Strategic Timing: Maximizing Fred Throughout Your Plaintiff Case

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, empirical legal scholar, Nick Schweitzer and data guru Kevin Doran as they break down the barriers between you and the minds of your jury. This is the Fred Files produced and powered by law pods.

‍

Alicia Campbell (00:38):

Well welcome to episode three of the Fred Files. Today we're going to be talking about something super interesting for most lawyers and that is how to maximize Fred. It's like strategic timing, maximizing Fred's impact throughout your plaintiff case. So we're going to be going through and talking about how Fred can help soup to nuts from start to finish depending on the kind of case that you have. So early case evaluation, Fred will work really well in this instance because it allows you based on his price point to get you information very early, even before you have necessarily all of the information in. And what I mean by that is a video study. If you have a case that has a video in it, I mean you can run that and we've had lawyers contact us as part of big data to run a video where they're like, I don't know if I should take this case.

‍

(01:32):

I know how my office and I see this video, but I'm not sure that everybody sees the video this way. So can we run it really quickly and understand a little bit more about this video before we take on this case? Because videos are important in litigation. Jurors like to see what they see in videos. And so Fred, even at its earliest before you even have to run a trial study, if you have a case that has some kind of audio or video that you need checked. And what I mean by audio is even if you have a video of people talking about a particular situation, because when we do video studies, we provide a little bit of context so we can lay out for jurors, Hey, this is what's happening and what you're about to see or hear. Then what you get is 50 people who tell you what they see and what they hear and what they think that means.

‍

(02:19):

And so just from a standpoint of knowing more before you decide to sign up that client into a full on retainer agreement using Fred at that point I think is really a good idea. And a way to prevent, I mean because all lawyers know there's nothing worse than a bad case and having to work on it and having all the obligations that you do and dealing with the client and spending on the money on a case that is going south. What do you guys think about that idea of running a case early with Fred video?

‍

Nick Schweitzer (02:51):

Oh, partially why we built this, right? I mean the whole point is to be able to get information where you didn't have objective information. So in my mind, and again, I'm not an attorney, but in my mind that's what I would want to know real early. What should I be doing here? Should I even bother with this sort of case is use it almost like a little gatekeeping screener kind of thing for your practice.

‍

Kevin Doran (03:15):

I was just going to tell a little anecdotal story about video and Fred, we had built the flagship Fred, which was a trial study without video and you all kept mentioning, we really need to get video up soon. We're kind of running it the way we normally do and having it happen in Fred would be great. And so the first time we built out video and I think we had a couple of meetings about how it's going to work and everything and we reviewed it and I made a mistake in that I put it semi hidden on the site to create one. This was kind of a thing we do with feature flags where you're supposed to have feature flags only work for certain users. But either way, someone came and bought a video study literally two hours after we had put video up in a not easy to find place. It was ready to go, but it was not an easy to find spot. And I still don't know how it happened, but it showed me immediately how important video was for attorneys. And it wasn't a video study proper where it was doing a full case and giving all the details. It was our video study product, which is just you upload a video, it's either the event type video or opening statement. So that was really exciting and I think it showed me immediately how important videos are to cases.

‍

Alicia Campbell (04:25):

Actually, that was exactly what I was going to ask you about was that very first video study. It came really quickly and then I don't know what did you guys think? It was pretty because it was a falling video, right? Wasn't it incident video of someone tripping? And I remember reading through the data and being like, oh my God, they're going to get every penny out of this. Because I remember reading the comments and being really, some people think that she's exaggerating. And then I went back and watched the video. I was like, oh man, that is not what I see. And then a lot of people were like, well, I mean she is old, right? There were so many comments that I was like, yeah, I didn't even pay attention to her age. And so it was kind of like an epic video because it was super quick right after we built it.

‍

(05:11):

And then I thought when I read through all the results, I was like, this is going to be very helpful, very helpful for the attorney. Fred is good in that arena, but what do you guys think about this idea of maybe running a trial study? So one of the ways that I use this is right after I filed the complaint, so I'll file it with the facts that I know to be true at that time. And I've already taken on the client, but I don't know enough about the defense. I think I can hypothesize what the defense is going to say. What do you think about that as an interesting way to use Fred?

‍

Nick Schweitzer (05:44):

Yeah, well I like that what you said. How much, I mean, so my non-lawyer ness will show here, but how much can you guess about the defense when you're at that early stage? Do you think you can get enough, could most get enough at that point to be like, I can reasonably assume roughly what they might say?

‍

Alicia Campbell (06:03):

Yeah, I think for the most part maybe there's some nuances or some facts that we don't have yet that's going to rear a ugly head later. But I think for the most part they're going to blame my plaintiff. I can feel like my plaintiff has some culpability here maybe or sometimes what you're testing. It makes me think of premises cases because I think in premises cases with some of this negligent security stuff that we test in big data, when I read through those big data presentations, I often think, man, oh man, I would've used f Fred on this, right? Because there's so many elements and parts to where that place is located, what kind of security did they have had they had other issues? And I think for the most part, yes, Nick, I think most people, unless it's like a case that's new to the lawyers regular practice, I think for the most part you can come up with what they're going to say with what you've got for the complaint. I think you probably cancel a long-winded way of saying yes, I should have just said yes.

‍

(07:08):

Nice. But I mean with that in mind, if you think you can hypothesize or at least that's another good way of looking at it, what I do too is in my complaint stage, I try to put my best foot forward for the defense. And so I tend to be like, Hey, the plaintiff was doing X, Y, and Z wrong. Or really try to think about what's my, because you're writing the complaint thinking about all the things that you need to allege. The flip side is you're also thinking about, well, what are the affirmative defenses that they're going to put forward to say, I'm not liable for this for whatever reason. So sometimes even that just going through the potential affirmative defenses to just general ones and then any that are specific to killer statute or law that you're using might be really useful in constructing potential defenses to it.

‍

(07:59):

I think if you can construct something like that, at least you have an idea of whether or not it's a case you're winning or losing. Certainly for the one that we talked about in episode one where your plaintiff has a problem, they're not liking the behavior of your plaintiff intrinsically in your case because that was a medical bartering case where he was bartering medical services for hair services. So I think even that fact alone in Fred early on when you filed a complaint would've gotten some juror's hair up to be a little tongue and sheep, but you know what I mean, right?

‍

Nick Schweitzer (08:34):

Yeah. Yeah.

‍

Alicia Campbell (08:35):

I mean, thinking about a trial study, let's say we're past like, okay, I've already taken in the case, I don't have a video I can run and Fred, I've already taken it. Maybe I've run it with a complaint or maybe I want to wait a little bit longer until we start getting into discovery a little bit. I'd feel a little better knowing how the defense is going to answer things. I want their response, I want their answer. I want their responses to discover. What do you think Fred can give people for grafting the case from there? And what I mean by that is how do you think Fred is able to inform Depo prep or the way that you have experts testify? Do you think there's parts of the Fred report that would really help with that?

‍

Nick Schweitzer (09:17):

Yeah, I imagine so. Yeah. I mean some of this is going to come down to that, I assume the specifics of what it is. So we have quantitative results and we have our qualitative results from the comments. And so I think probably what you have on the quantitative side is if you have particular facts that you're having the jurors rate and how strong or helpful they are. And so are there pieces that I should be focusing on? Are there I should take about from certain people or certain witnesses or certain other parties? If the jurors, if you describe those in your case presentation and the jurors are like, yeah, I think that would really help the plaintiff's side guide you that, okay, well I need to spend some time on that. And conversely, not on the things that wouldn't help. The open-ended comments are interesting.

‍

(10:08):

So when you talked about the video study and you saw or heard from the jurors how diverse the opinions were about what it was they were seeing, I think going through those and just thinking about, okay, this is what people are seeing from this. Are they seeing anything that's wrong that isn't how I'm seeing it, or they're seeing it in a way that's not helpful to the case I want to present? How can I structure what I'm going to ask of people, what depos I'm going to take, things like that. How can I reinforce the points that might be lost on the jurors who are seeing the case?

‍

Alicia Campbell (10:44):

That's an awesome answer really.

‍

Kevin Doran (10:47):

Yeah. I was reminded of the different conversations people had at Cherry Ball Madrid around mid case strategy and how from always, I'm not an attorney and hearing about this from the outside, it is still analogous to so many other types of work and that the decisions they have to make that are literally thousands of decisions of what to do with the evidence and what to do with all these documents and what to do with the witnesses and stuff. And so obviously from my perspective when I hear about these things, it's sounds like it's a ton of guesswork with a few opportunities to get real clarity around those choices. And so I think with you were just mentioning evidence testing, what does a jury find important? Having that clarity on a Fred report about, okay, if I give you these 10, 12 things, what really is calls to people? And then the narrative stuff. What is the clearest narrative that we can give that people will respond to? And if you're not running a study of any kind during those choices, you're doing a lot of guess and check on your own.

‍

Alicia Campbell (11:52):

I mean you guys have it down pretty well. I mean, I think everything you said is great because exactly what I would've said because I mean plenty of other industries do it. That's how John and I usually talk about big data because everybody's studying the product that they sell. And so we're not selling a product necessarily, but we are putting one together for consumption in terms of, Hey, we have an argument that we're making. We have a defendant making a counter argument and we've got 12 people or whatever mediating that argument and trying to figure out, hey, so who's right in this dispute? And then is it worth any damages? And then are we really pissed about it? Because I mean really that's what jurors are trying to figure out who's right. Am I that upset if I am? Does somebody need to be punished or are we just kind of cool with this case and the way that it goes?

‍

(12:45):

So I think the way to do that best is to study it and know the way that jurors see our cases. Because when I jumped onto the podcast, you guys were talking about how lawyers always see risk or always see things in a certain way, and we do. And I remember being out of my first year of law school and going to Walmart and watching a bag spontaneously fall off the shelf and laying on the floor and going, oh my gosh, this is straight out of Resa. I mean like, oh my God, the thing speaks for itself. It just fell and I was there, I was witness to it and it didn't hurt anyone. But now I don't think, especially walking around Madrid, holy shit, walking around Madrid, I'm like, I am not going underneath that scaffolding. It is not even attached to the ground.

‍

(13:30):

And there are people on there like rocks because I've found that Europeans have a very high tolerance for risk. Or maybe it just seems that way to me because I tend to have kids that are like they say to their friends in the car, you need to put your feet in front of you, otherwise your seatbelt can't do its job. And that I think is responsible parenting, but perhaps also it's a view of how lawyers see things. And the problem is I think that doesn't always line up with the way regular jurors see things because we're much more trained and accustomed to seeing the risk in activity or seeing like, oh, I had a case like that once type of existence maybe. Exactly.

‍

Kevin Doran (14:14):

Yeah, that makes a lot of sense. But

‍

Alicia Campbell (14:17):

That kind of leads us to the next thing that Fred's really good at, especially if you run it early or run it when you need to sit down and talk with your client about moving forward either because, hey, yeah, I had your video tested and people are seeing it the same way we are, so we should move forward or just as like, Hey, I filed the complaint, we're running it. Let's see where we are. Let's take a temperature here. Because one of the things I think it could be really good at is client management because it's a tricky part of being a plaintiff lawyer because many people have ideas about what their case is worth or what they think it should be worth. And so I think Fred's also good from the get go to be able to say, Hey, you know what? This might not be one that we're going to go ahead and try to open the policy.

‍

(15:05):

We might just have to live within the confines of what we've got going on given your injury and given the coverage and the specific facts of your case. So it's another part of Fred that I think is really helpful is that, yeah, I mean you'll spend a little bit money to get the trial study done. The flip side is it'll give you an idea of which way your case is going, help you kind of craft it to make it better, but then at the same time, tell your client, we're going to need to do a little work here because I mean obviously you're going to be meeting with your client going, so we need to take these three depos, so I'm going to be spending money. These are going to be case expenses. Well, I mean if your case is only worth $25,000 and three depos cost you 18, that's not really a good investment of your money or your time or your clients.

‍

(15:50):

It's helpful that way. It helps plaintiff lawyers allocate resources the way they need to and make sure that they're spending money on cases that deserve that money or at least creating a budget on this case based on what it's worth right now, we don't need to spend more than $25,000 or something. There's a second way that Fred's good. So part of it's analysis for the attorney, client management, that kind of stuff. The second way I think is preparation, what Nick was talking about where you can read through the comments. If we go back to the video for example, that we were talking about earlier, what do you do when you read that? Someone writes, I think she fell on purpose. What do you do with a comment like that? Or I think she was older and so she was more prone to falling in this video.

‍

(16:39):

Those are the types of things that you want to know about as you're moving forward because some of those don't have great answers. So if you get in a bunch of jurors who watch that video and say she fell on purpose, I mean, what's the antidote to that? That's like money driven litigation type ideas. And we know once jurors get in their head that something has been faked or isn't real and then a lawsuit arises after that. I mean, that can be a really tough hurdle to overcome where if she's older when she falls, that's another thing maybe to consider, but I don't think it's the same type of death nail that a lot of people think that your client's faking. You're going to run into a lot of problems. So I think Fred on that end will help you prep witnesses decide, Hey, is this an issue that I can actually prep around or is this an issue that's just going to take my case and I'm just swimming upstream age? Okay, some people think she's older. Can we talk about how active she was in her life? Can we talk about how she was actually in pretty good shape and wouldn't be likely to just fall because she was older? Can we do those sorts of things? And so Fred will put those issues front and center for you so at least you can address 'em or at least know if it's one that you can't address and you can't,

‍

Kevin Doran (17:58):

Right. I was thinking there's two options when you do a Fred study and you get results back, like that video, you're on the case, you're no longer evaluating it, maybe you're mid case and you're thinking about, okay, what do we do? We just ran this Fred report and we're getting pretty bad numbers and thinking about cases I've heard about that have used Fred, the big one is obviously settling earlier, realizing that's the best option is like, okay, there's been several success stories about that with cases run through Fred of not only knowing, having the confidence to say, okay, this is the best decision for my client now that I know more about what might happen and then also what numbers now make sense. And being, like you said, having the ability to talk to your client about that and say, now we know here's what we can do.

‍

(18:46):

Or the second thing is what I've seen you do, which is that you go and you discover new things about the case and you rerun the report with new things. Kind of like you were just saying about the fall video. I was thinking of that case where it was sort of the other way around where you had a good win rate, you ran it, things were good, and then later you introduced some more evidence that showed maybe a little bit less favorable version of your client and got to see what that would do to the case. And so yeah, I think rerunning the case or knowing what you need to look for in order to get a better win rate or deciding that, yeah, it's better to settle than to try and keep going.

‍

Alicia Campbell (19:21):

Yeah, I think that's right. I mean because theory refinement is important and reframing is important only when you can, because you're right Kevin, sometimes you just have to be like, we got to get out from underneath this thing because there may not be any saving it, which always is. It's better to know that early on than to have spent $350,000 in five years to find out that there's no save in this thing and it just doesn't have the value that you'd hope for because I mean, that's the other kind of calculation that plaintiff lawyers are making often, especially in smaller cases, right? Because there is this big difference between a case worth $400 million and a case worth $750,000 because the recovery is limited, it's not going to be as much. So you have to be as a lawyer, very careful about what you spend thinking about that often because then you also have a fee and then you also have a recovery that your client needs.

‍

(20:16):

You may have medical liens, you might have all these other things that you're taking into account that will take up part of any kind of settlement or verdict because you've got things you have to pay off on behalf of your client or case expenses to get there. But that's always, in smaller cases, that's a real dance to make sure that your client actually, because nothing's worse than when your client gets paid a lot less on a case because you've spent a bunch, they've owed liens, you have a fee that just kind of makes for having an unhappy client, if you know what I mean. It puts you in a little tough situation. So knowing is much better because I found on smaller cases when I first started Campbell Law that it's the budgeting that's really hard, knowing of course you want to do well and you want to prove this, and it's like, well, maybe if I just spend this, I'll get this.

‍

(21:06):

And really, you just have to be really, I mean learning quickly, you have to be very restrained and go, well, how many ways can I take to get that information that will cost me the least amount in this particular case? So I think that's all kind of helpful. Pretrial optimization. If we think about, okay, we've used Fred, we know our incident video rocks, we did trial study a couple times, we got all the discovery that we need. What can we do with Fred pretrial wise? What types of tools can you use so that when you show up at trial, you're really ready? You've got the pretrial, you've got all the trial study done, what else can you use Fred for? That'd be helpful

‍

Kevin Doran (21:46):

Running your opener. I am thinking of that. I was thinking of a couple trials that were happening where you guys were running openers quickly beforehand to see what was going to happen.

‍

Alicia Campbell (21:56):

Yeah, we could definitely do that. And I love that for a variety of reasons because a lot of lawyers get us their opening very close in time to their actual opening. And so I know that cases change and depending when you have pretrial motion on limine, what's coming in, what we can say in your opening and do you have all the different things that you want to show all your exhibits, what are you putting in this opener? But it does kind of caution to at least be a little bit out in terms of preparing so that you can run Fred and get the data back in time, tell you quite a bit. In our Colorado case that I did with Sean, we ran that case the first time through big data was not a very exciting win rate. I mean, Sean and I were not very excited about it, and we kind of waited a little bit to see that's going to be jury ball too, basically where we ran it during trial and Nick will test to that how much we were working TPD through that.

‍

(22:51):

But one of the things that we did is we ran the opening, we ran the opening of both sides, and the only thing which I don't even know if Sean would even talk about, because I got the results of the opening, I was like, well, I am not saying anything about this. And it had nothing to do with the quality of Sean's opening or the quality of the defense opening based on the themes of the two openings and the fact that the openings were so different, they were so different. I remember watching the defense opening and being like, is that what they think they're going to prove here? This is crazy. But because of that, our win rate after opening was about the same as our overall win rate with the first report. So for us, since we'd parachuted into the case, it did a lot of good to be able to get the dailies and to run it in a more refined way because we had to make some adjustments just based on the data. And so even being able to do that where after you get the responses, you have time before you give your opening to modify a little bit, change a little bit, find out what's not coming through or what's being missed by jurors I think is really important because it just helps you in organizing everything so that jurors from the get go know what you're talking about, what your point is and what you're going to prove.

‍

Nick Schweitzer (24:08):

Yes,

‍

Alicia Campbell (24:10):

I guess for closing, it works that same way. Closing's a little bit harder to do. You'd have to do that in real time. Or if you're a person who works ahead, maybe you have your closing done a little bit earlier, but it would tell you the same type of things. And I think be effective or even what you need to do is practice. I think Fred's really good for you just putting yourself out there and even if it's not your ultimate closing to practice doing it and then get feedback on it so that you know how to modify all types, you can make all types of tweaks with the questions that we asked jurors about closing and opening. That's not just limited to the content, whether or not you're coming across well, making sense that they can follow what it is that you're selling. So I think that kind of covers, so let's go back through before you take the case. Fred's got some capabilities, right? When you take the case during discovery capabilities all the way up to trial capabilities, what do you think about mediation? You guys know a thing or two about mediation? How is Fred helpful for mediation, do you think? Just having a value, a win rate?

‍

Nick Schweitzer (25:17):

I mean, yeah, knowing a win rate, knowing a value. And I'll be honest, I've gone through mediation once on a very minimal, not for me, I was back in grad school. My partner at the time during a storm, her awning from her covered porch blew up and over the house entirely a hundred feet in the air and landed on some guy's car. Of course her insurance was handling this, but there was kind of mandatory mediation involved and I got brought along to it and it was very much a, how can we settle this of course kind of thing. How can we, whatever. And we had the position that this isn't technically our fault, so we're not going to do anything here. We're not moving on this. And so it was helpful, and we had this just because we had a team, an attorney from the insurance company telling us, do not mediate here. He's like, oh, you're free to, but you're going to have to pay whatever happens. We're not going to cover that. But I think if I was walking into a mediation as an attorney, knowing this case is really iffy versus this case is a lock and how much, if this went to trial, would I be likely to get? I just, if you get to a reasonable point and you want to spare everybody the rest of the work that goes into it, I think there's a lot of advantages.

‍

Kevin Doran (26:40):

Well, I think hearing people talk about going to, knowing that there's the mediator, there's the defense, and then there's what you're bringing. And if you're coming with anything that has real numbers on it that helps people think about something, maybe those other parties aren't going to accept it outright, obviously, but you have far more to go off of for kind of anyway, and your client too. Suddenly you have a real idea of what a reasonable number is for what you're asking for and how strong that number is. I feel like you would never not want to do that if the case makes sense for it. But yeah, if I was a client in that case, either side, I would rather have real numbers or at least a suggestion of where to go. So yeah, that makes sense to me to do that, at least before going into mediation,

‍

Nick Schweitzer (27:29):

Alicia, so during mediation, if have, whether it's a Fred study or big data or something like that, as an attorney, are you able to say, well, okay, so here's the deal. We've studied this and I'm not willing to kind of compromise on this because of X, Y, and Z. Can you use these as kind of a negotiating tool? Great question, Nick.

‍

Alicia Campbell (27:54):

Yes. What you get generally speaking is well in this venue, in this part of the world, these cases typically go for X, Y, and Z, which is really at odds. And it's what I tell lawyers, it's really at odds with some of the verdicts that are coming out right now of different venues in the United States. So Sean's 4 85 against Acadia was in the poorest county in New Mexico. I am sure people thought there's no way they'll know anything about 485 million. And the thing is, is that having the data helps inform what you ask for, and then it does give you kind of like, oh, so the defense doesn't have data. Cool. So what are their reasons? They don't want to pay this because this is 75 people. So this is not like a fluke. It's not like an accident. And sometimes what I do too, because I have some defendants that I do not dealing with in terms of mediating and settling because they come with some kind of stupid budget that's set by someone somewhere that doesn't actually bother to value the case or the loss.

‍

(29:05):

So I often will do that and say, Hey, what's your reasoning? And a lot of times what I get from this particular defendant is, well, we don't know what you put in the presentation for our defense. And we think our defenses are awesome. And so the other thing that I do sometimes is I bring the defendant presentation that I write and I give it to the mediator and I say, Hey, you read this over. And when you go over there and you talk to them, if they say, oh, I bet Alicia didn't put this, this, and this in there, well, you've read it and you can say, oh, actually she did actually this number here is based on a good defense presentation. And so that's part of the why. And Fred we're always like, Hey, you guys got to make sure that you are doing a good job because first of all, you want accurate data.

‍

(29:48):

I don't know why you would use Fred and then slant the case towards the, you should just think about your case, then you don't need Fred if you're going to slant it towards the plaintiff, don't run it. Just believe whatever number you have. But if you want actual valuation and a tool maybe for negotiating because there comes some skepticism with defendants about like, well, where did you get this and what did you present on my behalf? And what about me? I'm a great lawyer. And I think if you can dispel those things, it didn't really help get any more money on the table. But it certainly stopped this particular defendant from whining as much because I mean, basically when we show up in St. Louis, we always show up with a particular mediator. Who knows we have data. I mean, you can't help it if the defense doesn't want to face the data or pay the data or acknowledge it, but they know that we're not coming in just based on a gut feeling of what the case is worth.

‍

Kevin Doran (30:42):

That's a great way to think about when you go to write the defense presentation is imagine being in mediation and them asking, what did you put in our presentation? We have lots. When you look at the Fred Builder and you go through the presentation step and there's a lot of good help documentation there showing you here's how to do these presentations. That could be kind of your high level. If I'm just going to think of one thing, it's going to be the defense asking me, did you put all this stuff in that we would've wanted you to fairly represent this case? And you can say, yes, I did. And then you're running the case. Well, instead of trying to figure out abstractly, what are these presentations supposed to look like?

‍

Alicia Campbell (31:25):

Well, and it just helps the mediator have a little confidence. I would say there's some mediators that are more familiar with the data model and have used it and know how it works, but there's a lot of 'em that don't. And so one of the best things that you can do just like in front of a jury is be credible. So if you walk in with a defense statement that the mediator reads and goes, I don't know. I got their position statement, I've talked to them, I think you left some things out. I mean, the problem is now your data is just not going to be as persuasive. Mediator's not going to be motivated to walk over there and fight for you. The same way that if he or she's impressed and thinks, oh hell, this is accurate, what are you going to say to this now?

‍

(32:07):

Because it's not 10 people, it's 75 people. This isn't a fluke. This is 75 people. And that's the other thing that I really love about the process is that first of all, they're all real. So we've said that about a hundred times, but I'll say it again, someone will still ask me. They're all real people. And then we don't throw people out for being what I call rabid. So we do not get rid of people. And Nick, you can talk a little bit about this. We don't throw people out because they indicate they're maga. We don't throw people out because they say they're super left liberal. We throw people because they're not paying attention. They can't pass attention checks, they can't pass comprehension checks, and they're not doing quality work. That's the only reason we throw them out.

‍

Nick Schweitzer (32:47):

Yeah, that's right.

‍

Alicia Campbell (32:49):

And so what you get is the opinions that can be varying, and we account for all of those people. So a lot of times in data, you're going to have the person who's a support reformer and thinks all lawsuits should be banned, and you are going to get the person who thinks lawsuits are the only salvation against corporations, and they're going to give you whatever you ask for. And we moderate those numbers by doing a variety of calculations so that you're walking in with an average. It's a beautiful thing really. So we've talked a little bit today about the way that Fred can help you at various times in your case. And so we've talked about it before you even take a case, before you decide to invest any money into a case, when you're wondering whether or not you want to spend the next five years of your life working on this particular fact pattern, is it worth it?

‍

(33:33):

Is there potential? Because sometimes you have enough really with the facts that just come in when a client contacts your office, sometimes you're lucky and you have a video, and we talked about that. You can run the video, get feedback on the video and know a little bit more about how people see the situation. But sometimes you can get a lot of information from just like pre investigation where you sign up a client potentially to do investigation in the claim and the investigation pending means they're not technically your client yet, but you're looking into it a lot of time. You can find robust information and enough information to run it. And again, like we talked about, if you're thinking about particular claims as you're investigating, you're thinking, Hey, maybe this is going to be an excessive force case. Maybe this is going to be, then the beautiful thing is too is it helps to kind of contour the defense case, which admittedly might not be as robust.

‍

(34:25):

So when I run them with only the complaint on file, I understand that I don't have all of the facts that the municipality of the police officers are going to have, but I have a general idea about what they're going to say about my client. And so for the most part, I think most doctors, most trucking companies, there are some clear defenses they put through every time or they look at the facts of the case and are creative. And so that's a really good time for you to get a sense, is this a case that I want? And just having some ability to know that I think is really comforting because it's important to know what you're spending money on, and it's important to know what you're going to be spending your life on because cases last forever these days. So that's one way that it's really great.

‍

(35:09):

The second way is just during discovery, making sure that you're prepping your witnesses with the information that jurors are giving you, the feedback that you're getting as the case shapes and changes. So a lot of times I'll do my cases when I file the complaint. I often don't have any body cam or cam video, so I'll usually do it when I file the complaint. But then as things come in, once I get a chunk of information that I'm like, Ooh, I do not like a lot of this, or maybe I do, but most of the time I do not like a lot of this, then that goes into the defense case with the information that I'm finding out, oh, okay, so there's a positive drug test for my guy or those type of things, and I'll watch the win rate change a little bit, and then I'll have to modify what I'm asking about who I'm hiring in terms of an expert.

‍

(35:57):

Maybe this issue of drugs is going to be a bigger deal than I thought. Maybe I need a toxicologist to demonstrate that that had nothing to do with what happened that night. So it helps guide you and also gives me a value. So it also kind of puts me in my place a little bit, how much money can I actually spend on this, this world where I can spend a lot and get a lot of information, but I don't know if the case will justify that, so it'll at least give me some real time data on what my case is worth right then. And then ultimately, if you make it past all the hurdles in litigation and you're finally at trial, you can run your opening, you can run your closing, and you can get real time feedback on whether those are working for jurors, whether they're following along, whether you're hitting all the points, all the highlights you think you are, or if things are lost in translation.

(36:42):

And then ultimately if in between you have mediation or something like that, Fred is good at giving you the data so that you can walk in with a range of numbers that the case is worth. You can also manage client expectations. I know you think this case is worth $150 million because you saw one like it on the news, but with our specific facts in front of people, it's just not coming up that way. And it's a much easier way to keep controls on the client and keep their expectations in line with what the case value is actually coming out to be when you run it.

‍

Kevin Doran (37:15):

One other thing that I realized, we've been talking a lot about the perspective of being an attorney, thinking about when to run a red study. The other thing to think about is something we've done for bigger firms is thinking about when to buy some Fred studies as more of a strategy thing. Because I think when you're picturing designing software from this, as you always always hear me talking about the software engineering and product perspective of things, you're thinking about how to offer a tool to a user. And so for us, when we're selecting our software tools to run some AI or get some computing power, a lot of times there's this problem that can emerge where you have to think about spending money when you're trying to think about your overall problem, your architecture problem, for example. You think, oh, that's going to be expensive. And so what a lot of products do is give us a way to not have to think about that decision with things like bulk pricing or a way to have a subscription or a deal. The architecture of what you're trying to do is an influenced by the price per unit or whatever. So I just wanted to mention and ask about how, if you're kind of a larger firm, how Fred could fit into your strategy.

‍

Alicia Campbell (38:33):

That's a great point that I can't believe we haven't talked about before. It's a gaping hole in my notes. So yes, we have bulk pricing for people who want to do 10 or more cases, and it ratchets up based on the amount of cases that you have. Meaning as you have more cases, the discount becomes a little bit better. But yes, we try to contemplate that for firms that do have a lot of smaller case inventory or hey, just have a couple of big data cases that they're gearing up for, but they want to have a better price on running that big data case three times through and then another one three times through, and kind of just understanding where they are by the time they get to big data so they don't have to run big data once. So we definitely offer bulk pricing, and that should at some point be on our website, I would think.

‍

Kevin Doran (39:27):

Yeah, I know. I was thinking about how we don't tell you that because I think it is very nice to think about the strategy around when you want to do something as opposed to when you have to buy something on an administrative standpoint. So you have a case that maybe not be a very high value, and if you thinking about a one-off Fred study, you're like, maybe that's prohibitive on the expense side, but if your firm has already invested in the idea, we're definitely going to run at least 10, 20, 30 studies this year as which cases we take on or making sure all of our discoveries are good. And so it's just there. And then you get to think instead about when you're buying something and if the economics on a particular case makes sense, then you're just thinking about the strategy of when to run the study.

‍

Alicia Campbell (40:13):

That's a really great point, Kevin.

‍

Kevin Doran (40:16):

Well, I mean it happens all the time with software. The vendors that offer me the ability to just think about my architecture instead of the I have to think about buying something are the ones who win. In fact, there's a way to run compute on demand that we use in Fred, and when we were choosing between three vendors, we chose the one that just led us with bulk pricing, not have to worry about it and think about it. It's just there. It's ready for us when we need it.

‍

Alicia Campbell (40:39):

That's a really great point. That might be the most important point of this episode three, is there bulk pricing with Fred? Right.

‍

Kevin Doran (40:48):

Nice.

‍

Alicia Campbell (40:50):

It's true. It's true. I mean, it helps set up when and how often you can use them. And right now the bulk pricing I think is just on the trial study, but I'm sure we could come up with something for video of people ever. So what I'm saying is, hey, if you're listening to this and you think, you know what though, I'll do quite a few of these video ones, just choose an email open to working with people. Frankly, more info is better than less. More data is better than, as Sean said, my data is better than your data. That's when your data is just your gut instinct. And my data is based on real people telling me about my case.

‍

Kevin Doran (41:32):

That was such a great, the line of him saying, you have to trust the data and not your own instinct. And that the example he gave of, we should put that on the website.

‍

Nick Schweitzer (41:43):

We have so many things in future episodes that we could talk about. I mean, there's a whole thing about for attorneys who are like, no, I've done this. I know I know cases. I can just see these cases. I know what they're worth. Maybe some are better than others, but none of them are going to be better than doing it through data. There's decades and decades and decades of research of people trying to show how experts who are claim, oh, I'm so good at doing X, Y, and Z. If you can get a good algorithmic sort of data-driven model, it will outperform the experts every time. And if an expert happens to be really good at it, you say, well, why did you think this? And they'll tell you, you integrate that into the model and now the model's even better and it'll outperform all of 'em. So this is something I think really makes that point, I think is sometimes hard to hear for people who are experts and who legitimately have done a lot of cases and have a lot of experience. But it's again, something that while it may be hard to hear, it is true. So

‍

Alicia Campbell (42:46):

You know what? We have to talk about this later for sure, because the experts you might be thinking are lawyers. But actually what you just said took me back to Moham Ahmed. He had a electrical shock case. He spoke with me at TLU and he said, I walked in and the judge looked at me because there are some people who think they know what cases are worth right there. And my judge said to me, Hey, dude, I don't know what you're thinking, but there's never been a verdict over $12 million here because of course, and Mo got 50 million. And so it's one of those things that those might be some of the experts that we need to sway a little bit more, and not just about values like their role because they make all kinds of decisions in cases, either throwing 'em out on summary judgment or throwing 'em out on motions dismiss where they're saying they're not sitting and valuing on behalf of jurors, but they are making those calls.

‍

(43:46):

They are determining what's reasonable or an unreasonable, and they might be pretty smart about the way they write it, but that is what they're doing. So sometimes I've wondered maybe what I need to attach to a motion dismiss is a Fred study that says, Hey, dude, for you, throw my case out. I want you to know that 90% of jurors right now are with me. Because I mean, judges are their gatekeeper function of keeping cases in or out or telling people what they're worth or not worth. They do that a lot and they do have a lot of experience. They sit and watch cases. But I mean, you're right, the model is much better. Nick, I need you to get on the circuit. You need to go out and tell 'em all the model is much better. What I'm running right here is much better than all your guts. You know what I mean?

‍

Kevin Doran (44:31):

Yeah. I think is really exciting is that you guys are kind of transforming your industry with something that is a model. It's you're doing something repeatedly that you've studied and you make sure it works. And then you can go into places where people that like, oh, we've never had a verdict over 12 million. That has nothing to do with the data. That is just the current situation. What gets me really excited is thinking about the future of these things is you're going to see more and more people with accepting the data and what bull are saying at scale and what is happening across the industry and not just kind of in a particular venue or whatever. So yeah, I'm excited to see what happens.

‍

Alicia Campbell (45:11):

I'm going to plug Jedi a little bit here because what we can do to publish articles that are peer reviewed that are of high quality, that indicate, Hey, the things that we used to believe are no longer what we should believe because we have data. What we used to believe was based on a gut feeling. It was based on some experience, but maybe those weren't always the reasons, right? Because there's all these old pieces of advice that people used to give about, well, in this venue, you know what you want? You want a summer trial, people would get on buses, all kinds of things that people would say. And now that we've run data so often this Nick, we put, well, income didn't matter. Gender didn't matter, race didn't matter, which, there's a time where we would believe all of those things mattered. So the more that we can do this work and publish it and get people to understand, Hey, we have an ability to know now. So we shouldn't be guessing. We shouldn't be doing instinct.

‍

Kevin Doran (46:07):

Well, this is exactly what, to me, it doesn't sound related, but it is. So in 2011, I worked at a ratings and reviews company where the company went around convincing retailers to put reviews on their websites and to tell them, Hey, there's lots of data that shows you that if you put reviews under your products and you allow those reviews to be real, what actually people rate about that product, you're going to get a much better conversion rate. And so many retailers in 2011 would say no, would be like, no, I don't. There's no way I'm doing that. I'm not going to let a random person on the internet say a bad thing about my product and me put it on my website for my product. But it didn't matter. People kept buying it and retailers kept agreeing. They kept hearing about the data, and they kept seeing the real results where that if you do this, it's going to work.

‍

(46:58):

And now it's like there's no question. Every retailer shows ratings and reviews on their websites. And this was 2011 until now we're talking about a 14, 15 years where this shifted an industry where now it's just completely the norm. And I could see the exact same thing happening here. Wait, you guys are running online surveys at scale about this case in advance. And the answer is like, of course. Why wouldn't you do that? Why wouldn't you get a general sense of where things are going to be beforehand? And all those people who are looking at this and saying, no, right now, they're ignoring data that research institutions are putting out. And so the more and more that this happens, the more I think 15 years from now, you could see the same thing where it's just like, oh yeah, of course we listen back then lots of people said, no, I'm not going to do that. And they just, because really know about the research, they weren't really up to speed on these things. They weren't seeing how people were using this stuff yet. And I think that'll definitely change, especially with stuff like Jedi and the research that people are putting out.

‍

Alicia Campbell (47:56):

Well, and the other thing that I think it will do, at least that's my hope, because the data already tells us, look, jurors aren't irrational. Jurors don't take whatever number a lawyer throws out there. Jurors want more information about the decisions they're supposed to make than less, and they do a good job. They work hard and do a good job. They do it on our studies and a lot of people like it. And for me, in our current climate, it's a really important part to have jurors that are allowed to decide what they'll tolerate and what they won't. And so I'm hopeful that what we can put out is research that starts because I think it's less than 1% of cases get tried anymore. Well, I mean, I think plenty of jurors have opinions about things and behavior that are going on, and I think it's just a really important part of our democracy to make sure that we strengthen it, because those are some of the old things that were said about jurors too, is Oh, they'll get anchored.

‍

(49:00):

Oh, they're rational. I mean, that's just not true. They see things differently. Some of them have different life experiences that cause them to see a situation differently sometimes. This is why voir dire is so important. They have specific experience that makes them incapable of judging something completely fairly. But I mean, it doesn't mean that it doesn't work. I mean, it's just a wonderful system that we have that we should be guarding and treasuring. And I think demonstrating with data and empirical academic articles is one of the ways that we can start to shore it up a little bit. So thanks so much for joining us today. That takes care of episode three. We'll be back soon with more interesting topics. This is kind of like the three episode start to the Fred Files, and we wanted to make sure Fred was the highlight, so you learned all about him. But we will start having guests on talking about interesting topics ranging from the academics are up to these days, what they're doing, what they're working on to software stuff. So we've got IPSA and all kinds of things to talk about. So consider Fred files your go-to place for all things data.

‍

Voice over (50:15):

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@focuswithfred.com. Produced Empowered by Law Pods.