Defuse the Landmines That Lose Winnable Cases, with Phillip Miller (Rewind)

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Hey there. Before we jump in, a quick word.

Every so often we like to reach back into the archive and re-share an episode

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If you've heard it before,

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Welcome to the Elawvate 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, Rahul.

I'm thrilled today to invite Phillip Miller to join us on the show.

I met Phillip 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 a case." We did that

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 got a great result,

but it just brought so much value to have your perspective on that.

And 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.

Well, thanks for inviting me. I'm happy to be here this morning.

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.

I am. And I always say I do not listen to country music.

We were talking before I went on the air about how my wife and I just went there

for our 20th anniversary and got to see Garth Brooks at the Ryman,

and we really enjoyed it.

That whole scene down there with all the honky-tonks on the strip is pretty

amazing.

Yeah, it's a real blast. 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 must listen to country music. And I grew up listening to...

I'm an army brat, so I grew up all over the United States,

went to elementary school in five different states,

but I 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 my musical tastes were already kind of set,

so I just never developed an ear for it.

And I know a bunch about it because I have...

My baby sister is married to a famous country music songwriter who's in a

Country Music Songwriters Hall of Fame.

Wow.

And I have a lot of respect for him. He's a great wordsmith.

What are some of the songs or can you share that with us?

Yeah, he wrote since Paul Overstreet. He wrote a song called "Forever and Ever,

Amen," which he got a Grammy for. And then I think he did a song called -.

George Strait, right?

Randy Travis.

Oh yeah. Okay.

Randy Travis.

And then he did another run for Randy Travis called "Diggin' Up Bones." He wrote

a song called "Love Can Build a Bridge," which was done by the Judds.

He did a song famously that was done by Kenny Chesney called "She Thinks My

Tractor's Sexy.".

That's a good one.

And so I've got great stories. He's a great wordsmith.

And I learned something I think that translates into what we can talk about,

what everybody should think about when 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's had 27 number one hits, I think.

And when they asked him how many co-writers he's had on a song,

his answer was hundreds. And that prompted me to think about

creativity.

So I read a couple books about creativity and the fact is that most people,

if you look at artists, poets, the rest of it,

most people get to their creative limit in terms of

they exhaust their real creativity by their time they're in their mid-20s.

And so 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 of by themselves.

And so Paul has been a prolific songwriter because he has constantly

collaborated with other people and they say something and

that stimulates something in him that never would've 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 facie case is,

they understand maybe what the problems are,

but if they're going to really be creative,

they got to get somebody else in there. And there's several ways to do that.

I mean, one of the reasons, 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 as sort of the songwriter analogy because the

way songwriters are effective over the long term is collaboration. And the

way, 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.

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 that 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 I think that's probably true,

but it would take a lot of work. It.

Would take a lot of work.

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 is always,

there's a story in country music that's different from in many cases,

pop or 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.

There's probably some exceptions that my brother-in-law, Paul,

is a great storyteller.

So all of his songs are about whether it's She Thinks My Tractor's Sexy or some

beach somewhere or there's always some sort of story associated with them.

And I remember when he's married to my baby sister who's six years younger than

I am, and she's a really smart,

strong woman 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, "Hey Flip,

I wrote a new song." I said, "Oh yeah, what is it?" He says,

"When mama's not happy,

nobody's happy." And the three little kids all nodded their head up and down.

That's funny.

And so that's an example of a universal truth. When mama's not happy,

nobody's happy. And so my friend, or I better say 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 in my case,

I am because it's going to resonate with them.

And so one of the best things you could do if you could run into Peter is give

him a song title that would make sense to your case

and be consistent with what we know as a song that was effective.

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 that's Bob Dylan line.

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 songs,

and if they resonate with jurors,

then 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...

We can be awfully structured and academic in the way we do things or we can

start to think about 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 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 reviewed one yesterday,

they spent dozens of hours on this exam. I mean,

just dozens and dozens of hours, edited video and the rest of that.

And when I look at it, because 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 it and said, "Well,

there's 19 slides.

Do we really need these five?" And the answer is no, we probably don't.

The answer is, "I don't know." I say, "I don't think we need these.

Do we need these?" And they say, "No,

we don't need them." But what happens is you're kind of in the

weeds and unavoidably in the weeds when you were that close to when you have

that much time. If you have 40 hours in a 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.".

I know you are a trial lawyer by training.

You've tried many cases and have done that for many years.

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?

I was teaching for AAJ,

and the reason I got into teaching for AAJ was it was just the way 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 being on faculty for programs,

that means I could attend them for free.

And whenever I attended one of the CLE 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 was on faculty and many of those people became really good

friends. I knew them for years and years and years.

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 I was doing,

they were doing them differently and more effectively. So that whole process was

really an evolutionary way to grow myself as a trial lawyer and grow my

practices,

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 trial consultant starting off in Palo Alto,

California and now in Napa.

And I probably met him in the late '90s and 1999.

I had a real rapport with Rodney in terms of understanding what he was trying to

do, because some of what he did at that time was kind of consultant speak.

I developed a relationship with him, and then he had a series of big cases.

They were just, when I say big cases,

they'd bring in a team and there'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 on 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 leased an apartment in Palo Alto and I leased a car and I was there two weeks

a month. I'd be there for a week.

These people would come in with these really big cases and a big litigation

team, and then I'd go home a week. So in the process of that,

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

case. So I learned his methodology,

his process of looking at cases. And so it was easy

for me to fit in with what Rodney did because 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, we saw,

"Here's what we need to rebut this terrible landmine that we have uncovered."

And they would say, "Well,

we've got it right here." And then when you actually look 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 the 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 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 that 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, but it's not. Or they think it is,

but it's not.

And so depositions and storytelling is what I brought into the mix

when I worked with Rodney, and they both fit in with what he was already doing,

so it was a nice fit for us.

Can you talk a little bit about 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...

I think reverse planning 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 prima facie cases.

We need to know what the elements are,

but you can prove a prima facie case on every

case anywhere in the United States and still lose the case.

How is that possible? Right? The answer 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 the jurors are going to believe or tend to believe

are 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 prima facie case,

we prove the prima facie case 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 we're going to make it irrelevant or material. Because if we can't,

if we go through and 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 whether we made out a prima facie case

or not. So here's the easiest example.

So at one time there were...

ATLA at the time did a whole bunch, I mean a whole bunch, I mean 20, 30,

40 focus groups on a failure to...

The same fact pattern was a failure to diagnose breast cancer case.

And you'd make out a prima facie case and what would happen is

what's happened, a woman goes in for an examination,

she has a palpable mass, they do a mammogram,

it just looks like it's fibrocystic disease

and she's sent home. She calls in about the results for the mammogram

and the lady on the phone says, "Oh,

it was clean or whatever." Well,

they're supposed to schedule her for a biopsy because she had a palpable mass,

never scheduled her. She goes home,

comes back a year later and she's stage four cancer in her breasts,

ends up dying because it metastasizes and her husband has this lawsuit.

So you have all your experts, you established causation,

breach of the standard of care,

and the question the jurors have is where's the husband?

Why did he get her to have a second opinion?

Did he not know she had a mass in her breast? I mean,

what's he going to do with this money? Does he have a girlfriend? I mean,

all of that stuff is sometimes called juror proof,

but the fact is it's also a landmine. 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 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 or two weeks before trial

or at some other time.

We want to neutralize and take care of all that stuff on the front end. And it's

easy to do if you know about it on the front,

which the whole point of reverse planning is anticipating all those problems,

developing your proof around them. Strangely enough,

when you do that and then you say, "Okay,

let's rebut all these things," you have most of your case in chief because if we

rebut all of those landmines,

even though we didn't set out to lay out a prima facie 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.

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 immaterial.

Yeah. When we worked together, day one,

we had 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,

because you have to deal with the biggest problems in your case 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. I 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. 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 him 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.

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.

It's hard to do. I can say more power too 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 think about and talk about the thing because we do

landmines on the damages and for the most part,

most of the time if we haven't fallen in love with our client,

we like them, we respect them,

we honor the way they have dealt with what's happened to them and what's been

fate has cast in their path.

But it's really hard to do this just on your own because

I mean, if it's somebody like me,

it's like I'm just going to say it and then you or someone else then

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.

So it's a tough process. I think it's tough on lawyers to do.

I think many 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.

I usually tell people when we do a landmine session,

we spend typically at least a day just on the landmines like we did with you,

Ben. I tell you at the end of the day, you want to go home and say,

"Why did we take this piece of shit case?

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 a defense attorney if you want,

or a defense minded judge. Look at the case through that lens.

Those are the landmines and how do we take them out?" And what you find out

sometimes is we really can't effectively take out all the landmines,

which means this is the case we need to settle. Or maybe we just take a shot,

but it's going to be a tough case to win if the landmines come in.

And of course,

the second component of that is we're doing the landmines based on...

If I'm in a session, I've done hundreds and hundreds of focus groups,

so I have an idea 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 we 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 might have 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 refer to as a strip case,

late decelerations and all that kind of stuff.

It was a strip case and the baby was born with some terrible problems.

They had an expert talking about they should have done 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 of course when they use suction,

the baby's head sort of gets a little cone-like because 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 a 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.

The baby's head was shaped like a little cone and all the rest of that.

And that was striking in the context of the doctor

denied using vacuum extraction. The nurse who was in the OR said, "Yeah,

we used vacuum extraction." The father who's in the delivery room said he's got

the little cone head. They got a picture of the...

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...

This never occurred to us. We knew that there was a conflict about him saying,

"No, I didn't use vacuum extraction," and 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 using the vacuum extraction.

The vacuum extraction didn't cause any injury. 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 of who we are.

Do you have sort of an overarching philosophy of trials that you follow into

different approaches that have been books written like case framing or

Reptile or some combination of those approaches,

putting aside the deconstruction landmine analysis,

but in terms of the affirmative side of the case?

Yeah. In fact, I've got a... Let's see if I can pull this up real quickly.

There's a number of things that consistently... I mean,

whether 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 in the case,

there's things that jurors need to know. And the question always is,

regardless,

I don't care if you're a TLC person or a framing person or

you're eclectic or whatever, it doesn't make any difference.

So in every case, when you talk to jurors about the case,

they want to know, is there something about this case that'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 that'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 their favor.

Do you mean important socially Society-wide or just

important because it's a very significant case to the plaintiff or the

individual involved or both?

Almost always because it's about more than money. Because the second thing is

they want to affect change and send a message.

So if they can send a message with the verdict,

that's always good for us because then 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 able to affect meaningful change

and send a message. And the third thing is,

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,

is this a case where 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 wrongdoers or villains, right?

And so who's the villain in this case? The answer is I don't know,

but you're not going to find one if you're not looking for them.

And I'm not suggesting 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? It's 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 actions. 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 we hear that in every case.

I guess the fourth thing is that they are suspicious of our evidence.

They're suspicious of our proof. And so you'll have a uncontradicted proof.

Well, it's uncontradicted to us.

The lawyer on the other side isn't contradicted. They will. I mean,

they'll talk about, was this photoshopped? Was this changed?

And so that changes our attitude of how are we going to prove our case?

And what do we want to prove our case for the most part is we can prove it

through what I'll call real evidence. 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 at least we can minimize the suspicion

that's going to sort of encompass our proof. Now,

it doesn't mean they're still not suspicious,

but our best shot is let's try to address the fact that it's going to be

suspicious and give them proof that it is as reliable as we can possibly make

it.

And that generally means proof that's not aligned with the efforts of

the lawyers for the plaintiff.

So if you have two kinds of photographs of a scene,

one of them is taken by police and one of them is taken by the lawyers or the

lawyer's investigators, which one do they think is more credible?

The one taken by police.

It may not be as good if you have a video recreation

or you have a video taken from the convenience store across the street,

which one's 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 those are examples of way, how do we deal with 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

any of our pieces of evidence. And so what's the last thing here?

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 party's 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,

medical complaint or been treated for this problem in the past? Always, always,

always. And so 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 if 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 about 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 OSI evidence, number one,

and it's not that easy to get it 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 it's okay, you did it before,

you saw what happened, you didn't change,

now we're going to send you the message.

And so those are things every group will ask about in one way. And I say,

every group will ask about it.

It's not eight or 10 or 12 people asking. It comes up every time.

If you talk to people long enough, they're going to know,

did this happen before? And this person ever had this problem?

Did this company ever do this or have this particular problem before?

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 case development,

bringing into that development the things that jurors consistently want to know

about and then specifically want to know about in your case,

like where was the husband are important things to put together in terms of

having really, I think, a solid and effective case.

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Yeah, it's a really great summary.

I was actually writing down all those points as you were making them.

It's 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 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 What is your approach to voir dire?

We've had a lot of guests who've talked about voir dire and it seems like

there's two kind of principal schools of that. Well,

one is there's states like my home state,

which don't allow for lawyer directed voir dire or very robust lawyer

voir dire, so you can't do much.

But in terms of venues where you're allowed to do voir dire,

there's one approach where the idea I think is more to

develop 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 it will be counterproductive.

The other side of the debate is you really have to be aggressive

at identifying toxic jurors,

people that come in with strong bias against you in your case. And of course

there's lots of variations in between.

Where do you come down on voir dire and what is your approach that you like to

teach on that?

Well, the first approach is sometimes called the tribe building approach.

It's sort of a TLC approach to voir dire.

Exactly. Yeah.

Where we're all part of the same tribe and 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 one of them. 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 very effective at sort of that tribe building approach to

voir dire where they're not really using... 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 verdicts, well,

it's a great approach. I think 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 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 a just verdict, find out who they are,

and at very least use our peremptories and we really want to challenge them for

cause.

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 I think there's people that do that. So yes,

I said let's identify the people who cannot return a bad verdict. Now,

the other thing that makes a difference is I'm in a unanimous jury state and 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 being said,

I've done voir dires in the last six months in I guess three different

states and one of them, 15 minutes, 15 minute voir dire.

So how do you do a voir dire 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

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 if you have an hour,

you're just going to do an expanded version of this and get more time with

jurors to actually talk about it,

but you have to have them talking about the things that make a difference in the

case. I think the standard of care,

if you will,

for trial lawyers now who are doing voir dire 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,

and it's a 10 point scale, very uncomfortable, zero,

very comfortable 10.

And the title at the top says returning a verdict if less than 100%

sure. And you start off with a hand raise.

How many of you are comfortable or very comfortable returning a verdict if

you're less than 100% sure? And how many of you are uncomfortable?

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 we're really trying to do is find the people who just, well,

how comfortable would you have to be in this 10 point scale and how

uncomfortable?

And if they say they're a one or a two or a three in terms of being

uncomfortable,

that's a bad juror for us because they're not going to be 100% sure. Now,

does that mean we want to strike them just based on that one response? No, no.

But if they're uncomfortable returning a verdict of less than 100% sure,

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 or 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 panel, ask each one of them,

ask 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 because

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 are you awarding tens of millions of dollars in a case?

Very uncomfortable.

And so we're just looking for the people who are bad for us about one,

burden of proof and two, 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. The title is,

are you more of a big picture or a devil in the details person? And by the way,

Keith Mitnik talks about this very question in voir dire. If you look at,

I think this is in Don't Eat the Bruises, it might be in Deeper Cuts.

But anyway,

so on that slide I have a title and then I have a line with arrows at eat end.

And one end 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?

Are you more of a big picture person or more of a devil in the details person?

And we get people kind of talk about that because one of the things we know is

devil in the details persons, they're probably not good for plaintiffs.

Yeah,

it's interesting because we just did one of those big data surveys in a case,

a trucking liability case,

and one of the strongest indicators for a bad plaintiff

juror was that they like the TV show NCIS.

So I suspect that that maps pretty closely to the devil in the details persona.

I was wondering why that would be the case,

but I think what you just said explains it.

Yeah. Yeah.

And then so those are examples of just three or

four questions that tell us right away.

Could 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?

Because it keeps them anchored.

It keeps 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 a rabbit

trail and you're tempted to follow it. But the answer is no,

I just want to know how do you feel about this? Because 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 the number be?

So you can do it politely and really find out where they are.

And everybody's clear. Everybody,

all 14 people in terms of the people in the box and your alternates,

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 100% sure? And then

they talk about it and you find out where they are and you have some basis for

using your peremptories and knowing who's bad for you.

And then you get asked questions like big picture versus devil in the details

that tells you as well. So example, I think the standard of care,

if you will,

is going to be eventually that you use those in voir dire consistently because

it's the best way. By the way, if you can't do voir dire by yourself,

I mean 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 does your team or your observers make any kind of

significant notations about jurors? Well,

at least they can on returning a verdict of less than 100% sure say, "Well,

this person's a three and this person's a two and this person's 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 about

something. And usually they're going to think it's about money.

It's about a lot of money. All this is about money,

which is why they always want to know is there something about this case that's

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 voir dire,

and I have a slide for this. It says... Uh, how many of you...? The 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 that?" 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 suing to make sure something doesn't happen again.

So that's an example of using not the voir dire just for selection or

deselection, but for priming in terms of what the case is actually about.

You had mentioned when we started that your consulting

process has evolved some since we worked together.

Can you tell us the ways in which things have evolved over the last three or

four years?

Yeah, I'd say the biggest evolution for me probably has been when

COVID occurred, you really couldn't do live focus groups.

And so I ended up doing,

and I did some Zoom focus groups and I'll still do Zoom focus groups if people

want to. I don't particularly like them. I mean,

it is a way you can get good information from a Zoom focus group,

but if I had a choice between doing a Zoom focus group and a live focus group,

I would go with a live one everyone for me,

but 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.

One way is individual interviews,

talk to consumers or people about what they think are the issues of the product

of the case. And the third is surveys.

So in the United States, in the commercial world,

they spend $39 billion a year on opinion research,

$39 billion a year on opinion research.

They only spend 4% of it on focus groups.

And most of the research is quantitative. They're doing surveys.

And the reason they're doing surveys is they get much more information

and they can do a lot more with the information when they do a survey than we do

with focus group. They may still do focus groups,

but they're spending about 69% of their money

on surveys as opposed to focus groups,

4% of focus groups and they do some individual interviews and other things to

make up the difference. And the reason the survey,

here's what happens on a survey. 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 say,

let's do a survey because we give them a neutral narrative of the case,

which is sort of when we do landmines and rebuttals,

we kind of combine that stuff and say, "What's the neutral narrative,

the essentials of this case that we want people to know?" We capture all their

demographic and 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 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 did 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 on an anger scale.

So on a scale of zero to 10, zero is not anchor at all, 10 is very angry,

where would you be on that scale? And we get 25, 50,

100 people to put themselves on that anger scale and see how if they read this

neutral narrative, how angry are they?

And so they're not all going to be angry,

but if the average of a hundred people is 7.2, for example,

it's like they're pretty pissed off. 100 people, 7.2? There's some people,

the reason it's 7.2, we get a bunch of these people who weren't angry at all,

and

you end up having all this information is recorded on an Excel spreadsheet.

So the person who put a three on anger, where everybody else is eight and nine,

we say, "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 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 we know in terms of case issues,

what's more likely to be a winner for us or not a winner.

And we identify people who are probably good for us, probably bad for us,

and then we capture all 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 have a bunch of impressions,

but if I'm moderating the focus group, I'm not taking notes.

It'll be an interesting conversation, but it's for the lawyers,

it's 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 they ask a question,

what were the two most important facts in this case from your perspective for

the plaintiff? And we have 50 or 100 written responses.

I mean, you basically just copy the column out of the Excel spreadsheet.

We paste it in the Word document and says, "Well,

here's the 50 or 100 most important things according to these people in the

plaintiff's case." And you read those and say, "Well,

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 narrative responses of jurors in a way

that's just harder to do in a live focus group.

Yeah.

And are you doing those surveys yourself through your own consulting firm or do

you work with somebody on that?

Yeah. Well,

actually I work with somebody because it's like you have to recruit the people.

So when we do a survey, we recruit to a profile. So in other words,

if you are in a particular venue, says, "Well,

let's recruit people that are likely to be on your jury."

Or just who do you want? I mean, do you want fifty fifty 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, et cetera, et cetera, et cetera.

So we'll recruit to a profile for the survey and then

see if it makes any difference.

It's interesting what you mentioned about the feedback you get.

We just did a survey that I was mentioning in a case we're working up toward

trial and

there was one issue that 96% of the plaintiff jurors,

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 had 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 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 valuable.

The other thing that's good about it is not,

because I'm not doing surveys with a thousand respondents,

which it's a completely different animal. So at the end of the survey,

people are asked, "Our researchers would like to do some follow-up interviews.

Would you be interested in doing a follow-up interview? Sort of yes or no.

And then we'll give you a $40 Visa gift card for a 45-minute interview.

And then what days of the week and what times of day would be good for 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 do a

Zoom focus group with four people in it. 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 review documents that they didn't review originally

or look at video clips or just talk about some issue in the case.

So you end up having this sort of group of people that know a little

bit about the case.

They may not remember everything unless you call them pretty quickly,

but they know a little bit about the case and they are amenable to talking to

someone for 45 minutes about the case for 40 bucks and you've got their name,

address, telephone number, email address,

and it's up to you to follow up.

But it's a beautiful thing because when I say it's robust,

there's so many things you can do with it.

You can do sort of a quantitative review of where are they on a scale, on agree,

disagree or how strongly do 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 ask about what's important and why or 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 you can tell on a survey,

this is a bad juror for us, right?

And then you read the written responses and you can say, "Well,

this is really a bad juror for us." But you can call them up and find out really

why they are a bad juror, or at least have a shot at it. I mean,

this isn't about psychoanalyzing them or attacking,

it's just talking to them about, "I appreciate your responses." Tell me,

what do you think led to that responses versus for another response in terms of

your own life? 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 are

good because you have an opportunity to talk to them afterwards.

Yeah,

that's so valuable and that's a great point that you could follow up 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 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 on a

case or having you help them with their case,

how does somebody go about finding you?

Well, I'm on the internet.

Oh my God. No.

Amazing.

Say it as and so.

Yeah. Yeah. And.

So-Just type your name in there to the Google and you pop up.

I think I'll probably come up.

It'll be either me or some sort of cage wrestler or

something. I think there's guy named Phillip Miller who is a cage wrestler or a

multi-martial arts guy, but I'm not him.

All of my strengths go into sort of a different vector than those.

So you can find me on the internet, but my email address is pmiller,

Phillip Miller, pmiller@seriousinjury.com.

Well, thank you, Phillip. I appreciate your time today.

Ben, it's good to talk to you. Stay out of trouble, man.

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