Big Data and Its Little Brother: Separated at Birth, Powerful Together, with Monte Tynes and Courtney Wilson

Voice Over (00:03):

Every trial lawyer knows that moment when you've built what feels like an airtight case, but you're still lying awake wondering, what will the jury actually think? Jury research was once a luxury, reserved for cases that could support a big data study bill. Not anymore. Join trial lawyer and trial scientist, Alicia Campbell, an empirical legal scholar, Nick Schweitzer. As they break down the barriers between you and the minds of your jury. This is The Fred Files, produced and powered by LawPods.

‍

Alicia Campbell (00:36):

Hello, welcome to The Fred Files. Yay. I'm very excited. I'm here with Nick Schweitzer, who I love. You guys all know this. I say it every time. And we're here getting to talk to two people who, I'll tell you what, practice like hell and Mississippi, which I mean, in all the cases that I run across the country has to be one of the hardest states to practice law. It's got to be. They get through it, they fight, they work hard for their clients and I really admire what they do because it's not like the law has given them any love. So I'd like to introduce Monte Tynes and Courtney Wilson. Thank you for joining us today. I'm going to let you guys do your own little intro. We'll start with Courtney first, girl power. Have at it, lovely.

‍

Courtney Parker Wilson (01:22):

Well, hi. So my name's Courtney and Monte and I do personal injury here in Mississippi, which is a little bit of an uphill battle. I've been here with Monte at the Tynes Law Firm for almost 10 years now. I am a music major for undergrad. Then I went to law school in Boston, which was super fun and created somewhat of a culture shock when I came back to Mississippi for me. But that's okay. I think I got a great education in Boston. I am married to my high school sweetheart. He's awesome. And we have one son who's 11, but thinks he's 30 and is pretty sure he's smarter than me.

‍

Alicia Campbell (02:06):

Well, that's a great intro. Oh my gosh. All right, Monte, your turn.

‍

Monte Tynes (02:10):

Hey, and thanks again for having us. We're super excited about it. I'm a big fan of The Fred Files, and I haven't told you this yet, but I've actually been a big fan of Campbell Law and the work that y'all been doing since COVID when I first heard a podcast that John gave on Trial Lawyer Nation. I was cleaning out my garage during COVID and listened to that and I was fascinated. I always worry because Mississippi's got these caps and so the value, what we can collect from any one case is not as much as what most people can collect around the nation. So I was nervous to even contact y'all to see because I didn't want to get rejected and say, "Yo, we're not going to work in Mississippi." So thank you all for having us and that kind of stuff. So I'm just a big fan of all the work that y'all do.

‍

(02:56):

So I grew up in Ocean Springs, Mississippi, went away to college on an RTC scholarship. I went to Georgia Tech, wanted to fly jets, but my knees didn't hold out. The Air Force was like, "You're done after you tour your second ACL." And so I got a degree in engineering, came back to Mississippi for law school because my dad was a lawyer. I knew a lot of lawyers and I didn't really particularly care for sitting at a desk and drawing lines on a computer. So when I came back, I went to MC for two years, Mississippi College, it's in Jackson. Got married and moved up to Oxford, Mississippi, and did my last year at Ole Miss. Came home and started practicing law with my dad in Pascagoula, Mississippi. And we really did general practice until the BP oil spill happened in 2010, and I started doing a lot of BP oil spill work.

‍

(03:46):

And in 2013, he retired. And right after that, I tried to transition where I only did personal injury. We do a lot of medical malpractice cases, products, liability stuff. Really, if it's something that's really difficult and nobody else wants to mess with it, that's what we do. So we don't do the billboards. We don't get a lot of car wrecks. We don't get a ton of 18-wheeler wrecks, although we love those. And so if you want to have a 18-wheeler wreck down here in Mississippi, come see us. So the Ocean Spring City judge, I was a prosecutor for 10 years. Now I'm the judge. I've got four kids, four absolutely amazing kids. My oldest is in law school. He's too ill in law school at Mississippi College. My next is a majoring in mechanical engineering. He's a senior at Mississippi State. And then my two girls, so those are my boys, my girls.

‍

(04:31):

I got one that's a freshman at Ole Miss, wants to go to law school, one's a junior in high school and she wants to go to law school. So my wife's a lawyer. We had her campaign kickoff for running for Circuit Court Judge in Jackson County, Mississippi. So if anybody wanted to check that out, times for judge, and you can also, of course, click that contribution tab. So get a little plug in there for Lonnie. She's amazing. She's such an amazing lawyer and is always prosecuting. She now works for the Federal Public Defender's Office in the Southern District of Mississippi. She's done civil defense and plaintiff's work. She's done the whole gamut, and she is so smart and just down to earth and a good person.

‍

Alicia Campbell (05:10):

What a nice thing to say. You got to make sure she hears this podcast.

‍

Monte Tynes (05:16):

She doesn't listen to any of my podcasts.

‍

Alicia Campbell (05:21):

Wow. Wow. So wait a minute. So two things have come out that we're going to have to talk about a little bit before we dive in here. You are a music major, Courtney?

‍

Voice Over (05:30):

Yeah.

‍

Alicia Campbell (05:31):

Oh my gosh. Do you like to write music? Do you play the piano? Do you play an instrument? Do you sing opera? What is it? I got to know.

‍

Courtney Parker Wilson (05:39):

Yeah, I sing. So I'm a voice major, and the plan was I was going to be on Broadway. I was really committed to that for about three and a half years. And about the time my senior year rolled around, I started to realize that this plan of mine was going to involve moving to New York and waiting tables until somebody said yes. And I don't know if any of you've ever done performance stuff, but it really sucks to be told no over and over and over again. So then I became a trial lawyer so that people could also tell me no.

‍

Alicia Campbell (06:18):

Or yes sometimes. Or yes, a lot of times. Mississippi's hard. And then Monte, you wanted to fly fighter jets?

‍

Monte Tynes (06:26):

Yeah. I think I wore out four VHS copies of Top Gun when I was a kid and when I was in elementary school. Watched it every day. Started getting my private pilot's license when I was in high school. That's what I wanted to do, but ...

‍

Alicia Campbell (06:39):

You and I have that in common.

‍

Monte Tynes (06:41):

Oh, wow.

‍

Alicia Campbell (06:41):

Yeah, no shit, right? So my dad was in the military. We moved around. And so we used to live by McGuire Air Force Base. Fort Dix is like a federal penitentiary now. But I have a house there. I lived there. I used to go bowling there. I played soccer there. It's very weird to think of it as a prison now because for me, I lived in Jersey like ... Oh God, I don't even want to talk about it, but it was a long time ago. I used to go over to McGuire and sit on the runway, on the runway, but you know what I mean? I used to sit because you could park your cars and lots of people did, and you could just sit and watch the planes take off. And it's really where the stealth bomber went to die. But the stealth bomber was housed there.

‍

(07:21):

Watching them take off land zip through this guy, I was like, oh my God, I would love to ... Because I really like to go fast. So John likes to buy Jeeps. I like fast cars. And so I thought this would be amazing. This is the only thing I couldn't rectify with is like, yeah, but I don't have a right to say no. So it's like, okay, go out, get into your fighter jet over there and go drop a couple of bombs. You don't really have the option to be like, "Yeah, that's not what I wanted to do today." That doesn't sound good. So I mean, it quickly kind of became one of these pipe dreams that apparently I would have to be on Good Morning America or some shit to be able to do. Katie Couric or people went up and I was like, "Is that how I have to get into a fighter?" So anyway, I went on to be a teacher, which has no relation whatsoever.

‍

(08:03):

Man, man.

‍

Monte Tynes (08:04):

I actually used to, once a year or twice a year, they would do the military games at the Air National Guard base, which was shared a runway with the Gulfport Airport. They would house, I guess, one team. And so I would drive over there that week they were there after school and sit on my hood of my vehicle and watch them take off and land and stuff. So I did the same thing.

‍

Alicia Campbell (08:25):

It's amazing. Any of your kids, did any of your kids like to do that?

‍

Monte Tynes (08:29):

No. I was dead set on being in the military and they had no interest, not a single one of them.

‍

Alicia Campbell (08:36):

Yeah, because Wyatt, when he was very little, that's his favorite place to go was the airport. And I was like, "I wonder if somehow it's like ... " Because my dad wanted to be a pilot. And so I wondered, I was like, maybe this is something, I don't want to say genetic, but some kind of interest or something that somehow gets passed down. I don't know. Interesting. Oh, these are great intros. I love them. I love them. Well, let's settle in a little bit. I mean, because I was so excited to invite you guys to come to the podcast because you guys are like good users of Fred and a big data. So I thought who better to talk about your experiences with each, right? How the process is a little different for Fred, how the process is a little different for big data. When you guys use it and how you interpret the results, I thought I would just kind of let you loose to talk about your experiences.

‍

(09:26):

So we can talk about whichever one you want first, Big Data or Big Data's little brother. It's up to you.

‍

Monte Tynes (09:33):

Yeah, I think it would probably make most sense to start with Big Data because that's what we first started. And of course, we started with Big Data before Fred came out. I'm sure you were working on it before it was released to the general-

‍

Alicia Campbell (09:47):

Before he was born. Yeah. I always liked that.

‍

Monte Tynes (09:51):

So I had a really tough products case that was what I ... I was worried about a couple of key things and it was a baby death in what's called an incline sleeper, but they had sold millions of them and there wasn't millions of death. Not every baby that got into it died. So I knew there was a problem with causation and some other stuff. And of course had now been to TLU and watched John present on TLU several times and watched everything with John and Sean and you and Jordan Logan. And so I asked Sean Claggett at TLU in 2022, because I was at one of the parties and I was like, "John, you got to introduce me to John Campbell." This is the fanboy coming out at me. I was like, "You got to introduce me to him." And he's like, "What are you talking about?

‍

(10:43):

Just go up and talk to him." I was like, "No, you got to introduce me to him." So he did. And that's where I badgered him and then got to eventually meet you about doing big data on that. And what we found with big data was some of the things that we were worried about weren't problems that I would have never ... Because we do a lot of focus groups and we've done focus groups since God, probably for 15 years now, but I don't think I would have ever found that those specific things that I was worried about were not problems. And the things that were problems, I don't know if I would have ever found. And so of course, when you find something like that, you get a little addicted. So every case that we could possibly work on with you guys, we sent to y'all to see if it was something that y'all would do.

‍

(11:32):

But one of the things that Big Data came is, and one of the rabbit trails that I always get maybe a little go too far down is when you get the spreadsheet of the comments and I read all 300 comments, which is good and not so good. So we just fell in love with big data and I said, "Man, I can't, I think we've done

‍

Alicia Campbell (11:57):

Eight

‍

Monte Tynes (11:58):

Now with big data studies on it. And then several cases we've run several studies on. " And so that's how we got addicted.

‍

Alicia Campbell (12:07):

Yeah, for sure. Because you guys do run a lot of big data studies. What is your impression, Courtney, are running the big data studies? What do you like, not like, or what makes you addicted like Monte?

‍

Courtney Parker Wilson (12:18):

This is a really nerdy answer, so prepare yourself. When you are getting ready to do the big data, you have to put together this huge project, right? It's the presentation of what the people who are going to consider your case are looking at, right? And it's this huge process. It's like you write your opening, you write your closing, you write your damages portion, you write your liability portion, and you put it all together in this document, and then you dig around in your file and you're like, "Okay, I need images. I need what displays this? How am I going to explain this medical concept?" And then you're on the internet and you're like, "Somebody, I need a spine image. Where can I get that? " And you put this incredibly detailed presentation together and it does all this work in your brain of what is this case about?

‍

(13:09):

How am I going to talk about it? What are the high points? What do I think people are going to care about? And you get to put it all together in that sort of final package. And we try to do this pretty early on in our cases so that it can help us work through some discovery issues and work through some motion practice and things like that. It forces you on the front end to put the whole thing together in a way that a jury could possibly understand it and put all your images in there. And in addition, think through the defense. If you were going to argue this case from the defense side, what would you say? And then once you put that part together, you go back to your plaintiff's side and you work on that a little more because you're like, "That's a pretty good point I made over there." I need to shore this up.

‍

(13:57):

It really makes you work through the case in a way that we don't, as lawyers tend to do until we're actually getting ready for trial. And it's such a good exercise in conceiving of the case and trying to go ahead and start working with where are my weak points and how do we address that? And that's before anybody looks at it. One of the things I love about it is that push to put the case together early on so that other people can look at it and help you.

‍

Alicia Campbell (14:32):

Wow. Yeah, that's a great ... I mean, because that's the part that's probably the worst, right? I mean, I write my own and I hate it and I do data. I know that I have to do it on my cases and I still hate doing it because I'm just like, "Oh, I already know that I'm going to think of this thing that the defense is going to say that I'm actually pretty irritated about and I really don't want to have to deal with, but I'm going to have to deal with it. " Those bad facts, it's easier to sleep at night if you're not thinking much about them, but that's part of the problem. So I love that that's your ... Yes, that is a nerdy answer that I love. That one's getting harded by me because that is the worst part. All the lawyers who call in are like, "So tell me about this crap that I have to give you.

‍

(15:17):

What do I have to do? " You know what I mean? Because they know, but it is really important part of the process because the data is only as good as your presentation is. So if you don't know your case very well, we'll get data for you. It's just that data might not be helpful, which is what we try to guard against as best we can. But since we don't live in your file and we don't know your file as well, it's hard. So I'm glad that you take that so seriously because it is painful. It is rather painful.

‍

Courtney Parker Wilson (15:42):

It is painful, but it's that garbage in, garbage out principle, right? Let's put this together as best we can so that we can have some focus group members look at it and really help us because if we're not giving you the best we've got, what are we doing?

‍

Alicia Campbell (15:57):

Yeah, no, that's exactly right. Well, and then it gives you kind of that help that you're talking about, Monte, that, "Oh wow, we did put our best presentation forward. That thing that was keeping me up at night that I thought was a bad fact that I didn't want to talk about actually doesn't really matter. That's the best case scenario, no?"

‍

Monte Tynes (16:12):

Yeah. I'll tell you just I don't think I would be a very good defense lawyer and certainly I don't, because I'm really bad at trying to figure out what the defenses are. I spend so much time trying to look through stuff and how would somebody else try to attack this? And I'm just not good at that. So I am very thankful for Courtney and sometimes you help with those things as well of getting the defenses. What are actual defenses and defenses that are going to have some legs?

‍

Alicia Campbell (16:39):

No, I totally understand that. I mean, it's an interesting process for sure on that end, thinking about the defense side because I so often don't even want to listen to them. You show up to a hearing and they're like, "Hey, Alicia, you know what's wrong with your case?" And I'm like, "Nothing. Shut up." I don't really want to engage with them in that way. And now even data has made me kind of sit and go, "Yeah, what is it that you're going to say?" I listen for a different reason, right? I listen for, "Hey, I'm going to need to put this in my presentation because I might think it's a stupid defense, but I got to roll with it because I am pretty biased."

‍

Courtney Parker Wilson (17:13):

Right, because you know it's that.

‍

Alicia Campbell (17:15):

Yeah, I'm pretty biased. And so I got to put that away and just say, that might have some appeal to someone who's not quite as biased about the cases as I am. As John always says, I think it's a great line. He's like, "If you want to find the worst audience to ask about their case, it's a plaintiff lawyer." It's a plaintiff lawyer who looks through it and is like, "Hey, my case pretty good. It's pretty good. Let me tell you all the reasons why it's pretty good." It's just that opposite. It's that mirror you got to look at that's like, "Yeah, but. " So that's great to hear. Well, I mean, not that it's painful, but it's great to hear that part of the process you guys like.

‍

Monte Tynes (17:49):

‍

My yet butt detector is broken.

Alicia Campbell (17:51):

You think so?

‍

Monte Tynes (17:52):

Yeah.

‍

Alicia Campbell (17:52):

Has it gotten better with data though?

‍

Monte Tynes (17:54):

Yes, especially to digging through the defense comments because it doesn't matter how good you make your presentation, you're going to have people on data that don't like it, don't like your case, don't like your clients, no matter how great of a people they are, how much you love them and how much you love your case and how hard you work to put together, even if you don't even put a defense side up, there's going to be people that don't say stuff. And that has been like, you might find one or two things, like one that's random and doesn't ... But if you go through those defense comments, once you go through 20 or 30 of them, you'll see stuff that is repetitive and that you will pick out ... Now AI I think is putting it together and showing you and stuff like that, but it is therapeutic, I guess, for me to go through and be able to see it myself, to recognize those patterns myself and then start thinking of, well, how am I going to beat this?

‍

(18:49):

What am I going to do? What do we have that we can do to combat to maybe that person will either change their mind, which doesn't happen very often, or just shut up and not vocalize their mind if they're deliberating with other people.

‍

Alicia Campbell (19:01):

No, no, you're right. That's the only place that we use AI in any of our processes for summarizing comments. And the reason why is because when AI ... I mean, I can't believe I'm saying that when AI first came out, which seems like yesterday, but it was actually a while ago, when we started to ... John and I were like, "Well, let's see what AI does with comments." What we realized was typically we used to summarize comments and we would have a little section where John and I went through comments, but when we would compare that, so we went back through reports and we're like, "Okay, here's the comments I summarized and what I told the lawyer," which it's not inaccurate, but here, let me do it with AI who really doesn't have ... It's not a plaintiff lawyer. And what we even found is that we did a pretty good job summarizing, but always with a bend a little bit that I probably couldn't help and wasn't aware of.

‍

(19:46):

Whereas AI's just like, "Dude, these people hate you because of X. These people like you because of Y." And Claude doesn't care. You know what I mean? So we've refined that really well that that's the only place that we let AI touch it because it's good because it doesn't have a side. It's just like, "Oh, you just want me to compile what all the plaintiff jurors are saying?" Well, let me tell you, and what we try to do is keep that as a majority so that the outline comments that always people hop on calls and are like, "There's this one guy who's saying this thing." And I'm like, "Right, but it's one guy. It's one guy, right? We need to stay centered on what are the majority saying?" Because you're going to get, you're right, Monte. You're going to get those people who are like, "There is nothing that I like about this at all.

‍

(20:27):

" It's just whether or not they're going to find any agreement with 11 other people really. So interesting.

‍

Monte Tynes (20:34):

But that pattern ignition and that filter, so where you boil down and you see the same thing over and over, it doesn't matter what side it is on. That is where really your case lays and which you know that ... I mean, you can't just solely focus on that because you got to prove your legal elements and all that kind of stuff. But if you ignore that-

‍

Alicia Campbell (20:53):

Yeah, no, it's right. It's right. So have you guys used data, big data in mediation or in parts of any of your negotiations?

‍

Monte Tynes (21:03):

Yeah. So Mississippi is, and I'm sure you all see it in all jurisdictions. So I'm talking about Mississippi like it's so different, but it's probably not. Let's not say categorize up by age. Let's just say somebody that's done it a lot and that is, they want to say, "Well, let me, I'm so experienced and I've seen so much. Let me tell you. " And they don't want to look at it. That was my experience at first and especially federal court magistrates say it's just been, they just won't consider it. But some of the mediators that I've been in front of multiple times, I don't know if they have gotten where they will be more open-minded about it, or they just know that this is the reason I'm stuck where I am and where the positions that I'm taking. And if you don't take it head on, I'm not considering anything you say.

‍

(21:59):

I just don't. But we've taken it where we use it as confidential. We don't necessarily give it to mediators or magistrates anymore because it's not having the desired effect as of now, partly because nobody in Mississippi has heard of big data and they don't know if they just don't believe us or anything like that, but they've never heard of it. And they don't seem to want to learn at this moment in time, but on the committee for the Mississippi Bar Association for the summer school for lawyers. And so trying to get, and I think I will be on there for two years, so I'm trying to work out getting some presentations for the whole bar. So everybody will, judges, mediators, lawyers from both sides to know that it's out there and that it's accurate and real. And if you don't consider it, you're behind the times.

‍

Nick Schweitzer (22:51):

If you would've gone to them with a, say, a typical focus group kind of report, would they have been more open to that? Is it specifically the big data part of it or?

‍

Monte Tynes (23:00):

No, every single time I use the focus group clips and anything like that in a mediation, they immediately poo-pooed it and be like, "Well, these are your cousins or you gave them this story about how great your case was. " And those aren't representative people from this one venue and all the things that they say to discount whatever fact that you're giving them, whether it's based in some type of truth or not. That was a frustration that I had long before I ever heard that podcast on that day in my cleaning out my garage was that people didn't really pay attention to my focus

‍

Courtney Parker Wilson (23:36):

Groups. I mean, we have this trouble.

‍

Monte Tynes (23:38):

It might be the person that's conveying the message, but I

‍

Courtney Parker Wilson (23:41):

Don't know. This problem extends beyond just big data. We'll do PowerPoint presentations or something like that and nobody wants to look at that either.

‍

Alicia Campbell (23:51):

How interesting.

‍

Monte Tynes (23:52):

And I do think actually we can stick our head in the stand on something and we can fall in love with our case and we can think we know best and all that kind of stuff. And that same human nature goes on the other side too, or neutral. I don't think it's anybody being kind of malicious or just obtuse. It's just one of those things. This is cutting edge, even though y'all been doing it since 2016, 17? 15.

‍

Alicia Campbell (24:23):

15.

‍

Monte Tynes (24:26):

For most of the legal world, it's super cutting edge. And for everybody in Mississippi, it's really, really cutting edge.

‍

Alicia Campbell (24:33):

Well, that makes me think. So your summer school is when? It's the summer?

‍

Monte Tynes (24:38):

Yeah, it's July 10th, 11th, or ninth, 10th, and 11th, I think.

‍

Alicia Campbell (24:42):

Okay. So then you should send me a list closer to time of all the people that are coming and we're going to donate a book to every attendee.

‍

Monte Tynes (24:48):

That's going to be a lot.

‍

Alicia Campbell (24:49):

That's okay. I can handle it. It's all right. I mean, Tracy, my assistant who has to mail them might not like it very much, but I mean, it'll be okay. But maybe that's the best way to get at it because you're right, Mississippi shouldn't be so late to the game.

‍

Monte Tynes (25:02):

Yeah. I mean, are we the only people in Mississippi that ...

‍

Alicia Campbell (25:05):

Yeah. I mean, I don't have many Mississippi attorneys that I deal with. No. It's not like California where I feel like if I throw a rock and I hop on calls and I'm like, "Oh, you know this guy who knows this guy who knows." Cool. Mississippi, I'm kind of like, there's Courtney Amunty. So I mean, yeah, it might just be helpful if you're the disseminator of information and people can get a jury ball book because I think that would be helpful because I think if you at least open it and read a couple pages, it's hard to argue with it. And I know we're trying to get Valerie to speak for it. And so yeah, I mean, maybe next year, if you're still on the board, we can get Nick or Jess to go down there or we can do, because the academic approach, I think you're right, is the right approach because I'm a plaintiff lawyer.

‍

(25:48):

And somehow people get this idea that's like, "Well, you are a plaintiff lawyer running data." And I'm like, "Right." The idea that that means or implies that it's skewed doesn't jive with the fact that I've been doing it for 11 years. I mean, how long would plaintiff lawyers stick around if I only told them what they wanted to hear and then they got their butts kicked? My nature as a plaintiff lawyer doesn't mean that my data is somehow less valuable just because I mean, really what it means is that I'm super careful because I don't want to tell my cohorts, "Yeah, go out and try this case and it's going to be get 100% win rate, go out there and ask for $200 million. You're going to do great." I mean, I wouldn't be in business this long with John and with Nick and with Jeff.

‍

(26:32):

It just wouldn't happen. So it's kind of crazy though that nobody wants to talk about it at all.

‍

Monte Tynes (26:37):

Yeah. The one thing that we haven't really talked about with big data is we've run some studies where we knew we were in trouble, real trouble on things that we thought were phenomenal on cases that we thought was phenomenal. So we were able to resolve those cases and we would not have if we wouldn't have run big data, we would have taken those to trial because we tried a lot of cases.

‍

Alicia Campbell (27:03):

Yeah, for sure. You guys do. It's kind of crazy that ... Yeah, I don't get it. I don't get the resistance really. I mean, I have been at mediations on Zoom where I've watched the mediator at a break forget to turn their camera off and they eat a sandwich over my report, which is always like a ... I'm just always like, geez. I think if you knew what went into making that report, you might move it over and actually get a plate, but whatever. But yeah, keep me posted on that and just let me know when you have ... I'm serious about that, Monte. I'm happy to send a book out because I think it's really important. It'd be good for maybe to lay a foundation of like, "Hey, knowledge is better, data is better," because just like you said, it's not always that it's going to be bad for the defendant.

‍

(27:44):

It might be worth knowing both sides what a case is worth.

‍

Monte Tynes (27:47):

Yeah. And that we are trying our best. Not all our cases are of sufficient value where we couldn't run big data, but we are trying our best to have data, inform all of our cases and inform our mediation. Whether or not a mediator, we use it to get past a certain point or whether or not the mediator believes it or the defense side considers it, it's always informing our positions and our decision, and that's where that the value of big data and infrared have been exponential because I mean, we've done big data a lot, but we've never been to the point where we've tried to beat big data. We haven't actually gotten a trial on a case that we've run big data for because it informs our position so well that we've been able to resolve everything.

‍

Alicia Campbell (28:39):

That's great. So you've never gotten to use the voir dire characteristics yet?

‍

Monte Tynes (28:43):

Well, I have, but not on those specific cases. We have tried cases that are smaller in scope, but have the same issues pop up where we have used the stuff you learn about voir dire through big data. So have we used it on the case that we ran the data on? No, but we've used it.

‍

Alicia Campbell (29:05):

Okay. Well, you mentioned Fred. So you've also used Fred. What made you start using Fred or what led all the ...

‍

Monte Tynes (29:12):

I mean, so not every case, first of all, not every case has a value that you can absorb the expense of Fred. And two, on those cases that you can, the bigger cases, it is better to start off with Fred because it's one, you might not have all the information for big data to run it. And so you certainly don't want to put that amount of resources out on something earlier in the case when you don't have everything, you don't know everything, or you need to use Fred to inform you what you need to go get and what matters to go get. So that's one of the things that we've used Fred for if it's not a case that has lower potential recovery where you can't absorb the expense of a big data set. But Fred, I mean, what we're using Fred for now and a few ... Cases is throughout the case and how to litigate the case, what evidence to find, what people we need to depose, and what information we need to get from those people.

‍

Alicia Campbell (30:11):

Got it. And so is the writing for Fred, the presentations for Fred, Courtney, as painful, do you think, as big data?

‍

Courtney Parker Wilson (30:19):

No, it's not as painful. It's shorter. So in ways that makes it easier. And the difficulty I think in the Fred presentation sometimes is we haven't yet encountered what the defense is going to be. So we're just kind of throwing stuff up against the wall like, "I think this might be a defense." And we haven't done a lot of discovery yet, so there's just not as much information to dump into the study. So it's more like, what do we think this case is? How are people responding to that? What more information do they want to know about? Is there some defendant that we haven't developed yet that they want to know more about? Is there some issue that we've not really paid much attention to that the jurors are like, "Hey, what about this thing? We need to know about that. " So it's very helpful in that way on the front end.

‍

(31:15):

It's just a different animal than the big data study.

‍

Alicia Campbell (31:18):

Oh, that's interesting. What do you mean?

‍

Courtney Parker Wilson (31:20):

I feel like Fred is really helpful in early litigation. It's going to help you develop your discovery plan. It's going to help you identify issues. It's going to help you work it up. And then once you get all that stuff, now we can do the big data study because we have an informed position about what somebody's going to care about and we went and got that evidence. So now we can put it together in a big data study and see what hundreds of people think. Does that make sense?

‍

Alicia Campbell (31:50):

That does make sense. I love that. I love that you find it helpful. So in the cases that you're using on Fred, have you pivoted? Have you changed? Have you gone out and got more information as a result of Fred data?

‍

Courtney Parker Wilson (32:02):

So yeah, I think in the most recent one we did, we had two defendants and our presentation was very skewed toward one defendant because that's who we had been focusing on. And then when the Fred stuff came back, it was like, "Oh, by the way, that defendant you're ignoring." Nobody thought they were responsible for anything, which it sounds stupid. Of course, nobody thought that. But it was like, "Hey dummies, you need to go and get this evidence, develop this theory. You got to do that. You got to give them something."

‍

Alicia Campbell (32:34):

Yeah.

Courtney Parker Wilson (32:36):

So we did. We kind of pivoted toward this other defendant and what do we need to do to go get that evidence? What depositions do we need to take? What discovery documents do we need? And how are we going to build out this portion on this defendant? So it really helps you sometime look at that thing you aren't paying any attention to.

Alicia Campbell (32:57):

Oh, I like that. And then for you, Monte, how are the comments? Is that painful to read too in the comments and Fred?

‍

Monte Tynes (33:05):

And Fred, you get what is the comment that's coming up the most? And it has helped in that it has focused attention on specific issues. And really, especially this last MedMal case that we've run, I think three Fred studies through, the story of the case hasn't really changed. But the focus of the case has changed significantly from the first go around. And every single time we get the study back, I go back and look at our presentation and see, and then also look, what else have we done in the case? What more information do we have? Or what stuff that we thought was there didn't pan out and tried to refine that study, the presentation, what we actually put into Fred and see how we can make our case better. And you can't do that for the most part. I think doing just big data study just because it's too big and it's too much information when you don't have enough information for the input.

‍

(33:59):

And so I think Fred gives you that ability to do bite-sized pieces of information that can properly inform your case as you're going through it so that you can get everything and do a true good presentation when you get to the big data study, something that's going to be more accurate than if you gave all that information, you gave what information you had to a big data study, and maybe you might go down a rabbit trail that you didn't need to go down. Because in some of the Fred's trial studies, we have put forth what we felt were good cases and those that haven't hit home. And that's not something you want to do when you're doing big data. You want to find that stuff out earlier rather than later.

‍

Alicia Campbell (34:41):

That's exactly right.

‍

Monte Tynes (34:42):

I'm super looking forward to once we get to the position of the big data on that particular medical malpractice case, and then when we try that case, because I think we are going to try that case, I'm just looking forward to what it was at the beginning versus what it's going to be at the end.

‍

Alicia Campbell (34:57):

That's a really great point. I hadn't really thought of it because I do so many cases in piecemeal, but you're right to have it start with Fred, all of your changes that you make, and then to basically be into the big data position, that is going to be an interesting like, ooh, we might have to go through that because I think I'll be fascinated by all the steps that you guys take to get there and what Fred informed. Have you found, since you have less information on the defense side, have there been any defenses you put in that have stuck that you've been like, "Oh, they don't think of this one because that might actually suck for us." Have you found anything like that in these smaller studies with Fred?

‍

Courtney Parker Wilson (35:36):

I think there are defenses that have hit that people have kind of latched onto. I don't know that any of them were particularly surprising. They're kind of common med mal themes. People think that if the doctor did something, that was great, as long as he was giving it the old college try. So that's hitting, but that's not surprising. That's a very common theme. I think as we've gone through discovery in the case, we've taken depositions and we've heard some things that brought out new defenses so that we've been able to kind of stick those in and just let's see if those are hitting. We've got at least one defense right now that we're concerned about that I don't know if it's been through Fred yet. Monte.

‍

Monte Tynes (36:26):

I think we're on the same page, but I think it was on this last Fred study. Yeah. We've put that through. But particularly with medical malpractice cases, when you're dependent on the records for what defendant's going to say what happened, and during the deposition, some new information comes out that wasn't contained in the medical records. We've used Fred to take those deposition excerpts with what those probable defenses are going to be and test them, see how they come out.

‍

Alicia Campbell (36:57):

Interesting. Well, this is really helpful. I really like it. I hadn't really ... Because you guys are like the perfect people to talk about this because you have had this case that you're working, working, working. What our dream was with Fred is, it's how I use it, but I'm so biased, right? Yeah. Alicia says she uses it like this, but clearly Alicia does. So it's great to have people on here who can talk about, because this is what I find with Fred, right? It helps refine because I have a client that I like a lot and I filed a lawsuit and I think that I'm right. So Fred is really good at disabusing you of like, "Yeah, but no one else agrees with you, Alicia. So that's very nice, but here's your 30% win rate." And it's like, "Oh, I'm either going to have to figure out how to get ... " Because I get those, I'm going to have to figure out how to get out of this or I'm going to have to figure out what I need to do to convince jurors that actually the way they're seeing it isn't ... Because a lot of times what I find is that means my frame's wrong, right?

‍

(37:52):

And we see that a lot in the big data, but you're right. If you're doing Fred all the way up, the frames are being told to you by jurors all the way up because we do have that happen in Big Data where people run it and the way they presented it, there's no juror that's buying it. And we can tell from the data that what the jurors are staring at is really what you need to focus on because that's the part that they think matters, but then you've got to do it again.

‍

Nick Schweitzer (38:17):

Alicia, how often is it? I don't always know the progression in which cases are related, but how often is it that an initial test of a case comes back pretty terribly and then it just gets reworked and you manage to kind of get yourself in a much better position?

‍

Alicia Campbell (38:38):

Well, like in the contingent model, it happens a lot where you're working with us on a regular basis because it comes back and it's, we have a lot more insight. We're sitting around batting this around with you. We're in the boat with you. And so yeah, we also have it happen in the contract context, which sucks for the lawyers who run it because it's like, well, because with reframing, we've seen win rates increase because a lot of times what it has to do with is you're staring at, you're pointing jurors, they're going to look at whatever you point them to. If they just don't agree that that's what they should be looking at, then you're going to see that in your liability rate. So I would say it's a hard number for me to come up with, but it happens more often than it doesn't, Nick, probably, because nobody likes to be told they have a bad case.

‍

(39:24):

Yeah. So usually when I get on a call, I'm like, "Ah, so anyway, this case has a 40% win rate." Everybody's like, "So what can I do? " And so sometimes there's some options, sometimes there aren't, right? If it's because jurors don't like your plaintiff, don't trust your plaintiff, it's not really one that you can reframe very easily. I mean,

‍

Monte Tynes (39:43):

I've had two that started off not great. One that I thought, and I knew was an excellent case. We just had to figure it out. It was not a winner on the data that we got back. And by the time it was our third iteration, but by the time we got to that third iteration, we knew everything ... This was one that discovery had been pretty much fully developed. So it was not something where we learned new information or anything like that, but it was strictly of how we presented a case, what we presented, how we explained things that changed the data. And one, we had what was like a shared responsibility case where we had multiple defendants where we had a product liability case and we had a general negligence case again, and it was on a crane collapse. And we settled with different defendants, but we were going to trial against this one particular defendant that was a crane inspection company that inspected the crane for multiple times before this huge 400 ton crane fell on a building and catastrophically injured our client.

‍

(40:50):

We ran big data twice on that, and it came back just really not great, really, really not great. And we had a lot of resources and money tied up into that case. And we went backwards on that. So we started out with big data and then we went to Fred. And what we found was when we did Fred and we did the opening, and it was one of the beta tests for the opening with Fred that, my understanding, and when we did the opening and we did it in a specific way and we framed specific issues and we framed that shared responsibility and we framed the do your job. Everybody has a job to do. You got to do your job. We had, I'd say we maybe had two or three people that were voted against us and the rest of them were for us.

‍

(41:36):

And it depends on who you believe or which people you believe about opening statements and how important that are and is. And when you form an opinion after opening statements, what has to happen for you to reverse yourself and reverse those opinions is pretty significant. Then we follow that up with some specific focus groups of given competing openings and again, was really impactful for the jurors. And we gave us a significant amount of confidence going into mediation and we ended up settling it, settling that case. But we did that one backwards. And we also had really bad results for the target defendant, the one defendant that we had left in the case. So Fred, in that case, that was the one that truly opened my eyes about how powerful it could be and how it can test different things, not just your whole case, but specific parts of your case that may be more important than other specific parts of the case.

‍

Alicia Campbell (42:32):

Oh, interesting. Kind of Fred backwards. I like it.

‍

Monte Tynes (42:36):

Have you ever had anybody else do Fred backwards?

‍

Alicia Campbell (42:38):

No, I don't think so. I don't think so. I mean, I've run Fred backwards on cases that we ran big data on. So we had a case where we ran big data on it, came back with a 35% win rate and it was a plaintiff problem. And so what I did is I pulled back consistent with what they knew at discovery. I didn't put in all the ultimate facts that they got out. And I ran it through Fred and Fred said it had a 25 to 35% win rate and all the problems were with the plaintiff. So that if you read the comments between the two, big data comments were like, "I don't trust this plaintiff. I don't like this plaintiff." They were true in the Fred context as well. So I've done it backwards that way just to say, was this something that Fred, when we were initially going through and Nick and I and Jess and John and Laura, we were all building out Fred.

‍

(43:24):

It was a way to make sure like, "Hey, we want to make sure this is reliable and working." And he definitely gave us the same results that ... Then of course, that's like a punch in the gut because by the time somebody had brought us that case, they'd worked on it for five years, you know what I mean? And spent a bunch of money to find out they had a 35% win rate that really wasn't ... I mean, you can't sub in a different plaintiff.

‍

Courtney Parker Wilson (43:44):

And then you do the Fred and you're like, "Well, we didn't have to get here. We could have told you earlier." Yeah,

‍

Alicia Campbell (43:49):

Exactly. You could have run it early and you could have known. Yeah. It's interesting. Yeah. Well,

‍

Monte Tynes (43:54):

I'll tell you one thing that I'm going to do, and we haven't done it because in all honesty, we try to set up, because we're a smaller shop, it's just Cordina. And so we set one trial a month, pretty much basically we try to do that. We have one trial set a month really since last January, we've been fortunate and everything's settled. What I'm going to start doing and what I've started before we started settling stuff is about a month before trial, I'm going to practice my opening where eventually we're going to record it and do, as long as it's under 20 minutes, do a Fred on it and on every case that we try. So we get all the good, bad and indifferent because that is an area that I think is super important in trial and I want to make sure that's as tight as can be.

‍

(44:42):

And what you get back from Fred on your openings is great feedback, but it also is a, if it's a good thing, it's a huge booster going into trial. So that's important too, is to have confidence in what you're doing.

‍

Alicia Campbell (44:58):

No, you're right. We didn't really talk about Fred openings, but you guys have been using the Fred opening the video. It's 30 minutes now, which maybe you haven't done it in a little bit, but we upped the amount. We've changed the amount that Fred can handle. So you can do up to 30 minutes now and just tape yourself with the PowerPoint behind you as long as jurors can see it, then yeah, you'll get people to tell you, "Hey, Monte, I don't like your shoes." Hey, Monte, I don't like the color of your PowerPoint slides because they'll tell you. I mean, jurors are good at noticing all the things, aren't they? All the things. Yeah. Yeah, that's a great point. I didn't even think about asking you about Fred video, but he is helpful. I mean, that's how I use him too. Anytime you're having a presentation like that, it's good to get feedback.

‍

(45:41):

And at least you can feel better in front of a jury that for the most part, "Hey, I did a Fred study and most people liked my opening." I mean, that's a confidence booster always, right? Not like wonder if anyone will like ... At least you know, most people do, so I might as well take a run at it.

‍

Monte Tynes (45:57):

Yeah. And if you do your opening live to a focus group where they're sitting there looking at you and stuff like that, even if you leave the room and have somebody else come in, they're not going to give you 100% brutal honesty. But if they're watching a video and they don't know the person and they're not looking at them and they're going to be brutal.

‍

Alicia Campbell (46:13):

Yeah. No, that's exactly right. You're exactly right about that. And they will tell you if they don't like your boots. You know what I mean? You're right about that. How fun. That's really fun. Well, I'm so glad to have you guys today. We've been talking for an hour. Can you believe that? Yeah. It goes by quick, right? It

‍

Monte Tynes (46:31):

Goes by really quick. I hope we gave your listeners something to think about and ponder.

‍

Alicia Campbell (46:36):

Oh, for sure. For sure. And I can't thank you guys enough for coming today. Is that a train?

‍

Nick Schweitzer (46:41):

That sounds very, very close.

‍

Monte Tynes (46:44):

Sorry about that. Our office is like, I don't know, 20 yards from a train crossing. Really?

‍

Alicia Campbell (46:51):

Yeah.

Monte Tynes (46:53):

And sometimes I don't get to the mu button quick enough.

‍

Alicia Campbell (46:57):

Oh, funny.

‍

Monte Tynes (46:59):

It's on a lot of Zoom depositions, I promise you. CSX has made its appearance on a lot of Zoom depositions.

‍

Alicia Campbell (47:08):

Oh, that's hilarious. I can imagine you playing a clip at trial and it's like, it's like, where were they when this happened? But that's the interesting thing about Zoom depositions now too. I see so many of them for the big data and it's so crazy because you have a witness who's sitting in their car, right, just gotten off of work since it's not such a, I don't want to say contrived thing, but not where people are showing up to the deposition in an office looking very a certain way. Those Zoom depositions tend to be a little bit more, they get a little more humanness to them. At least I think so.

‍

Monte Tynes (47:42):

There's not a sterile and it's not like everybody's not like ...

‍

Alicia Campbell (47:45):

Exactly. Exactly. No, that's true. That's very true. Yeah. Well, I mean, you guys, anything else that you want to add or say? I mean, this has been wonderful. You guys have already given me so many ideas in terms of like thinking about Fred in a new way. I mean, geez, just us talking and batting things around, it's lovely because yeah, I hadn't thought about Fred backwards really. That's really interesting.

‍

Courtney Parker Wilson (48:14):

No, I just wanted to say thank you for having us. It's always great to talk to you, Alicia. We look forward to continuing with Fred and Big Data.

‍

Alicia Campbell (48:22):

Oh, that's so nice. I feel the same way. Oh, I love talking to you guys. You guys are great. I'm not joking when I say ... I have to say, Nick, you probably don't know this, but there's many times I get on a call with Courtney and Monte and I'm like, "What is the law on this one?" It cannot be helpful. Just go ahead and give it to me straight. What are they going to do with all this? Because it's a good case, but what happens in reality? I got to know because they are dealing with ... I mean, even with poor reform that's gone on- Yeah, give me the bad stuff. Whoa, Mississippi. Oh, Mississippi. I mean, you got to be committed with some of the laws that are in Mississippi and limit things that you can do. I mean, that's probably the number one thing I say, is this a great case if you were in California?

‍

Monte Tynes (49:08):

Or Arkansas. You cross that Mississippi River into the.

‍

Alicia Campbell (49:13):

And it's not because jurors act differently. Yes. It's not because jurors act differently. It's not because the data is different. It's just because the way that the laws are written and what is accessible to a plaintiff for the injury that the jurors are finding, because it's really not that. I don't mean, oh, California ... I want to be clear about this because I don't want to hear. I don't mean that California jurors are better or different or something like that. That's not what I'm saying. What I'm saying is you can get a great verdict and on data you can see it because the backend of what happens with the statutes is often what the jurors don't see, right? And that's what takes it down from being a California case is not juror behavior, but simply the mechanisms afterwards, really.

‍

Monte Tynes (49:53):

Yeah, because if Sean Kligat's $485 million verdict happened in Mississippi, 1.5 would be collectible or maybe punitive damages, 21.5 or $22 million would be collectible of that.

‍

Alicia Campbell (50:10):

Yeah, I was going to say like $2. But yeah, it's that mechanism that makes it really, really hard and different.

‍

Monte Tynes (50:19):

Well, thank you all so much for having us. We really appreciate it. And we absolutely love Fred and we love big data.

‍

Nick Schweitzer (50:25):

Yeah, it's great. It's good to hear all of this. I say this pretty often on these, but I'm not a lawyer. So I've learned so much just from talking to people and going through all of these cases. And I'm often, unfortunately, one of the first people when there's a big data study, I'm usually the first person to see what those numbers are once I run the report and before I send it back to Alicia. And so every so often I see a case and I thought, oh boy. But I don't know, this is being able to talk to both of you and hear how you're using it is really nice because it's a little bit detached. I'm one step away from it. And so actually hearing that it's helpful and all of that is really nice. So thank you for kind of sharing all of that because yeah, it's something I don't always see.

‍

(51:08):

Okay. Well, thank you, Monte. Courtney. It was wonderful meeting you. I don't know. Do you come to any of the jury ball events?

‍

Monte Tynes (51:16):

Yeah, we met at Vegas. I was planning on going to Madrid, but I got a judge set a federal pretrial conference that exact date.

‍

Courtney Parker Wilson (51:25):

We want to. We haven't made it yet, but we'll get there. All

‍

Nick Schweitzer (51:28):

Right. Yeah. Well, it's going to happen, right? Every year it'll happen, Alicia, right? So, okay. Well, we'll plan out to ...

‍

Alicia Campbell (51:34):

Yeah, it'll be around for a little bit. I mean, I can't say how well America and Spain will be getting along at that point, but there's no problems here, so people can come. No worries.

‍

Courtney Parker Wilson (51:46):

Canada's advertising now for immigration. Is it really?

‍

Nick Schweitzer (51:49):

Oh, really? Okay. Okay. All right. Well, thank you. And we'll be back on The Fred Files soon with more guests and more insight on Fred, big data, small data, all of that sort of stuff. So thanks for joining us.

‍

Voice Over (52:06):

Thank you for listening to The Fred Files. If you found value in today's discussion, please subscribe and share this episode with your colleagues. To explore how Fred can transform your case preparation, visit us at focuswithfred.com. Produced and powered by LawPods.