OTLA Trial Lawyer Fall 2020

27 Trial Lawyer • Fall 2020 should be able to snuff out most of these silent killers. Asking “what more do you want to know, and why?” during the focus group will help you uncover these silent and legally irrelevant facts, which can kill your case if you don’t discuss them at trial. If you never address these questions that are on the jury’s mind during trial, you will leave the jury to speculate during deliberations. I encountered one such example in a focus group I conducted for my client who was side-swiped by a semi-truck as the semi entered I-5 from an on-ramp. The trucking company blamed my client for merging directly in front of the semi. As I read the neutral statement of the case to the focus group, I included the fact that leading up to the crash my client recalled a red Corvette directly in front of the semi-truck on the on-ramp. It was a background fact that had nothing to do with the crash. But as I asked the focus group to apportion liability, more than half put 10% fault on the red Cor- vette, and two of those participants put 20% fault on the red Corvette. Several participants held tight to this belief throughout the focus group. Following the focus group, we changed “red Cor- vette” to “car” in our trial story, and eventually removed reference to it en- tirely. The very idea of a red Corvette connoted danger in the participant’s minds. Other great questions to ask in the narrative focus group include: • Was this preventable? • Who could have prevented it? • How could it have been prevented? • When could it have been prevented? • For those who think it could not have been prevented, why not? • Could this happen again? If so, why? If not, why not? I can almost guarantee you that each focus group will give you ways the harm could have been prevented that you have not yet considered, and which the de- fense attorney will not be considering either. This is a great advantage. Part 2 — drilling down The case involving Jimmy and Su- zanne was a challenging “he said, she said” red light, green light case. Some people said not to take it. To complicate matters, both cars spun substantially at impact, crashed into each other again, and each party told a very different story about where the initial collision point occurred between the vehicles and where it occurred in the intersection. I knew that crash reconstruction would play a part at trial, but I wanted to see what the focus group thought happened by just looking at the pictures, before an expert explained it with science and engineer- ing. I wanted to understand what the jury’s gut reaction would be at trial.) The second part of my narrative focus group went like this: Please help us figure out how and where this impact occurred on the vehicles, and where it happened in the intersection by looking at and evaluating the photos. Suzanne states she was hit in the passenger side front, almost edge to edge with Jimmy’s vehicle (using hands and car models to demonstrate). Jimmy states he was almost through the intersection, when he was hit on the back driver’s side quarter panel. Jimmy’s vehicle came to rest like this (showing with models). A power box was knocked over and possibly a sign. Suzanne’s vehicle came to rest on the street, facing south, next to the curb, in the right lane. (show- ing with models). I will read this again as many times as you need. I am passing out the photos. Please look at them and help us figure out what happened. They start asking me questions, and all I say is “I don’t know,” or “I don’t know, does that matter? Why does that matter?” I don’t answer questions because that tells me nothing. But the question itself tells me what they find important, what they want to know or how a picture or piece of evidence might not be as in- trinsically persuasive as I thought. What tells me something is the question itself, and why it could make a difference to the focus group. During this process, the focus group is an investigative team. The team mem- bers discuss the case with each other. The crosstalk starts to get good. I watch closely and allow it to unfold. I do not rush this process or seek to control it because I might miss something. How do they debate with each other? How certain are they about the dent to the back-quarter panel? What are these pho- tos saying to the middle age conservative participants? Do I even need words at trial to explain the photos, or do the photos speak for themselves? Are they abandoning their initial impressions fol- lowing the neutral statement? Why? I apply pressure by doing nothing but si- lently watching and perhaps making notes. I am careful to avoid taking notes in a way that reflects which side I sup- port. When the time is right, I transition to a pre-devised set of questions: 1. What do you think happened? Why? 2. What kind of impact do you think occurred? Why? 3. Where do you think it occurred in the intersection? Why? 4. Why do you think that? Any doubts? 5. What else do you want to know?Why would that matter to you? 6. Please take out a piece of paper….and if you think anyone is at fault, and I’m not saying anyone is, but if you think anyone is at fault, write the name and the percentage of fault. If you find that anyone or multiple people are at fault, then the total percentage must add up to 100%. If you believe no one is at fault, then write that. 7. What did you write down, and what are the top two reasons why? (I ask this individually to each focus group participant in front of the group and collect the papers). As the focus group participants dis- cuss the case with each other, answer my See Focus Groups: Johnston p 28