In this episode, Ben speaks with trial lawyer and trial consultant Phillip Miller about how he helps trial lawyers deconstruct and then build a winning case for trial. Phillip starts by identifying landmines that will cause you to lose the case. Each landmine must be made irrelevant, immaterial, or otherwise overcome so that it does not sink the case. Phillip then talks about questions that every juror needs answered: why is the case important? How will the verdict affect meaningful change apart from money? Who is the villain (wrongdoer) in the case? What is the “real evidence”—i.e., the evidence that is not manufactured by one side of the other? Has this happened before? Phillip talks about his strategy for voir dire, which involves using a series of clear PowerPoint slides to frame critical issues that identify good and bad jurors or prime jurors on important issues in the case.
In this episode, Ben speaks with trial lawyer and trial consultant Phillip Miller about how he helps trial lawyers deconstruct and then build a winning case for trial. Phillip starts by identifying landmines that will cause you to lose the case. Each landmine must be made irrelevant, immaterial, or otherwise overcome so that it does not sink the case. Phillip then talks about questions that every juror needs answered: why is the case important? How will the verdict affect meaningful change apart from money? Who is the villain (wrongdoer) in the case? What is the “real evidence”—i.e., the evidence that is not manufactured by one side of the other? Has this happened before? Phillip talks about his strategy for voir dire, which involves using a series of clear PowerPoint slides to frame critical issues that identify good and bad jurors or prime jurors on important issues in the case.
About Phillip Miller
Tennessee Serious Injury Attorney
"Making the world a little better and a little more fair for everyone."
Phillip Miller is a nationally recognized attorney who specializes in representing people and families who have experienced serious, catastrophic injuries and death. He is certified as both a civil trial specialist and a pre-trial specialist by the National Board of Trial Advocacy. Mr. Miller has been recognized as one of the “Best of the Bar” by the Nashville Business Journal, as a "Super Lawyer," is "AV" rated, and his firm has been designated as one of the pre-eminent law firms in the United States.
Mr. Miller is the past president of the Tennessee Association for Justice. Mr. Miller is a frequently sought lecturer on legal issues and has spoken at the National Judicial College, Harvard Law School, the University of North Carolina, Sanford Law School, The William Mitchell School of Law, the Nashville School of Law, the University of South Texas, and Duke Law School.
As part of his practice, Mr. Miller is frequently hired by other firms to help them prepare their biggest, most significant cases. Firms in Michigan, Alabama, Illinois, Wisconsin, Minnesota, Texas, Oregon, Kansas, California, New York, New Jersey, Colorado, Kentucky, Pennsylvania, South Carolina, and Missouri have used Mr. Miller to help them recover tens of millions of dollars for their injured clients.
Phillip's passions include education, the environment, dogs, and what he would describe as "making the world a little better and a little more fair for everyone."
In addition to being a founding sponsor of School Aid, International, and sponsoring a Head Start class for more than 18 years, Phillip has also volunteered for Junior Achievement, bringing a businessman's perspective to middle school students.
He is a lifetime member of the Sierra Club and belongs to the Tennessee Environmental Council, Tennessee Greenways, Nashville Greenways, and the World Wildlife Organization. Phillip sponsors "Rover," a free neutering/spaying program though the ASPCA, and visits them whenever they are nearby providing services to needy pet owners in the area.
Speaker 1 (0s): This is the elevate podcast where trial lawyers learn, share, and grow. Let's talk about how we can elevate our trial practices, law firms, and lives. And now here are your hosts coming to you from coast to coast trial lawyers, Ben Gideon, and Rahul Ravipudi
Speaker 2 (34s): Today's episode of the elevate podcast is brought to you by the Expert Institute. Expert Institute is your one-stop-shop for all of your expert needs to help you work up, prepare and win your case at trial. Check them out at expertinstitute.com. Our show today is also sponsored by smart advocate. Smart advocate is award winning case management software used by my law firm and by law firms all over the country to help manage their personal injury, medical malpractice complex tort MDL class action cases.
Check them out@smartadvocate.com and buy hype legal hype legal is a full surface digital marketing firm with great web development, greatest FedEx to help you market your law firm. Check them out@hypelegal.com. Welcome to the elevate podcast. My name's Ben Gideon, Rahul is off today.
He's going to be giving an opening statement in a trial in Las Vegas that starts today. So good luck Hull. I'm thrilled today to invite Phillip Miller to join us on the show. I met Philip in his role as a trial consultant. When one of my colleagues went to watch him speak at a seminar and came back and said, you've got to hire this guy to help you on, on a case, we did that and, and Phillip came up to Maine and spent two days with us working up a case.
And it was incredibly valuable to me, Phillip, to have your help on that case. We know we got a great result, but it just brought so much value to have your perspective on that. And the, the methodology you taught me in terms of working up cases and thinking through prior to trial is something I've continued to use in all of my cases since we worked together. So welcome and thanks for doing this
Speaker 3 (2m 33s): Well, thanks for inviting me. I'm happy to be here this morning.
Speaker 2 (2m 35s): So before we get into what you're doing today, your trial consulting and practice, can you just tell us a little bit about yourself background and what brought you into the world of trial law? And I should point out you're in Nashville, Tennessee. That's where you're based.
Speaker 3 (2m 49s): I am. And I always say, I do not listen to country music.
Speaker 2 (2m 53s): And we were talking before I went on the air about how my wife and I had just went there for our 20th anniversary and got to see the Brooks at the Ryman. And we really enjoyed it, that whole scene down there with all the honky tonks on the strip. It was pretty amazing.
Speaker 3 (3m 7s): Yeah, it's a real blast. And when I say I don't listen to country music, I mean, the first assumption used to be if you were from Nashville as well, you most listened to country music. And I grew up listening to have an army brat. So I grew up all over the United States, went to elementary school in five different states, but I listened to grew up listening to rock and roll and pop and blues and that kind of stuff. So I never really developed an ear for country music. And then when I moved here after finishing a master's degree, I was in Nashville and you know, I was already, my musical tastes were already kind of set.
So I just never developed an ear for it. And I, I know a bunch about it because I have a, my baby sister is married to a famous country, music songwriter. Who's in country music, songwriters hall of fame. And I have a lot of respect for him. He's a great wordsmith.
Speaker 2 (3m 53s): What are the, some of the songs are, can you share that with us?
Speaker 3 (3m 57s): We wrote since Paul Overstreet, he for, we wrote a song called forever and ever. Amen. Which you got to grab me for. And then I think he did a song called George
Speaker 2 (4m 4s): Strait, right?
Speaker 3 (4m 6s): Randy. Travis.
Speaker 2 (4m 7s): Oh, it was oh yeah.
Speaker 3 (4m 8s): Okay. And then he did another run, Randy, Travis called digging up bones. He wrote a song called love, can build a bridge, which was done by the judges. He did the song famously that was done by Kenny Chesney. He called, she thinks my tractor is sexy.
Speaker 2 (4m 23s): That's a good one.
Speaker 3 (4m 24s): And so I've got great stories. He's a great word Smith. And I learned something. I think that translates into what we can talk about what everybody should think about when they think about their own cases. Because I had Paul come to a convention for the Tennessee trial lawyers and his topic was storytelling, if you will, because the question is, how do we find the hook in our cases that is going to resonate with jurors or in his case, resonate with listeners. And so we brought him in to talk about songwriting and he brought his guitar.
He played a few songs, but the process of that, we had some open questions and someone asked how many co-writers have you had on your songs? And he said, 27, number one hits, I think. And when they asked him how many co-writers he's had in a song, he said his answer was hundreds. And that prompted me to think about creativity. So I read a couple of books about creativity. And the fact is is that most people, if you look at artists, poets, the rest of most people meet their, get to their creative limit in terms of the exhaust, their crew, their real creativity by their time during their mid twenties.
And see the only way you can really be creative after that is you have to collaborate with someone else. So we have examples of songwriters and artists who are productive late in life, but the way they're productive is they're collaborating with someone else. They're having someone else stimulate their own creativity. So they're looking at things in a different way, way differently than they would ever think by themselves. And so Paul has been a prolific songwriter because he is constantly collaborated with other people and they say something and that stimulates something to him that never would have occurred otherwise.
And vice versa. So collaboration is the piece that very often, I think most lawyers miss when they're working on a case, they understand the law, they understand what they have to prove. They know what a prima facia case is. They understand what the problems are, but if they're going to really be creative, they've got to get somebody else in there. And there there's several ways to do that. I mean, one of the reasons, quite, quite frankly, one of the reasons that focus groups are effective for people who really have an understanding of what they're good for is they sort of open up that creative vein and allow lawyers to think about their case differently in a way that may be more effective and successful than if they're just kind of doing the very best they can within their own head.
And so I sometimes refer to, this is sort of a songwriter analogy because the way songwriters are effective over the long-term this collaboration and the way I, I, quite frankly, I think for us, it's exactly the same thing for lawyers. The way you're effective over the long-term is really probably going to be collaboration.
Speaker 2 (7m 11s): That's such a valuable insight and it's proven so correct to me in my career. I mean, you just get so close to things and you're unable to get yourself out of that box that you're in without somebody prodding you and whether that's a focus group or a big data study, or working with someone like you, who can come in with a fresh perspective and bring that to the table. I just think you're absolutely right about that. The other interesting insight is probably that every good plaintiff's case could be boiled down to a country music song that would probably make a good speech because it's, I think that's probably true, but it would take a lot of work, you know, But just the way country music songs are written with kind of a moral theme to them and a catch something that's resonant, but it's always, there's a story in country music that's different from in many cases pop or a rock.
That's the whole point of country. As I always understood, it was kind of tell a story and that's what we're trying to do.
Speaker 3 (8m 10s): There's probably some exceptions that my, my brother-in-law Paul is a great storyteller. So all of his songs are about whether it's, she thinks my tractor is sexy or some beach somewhere, or there's always some sort of story associated with them. And I remember when she's married to my, my baby sister, who's six years younger than I am. And she's a really smart, strong woman, you know, and six kids C-sections on all of them homeschooled, all six of them. But I went out to the farm where they live and there was three kids and they were just like stair-step.
And Paul said, they flipped. I wrote a new song. I said, oh yeah, what is it? He says, when mom was not happy, nobody's happy. And the three little kids all nodded their head up and down.
Speaker 2 (8m 54s): That's
Speaker 3 (8m 54s): Funny. And so that's, that's an example of a universal truth when mom was not happy, nobody's happy. And so my friend are better. I better send probably acquaintance. Peter Perlman from Lexington, Kentucky started collecting song titles 40 years ago. And the idea behind it is if this is a song title, this is a song that has resonated with tens of thousands, maybe hundreds of thousands or more people. Then if I can find a way to use it, and I can say, I am because it's going to resonate with that.
And so one of the best things you could do, if you could run into Peter is give them a song title that would make sense to your case and be consistent with what we know is a song that was affected. Like, so I think the only one I gave him was you don't have to be a weatherman to tell which way the wind blows, which is it's a Bob Dylan line.
Speaker 2 (9m 48s): Yeah.
Speaker 3 (9m 49s): And so, but that's what he would do. And those are examples of song titles that resonate with jurors. And so, yeah, I think you can get ideas from other people, including the songs and if they resonate with jurors and that's a great way to communicate with them about, it's not a story, but it's one part of your case. And I think that's something that we have to, you know, we can be awfully structured in academic and the way we do things, or we can start to think about how do would, how would an ordinary person talk about this?
Who's not burdened with all the things that we think we have to do. So as an example, I have a client that I do a bit quite a bit of work for, and they routinely send me their direct and cross exams for trial. And when they send me a direct exam, in fact, I just read one yesterday, they spent dozens of hours on this exam. I mean, the depth, it's just dozens and dozens of hours and video and the rest of that. And when I look at it, cause I've got, I just don't know anything about the case.
I mean, I know about the case, but I don't really know that much about the case. And I'm looking at and said, well, you know, there's 19 slides. Do we really need these five? And the answer is no, we probably don't. I mean, the answer is, I don't know. I say, I don't think we need these. Do we need these? They say, no, we don't need it. But there's sort of what happens is you're kind of in the weeds and, and avoidably in the weeds when you were that close to the end, when you have that much time, if you have 40 hours and then deposition preparing for a deposition, cutting it down to 10 minutes is tough.
If you're sort of naive to that whole thing and you don't have as much invested in it, it's a lot easier to say, well, these are the only things that really are important.
Speaker 2 (11m 38s): I know you are trial lawyer by training, char tried many cases and had done that for many years. And, and then you, at some point transitioned to also doing trial consulting where you would help other lawyers put their cases together for trial. How did you make that transition? Why did you do that?
Speaker 3 (11m 56s): I was a teaching for AAJ. And the reason I got into teaching for AAJ was it was just the way to, for me to continue to get sort of CLE time and learn without having to pay tuition. And so if I could get into the loop of sort of being on faculty for programs, that means I could attend them for free. And whenever I attended one of the CLD programs, I learned things. And of course, what I didn't think about at the time is what I was also learning was that whole collaboration piece, because everybody who is on faculty and many of those people became really good friends.
I knew him for years and years and years, you know, they were doing the same kinds of cases. I was in many ways and sometimes different. And then they were doing things, some of the same things that we're doing, they were doing them differently and more, more effectively. So that whole process was really an evolutionary way to kind of grow myself as a trial lawyer and grow my practice is that constant stimulation of other people doing the same thing, perhaps in different ways and other ways of thinking about the same kind of case. And so in the process of doing that, I met a guy named Rodney Jew and Rodney is a truck consultant out of starting off in Palo Alto, California, and now in Napa.
And I probably met him in the late nineties in 1999. I mean, I had, I had a real rapport with Rodney in terms of understanding what he was trying to do because somebody did at that time was kind of consultant speak. I'd developed a relationship with him. And then he had a series of big cases. There were just, when I say big cases, they bring in a team and it'd be five lawyers on the team. And then there'd just be Rodney. And it was just overwhelming, kind of really to maintain the focus and concentration that goes on and what he does for five days, if it's just you.
And then there's five lawyers. So he brought me in and for two and a half years, I at least in the apartment of Palo Alto and at least a car and I was there two weeks a month. That'd be there for a week. These people would come in with these, these really big cases and a big litigation team. And then I'd go home a week. And it was in a process of that. I had before that he had brought me in periodically, like he had a flat procedure on his epiglottis at one point he was afraid he couldn't talk. So he brought me to work in with him, with a client on a medical malpractice.
So I learned his method, his methodology, his process of looking at cases. And so it was easy for me to kind of fit in with what Rodney did cause I thought the same way that he did. And then I brought other things in that weren't necessarily part of his toolbox, like the whole concept of depositions, because when we did a work session with clients with, so here's what we need to rebut this terrible landmine that we have uncovered. And they would say, well, we've got, we've got it right here. And then when you actually looked at the deposition, it really wasn't there.
Or it wasn't really there in a way that was going to be very persuasive. And so I was in the midst of, at that point very soon after that, writing a book about advanced deposition strategy and practice, which is published by trial guides. And this next significant part about that was is that these people were good lawyers, but they weren't particularly good at taking depositions, even though they may be. I mean, we did a water rights case that was hundreds of millions of dollars for example. And the depositions really weren't that good. They didn't really, you know, they were, they were kind of, they kind of learned as they went along as most lawyers do on how to take depositions.
And so when we got down to the nitty gritty, we're looking at all the things they can cause us to lose the case. And here they are. I said, how do we make those irrelevant or immaterial? Well, that should have been in the deposition, right? But it's not. Or they think it is, but it's not. And so sort of depositions and storytelling is what I brought into the, to the mix when I worked with Rodney and they both fit in with what he was already doing. So it was a, it was a nice fit for us.
Speaker 2 (15m 46s): Can you talk a little bit about the, the approach? You said you learned Rodney's approach to how to work up or help lawyers improve their cases. Is there a kind of name for that or an overall?
Speaker 3 (16m 2s): I think it's a reverse planning is the, is the, is probably the proper term for it, which is that we think that we have to prove a prima facie case to win. And we do, we have to prove a prima facie case to get past motions for summary judgment motions for directed verdict. We have to prove prime aphasia case. We didn't know what we need to know what the elements are, but you can prove a prima facia case on every case, anywhere in the United States and still lose the case. How is that possible?
Right. And the answer is, is if we don't take out the landmines in the case, the things that if the jurors believe are true, there's always things that jurors could believe it to attend, to believe a true. If we can't take those out, if we can't make them irrelevant or material, we lose the case, even if we've made out a private facia case. And we've proved we were the private face all day long, and there's some landmine there that we haven't taken out to the satisfaction of jurors and we lose the case. And so the methodology is let's identify all the landmines.
Everything is going to cause us to lose the case first, then figure out how we're going to take it out. How are we going to make it irrelevant room material? Because if we can't, if we go through and we just, we're just ritually going through the things we know we have to prove, but we've ignored some landmine. Then we may lose the case regardless of what, whether we may not the private face, your case or not. So here's the easiest example. So at one time there were Atlanta at the time did a whole bunch, I mean a whole bunch, I mean, 20, 30, 40 focus groups on a failure that the same fact pattern was a failure to diagnose breast cancer case.
And you'd make out a prime aphasia case. And what would happen is, you know, what's happened to a woman, goes in for an examination. She has a palpable mass, they do a mammogram, it just looks like it's fiber, cystic disease. And she sent home. She calls about, about the results for the mammogram. And the lady on the phone says, oh, it was, it was, it was clean or whatever. Well, they're supposed to schedule her for a, a biopsy because she had a palpable mass, never scheduled.
She goes, home comes back a year later and she's at stage two, stage four cancer and oppress ends up dying because fast sizes and her husband has this lawsuit. So, you know, it's, you know, you have all your experts, you establish causation reach to the standard care. And the question the jurors have is where's the husband, why didn't he get her to take a second? Why did he get her to have a second opinion? Why didn't he have, did he not know she had a mass in her breast?
I mean, what's he going to do with this money? Do you have a girlfriend? I mean, all of that stuff is sometimes called juror proof, but the fact, the heck that is, it's also a landmine you in the front end, you can say, wait a minute, the husband is the sole claimant. In this case, he's asking for millions of dollars. Where was he? And so if we think about that on the front end and we, that becomes part of our case, then we've got a much better chance of winning the case than if we're on our feet, trying to figure out what to do with it in trial two weeks before trial or at some other time when a neutralized and take care of all that stuff on the front end.
And it's easy to do if you know, about on the front, which the whole point of reverse planning is anticipating all of those problems, developing your proof around them. And, you know, strangely enough, when you do that, and then you say, okay, let's rebut all these things. You have most of your case in chase. Cause with rebut, all of those landmines, even though we didn't set out to lay out a prime aphasia case, we probably have 80% or more of it just in figuring out how to rebut the problems that we might not articulate in the same way as you do in that kind of structured process.
Yeah. So it's a very intellectual process. There's no smoke and mirrors to reverse planning. It's working hard to figure out what the problems are in the case, including the problems from a juror's perspective, then figuring out how we can make them irrelevant or material.
Speaker 2 (20m 12s): Yeah. When we worked together the day one, we'd sent you the focus groups and some information about the case, but day one, you forced us to go through and identify all of the landmines which we did. And that's a very uncomfortable process, of course, cause you have to deal with the biggest problems in your case. And, and then systematically figure out how to make them irrelevant or immaterial, or I guess if you can't do those things to distinguish them or argue them factually, which is the least best approach, that is a very powerful approach that I now use in every case.
And I do find it's very effective because it forces you to come to terms with the challenges in your case. Now, remember, in our case, for example, one of the issues was we had a utility lineman who opened a switch that was ungrounded and they were blaming him for not checking to see that it was ungrounded. And we ended up at trial and that was a big problem. All the focus groups were very critical of our client for doing that. We turned that completely on its head by trial and made the point that they were the ones who trained them.
Speaker 3 (21m 26s): Yeah.
Speaker 2 (21m 27s): And they didn't train him to check. In fact, they had to go back and retrain everybody after that because nobody had been trained that they were supposed to do that. And, but without that way to focus on each of those items, one at a time and really deal with it, you're going to miss stuff like that.
Speaker 3 (21m 43s): It's hard to do. I can say, you know, more part two, if you can do it yourself, it's really hard to do yourself because it's an ugly process and it just breaks your heart emotionally, really, to kind of think about and talk about that. Because when we put, do landmines on the, on the damages, you know, and for the most part, most of the time we are, if we're not, if we haven't fallen in love with our client, we liked them. We respect them.
We honor the way they have dealt with what's happened to them. And they, and what's been Tate has cast in their path, but it's really hard to do this just on your own because, you know, I mean, if it's somebody like me, it's like, I'm just going to say it. And then you or someone else that has to deal with it and collaboratively, we figure out how do we make it irrelevant or immaterial to what this case is about? Because if we don't do that, we're going to lose. And this person doesn't need to lose because of this really insignificant fact in the overall scheme of things.
But so it's, it's a real, it's a tough process. I think it's tough on lawyers to do. I think mainly just even though they understand the process, aren't capable of doing it because you still have to look long and hard at stuff that's really ugly and is upsetting. And, and so I usually tell people when we're, when we do a landmine session, we spend typically at least a day just on the landmine. It's like we did with UBET. I taught at the end of the day, you want to go home and say, why did we take this piece of shit case? You know, this is terrible because you've been spending the whole day looking at the case through the lens of a defense juror.
That's really the easiest way to look at this case, through the lens of a defense juror or defense attorney, if you want, or a defense minded judge, look at the case to that lens. Those are the landmines and how do we take them out? And what you find that sometimes is, you know, we really can't effectively take our level at months, which means this is the case we need to sell, or maybe we just take a shot, but it's going to be a tough case to win if the come in. And of course the second component of that is we're doing the landmines based on, you know, if I'm in a session I've done hundreds and hundreds of focus groups.
So I have an idea of what I think people are going to talk about when they hear a fact scenario. But even with that experience, I don't get them all. And when you do a focus group or we do some kind of survey work, all of a sudden we hear and read things that we didn't expect to hear and read. And so, oh, that's an example of we're learning from what potential jurors would actually think or see about the evidence in the case. And even though we may have idea, we might've identified it in a work session, but we might not have put the same amount of importance on it.
So a graphic example is I did a birth trauma case and it was what sometimes would be referred to as a strip case, you know, late decelerations and all that kind of stuff. And it was a strip case and the baby was born with some terrible problems. The, you know, they had an expert talking about, you know, they should have done on a C-section at this point and let the baby go on for another six minutes or whatever it was. And as part of the proof in the case, they had to use suction to get the baby out.
And when the Chris, when they use suction, the baby's head sort of gets a little cone, like, because it's not, it's not fully developed the skull isn't fully developed at that point. And so when the baby came out, it had that little kind of cone head thing, and they put little knit cap on the baby's head and looked like a cone head. And so that was part of the evidence in the case that they had to use vacuum extraction and the baby's head was shaped like a little call and all the rest of that. And that was striking in the context of the doctor denied using vacuum extraction.
You know, the nurse who was in the ER said, yeah, we use vacuum extraction. The kids got the father who was in the delivery room, said, he's got the little cone head, they got a picture of the kneecap. And so we knew all that was there, but the reason the jurors thought all that was important is if the doctor lied about the vacuum extraction, he probably lied about other stuff and none of us. And then this just never occurred to us when we knew that there was a conflict about him saying, no, I didn't use vacuum extraction. And the, the nurse in the room saying he did, and we got this, but at the end of the day, the most important thing of the jurors was not the strips.
The strips to them were like that's mumbo-jumbo, but he lied about dues and the vacuum extraction, the vacuum extraction didn't cause any injury. It was just, it was irrelevant to the case, but because he lied about it, that drove the whole verdict. So that was something that we learned in the focus group that we couldn't learn just sitting around because, you know, because of who we are,
Speaker 2 (26m 28s): Do you have sort of an overarching philosophy of trials that you follow into different approaches that book been books written like case framing or reptile or some combination of those approaches, putting aside the M deconstruction landmine analysis, but in terms of the affirmative side of the case.
Speaker 3 (26m 49s): Yeah. In fact, I've got to see if I can pull this up real quickly. There's a number of things that consistently, I mean, what do you do in focus groups yourself or not is really just doesn't make any difference. There are certain things that jurors want to know in every case. And every time we do a focus group, they're going to ask about certain things, regardless of what the facts of the case, there's things that jurors need to know. And the question always is, are we in, regardless, I don't care if you're a TLC person or a framing person, or you're a collectic or whatever, it doesn't make a difference.
So in every case, when you talk to jurors about the case, they want to know, is there something about this case it's important because jurors want to feel that they're doing something important. And so when we are putting our case together and trying our case, is there anything about that case? It's going to allow jurors to think that they're doing something important, because if there is, they're going to be really interested and they're going to focus on that case, and they're more likely to deliberate in our favor.
Speaker 2 (27m 52s): Do you mean important socially society-wide or just important? Because it's a very significant case to the plaintiff for the individual involved or
Speaker 3 (28m 3s): Both? Almost always because it's about more than money.
Speaker 2 (28m 6s): Yeah.
Speaker 3 (28m 6s): Because the second thing is they want to effect, change and send a message. So if they can send a message with the verdict, that's always good for us because then the amount of the ma the, the significance of the message is measured by the size of the verdict. But they want to feel like they're doing something important. They want to feel like they're being either able to affect meaningful change. Right. And send a message. The third thing is, so, and they always ask about that in the focus group. It's like, okay, well, is this just about money? Is this just about making the lawyer and the client rich?
Or is this going to change things in some way? That's significant because that's what they want to do. So when we talk about your case, all right, are you, is this a case where they're going to be, they're going to be able to conclude that they're doing something important, that they're having an opportunity to affect some sort of change and send a message. They want to hear that. And if we can give that to them in the case, that's a really good thing. The second thing is they want to punish wrong doors or villains, right? And so who's the villain in this case. The answer is, I don't know, but you know, you're not going to find one if you're not looking for them, and I'm not suggesting to you identify someone as a villain, the jurors need to conclude someone's a villain on their own, but they're looking for a wrongdoer because if a wrongdoer doesn't deserve any mercy from them.
And so it's like, okay, is there a wrongdoer? Who is, it is going to be a person. And so we have to start off the case thinking about, okay, who's going to be the target of our attack, who is going to be the wrongdoer. It's not going to be a corporation. It's going to be a person or a collective of people who made some decisions or some sort of, and the extent we can identify those people. And this is an opportunity to send a message and punish them. Jurors are happy to do that. So that we hear that in every, in every case, I guess the fourth thing is, is that they are suspicious of our evidence.
They're suspicious of our proof. And so they'll, you'll have uncontradicted proof. Well, it's uncontradicted to us, the lawyer on the other side, isn't contradicting. They will. I mean, they want to, they'll, they'll talk about, you know, was this Photoshop, was this changed? And so that changes our attitude though, how are we going to prove our case? And what do we want to prove our case through the most part is we can prove it through what I'll call real evidence. And I'll come back to that in just a minute or through the mouths of defense witnesses. That's the way we want to do it because that's, at least we can minimize, minimize the suspicion.
That's going to sort of encompass our proof. Now it doesn't mean that it's still not suspicious, but our best shot is let's try to address the fact that it's gonna be suspicious and give them proof that it is as reliable as we can possibly make it. And that generally means proof does not align with the efforts of the lawyers for the plaintiff. So if you have two kinds of photographs of a scene, one of them was taken by the police and one was taken by the lawyers or the lawyers, investigators, which one do they think is more credible, right?
The one taken by police, I may not be as good, right? If you have a video recreation, okay. Or you have a video taken from the convenience store across the street, which one is going to be more credible with the juries, the video from the convenience store, it is real evidence. It hasn't been manipulated or changed in any way by the parties in the case. And so that's, those are examples of the way, how do we deal with the suspicion? They're always suspicious. How do we deal with it? We try to give them evidence that allows us to minimize that suspicion, or at least give our jurors an opportunity to push back when they question, you know, any of our pieces of evidence.
And so the what's the, what's the last thing here says, oh, they always want to know, has this ever happened before? They always want to know. I usually describe it as the prior history of the parties conduct both sides. And so that means they always want to know in a plaintiff's case, had this person ever had this kind of medical problem, problem, medical complaint, or been treated for this problem in the past. Always, always, always. And so the, if, if they're smart, they're going to get a medical history of the plaintiff and they almost always do.
And they will pick it apart, looking for prior complaints of back pain or neck pain or headaches or whatever it is because jurors want to know, remember they're suspicious to begin with, and they want to know the prior history of the party's conduct. And that this is a plaintiff complaining of neck pain now. And they complained of neck pain in the past. Ah, so now we have a bigger problem. So at the same time, they want to know the prior history of the defendant's conduct as well. The problem is now that would be OSI or other similar instance, right?
It's not that easy to get an OSI evidence. Number one. And it's not that easy to get an admitted number two, but if you can get it admitted, if you can't find it and you can get it admitted, it's very effective because people think is, okay, you did it before you saw what happened. You didn't change it. Now we're going to send you the message. And so those are things they'll know. Every group we'll ask them, we'll ask about in one way. And I was like, every group last month, it's not eight or 10 or 12 people asking it's one. It comes up every time.
If you talk to people long enough, they're going to know, did this happen before this person ever had this problem? Did this company ever do this or have this particular problem for, so it's always part of what they want to know. So if you think about, regardless of whatever approach you want to take in terms of your case analysis or our case development, bringing into that development, the things that jurors consistently want to know about, and they specifically want to know about in your case, like where was the husband are important things to, to put together in terms of having really, I think a solid ineffective case
Speaker 2 (33m 54s): I would like to thank our sponsors of the elevate podcast. Steno steno is a national court reporting service and technology platform that has customized digital technology and platforms to use for secure depositions. And they also have the great added benefit of allowing you to have a deferred payment for all of your transcription and deposition needs. So for plaintiff's lawyers, that means you don't have to pay for those costs until the end of the case, check them out@steno.com.
We're also being brought to you today by LA pods. LaPaz is the podcast production company that helps produce our podcast, makes it seamless, takes all of the heavy lifting off the lawyers. So you can focus on your law practice and just do the talking into the mic and they do everything else. Check them out@lapods.com. Yeah, it's a really great summary. I was actually writing down all those points as you are making them as really valuable stuff.
And then on your last point about wanting to know the prior history, particularly in the medical malpractice cases, one of the defense tricks is to say, this has never happened before. So even if we can't get in the, that it has happened, they then try to take advantage of the reverse, which is very powerful for them. So there's a way to avoid that by asking them for prior events. And when they won't give you the information, at least you can prevent them from saying it's never happened in most cases, but yeah. What is your approach to voir deer?
We we've had a lot of guests who talked about what Deere, it seems like there's two kind of principles, schools of that. Well, one is there states like my home state, which don't allow for lawyer directed Quadir Mo or very robust lawyer of what year. So you can't do much, but in terms of venues where you're allowed to do voire deer, there seems to be there's one approach where the idea, I think is more to develop a rapport with the jurors, but with the concept that everybody there can be a good juror for your case, you shouldn't come in overly suspicious about people, or really aggressively try to target people because that tends to build hostility and suspicion among the group and who will be counterproductive.
The other side of the debate is you really have to be aggressive at identifying toxic jurors, people that are gonna come in with strong bias against you in your case. And of course, there's lots of variations in between. W where do you come down on voir deer? And what is your approach that you like to teach on that?
Speaker 3 (36m 41s): The first approach is sometimes called the tribe building approach. It's sort of a TLC approach to fly deer where, you know, we're all part of the same tribe and where we want to do the right thing. And I'm okay. You're okay. And there's people that do that very effectively. I'm not wandering. And quite frankly, I don't know many people who are that effective at that approach. I mean, Joe fried is an example of someone who's very effective at it. And there are other people that are, that are very effective at sort of that tribe building approach to wild deer where they're not really using parameter.
I mean, my sense is they're not even using their peremptories and I'm kind of going all right, well, if you can do it and you get great vernix, well, then it's a great approach. I think it's a, it's not something I'm able to do. And I think part of it is you just have to be a different person than I am to be able to use that approach, I think effectively. And so my experience with focus groups tells me there's some people that I don't care what I say they're bad for the case bad for the case. I don't care what I'm okay. You're okay.
They love that. They love you to death. They're still bad for the case. And so we have to find the people that are going to be bad for the case and are going to keep us from getting adjust verdict, find out who the are, and at the very least user peremptories, and we really want to challenge them for costs. So my approach is really the second is let's find the people who cannot return a fair verdict or who are going to disrupt any deliberation that might be directing itself towards a fair verdict for our client with one speculative argument after another, after another, after another.
And, and I think there's people that do that. So yes, and I said, let's, let's identify that people who can not return a good, bad verdict. Now, the other thing that makes a difference is, you know, I I'm in a unanimous jury state, and I, I consult very often in unanimous jury states. And when you have a unanimous jury, you have to have 12 out of 12. That's a tough, tough, tough jury. And you don't want to leave anybody on that jury who just philosophically, morally or otherwise is against returning a substantial verdict.
So that, that being said, I've done what years in the last six months, and I guess three different states. And I'm one of them, 15 minutes, 15 minutes abroad year. So how do you do with one you're in 15 minutes? And the answer is, well, you better focus on the things that are really important in the case. You can't really get up there and talk about who you are and, and, you know, the, the importance of juries and how thankful you are that they're there. You got to cut to the heart of the case in a hurry.
If it's 15 minutes, I'll suggest you do an expanded. If you have an hour, you're just going to do an expanded version of this and get more time with jurisdiction, talk about it, but you have to have them talking about the things that make a difference in the case. And so for, I think the, the standard of care, if you will, for trial lawyers now who are doing deer is to use slides or PowerPoint to identify and focus on the key issues in the case, and talk to jurors about the key issues. So for example, I have a slide that says it's a 10 point scale, very uncomfortable, zero, very comfortable 10.
And at the title at the top says, returning a verdict, if less than 100% sure. And you start off with a hand raised, how many of you are comfortable or very comfortable returning a verdict if you're less than a hundred percent sure. And how many of you are uncomfortable? Okay. And the answer is, most people are going to say most jurors, unless they're 80% sure or more, they're not going to be comfortable returning a verdict. But what really trying to do is find the people who just, well, how comfortable do you have to be in this 10 point scale and how uncomfortable, and if they say they're a one or two or three, in terms of being uncomfortable, that's a bad juror for us because they're not going to be a hundred percent sure.
Now, does that mean we want to strike them just based on that one response? No, no, but if they have, if they're uncomfortable returning a verdict of less than a hundred percent sure. You know, we want to talk some more to them. So a second one would, how comfortable are you in returning a verdict for non-economic damages? Very comfortable, very uncomfortable. There's some people that quite frankly, are not comfortable returning verdicts for pain and suffering or non-economic damage. They just won't do it. So that's a second question. You're going to talk to the entire Pam, ask each one, them, ask where they on a scale where they are on a scale.
Some people, a lot of people are going to be in the middle. Okay, that's fine. But we want to find the people that are at the bad end of that scale. Cause those are probably going to be peremptories and we're going to go back and try to strike them for cause a third one is if supported by the evidence, how comfortable do you rewarding awarding tens of millions of dollars in a case, very uncontrolled. And so we're just looking for the people who are bad for us about one burden of proof and to money damages. But you can also ask other things like, are you more of a big picture or a devil in the details person?
Now that's a slide at the title. Is, are you more of a big picture or a devil in the details person? And by the way, Keith Mitnick talks about this very question in VOD. Dear, if you look at, I think this is an donate, the bruises, it might be in deeper cuts, but anyway, so in that slide I have the title and then I have a, a, a line with arrows at Ethan. And one, it says big picture. The other end is devil in the details. And of course, the point is, everybody's a little bit of both, but which way do you lean, do you more of a big picture person, more of a devil Lindsey Caspers. And we get a repeated kind of talk about that.
Cause one of the things we know is devil in the details. Persons, they're probably not good for plants.
Speaker 2 (42m 36s): Yeah. It's interesting because we were just did one of those big data surveys and a case, a trucking liability case, and one of the strongest indicators for a bad plaintiff juror was that they liked the TV show and CIS.
Speaker 3 (42m 51s): Yeah.
Speaker 2 (42m 52s): So I suspect that that maps pretty closely to the devil in the details personnel persona. I was wondering why that would be the case, but I think what you just said explains it.
Speaker 3 (43m 2s): Yeah. Yeah. And then, you know, so there's, those are examples of just three or four questions. It tells us right away.
Speaker 2 (43m 10s): Can I ask a question about that? Why do you use the slides? What's the value of the slide, as opposed to just asking the question without the visual,
Speaker 3 (43m 19s): Because it keeps them anchored to keep you, and it keeps them anchored on the point, because sometimes what happens, you get a response from a juror that basically ends up being sort of rabbit or owl and you're tempted to follow it. But the answer is no, I just want to know how do you feel about this? Cause they want to, well, I don't know, blah, blah, blah, blah, blah, blah. Okay. But if you were picking a number here and it had to be somewhere on this 10 point scale, what would that number be? Cause you, so you can do it politely and really find out where they are. And everybody's clear everybody, all 14 people.
I mean, in terms of, of the people in the box and your alternate, they see exactly what the question is. They know exactly where you're going. Are you comfortable returning a verdict if you're less than a hundred percent sure. You know, and then they talk about it and you find out where they are. And you know, you have some basis for using your peremptories and knowing who's bad for you. And then you get to ask questions like big picture versus devil in the details that tells you as well. So that, so example, I think the standard of care, if you will, is going to be eventually that you use those in Wadia consistently because it's the best way, by the way, if you can't do what here by yourself.
I mean, you know, obviously you're standing up there by yourself, but someone else has got to be tracking responses. You can't track the responses because you're connecting with people, you're talking to them, you're making eye contact with them. And so how do you, how does your team or your observers make any kind of significant, significant notations about jurors? Well, at least they can on returning a vertical less than a hundred percent sure say, well, this person's a three and this person's are two. And this person was a seven. This person's an eight. So you have some sort of measure about who seems to be better for us or worse for us than someone else.
And the other thing you can do is you can prime people because remember people already come in, they're already primed to think that the case is that something. And it usually they're going to think it's about money. It's about a lot of money. All this is is about money, which is why they always want to know. Is there something about this case is important. Is there an opportunity for us to send a message or make a difference? Because they come in thinking it's just about money, which they don't particularly, it's just a waste of their time. They're just making somebody else rich. So you can also watch deer.
And I have a slide for this. It says, how many of you, his slide says suing to make sure something doesn't happen again? How many of you are comfortable with a lawsuit or someone who is suing to make sure something doesn't happen again? How many are uncomfortable with us right now? Everybody says they're comfortable with it. But what that does is we are priming them that this case is not just about money before we've ever done opening statement. This is a case that's not just about money. It's about sewing to make sure something doesn't happen again.
So that's an example of using not the voir idea, just for selection de-selection, but for priming, in terms of what the case is actually about,
Speaker 2 (46m 18s): You had mentioned when we started that your process consulting kind of processes evolved some since we worked together, can you tell us the ways in which things have evolved over the last three or four years?
Speaker 3 (46m 31s): Yeah, I'd say the, the biggest evolution for me probably has been when COVID occurred, you know, you really couldn't do live focus groups. And so I ended up doing, and I did some zoom focus groups, and I also do zoom focus groups that people want to. I don't particularly like them. I mean, it's, it is a way, you know, you can get good information from a zoom focus group that I, if I had a choice between doing a zoom focus group in life focus group, I would go with a live on every one. And for me, that's just my selfish kind of what I enjoy doing.
But I ended up doing surveys and surveys are really the most robust way to gather opinions, thoughts, and feelings about cases that exist. If you look at market research, there's three ways to do market research or opinion research, right? One way is focus groups, right? One way is individual interviews. Talk to consumers of people about what they think, the issues of the product, the case, and the third is surveys.
So in the United States, in the commercial world, they spent $39 billion a year on opinion research, $39 billion a year on opinion research. They only spent 4% of it on focus groups. And most of their research is quantitative. They're doing surveys. And the reason they're doing surveys is they get much more information and much, and they can do a lot more with the information when they do a survey than we do with focus, they may still do focus groups, but they're spending about 69% of their money on surveys, as opposed to focus group 4% of the focus groups.
And they do some individual interviews and other things to make up the difference. And the reason to survey here's what happens on a survey you give. So I started doing them. I'm doing for several years now. I think they're great. It's my first recommendation for people who want to do opinion research or jury research on a case. Not that we don't do an in-person focus group. I'm happy to do that too. But my first test let's do a survey because we give them a neutral narrative of the case, which is sort of when we do landmines, where in bottles, we've kind of combined that stuff and says, what's the neutral narrative, the essentials of this case that we want people to know, we capture all their demographic and bygone biographical information.
Then what are the questions we want to ask? And there's two kinds of questions. There's the open-ended or qualitative question where they're there. They are in their own words explaining why they strongly agree or strongly disagree or what they think the two strongest facts are for the defendant or the point at which the tipping point for them, what point in the narrative they feel okay. I've kind of made up my mind. So we ask them those open-ended questions and then we'll ask them scaled questions and it may be a, on an anger scale. So on a scale of one to 10, zero to 10, zero is not anchored.
All 10 is very angry. Where would you be on that scale? And we get 25, 50, a hundred people to put themselves on that anger scale and see how, if they do re re read this neutral narrative, how angry are they? And so they're not allowed to go be angry, you know, but at the average of a hundred people is 7.2. For example, it's like the they're pretty pissed off a hundred people, 7.2. You know, there's some people, the reason at 7.2, we got a bunch of these people who weren't angry at all. And we get to, you know, you end up having all this information is recorded on an Excel spreadsheet.
So the person who puts that put a three on anchor where everybody else is eight, nine, we said, who is this person? And we can track back to their name, their age, their gender, their educational level, their income level, their political party, and how they answered every other question. So it's, it's very robust in terms of, we get both quantitative information about how many people strongly agree with this point or disagree with this point. So know in terms of case issues, what's more likely to be a winner for us or not a winner.
We know, and we identify people who are probably good for us, probably bad for us. And then we capture all of these narrative responses. So the frustration of doing the focus group is it's four hours of talking. And at the end of the talking, what do you have? You know, you have a bunch of impressions, but if I'm moderating the focus group, I'm not taking notes, right. You know, it'll be an interesting conversation, but it's for, it's for the lawyers is for the clients really to take the notes and come to the conclusions. Now we'll have some instruments, like little questionnaires.
We'll give them during the focus group. So there's some written record, but when we do a survey and he asked a question, what were the two most important facts in this case, from your perspective for the plaintiff and we have 50 or a hundred written responses. I mean, you basically just copy the column on the Excel spreadsheet. We paste it into word document and says, well, here's the 50 or a hundred most important things, according to these people and the plaintiff's case. And you read those and say, well, all right, I hadn't thought about that.
And they're not by the way, including what I thought was the most important thing. So you get to capture all the, all the narrative responses of jurors in a way that's just harder to do in a live focus group.
Speaker 2 (51m 53s): Yeah. And are you doing those surveys yourself through your own consulting firm? Or do you work with somebody on that?
Speaker 3 (51m 60s): Well, I mean, I actually, I worked with somebody because it's like, you have to, you have to recruit the people. So when we do a survey where we recruit to a profile, so in other words, if you are in a particular venue, so it's, well, let's recruit people that are likely to be on your jury. And so, or just, who do you want? I mean, do you want 50, 50 males and females? Do you want more females? What age range do you want? What income levels do you want? Do you want people who are nurses? Do you want people who have CDL licenses, you know, et cetera, et cetera, et cetera. So we recruit to a profile for the survey and then see if it makes any difference.
Speaker 2 (52m 35s): It's interesting. What you mentioned about the feedback you get. We just did a survey that I was mentioning in a, in a case we're working up toward trial. And there was one issue that 96% of the plaintiff jurors that we had, we had an 88% win rate on the plaintiff's side. So it was a very strong case, but 96% of them said it was the most important issue to them. It was not an issue. Anybody involved with the case identified prior to the survey, I'm embarrassed to admit it's very obvious.
It was so obvious that we'd missed it, but it was just very, very interesting to, to see that. And you're just bashed over the head with how significant that is to learn that. So I completely buy into the survey. I think it's incredibly.
Speaker 3 (53m 26s): The other thing that's good about it is, is because I'm not doing surveys with a thousand respondents, which is, that's a different, it's a completely different animal. But so at the end of the survey, people are asked, would you be interested in our researchers would like to do some followup interviews? Would you be interested in doing a followup interview sort of yes or no? And then we'll give you a $40 visa gift card for 45 minute interview. And then what days of the week, and what times did day would be good for us, our researchers to contact you. So 80% of the people respond.
Yes. So what happens? You do the survey now you've got a built in group of people that you can, you can do a zoom focus group with four people in it. And you decide who you want to invite. You email them and you pay them 40 bucks a piece, and you can ask them anything you want. You can have them reviewed. Even you have to review documents that they didn't review. Ordinarily. I originally or look at video clips or just talk about some issue in the case. So you end up having this, this sort of group of people that know a little bit, a bit about the case.
They may not remember everything unless you call them pretty quickly, but they know a little about the case. And there are meaningful to talking to someone for 45 minutes about the case for 40 bucks. And you got their name, address, telephone number, email address. And it's just, it's up to you to follow up. But it's, it's a beautiful thing because it's like it. When I say it's robust, there's so many things you can do that you can do sort of a quantitative review of where are they on a scale on agree, disagree, or how strongly did they feel about particular issues? How sympathetic or angry are they all that kind of stuff.
And you get all the qualitative responses to all those questions you have about what's important and why are not important and why. And then you get this ability to follow up with all these people individually and you know exactly who's amenable to it and you know what their answers have been. So you can take all the bad people for you and try to find out why they're bad, because I mean, someone who's, you can tell on the survey, this is a, this is a Badger for us, right? And then he read the written responses and you can say, well, is this really a Badger for us? But you can call them up and find out really why they are a bad bureau or at least have a shot at it.
I mean, this is this, this isn't about psychoanalyzing them or attacking. Let's just talking to them about, I appreciate your response. It's tell me what, what do you think led to that responses versus for another response in terms of your own life? What w what would you compare this to? If you're thinking about your own, whatever you want to do, but the point is you can actually find out why people are bad or why people aren't good, because you have an opportunity to talk to them afterwards.
Speaker 2 (55m 59s): Yeah. That's so valuable. And that, that's a great point that you could follow up with with folks. We haven't done that yet, but I think that's a really good idea. So, Phillip, thank you so much for joining us. The the hour has just flown by. I've got pages of notes here in front of me from our discussions. I learned a ton. If lawyers around the country are interested in working with you a case or having you help them with their case, how does somebody go about finding you?
Speaker 3 (56m 29s): Well, I'm, I'm on the internet.
Speaker 2 (56m 32s): Oh my God. No,
Speaker 3 (56m 34s): I may
Speaker 2 (56m 34s): Say it isn't so
Speaker 3 (56m 35s): Yeah. So
Speaker 2 (56m 37s): Just type your name in there to the Google and you pop up.
Speaker 3 (56m 41s): I think I'll probably come up either. It would've been either me or a, you know, some sort of a cage wrestler or something. There's I think it was kind of Phillip Miller, who is a cage wrestler are multi martial arts guy, or, but I'm not him. I'm not here. My, my, my, my, my, all my strengths go into it, sort of a different Vector than those. So in finding on the internet, but my address, my email address is P Miller, Phillip Miller, pMiller@seriousinjury.com.
Speaker 2 (57m 11s): Well, thank you, Phillip. Appreciate your time today,
Speaker 3 (57m 14s): Dan. It's good to talk to you. Stay out of trouble, man.
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