Wyzga On Words

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.

You, Your Secrets & What Companies Learn About Them.

We think we know all about marketing, branding, advertising.

We say: "I buy just what I need or want, not what someone or something tells me to buy."

Would that it were so. As Ralph Nader says, "You get away from marketing when you are asleep."

Start here if you have not already seen POM Wonderful Presents The Greatest Movie Ever Sold, Oscar-nominated filmmaker Morgan Spurlocks' documentary about branding, advertising, and product placement brought to you by the very folks who do the branding, advertising and product placement.

Or here.

Or here.

Then ask yourself what you buy and how come you buy it.

When you are done talking to yourself, visit a fascinating and in-depth article by Charles Duhigg reporting for the NYTimes, "How Companies Learn Your Secrets."  It's so rich for mining I  don't know where to turn first.

Number 1: we are habit-driven creatures.  The habit works like this: cue + response + reward.  For example, it's Saturday night (cue) and on Saturday night I have fish and chips (response) because it's fun and greasy (reward).  And so it goes until something pretty drastic breaks the habit.  Drastic like a move, a divorce, a marriage or the like.

Raise your hands: who here uses the same dish washing detergent their mom used?  See.

Number 2: companies collect information on customers.  No news here.  But apparently Target is ahead of the game turning demographic collection into a data driven, statistics-based enterprise that makes the most of "the intersection of data and human behavior." 

Number 3: all the demographic information companies collect is meaningless (as we have learned in other areas of practice)

..."without someone to analyze and make sense of it. That’s where Andrew Pole and the dozens of other members of Target’s Guest Marketing Analytics department come in."

The article claims that Target has gone so far in its analysis as to know when a couple is pregnant so they can target (ahem!) the new parents and turn them into loyal customers for years. A Dark Art or admirable enterprise?  

Admittedly, the article will take almost as long to read as it takes to watch The Greatest Movie Ever Sold.  Yet, it sure is worth knowing a bit more about what they know about you so you can decide for yourself who or what is the

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.

 

 

 

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.

 

Strong Mock Trials Are A Product Of Experience, Expertise and Enquiry.

I have written often and much about the rigors of focus group and mock trial research.  In my opinion this research has its best chance of reliable success when lawyers practice law and invite litigation consultants to serve as a member of the trial team to guide the lawyers with their experienced observations, analysis and recommendations.

My friend and ASTC colleague, Matt McCusker, recently wrote a piece in Deliberations, outlining the pitfalls of "do-it-yourself" research modeled on demonstrations or word-of-mouth techniques: "Don't Call Me Fluffy: One Perspective On Mock Trials."

Why am I supporting the litigation consulting competition?  McCusker speaks the truth, I agree with it, and his post is a reminder that analysis is more than just critical, dispassionate, objective listening.

"However, these demonstrations do not show the detailed analysis that most consultants give the data they collect.

Typically in mock trials, 3 or more panels of jurors have been recruited and subject to extensive background questionnaires to get a sense of their attitudes, beliefs and life experiences prior to hearing about the case.  Next, these participants are shown detailed case presentations with exhibit books and asked who they favor throughout the day (Plaintiff?  Defendant?  Is there proximate cause?  Etc.).  Then, armed with a treasure trove of information, litigation consultants can analyze the results and search for associations between opinions/experiences and case leanings.  Both qualitative and quantitative analysis are often used to glean the most useful information."

You would not buy a new car without driving it around the block a few times.  Nor would you say "I do." without a few coffee dates beforehand.  Give yourself, your clients and colleagues the best shot at settlement or verdict success by discovering what seasoned litgation consultants can bring to your trial team.

Software That Listens For Lies Reminds Us To Keep An Ear Tuned In Focus Group Research.

Imagine this: computers are being taught to spot patterns of emotional speech - human speech that reflects deception, anger, friendliness and even flirtation.

How far we've come from "Hal."

Anne Eisenberg writing for the NYTimes, "Software That Listens For Lies," takes us to a world of promising detective research: computer linguistics.  Excerpt.

"That’s because Dr. Hirschberg is teaching computers how to spot deception — programming them to parse people’s speech for patterns that gauge whether they are being honest.

For this sort of lie detection, there’s no need to strap anyone into a machine. The person’s speech provides all the cues — loudness, changes in pitch, pauses between words, ums and ahs, nervous laughs and dozens of other tiny signs that can suggest a lie.

Dr. Hirschberg is not the only researcher using algorithms to trawl our utterances for evidence of our inner lives. A small band of linguists, engineers and computer scientists, among others, are busy training computers to recognize hallmarks of what they call emotional speech — talk that reflects deception, anger, friendliness and even flirtation."

While it is unlikely that the research or the software will be used in courts of law, the goal is to plumb the depths of human speech for the clues it gives in analyzing speech.

“The scientific goal is to understand how our emotions are reflected in our speech,” Dr. Jurafsky said. “The engineering goal is to build better systems that understand these emotions.”

The programs that these researchers are developing aren’t likely to be used as evidence in a court of law. After all, even the use of polygraphs is highly contentious. But the new programs are already doing better than people at some kinds of mind-reading."

Admittedly, the computers are still struggling with the finer signs of emotion - a not too different situation from us homo narrans.  Yet, what we do have that the computers lack is access to facial expression, body language, and experience to help us discover meaning in language.

TIP:    One place litigators can practice focused listening is in focus group research.  Stop all else and listen to what is being said about the legal stories you are telling the members of the community.

TIP:    Pay attention to three things: (1) the facts the participants use to discuss the legal stories, (2) the emotion they use to express their thoughts, and (3) the intention behind the words.  You might hear energy, boredom, fatigue, doubt, confusion, or enthusiasm.  The way words are spoken informs the attorney about underlying messages.

TIP:    Take careful note of the analogies the participants use to bring their life experiences and world views closer to (or further away) from your client's. 

TIP:    If they are not finding the universal story in your client's particular life experience that is a most important clue to inform you how you could lose this case. 

TIP:    Rework the legal story from a place of "How can we lose?" based on what you heard them say to more closely align the legal proof of your story with this "community proof" necessary to persuade the decision-maker.

 

Use Power Point To Fortify Your Narrative Not Be Your Narrative.

Like many of us who attend conferences, I imagine that you sit through the presentations of fellow colleagues.  One after another the presenters walk to the front of the room, turn on their laptop, face the screen, and read to you their text-heavy, chart tedious, complex and complicated PowerPoint presentations.  What makes one different from another is the color of the background and the text.  What unifies them is that most PowerPoint presentations are numbing at best.

TIP:    Eschew PowerPoint unless you have a clear, concise and cogent reason to exploit its visual powers to your advantage.

TIP:    Use the power of the point to fortify your narrative.

TIP:    Never allow PowerPoint to BE your narrative.

TIP:    Limit the text to catch words or phrases that reinforce your message. 

TIP:    Use visuals that reveal the message.

TIP:    Know the power of odd numbers to engage memory.

TIP:    Know your presentation so well that you can face the audience, make eye contact with the members sitting there and speak to them.

Let Me Be Clear: Doctors Practice Medicine; Lawyers Practice Law; Litigation Consultants Practice Removing The Blinders.

I'll be the first to admit it: I'm biased. I'm biased toward two heads being better than one.  I'm biased toward more hands helping the project go faster.  I'm biased toward getting outside objective help that will encourage one to take off the blinders and see things as they are - not as we are.  Especially when it comes to clients and cases.

Over the years as my practice evolved my approach to focus group research has evolved.  I have come to learn that we take literal responses to questions at our own peril.  That's true whether we are listening to deliberations, moderated discussions or reading written responses on a questionnaire.  Yet, I hear this time and again when I am asked to review attorney-run research: "When he said X he meant X because he said X; therefore, X must be true". 

Imagine my professional concern when I come across copies of written questionnaires I prepared time out of mind for cases long since resolved that have been re-used and recycled just as they were written.  And not for the reason you think.  As much as the next person I owe what I know in great part to learning from the work of others.

My concern comes from seeing some lawyers churn out copies of written questionnaires in lawyer-run focus group research with little heed to what is being asked or why.  And compound the problem by not knowing what to do with the information they might have gotten.

I'm going out on a limb here because I believe this.  Yes, I have said: Get trusted, professional help to design, conduct and analyze the focus group research. Do not go it alone to figure out liability and damages.  Work with a litigation consultant to uncover your case landmines, blow them up, walk the decision-maker around them, and incorporate them into the story.

I say this with a measure of confidence because I know that despite my achievements as a practicing lawyer, do I feel I can try a case today?  Not with the same skill set I had when I was a practicing lawyer. 

My professional role has changed and my skill set along with it.  My medical and legal training brings a depth of knowledge to the trial table. What I know I can do is help develop a forensic fact pattern into a real life drama that will persuade the decision-maker.

Let me be clear: I am not averse to lawyers practicing as litigation consultants or even testing their own cases - as long as they do it with thought, care, consideration, objectivity, and arm's length dispassion about the subject matter with carefully chosen research participants who are not off the "been there done that" assembly line.  Know what you want to know, what you are asking, how you are asking, and how to interpret the response.  "It's not what we say - it's what they hear." [Frank Luntz]  And it's not what they say - it's what we hear.

Q&A Tuesday: What Story Does The Defense Get To Tell?

Q:    I often hear that the only choice the defense has in a case is to shoot holes in the plaintiff's story; that it has no story of its own.  Is this accurate?

A:    Absolutely not!  There are two sides to every story.  And the more sides the more stories.  Let me go back to Moot Court days to remind you. 

Yup, time out of mind my hair was curly and the men in robes behind me were sitting Supreme Court Chief Justices of states such as Idaho, Nevada and Pennsylvania.  I had just won the final Moot Court competition arguing to this august panel.

What's "Moot Court"?

"Moot Court is a simulation of an appellate court proceeding (also known as mock Supreme Court and Supreme Court Simulation).  Moot Court involves teams of student-contestants, clients burdened by a legal problem, briefs and oratory detailing the dimensions of the legal problem before an appellate court. Students argue a hypothetical legal case known as “the competition case.”  To do so, students must research the cases and laws cited in “the competition case.”  Moot court judges ask students questions and grade the students on the basis of their knowledge of the case, their response to questioning, their forensic skills, and their demeanor.  Oral argument lasts 40 minutes (each side gets 20 minutes) and each student is expected to speak for a minimum of 7 minutes.  Judges usually consist of attorneys, law faculty, or, on occasion, members of the judicial branch of government." [California State University, Fulleton]

Ironically, it's not just for law school anymore.  There is an American Collegiate Moot Court Association.  But I digress.

For aspiring lawyers, there is nothing better than taking part in Moot Court compettion if you want to hone your analytical, writing, narrative, and platform skills.  Each of the Moot Court teams get the same set of facts from a lower court trial and decision.  As I recall ours was a product liability case involving a forklift and based on the true case, Barker v. Lull Engineering Company.  You research, write appellate briefs and argue your case as the appellant (applying to the higher court for a reversal of a lower cour decision) or the appellee (the respondent). 

As the competition goes on teams and law students are voted out.  Those left standing continue alone in the competition and have the added burden of switching sides.  You must learn to leave your own story and craft a story for the other side.  By the end there are only two of you.  And you don't know which side you will argue until they open the envelope.

The beauty of Moot Court is that it teaches you there are two sides to each story, to each case, and all you have to do is learn which facts and which arguments support which story.

TIP:    If you were on a Moot Court team in law school, go back and revisit what you did and how you did it.

TIP:    If you were on Law Review or some other extracurricular activity, pay attention to the process of identifying the story you need to tell.

TIP:     Identify your cast of characters remembering that even inanimate objects may count in the cast.

TIP:     One at a time tell the story from the point of view of each character.  I recall a case where the lawyer told the story from the point of view of a cancer that was not timely diagnosed; another where the lawyer told the story from the point of view of a dental bridge that had been fitted in an elderly man's mouth; and a third who told the story from the point of view of a street lamp that saw what really went down on that sidewalk on late summer night.

TIP:    Using the same facts tell the best story you can imagine your opponent will tell; and only then tell your own.  See how they compare and diverge.  What makes them the same and different.

TIP:    And then take the time to rent the movie, Roshomon, one of the best examples of how different points of view reveal different stories with the same set of facts.

Playing This Weekend In Napa, CA: Medical-Legal Conference On TBI.

The Brain Injury Association of California is hosting its annual Neuroscience of Brain Injury Conference November 4th and 5th at the Silverado Resort in Napa, CA.

The Conference Program--2011 is enticing.  We intend to come together to do good work.  Hope to see you there.