OTLA Trial Lawyer Fall 2020

28 Trial Lawyer • Fall 2020 questions and eventually allocate fault, the pictures and the model cars are on the table. They point to the pictures, circle damage marks on the vehicles, and slam the cars together to show how and where they believe the impact occurred. The focus group turns me into an expert on exactly how and where this crash hap- pened in the intersection, and that the defendant was mistaken as to both. Most importantly, I know what the jury will believe by looking at the pictures, and I know to embrace this and never go against it. I also know which seeming trivial facts are important to address and then rule out during opening statements and plaintiff ’s case. I also have enough information to meaningfully help the crash reconstruction. I know the jury will be leaning toward my client’s version of events before either party testifies or puts its credibility in play. I know how to frame the liability portion of my case. Part 3 — go deeper Get creative with the third part of the narrative focus group in a way that searches for answers to the big issues in your case. I like to surprise the focus group and have the plaintiff come in and tell a part of his or her story for 10 to 15 minutes. I ask soft and neutral direct exam style questions, revealing who the plaintiff is and what happened in the injury-causing event (not damages). After that, I let the focus group question the plaintiff, which reveals what they really want to know and how they feel. Another strategic tactic I employed at the end of the red-light, green-light focus group was to play back-to-back segments of the plaintiff ’s and the defendant’s depositions. This allowed me to watch the focus group judge credibility, plausi- bility and find holes in each side’s story. It allowed me to watch how the deposi- tion testimony changed the group participants’ perception of fault from their initial determination following the neutral statement of the case. Seeing their opinions change allowed me to drill deeper and find out why they changed, which showed me which facts made the difference in the case. This is where the gold is. During the testimony, I neither com- ment nor nonverbally reveal my feelings about the testimony. I don’t want to sway any participant’s opinions. I closely watch faces for scoffs or disgust. If there is disgust toward a portion of the defen- dant’s testimony, I mark that clip for trial. If the disgust is toward the plaintiff, I mark that part of the testimony, explore Focus Groups: Johnston Continued from p 27 You are your own jury consultant here, watching the focus group unfold the same way the jury will at trial.