some discrepancies in the opposing party's expert opinions; or the trial attorney may use the film in place of a witness who cannot attend trial, to impeach a witness or to further develop the legal story.  Many trial attorneys are familiar with a trial tool called Sanction Litigation Software to make powerful use of deposition testimony.

More often than not in each of these scenarios and others a scrolling text of the testimony appears in sync with the deponent's spoken words. As one who enjoys foreign films I've gotten accustomed to watching the action on the screen while reading the subtitles.  The experience is similar when I attend an opera in its original German or Italian; but the "subtitles" often scroll across the top of the stage.

However, no matter how carefully one watches and listens, the effect is the same: you may end up sacrificing a bit of visual and auditory attention to get the best of both worlds: accurate understanding and interpretation of the story being told.

I raise this so you might ask yourself whether the synced text is a help or a hindrance to advancing the decision-maker's comprehension.  In which situations does it help you tell the legal story and persuade to your point?  How might it hinder you from getting that point across? 

I believe it comes down to the purpose for which you are using the clip of the deposition testimony while keeping in mind decision-makers learn differently.  One might be distracted by the scrolling text while another needs it to clarify what she hears. 

To decide whether to scroll or not to scroll for comprehension, recall what you know about the best PowerPoint presentations.  Or the presentation secrets of Steve Jobs.  Often, more is less (yes, I meant to write it that way.)

TIPS:

1.    Ask yourself what you want the decision-makers to attend to:  Witness credibility?  Veracity of a statement or description?  The certainty of a conclusion versus an opinion?  Relevance?  Consistency of testimony?  Verbal cues?  Non-verbal tics?  Client likability? And the like.

2.    What is the setting?  Focus group research versus mock trial versus mediation, and so on.

3.    What do you want to come away with that will enhance your chance at verdict success?

4.    In focus group research you can do it both ways: play the testimony with and without the sound and synced scrolling text.  You can inquire of the research participants: who noticed what?  some may have attended to the non-verbal cues of the deponent; others may pick up on tone of voice and the emphasis (or not) on certain words.

5.     Once you determine the research or trial strategy then you can employ the tools to accomplish it. 

6.    Think before you scroll.

 

What Did They Say? And What Did You Hear? Tips For Listening To Clients, Focus Groups, Venire Panels, Anyone.

A crying baby gets our attention  The cry could mean "I am lonely, hungry, wet, tired, sick, in a bad mood, or just expressing my inner angst about the current politicl environment."  Moms know which it is - usually.  Their ears are attuned to the nuances.

It may not be as easy for us to know what we are hearing when we listen to our client, focus group research participants, members of the venire panel, the mediator, arbitrator, a friend, family member, or even our boss. 

How do we listen?

TIP:     Listen to what is said and what is not.  Like the space between the notes that serves to create the music, often what isn’t said is more powerful than the words used to speak a thought.

TIP:    Listen to the speaker on their level.

TIP:    Listen as if you’re a stranger in a foreign land.  Listen as if you are learning customs, rituals, and behaviors of the people in this foreign land.

For what do we listen?  The five critical elements, as follows.

TIP:     Listen for the precise facts the speaker chooses to use, as well as the pronouns, adjectives, verbs, and all descriptors that bring those facts to life.

TIP:    Listen to the emotion or how the speaker says what she says.  It may not be as obvious as say,  enraged anger.  It could be a timid reply that is covering for the thought underneath.

TIP:    Listen for the intention that helps inform us "how come" something is said. It may be to persuade, cajole, entice, inform, defend, emphasize, clarify, and so on.

TIP:    Listen for the sensations the speaker uses to tell us how something matters or feels to her.

TIP:    Listen most carefully to associations the speaker makes: how is this like that. The associations help inform us what the topic or question relates to in the speaker's world view.

TIP:     One of my secret weapons is a wonderful book I've used in decades of learning and teaching storytelling skills entitled The Power of Personal Storytelling by Jack Maguire.

Q&A Tuesday: When & Why To Focus Your Case.

Q:    How come I need to test my case with focus group research?

A:    My purpose in facilitating focus groups is to assess case issues and strengthen the presentation strategy.  The overall goal is to gather feedback about the issues from research participants representative of a typical jury in the jurisdiction where the case will be tried to obtain insights into how jury members typical of this trial venue would perceive the case, and how those perceptions might drive the findings of liability and damages.

TIP:    The overall focus is learning how to make your client's position more persuasive and compelling. 

TIP:    Focus group outcomes are not intended as a predictive measure, but rather as a source of information for understanding juror perceptions and strengthening the case presentation.

TIP:    Focus group research helps us know our case and its deficiencies in ways we are blind to knowing absent objective research.  We are blind because we are vested, we are immersed, we are emotionally involved, and we absolutely certain we are on the right track through this forest of trees when we could be in a dark wood where the true way is wholly lost to us.

TIP:    Consider a concept focus group to test whether the case is viable in the real world, to learn what the beginning legal story might be as members of the local community understand the case, and to gather some leads for discovery.

TIP:    Before your key experts have testified, use a structured focus group to further your discovery, to test your causes of action, to pick apart your opening and evidence, to learn the landmines and how to exploit them or blow them up.

TIP:    Six weeks before trial a mock trial is like a dress rehearsal of the key elements of your case including witnesses, to perform the ultimate test of whether this will play (compellingly & convincingly) to a jury.    

TIP:    Would you pay a car dealer to buy a car you did not test drive?  Would you marry someone you had not taken on a date?  Would you get a mortgage to live in a home you had not inspected?  Of course not!  Your cases are no different.  Test them early, test them often, and get experienced help.

Using Post-Its To Prepare In The Digital Age Is Not Old-Fashioned. The Best Minds Do It.

Time out of mind 3M encouraged its employees to dream up ideas. And so was born the Post-It.  From a humble canary-yellow beginning of 2 inch by 1.5 inch stickies that we came to call "Post-Its" grew a rainbow of products in shapes and sizes.  If you can't find it in the catalogue, then you don't need it.

Post-Its - like butcher block paper, marking pens, and sidewalk chalk - are so old school as to be almost laughable. Except that they work to get your ideas out of your head and into the real world.  Lawyers especially tend to be highly analytical, linear, logical people not easily induced to draw or sketch - until they are.   It is a proven way to relate you to your message and the message to your listener or decision-maker.

Try it.  It will change your practice.  Guaranteed.

TIP:    Invest in some Post-It butcher block writing pads that fit on an easel.  Buy a fistful of colored markers.

TIP:    Have a goal: what do you want to create?  And in what order do yuneed to create it?

TIP:    Using as many colored markers as you choose, draft ideas on the Post-It sheet. As you fill up each sheet tear it off the pad and post it on the wall of an office or boardroom.

TIP:    Make a mess of it. This is brainstorming.  You will begin to see the forest for the trees, the images, the global view, and the details in ways you could not envision when you were writing words in your head or typing them out on the computer.

TIP:    Step away from your work and leave it be for a time.  When you re-visit the work pay attention to what is vital for the story you are delivering and what can be whacked away.    

Seeing is believing.  On my Blackberry I carry photos I took of work done with clients to develop ideas, defenses, visuals, witness preparation, discovery, trial structure, order of witnesses, focus group research results, themes, and story lines - to name just a few.

 

Q&A Tuesday: Basic Discovery For Truck Wreck Cases

  

Q:    I have a truck wreck case, now what?

A:    Create a truck wreck investigation plan.

TIPS:    

1. Retain the services of an experienced and qualified expert with integrity and a strong background in truck wreck accident reconstruction.
2. Inspect the truck with your expert and take photographs or videotape of the process.
3. Visit the scene of the wreck with your expert and take more photographs and videotapes from every angle you can arrange for, including a bird's-eye view if you can manage that.  
4. Gather all police reports, photographs, diagrams, and exhibits.
5. Create a list of all first responders (police, EMS, tow truck companies, and the like), investigators and witnesses for your interview and/or deposition list.
6. Document retrieval is imperative: driver log book; truck maintenance and repair records; employee records; commercial licenses, certifications and continuing education; cell phone logs; dispatch logs; receipts for gas, tolls, hotels/motels, food, and weight stations; driver record and moving violations; truck violations; and safety performance data from SafeStat.
7. If this wreck was a newsworthy event in the area, get the TV, radio and newspaper accounts.  
8. Think globally from the driver to his employer to the corporation to request safety training, policies, procedures, safety meetings, rules, and regulations devoted to driver and rig safety education, monitoring, supervision, reprimand or punishment.
9. Visit the employer/corporation's website to read what they say is important to them when it comes to trucks, drivers and safety in the community; how they support or violate what they say.
10. Develop the Deposition List: truck driver; dispatcher; human resources personnel; safety and training personnel or manager; fleet manager; maintenance personnel; witnesses; and, the corporate representative(s).

Start the plan and work the plan so you are not left

Q&A Tuesday: How Are Depositions Like Scripts?

Q: How do I use deposition testimony to identify the story I need to tell?

A: Use the depositions like a series of scripts for a movie.

The 1950 Japanese film, Roshomon, is one of my favorites for explaining how to use viewpoints to identify the right story to tell the decision-maker for your case.  It's a worthy expenditure of 88 minutes to watch the film, especially if you enjoy old black and white movies full of thought and intrigue. 

Here is the excerpted story line:

"A priest, a woodcutter and another man are taking refuge from a rainstorm in the shell of a former gatehouse called Rashômon. The priest and the woodcutter are recounting the story of a murdered samurai whose body the woodcutter discovered three days earlier in a forest grove. Both were summoned to testify at the murder trial, the priest who ran into the samurai and his wife traveling through the forest just before the murder occurred. Three other people who testified at the trial are supposedly the only direct witnesses: a notorious bandit named Tajômaru, who allegedly murdered the samurai and raped his wife; the white veil cloaked wife of the samurai; and the samurai himself who testifies through the use of a medium. The three tell a similarly structured story - that Tajômaru kidnapped and bound the samurai so that he could rape the wife - but which ultimately contradict each other..."

Now imagine that your case has lead and supporting characters.  Identify them.  And then order the depositions so you are reading from the testimony of the supporting characters for the opposition, their lead characters, their experts, and then to the supporting characters for your case concluding with the lead characters.

Deposition testimony is like a series of scripts or versions of what occurred.  They are points of view about the events.  Some of the versions will be consistent; and other versions will contradict.

Based on what you know about this type of case, the other evidence you have accumulated, and your own professional experience and judgment, seek the strongest, most consistent and supportable story. Develop the story from the scripts paying careful attention to how you will burn down, blow up  or deflect the contradictions, landmines, and defenses for your client's version.

For example, in a plaintiff's "bad baby" medical malpractice case you might begin with the nurses who worked on the ObGyn floor when the pregnant mother was admitted, to the resident on call, to the delivering doctor.  If you have expert testimony, read that script as well.  Then move to the plaintiff's side and read the experts' testimony, that of any family members or friends present during the event and conclude with the mother's testimony.

Why read my client's versions last?  I want to know what all the opposition stories are first. Only when I know those can I develop the key story without getting blinded by and wedded to my own client's story - which may be dicey. 

 

NJ Supreme Court 1 Step Ahead Of SCOTUS Revising Eyewitness IDs

From the land that's known for prolific winter birding sites, great summer tomatoes, and being a trailblazer in criminal law - my home state of New Jersey - comes precedent setting changes from the Supreme Court on handling and accepting eyewitness testimony.

Benjamin Weiser writing for the August 25, 2011 NYTimes, "In New Jersey, Sweeping Shift on Witness Identifications,"  reports about a significant shift in laws that make it easier for defendants to challenge evidence, mandate judges to inform jurors about eyewitness mis-identification, and come at a critical time when eyewitness identification is under scrutiny for wrongful convictions. 

What makes this new set of rules unique?  The changes are under-girded by an exhaustive review of the literature that points to eyewitness identification as the leading cause of wrongful convictions across the country.  Excerpt.

"The State Supreme Court’s ruling was seen as significant because it was based in part on an exhaustive study of the scientific research on eyewitness identification, led by a special master, a retired judge, who held hearings and led a review of the literature on the issue. The special master, Geoffrey Gaulkin, estimated that more than 2,000 studies related to the subject had been published since the Supreme Court’s original 1977 decision, the court noted.

“Study after study revealed a troubling lack of reliability in eyewitness identifications,” Chief Justice Rabner wrote. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real."

From a practical standpoint, there are more than a dozen factors that judges should consider when faced with the question of the reliability of eyewitness identification, such as:

1.     whether a weapon was visible during a crime of short duration,
2.     the amount of time the witness had to observe the event,
3.     how close the witness was to the suspect,
4.     whether the witness was under the influence of alcohol or drugs,
5.     whether the witness was identifying someone of a different race,  and
6.     the length of time that had elapsed between the crime and the identification.

New laws always cut both ways.  I am curious to know who will enforce the new laws in the spirit in which they were intended and according to the letter as they were written.  Whether these new laws will discourage eyewitnesses from coming forward.  Or, whether feeling intimidated by the judge's hearing will eyewitnesses hesitate to offer what they "believe" they saw?

Meanwhile, "Attaboy, Jersey!"

Make A Point Of Arguing Your Opponent's Point Of View

"All My Old Haunts" is a lovely and thought-provoking OpEd piece written for the NYTimes by Jennifer Finney Boylan.  Boylan revisits her childhood home upon the passing of her mother.  She is visited - as I imagine each of us might be - by memories of days spent in that home with a sister and her parents. 

Boylan gives us a bit of her life story.  Part of that life story are recollections about the effort her parents made to surround themselves with people who had views different from and in-opposite to their own.  As she says, "This kind of thinking seems almost quaint in the current political landscape...."  Her observation goes beyond politics to law, communication, conversation, social discourse, intellectual pursuits and, of course, the stories we tell.

Here is the precise memory that caught my ear.  Excerpt:

"In the wake of the recent debate over the debt ceiling, I imagined my father’s solution. If the goal were to cut $4 billion from the deficit, he’d have suggested that the Republicans be put in charge of coming up with $2 billion of tax increases and the Democrats with finding $2 billion of cuts in services and entitlements. “Only when you try to argue your opponents’ point of view,” he’d have said, “does your own begin to make sense.” " [Emphasis added.]

If you want to know the other side's argument, defense, point of view and the like then step into the story they will tell and argue it for yourself.  Lawyers conducting their own focus group research, for example, may be doubly handicapped if they do not present with earnest their opponent's side and blithly proceed into trial with their own story ringing in their ears.

TIP:    Take on the story of the person with whom you disagree and argue it with, as I say  "power, passion, and precision" to become fully engaged in the alternatives.

TIP:    Argue those alternatives convincingly and listen to the "what if" this story could be or would be heard this way?  What might be the final chapter?

TIP:    Then argue the opposite side and pay attention to which one sways you most persuasively.  It may not be your own story.

I am working on a case right now where I move back and forth - like a wave machine at the aquarium - attending to first this piece of evidence or testimony and then the other. My job may be to tell my client that this is a case of really thin ice.  But I won't know until I make sense of our legal story in light of our opponents' stories.

Query: When have you had the experience of fully arguing an opposite point of view?  Did it feel true to you?  What did you learn?

Q&A Tuesday: Two Sides To Every Story

Q:    What do you see when you play and replay a movie scene?

A:    The realization that there are two sides to every story, and probably more that you can use to your advantage.

Sliding Doors with Gyneth Paltrow; Lincoln Lawyer with Matt McConaughey; and Trading Places with Eddie Murphy are three examples of movies which tell a story from different points of view allowing us to see how each story has more than one side.

"Sliding Doors" invites us to be part of the "What if she chooses...?" guessing game as we watch a London woman's love life and career both hinge, unknown to her, on whether or not she catches a train. We see it both ways, in parallel.

When McConaughey as criminal defense ("Lincoln Lawyer") attorney Mick Haller replays for the jury the events of the night of the alleged attack on a club dancer and prostitute, you can see how his client might be set up as a rich boy target.

And for those of us young enough at heart we can remember Eddie Murphy and Dan Akroyd stepping into each other's shoes and making a hit of an old premise, the role reversal in "Trading Places."

Each movie asks us to imagine how it would be or could be "If... the doors opened or closed; If the attacker was the rich boy or a set-up; and, If a black man could fill the polished Broughams in a white(y) world.  The movies rely on point of view: from whose viewpoint is the story being told as well as from whose viewpoint is the story being experienced.

TIP:    Your case stories are no different from movie plots.  In fact, they are remarkably similar.  Pay attention to the techniques used to reveal the stories in the movies you watch.  Imagine how you would use them in your cases.

TIP:    As you are working to identify the story you need to tell, tell the story that you do know from every available point of view saving your client's for last.  Make sure you incorporate the viewpoint of inanimate objects as well, e.g. "If these walls could talk, what they would tell us is....."

TIP:    Allow yourself the opportunity to learn that the story you need to tell on behalf of your client depends on testing all possible view points of that story to discover the one that will be supported by the evidence you have.  In fact, this exercise may lead you to discover evidence you had not considered.  And this we call the "ah ha! moment."