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Personal Injury Marketing Minute #36 is a mandatory, must hear podcast with Mike Liffrig, the founder of Fist Court. His clients win cases and build confidence – at no cost to them.
First Court is company that offers sophisticated jury research and alternative dispute resolution services.
In this podcast, you will learn:
- Jury trials are about emotional leadership
- You need feedback to win cases
- Winning cases transforms your life and law firm
Check out First Court here: https://www.firstcourt.com/
See all episodes or subscribe to the Personal Injury Marketing Minute here: https://optimizemyfirm.com/podcasts/.
Transcript:
Lindsey:
Welcome to the Personal Injury Marketing Minute, where we quickly cover the hot topics in the legal marketing world. I’m your host, Lindsey Busfield. Fortunately, most personal injury cases settle out of court, but for those that do make it to trial odds are that you have invested countless hours and a good sum of money before it got to that point. And now you are faced with the looming uncertainty of how a jury will see things.
Lindsey:
Realistically, you have probably rehearsed what you’re going to say about a million times in front of your wife, kids, dogs, and in the shower. While Fido might lend a good ear, his feedback probably doesn’t contain helpful advice, but what if you could do a mock trial in front of a realistic jury and get actual feedback on how you present your case? Joining us today is Mike Liffrig, the founder of First Court, a company that offers sophisticated jury research and alternative dispute resolution services. Thank you for joining us today.
Mike:
Absolutely, Lindsey. Great pleasure to be here.
Emotional Leadership for Lawyers
Lindsey:
Well, tell us a little bit about First Court and how you got started.
Mike:
Yeah. So Lindsey, in a nutshell, we provide emotional leadership services to lawyers. We take good cases and we help turn our lawyers into emotionally savvy beasts and that then they turn this into exceptional verdicts. They turn their good cases into great cases. That’s how we look at this, and it’s not a legal thing. It’s very much an emotional training that we have found over the years. And I say this as a lawyer myself, I went to small town farm boy from North Dakota. I went to Michigan for law school and came back and was in an insurance defense firm for a number of years. And I wanted to mediate is how I got started in this. And at that time, the lawyers say to me, “Well, Mike, you don’t know anything. You’re just three years out of school. Why would we listen to you as a mediator?”
Mike:
And I said, called them some names but they were right. I mean, I didn’t know anything but I said to myself, “You know what? You don’t care what I think your case, but you care what Grandma Aga thinks of your case.” So this was back in 1989, Lindsey, probably before you were born, I don’t know. And you could go to Sears. There was a store called Sears and you could go there and plop down $600 and you could get a VHS cam quarter, one of these big old top mounted things. And I bought one of those. And every mediation I went to as mediator, I had that on a tripod behind me.
Mike:
So when they got to an impass, I said, “All right. Folks, let’s have your closing argument.” And I would take those closing arguments and I’d run it by just folks from that particular county and I’d record their reactions and the lawyers got a chance to see, “Ah, here’s my strongest arguments. My clients saw me arguing for them. I stood up for my clients and made my case and the jurors then were the bad guys.” It was very, very helpful for breaking impass that way because they would say, “This in this defendant is just so reckless. They need to be punished. Or this injured person is just unbelievable. Look at the pictures.” Whatever they’re going to say, they would say that.
Getting the Right Response from a Jury
So it made much easier to resolve cases. And that’s how we got into this is just super, super practical. It’s not about theory, not about social psychology, any of that stuff. It’s like how do real people respond to real lawyers? That’s where our focus has always been.
Lindsey:
And that’s one of those soft skills that they just can’t teach you in law school because connecting with the jury, connecting with people, people are going to be different. And especially depending on your geographic area and what a specific sample jury might look like, you need to be able to reach people in different ways. And a lot of what you’re saying reminds me of like standup comedians who go on stage and they give a joke, they presented it a few different ways, see how many laughs they get, and that way they can take it to the next show to it and do some AB testing. But as a lawyer, if you’re going in front of a jury, you don’t get the opportunity to do that AB testing in real life. You have to do that footwork before you get there. And I think that this is a great service that grant you an opportunity to do that.
Mike:
And to that point, you need to be… This is a great trick I think for people who have never picked a jury. A lot of the folks in my business are PhDs and they’ve never picked a jury before at all. Well, I’ve been a prosecutor and I’ve won some, I lose some. And I understand what goes through a lawyer’s mind, especially the three days before trial, it’s just chaos. And it’s not easy to have the judge critical of you. Your client’s expecting you, you’ve got the jury, the opponent, you got a lot of forces on you. So many times the consultants will sit back and I’ve heard at these conventions they mocked the lawyers for being stupid. Really? You have no idea what they’re going through and yet you can be critical.
Mike:
So we really want to be highly personalized. The way a woman presents to a jury compared to a 65 year old man, way different. And the same jokes won’t work. The way that you dress, your demeanor, when you can be assertive, how you can be assertive, this is really, really personalized. So I feel like I can take the lawyer just where they’re at, wherever the lawyer’s at and work with that and make this a journey into authenticity, if you will. We just want you to be you, as an advocate for your client, and that’s the unique leadership piece.
Mike:
The other thing on the leadership that I find so intriguing is that more and more… So I’m 63 years old now. When I started back in 1985, there was no internet and there was not this quite the bombardment of our senses that we have today with so much media. Today so many of our jurors, they’re very shrewd about emotional reading of people, the reading of lawyers, they’re pretty shrewd about that. But man, they are on the facts of a case, finding the facts. Many, many of our jurors, they can’t add three numbers together. And if you ask them to do it, they’ll get frustrated.
Lawyers Should Be Leaders in the Courtroom
Mike:
So the result is that the leadership of the jury is just critical. That’s why I say it’s but it’s emotional leadership. It’s not about all these legal theories. It’s about who do I trust because this is bewildering to me sitting in this jury box and my first thing is, who’s going to tell me the rules? Who’s going to make me feel comfortable? Who’s going to help me get through this and help me answer the question? Sometimes my lawyers will say, “Well, the judge is the leader in the courtroom.”
Mike:
Well, in a way, but the judge can’t help the jury answer the questions that they have to answer. So they’re looking for the lawyers and they say, “You’ve had this case in your office for three years and you can’t tell me what it’s worth. That’s our job?” It’s like, “That’s bullshit. No one buys that.” You’ve got to step up and be that emotional leader. So much of our services, Lindsey, they focused on voir dire where you first open the door of their minds to this person is trustworthy. And to the opening statements where you just win them. That’s the main focus of what we’re doing is with our focus groups and our private jury trials is spending hours and hours getting the lawyers comfortable with voir dire and the themes and in the openings. So it’s extremely helpful. You don’t want to figure this out in the public courtroom. You want to have it down ahead of time.
Lindsey:
Absolutely. I mean, as you’re saying, it’s not enough to be right and to know the laws and to know the facts. You have to be able to guide your jury through that process and be convincing in a way that isn’t salesy, but is a compassionate, knowledgeable, professional way that holds their hand through the process. Because even though you’ve been in a courtroom 100 times, they have it and they’re looking for that leadership. They’re looking for that emotional leadership. So taking a little closer look at the logistics of this, what does the process look like from a lawyer’s end if they want to engage in this type of simulation?
Practicing a Case Start to Finish
Mike:
Well, so the first thing is, again, we try to stay reality-based. So lawyers are super busy and we have taken what COVID has done to our country in terms of making Zoom calls comfortable for everybody. So we ask our lawyers to begin with some evening focus groups on Zoom. Super easy. They don’t have to reschedule depositions, they don’t have to… Any of the scheduling stuff, most lawyers can find a time from six to nine in the evenings when they can make this happen.
Practice Selecting the Right Jury
Mike:
So that’s the first thing is we do it at a time that works for you. And we use these online focus groups to get all of the mistakes out of their system. So we might devote the first three focus groups to voir dire, to jury selection. And we do this in a very realistic setting so that the people who come on and serve on the jury, they are under the impression that, “Hey, this is a real lawsuit, perfectly true. These are real lawyers, perfectly true. And they are trying to get this case fairly evaluated and resolved if they can, perfectly true.”
Mike:
So they will believe that this is an ADR procedure and their emotional buy-in is high because we’ll get jurors using the f-bomb and just really cussing it and totally getting into this because they’re emotionally invested in the process, which is great. That’s what we want. We don’t want this to be a fake exercise for one side only. That is not helpful for our lawyers. So usually there’s these two things. So either we’re working the folk on the voir dire or the opening and the voir dire piece, I give them the buy-in piece. This is a real lawsuit and we are a dispute resolution firm. We’re help helping these lawyers evaluate the case. I’ll give them the basic facts of the case, just like the judge would give you them uncontroverted, two or three paragraphs of the who’s who.
Mike:
And then I say, “Okay. First we’re going to hear from the plaintiff attorney,” and more and more of my practice. In fact, I’m just starting a new company that’s just going to do only plaintiff work. We’re going to call it Grand Slam Verdicts is the name of the new group. The first part has been serving everybody, both defendants and plaintiffs. And I just want do plaintiff work, as we talked about before this show begin. So the plaintiff attorney gets about 45 minutes of the session and then the defense attorney comes in and he or she is just there as window dressing because we’re not there to help the defense so much. We’re going to help our client.
Impacting How the Jury Responds to You
Mike:
So we give them the great majority of the time. And then after my plaintiff attorney finishes the voir dire and the first one is just whatever he or she is used to, we just go with what’s natural to that lawyer. And then we have a software that we created about 20 years ago, it’s called Vulcan after the star actually can get into the minds and it allows us to ask… Number one, it records all their notes that they make as so as they’re listening to the lawyers, they’ll make notes and we encourage that them to be really, really blunt. And I’ve got stories, the ways that juries have insulted me over the years. So I just help-
Lindsey:
You have to have some thick skin for that.
Mike:
Yeah. We don’t have feelings.
Lindsey:
We’re Vulcan. Yeah.
Mike:
No, that’s right. We’re Vulcan. So they will answer questions. At the end of the plaintiff’s voir dire, I might say something like, “Okay. Did this lawyer set you at ease by clarifying how the discussion was going to work? Did they make any of these informal rules clear to you? If so, tell me about that. Did she listen to your answers? Did you understand why the lawyer was asking the questions that she was asking? Did the lawyer ask any dumb questions? Do you think you could be fair to both sides?” Stuff like that. We have a tendency as lawyers just to fall into, because we don’t do this enough, we’re not comfortable with it. So all of those questions get immediately answered.
Practice Case Trial
Mike:
So our clients get to see all this feedback almost in real-time. So it’s like, whoa. They get 12 people telling them all these super helpful answers to the key parts in the case. So if we do the same thing for their openings, we might ask at the end of the opening statement by the plaintiff, “What’s the most important thing that this lawyer said?” Well, if we get 12 answers back and not one of them talks about what the lawyer thinks is his theme, guess what? That opening statement sucks. It’s not what we want. You’re saying things that you’re saying out of habit maybe or for some other agenda, but you’re not dialing in on what you think you’re dialing in on.
Mike:
So that gives us a great baseline, Lindsey. So we know, this is where my lawyer is at right now with the voir dire and the opening. And then we just start having discussion and we say, I might isolate one or two of the videos snippets, “The juror said this, What do you think of that?” So we want to give the lawyer a chance to come to her own story, her own answer to this, “Well, I could say it this way.” So sometimes the lawyers will just say, “Look, give me your ideas. Give me your ideas and I’ll consider it,” and then we’ll do that.
Mike:
So whatever the lawyer wants but we’ve learned that if we tell the lawyer what to do, number one, half the time they don’t read it. And that it does, they don’t own it. So they’re never comfortable in that. And I don’t want them going into a public jury without being really comfortable like, “This is me. This fits.”
Lindsey:
If they can’t buy into it, it’s not going to help them. They’re not going to do it.
Mike:
So that’s the overall drill. Now, if the case is going to a public trial, we don’t like to do the online stuff exclusively. So maybe three weeks or four weeks before the public trial, we’ll come to Charlottesville or wherever the case is venued and we’ll rent a big ballroom and we’ll bring 24, 32 jurors in for a day or two. And at this point, after we’ve done five or six trials, online focus groups, it should be pretty smooth. You should be rocking this thing.
Mike:
So now we want to polish it in front of real people that you can see and smell and watch them fidget during the course of the day. We polish the themes, the voir dire, the opening, and we also build confidence because there’s nothing seeing people just buy in. Like yes, yes, yes, yes. So now you’ve got this big head of steam built up for the public trial just in the nick of time. So that’s the overview of the whole process that we’d like to use.
Lindsey:
That’s fantastic. I mean, it sounds like you guys tear them down. Well, you don’t tear them down, but the jury has the opportunity to tear them down and really figure out where they’re excelling, but where the opportunities are for improvement. And then by the end of it, they can see how changing their tactics, tweaking things can really have a very tangible difference in the outcome and in their presentation. So with the jury members, obviously you need to have a representative sampling for the type of demographics that they’re going to have in court. Where do you guys pull perspective jury members from?
Selecting the Practice Jury
Mike:
Yeah. So this is super important because we feel you can really mislead the clients and mislead our lawyers on this if we don’t get a good sample. So it’s something that we rarely get any complaints over. People are thinking like, “Well, you guys really have this down.” And we do because we’ve done it for 33 years but the first thing is we look at the demographic targets for the venue, whether it’s the county or federal district in terms of race and age and education and work experience. And then we review those targets. Those are what the census is saying, “This is what your group should look like.” But we’ll review that with the clients, the lawyers, because the census can say one thing but when they stand up to pick a jury, that’s what’s looking back at me. So we want to build on their experience of who is actually showing up for public jury duty.
Mike:
So we get the demographic targets, then we create a website registration page that the jurors can come to and we put ads in various forum in the web. And we also ask, because we’ve done this for so long, we will ask pass jurors from that venue to recommend their friends and their neighbors, because they love doing this. I mean they say, “Can we do this again?” That’s a very common thing for us. And then we don’t like them to do it again. We want fresh people, not professional jurors but we will end up with maybe 150 or 180 applicants for this. We pay them more than they can make it at work typically.
Mike:
So then we get a group like, “Okay. These are the 24, 28, 18 jurors that we like. We’ll call them and interview them and we’re checking for weirdos, basically. People that are just off. So if they sound good, then we’ll give our clients a list of recommendations. Here’s the 18 people we recommend and all the information we have on them. If you don’t like them, one or two of them or whatever, let us know because we’ve got a lot to choose from. So that’s why the clients just… I’ve been doing this, I think it’s been 15 years since I last heard any complaint about the juries because they’re really good.
Lindsey:
And it sounds like it’d be a lot of fun to be a jury member as well. I can understand why they would want to come back and do that again. But going back to the feedback that you guys provide from those jury members, I mean everything sounds so detailed and so realistic. Do you have any metrics on how effective the information is in terms of case success for your clients?
Effectiveness of Mock Trials
Mike:
Well, most cases still settle even when we’re involved. We don’t get that many cases that go to a public verdict. So the metrics they’re a little bit hard to be apples to apples on. I was thinking about this earlier, I think in the 33 years that I’ve been doing this, we’ve had maybe three misfires where we said A, and the jury came back with opposite of A. So it does happen and I really don’t like to tell the clients that this is a crystal ball because it’s not. I mean, it can tell you where you’re strong and where you’re weak and it is especially good at the liability issues in a case damages are a crapshoot. But it’s much more about the leadership pieces about making sure that they follow you because these folks don’t know what to do. They don’t know what to do with the verdict. They’re looking for someone to guide them. So that’s the real value here.
Mike:
In my battle days, we’ve worked with Walmart and General Motors and they have told us that this is the most data driven approach to jury consulting that they’ve seen because they get all this, you get 180, 200 pages of data back. So it’s impressive that wave, if that kind of stuff and for insurance companies and defendants, that means a lot to them because that’s how they’ll make decisions.
Mike:
But in my world, nothing succeeds like success. So we were in conservative Bismarck, North Dakota a couple years ago and our clients got a 1.3 billion verdict in conservative Bismark for the death of two girls and a severe brain injury, but over a billion dollars. And it’s by listening to people and making it fit your personality, that’s what we’re all about.
Lindsey:
Yeah. It’s all building on that emotional quotient and connecting with jury members. And of course you’re not going to have any perfect metrics because you’re dealing with human beings and it’s not a crystal ball.
Mike:
And the defense gets a say in this too. I mean, the defense gets to weigh in and you’ve got to be a better leader than that defense lawyer or you’re not going to get predictable results.
Lindsey:
Or else it’d be really easy if they didn’t get a say. Well, before we go, what are three of the biggest takeaways or pieces of advice that you can give a lawyer based on the jury research that you’ve seen?
Additional Takeaways
Mike:
Well, okay, so I’ve hammered this pretty hard, but the jury trials are about emotional leadership. So if they like you and they trust you, they’ll follow you. We had a case in Chicago some years ago where the defendants threw a six foot chunk of pipe off of a 30 foot building. And then, well, they were aiming for a dumpster down there canister for garbage. But they hit the plaintiff instead. And he had this locked in syndrome, which is just a really horrible, horrible, horrible suffering. And the lawyers gave no leadership, the no leadership on what this was worth. They said, “Well, we don’t know him. It’s up to the jury.” Well, they came back with 30 million because the pipe fell 30 feet and they’ve said a million dollars for each because they have to have something. They have to have some reason for their numbers. So if you’re the leader, they’ll follow your numbers. That’s the most important thing.
Mike:
Well, two things. So just as a practical matter, you’ve got to get feedback on how to win these cases because you don’t have enough experience in your short life to really understand how a group of people will react to this. So it’s not expensive. We’ve got a 5% contingency fee that we use. The clients pay that, not the lawyers. And they only pay it if we win, we advance all of the costs. So it doesn’t cost you glides anything to get this feedback. So we’ve tried to make it really easy. We’ve got a free screening trial that lawyers can use to find out if this is a good fit, if they want to do it or not. So it’s a two hour deal to check it out. So it’s easy to get that feedback under your belt.
Mike:
And then the last thing is, this is a transformational thing for my lawyers, the business of their practice is that when you start trying cases, even if you get your butt kicked a couple times, if you start actually trying cases and winning, it transforms your life. It transforms everything about your practice because people on the other side will say,” You know what? She’ll try cases and she’s good.” They don’t say this, but they’re afraid. They’ve got to mess with you.
Mike:
And Lindsey, that is such a deep thing. I go with my clients like, two years after we’ve been working together and we’ve done maybe five or six cases and they say, “Mike, they’re paying me three or four times more money than when we started this because I’m good at this.” So it’s fun to see that transformation and the system working instead of just working so hard to get a tiny little bit of money. They pay you fair money right up front. That’s pretty cool.
Lindsey:
Yeah. That is an incredible value to this. So it’s not just getting paid once but your reputation will then pay you over and over again.
Mike:
Exactly.
Lindsey:
Oh wow. That’s fantastic.
Mike:
Yeah. Well, great pleasure, Lindsey. Thanks for having me on your podcast. This is wonderful.
Lindsey:
Well, thank you so much, Mike. This has been incredible information and we will be sure to put all of your contact information in the comment section. So visit there, reach out to Mike, and thank you again so much for taking the time today.
Mike:
Absolutely. Great pleasure. Thank you Lindsey.
