Ask For a Bigger Number | Robert Hirschhorn (Jury and Trial Consultant)

How do you set the value for a case?

Are you holding your case back from getting what it's really worth? And who makes that determination?

Robert Hirschhorn's advice: "Don't put caps on yourself. You want to choose the biggest number that you could ever imagine a jury would award [in a case such as yours], and whatever that number is, multiply it times two."

But to be successful, you need to get the jury to sympathize. You need to justify the villainization of the defendant. You need to anchor your case around the numbers, and then move beyond the numbers.

Rob's perspective comes from 40+ years as a jury and trial consultant, selecting juries that have returned tens of billions of dollars in verdicts. He speaks from experience when it comes to understanding the difference between a liability jury and damages jury, or knowing what are the right elimination questions. 

He also speaks through a lens of personal tragedy, deeper purpose and legacy-building.

To that end: be a sponge, never stop learning, and explore new technology, such as Rob's own VerdictHub: a new, AI-driven system that surveys "digital jurors" for incredibly accurate jury predictions.

We explore all this and more in this energizing conversation!

"When you get to the damages part, you have to mention the amount of money, because if you don't, the amount of money the jury thinks is appropriate will always be lower than what you are going to be asking for."

In this episode, we discuss:

◼️ Why it's so important for the jury to know that you care about your client.
◼️ Not limiting yourself with artificial caps on claims.
◼️ Why family members make the best trial partners.
◼️ How to identify and frame the villain in the case. It's not always obvious.
◼️ Dropping low economic damages, and focusing on pain and suffering.
◼️ How Artificial Intelligence is changing the landscape of jury consulting.

Chapters

00:00 Ask For Big Numbers
03:46 How To Get Huge Verdicts
11:40 Cat Bennett's Legacy
21:20 Look For Accountability, Not Villains
26:40 Liability Vs Damages Jury
30:02 AI Meets Jury Consulting
33:32 Stress Testing The Model
35:09 What Verdict Hub Does
49:01 Trust And When To Use It

Courtroom Stories & Tactics | RVA Trial Lawyers
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Based out of Richmond, Virginia, Courtroom Stories & Tactics by RVA Trial Lawyers exists for lawyers who try cases to juries on behalf of people. Through our podcast, we hope to learn from them, support them, connect them, inspire them, and preserve their work for future trial lawyers.

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Thank you!

Sharif Gray and Nael Abouzaki

Transcript

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SPEAKER_03 0:33

I want you to ask for more money in juries and in mediations than you've ever asked before. And I'm telling you, I know there's a school of thought that says if you ask for too much, you'll turn jurors off. And here's what I'm telling you after doing this 40 years. If you care about your case, if you have a righteous case, if you look at that jury, look them in the eyes and talk to them from your heart and ask for a big number, more often than not, you're going to get a much bigger verdict than what you would have expected.

SPEAKER_01 1:03

This is Courtroom Stories and Tactics by RVA trial lawyers, hosted by Sharif Gray and Niall Abuzaki.

SPEAKER_02 1:12

All right, before we get into the podcast episode, I want to take a minute or two and introduce you to a friend and colleague, Jenny Shadini. Jenny is a former prosecutor from Baltimore City, and now she works as a settlement consultant. We work with her often on helping our clients really maximize their results. Jenny, it's really great working with you and having you as a supporter of the podcast.

SPEAKER_00 1:35

Thank you, Sharif. Hi everyone. My name is Jenny Shadini, and I work as a settlement consultant, which means I work with attorneys and their clients in various settlement planning needs, such as structured settlements, whether or not to utilize a trust, how to protect government benefits, and overall providing financial security to your clients.

SPEAKER_02 1:53

And Jenny, how can people get a hold of you?

SPEAKER_00 1:56

The best way to reach me would be my cell, which is 301-332-1031. Again, that's 301-332-1031.

SPEAKER_02 2:09

All right, we're back. And today we've got a special guest, Robert Hershorn out of Texas. Rob is a longtime jury and trial consultant. He has assisted lawyers around the country with verdicts that have ranged from gosh, everything, right, Rob? I mean, we're talking eight-figure, billion-dollar verdicts. And I and my understanding is that at times you've also helped with criminal cases as well. Yes, sir. So Rob and I connected in an interesting way. So I'm a big fan of podcasts. Granted, we have our own. And I remember listening to Michael Cowan's podcast, Trial Law Nation, which in my mind is the original Trial Lawyer podcast. And Rob, you were a guest on Michael's podcast, and there is a line that stuck out to me that I haven't forgotten when talking to Michael about the best verdicts. What are they? And you said, and correct me if I get this wrong, that the best verdicts is when you get to go home and you get to spend time with your loved ones, your family and friends. That's the best verdict you'll ever have.

SPEAKER_03 3:17

Yep.

SPEAKER_02 3:18

That's right. And I remember that line. And then all of a sudden, I think it was, gosh, a few weeks ago, you and your team reached out interested in the podcast, and I was like, wow, you were on my list. So let's have you. Let's make this thing happen. So, anyways, Rob, really a pleasure and a privilege to have you. I know we have a ton to learn from you. Definitely want to hear your story before we get into some of the more practical stuff. But even before that, why don't you take a minute and go ahead and introduce yourself?

SPEAKER_03 3:45

Sure. So, Sharif, thank you so much for having me. Happy New Year to you and to all the folks that are gonna watch this podcast. This is gonna be a great year. Uh just be kind. Be kind to everybody, and that's how we're all gonna have a great year. So let me tell you a little bit about me. I'm a lawyer. I met Kat Bennett back in 1984. I think we're gonna get into that a little bit. And she was a jury consultant. I had a really hard case, and so I worked with Kat on a case. We won. She changed my life. I said, Kat, this is what I want to do for a living. And so ever since 1984, I've been helping lawyers in both civil and criminal cases, how to figure out what is the message, what is the best way to present your case, what kind of evidence, what kind of damages should you be asking for if you're in a venue that allows you to ask for damages. Some venues don't. And of course, who are the kind of jurors you do and don't want on your jury? Here's what I can tell you. Except for all the travel, I have the greatest job in America. I just that I get to work with really great lawyers. I care about the lawyers I work with, they care about their clients. And, you know, when you really care about your client and your case, it shows up to a jury. So the first lesson, the first point I want to make to everybody is you got to let that jury know that you care about your client, you care about this case, and that's how you start getting some of those bigger verdicts. Because what I want 26 to be for everybody listening to this podcast is I want you to ask for more money in juries and in mediations than you've ever asked before. And I'm telling you, I know there's a school of thought that says if you ask for too much, you'll turn jurors off. And here's what I'm telling you after doing this 40 years. If you care about your case, if the overrighteous case, if you look at that jury, look them in the eyes and talk to them from your heart and ask for a big number, more often than not, you're gonna get a much bigger verdict than what you would have expected.

SPEAKER_02 5:44

Yeah, no, and I agree with you. I actually think here in Virginia, we do ourselves a disservice because when we file a lawsuit, we have to put our number in the complaint. And that serves as our cap. Whereas in most states, you say you certify that it's worth more than 15 grand or more worth more than 50 grand. So what happens is a lot of lawyers, and I I've been guilty of this myself, is will say, okay, it's worth only this much. But then the case develops, right? And the numbers change, right, or should change, in my opinion. So I think we have, as plaintiff attorneys in Virginia, certainly given ourselves artificial caps. And uh so, which is why I mean I know if if you talk to my colleagues, they would say, Oh, uh, Street's filing a lawsuit, and what does he want this time? A hundred million dollars or two hundred million dollars, right? Like it's always gonna be up there. It's always gonna be up there. And can you amend it so as the case? Yeah, I mean, it's a pain in the ass to amend it up. It's easy to go down, right? So, I mean, like I I remember Sean Claggett is a friend and mentor of mine, and I remember when he learned about this rule, he's like, Shrif, what are you doing? Every case you should file for a billion dollars. It's like he's right, because it's a stupid rule, and it's like, why are we going to limit ourselves? We can always bring the number down, right?

SPEAKER_03 7:03

Yeah, can't you say a billion or a hundred million or whatever the number is or less? Can you add the words or less or no? Sure. Yeah, I could add the words or less. Yeah. Okay. So there you go. Yeah. But look, don't put caps on yourself. You want to do the biggest number that you could ever imagine a jury would award in a case like that. And whatever that number is, multiply it times two. Well, that's my advice to you.

SPEAKER_02 7:28

You know, the thing that really changed it for me, Rob, is Joe Freed is also a friend and mentor, and he actually came out. We hosted a training here in October called Voidier to Verdict, and he came out and it was just awesome. I remember when I was first getting into personal injury work, going out to Trial Wars University, Dan Ambrose does a fantastic job, has really, in my opinion, elevated the plaintiff's bar by making this incredible education accessible to anybody. I mean, there's no excuse nowadays to not grow as a traveler. If you want to, go to the trainings. Find the webinars. They're there, right? And I remember watching, it was Rex Paris and Joe Freed on stage, and I remember, I think it was Rex Paris said two things to the crowd, and this may come off wrong, but he said it in a gentle way. He said, the reason why that I'm up here and you guys are there, and I recognize how harsh that sounds, it did not come off that way, is because you settle your good cases and you don't ask for enough money for your clients. And then Joe Freed got up and explained how he comes up with the number. And this has changed my practice. And I have no shame, I have no guilt in asking for as big as I possibly can go. He said your numbers are not based off of what you find on a listserv, they're not based on medical bills, which I think is ridiculous. The fact that an administrative professional in a medical facility decides how much to charge a patient, and then we for some reason just assume or expect that the value of a personal injury case is worth two to three times that. I think it's absurd when you actually break that down. He said the value of the case comes to you when you are intentional about not thinking about how much would it be worth if this were to happen to you, but to think about someone that you love, and not just a person that you love, but someone the most vulnerable person that you love, as hard as that sounds, right? Like your your young child, if this were to happen to them, how much money would be enough? And when you start thinking that way, Rob, the numbers go up and up and up. And if you as you said, if you believe in your numbers and you believe that the value of human life that was taken at no fault of their own, right, is truly worth it, the jury's not going to punish you for it. They may not give you that number, but you're a hell of a lot better asking for a lot and still getting a lot versus asking for a little and only getting so much, right?

SPEAKER_03 10:05

So Sharif, the the other part is that where I've gotten in eight separate cases, we've had juries return a billion-dollar verdict or more. Eight separate, different cases, different venues, all against Fortune 50 companies. And here's what I've learned you can have a righteous case and get a big verdict, but if you want a huge verdict, you got to get the jury mad at the corporation. Right? That's why we never call it an accident. It's always a wreck. You want to make sure that the jury gets mad at this defendant. That's where you get those big numbers. And the way you do that is you look at what is the worst conduct that these defendants in this particular case engaged in, and you keep making that front and center to your jury so they can't ever forget it, because they will remember that. And you tell them in your closing that when you were trying to decide the non-economic, the pain and suffering that this family has gone through and continues to go through, because to this day this corporation still isn't accepting responsibility. They put them through it yet again by having this trial. You couple that with all the horrible things the company did, that's how you get these monster verdicts. And by the way, I want to tell your audience something else. Do not let defendants ever use the words nuclear verdicts. Do not. These are not nuclear verdicts. These giant verdicts that come out, they are just verdicts. They are fair verdicts, they are the right verdicts, they are conservative verdicts. There are a lot of things, but they're not nuclear. So whether you got to do a motion to limity or a motion to exclude, I don't care what you do, do not let a defendant ever say in front of a jury the words nuclear verdict.

SPEAKER_02 12:55

I agree. And also, it's somewhat offensive, right? If you think about it, I mean that that people are willing to say it's a nuclear verdict. No, that was a trial. That was people from this community getting together and reviewing evidence and then coming together and making a decision, right? I agree with you. Well, before we get too far down this line or topic, let's talk about your story. To do that, I want to take you back to 1984. You're an attorney, you hired Kathy Bennett. Tell us about that.

SPEAKER_03 13:24

Yeah. I'm a baby lawyer, I'm a criminal offense lawyer. I win my first 12, either one or got a hung jury. I consider that a win. In my first 12 jury trials, my mentor at the time, the greatest criminal offense lawyer I have heard of in 1984, was a guy named Richard Racehorse Haynes. Oh, yeah. Racehorse was a legend. I thought I was gonna be the next racehorse, right? And so a client comes in and he's charged with armed robbery, and he's a law enforcement officer charged with armed robbery. He tells me the facts of the case. There's five eyewitnesses. He's found up, you know, a hundred yards from the scene of the crime. The jewelry owned by the complaint, not the victim, the complaintant. The jewelry owned by the complaint was in our client's pocket, the money was in our client's pocket. Our client had a DPS, Department of Public Safety, a DPS vest on, a bulletproof vest. He had a Uzi, a sawed-off shotgun, and a 22 with a silencer, right? That's the case. So he comes to me and I tell him, I'll help you, because I'm thinking he's a cop, right? He can't have that much money. I'm like 25 years old. This is 1984. And I quoted him a fee of $50,000, which was tenfold the biggest fee I had ever quoted. Remember, this is 1984. And he says to me, Who should I make the check payable to? And I'm thinking, holy shit, I gotta learn to do an asset check first before you quote a fee. That was the first lesson I learned. So then I had to hope his check bounced, which it didn't. So now he pays me this huge fee. He's got this impossible case. I go to my boss, Jerry Goldstein, a great criminal defense lawyer in San Antonio, and I said, Jerry, what do I do? And he said, You got to plead the case. And I said, Jerry, I just charged the guy 50 grand. He said, Okay, you need to call Kathy Bennett. So I called Kat Bennett up. This is 1984. She had just been on the cover of People magazine, she'd just been featured on 60 Minutes. I called her up. She actually took my call only because of my boss, Jerry Goldstein. I told her the facts of the case. She agreed to help us. We tried the case. We got a not guilty verdict. Despite all that evidence I just described for you about the eyewitnesses and the oozy and all that stuff, we got it not guilty. I turned to Kat and I said, You've changed my life. This is what I want to do for a living. So I convinced Kat to train me, and she said to me, Robert, you know, we're trial lawyers, right? We're all type 8 personalities. We think the greatest music ever written, the greatest songs ever sung are the notes that come out of our voices, right? That's the personality types that trial lawyers are. She said to me, Robert, for the next year, I want you to be a sponge. When I go to these meetings with my clients, I don't want you to weigh in. I don't want you to share your opinion. I just want you to be a sponge and take in everything that we're doing and how we're doing it, what I'm doing. So for one year, right, this type A personality trial lawyer literally kept his mouth shut every time I went to a meeting with Kat. And I'm telling you, it was the greatest education I ever got. It was greater than any education I ever got at law school. The seven years that I was with Kat, the story I'm going to tell is so the greatest causing argument I ever gave is the time I convinced Kat to marry me, which she said yes. So we got married about nine months after we had met. And then one year after we got married, Kat was diagnosed with breast cancer at the age of 36. So we spent the next seven years, and I don't want anybody to feel sad because I'm telling you, it was the greatest seven years of my life. I devoted everything I could to helping Kat try to find the cure for cancer and taking care of our clients at the same time. So it wasn't anybody should not feel sad. Just if you got a loved one in your life that's going through it, give them all the comfort, give them all the support, give them all the help you can. That's my message to you. So Kat and I went all over the world trying to find the cure for breast cancer. We were picking juries left and right. Six months before Kat died, she picked the jury in the William Kennedy Smith case, which was the highest profile case in American history until O.J. Simpson. O.J. was the next big case after the William Kennedy Smith case. And we were in court every day for a month picking a jury. Kat missed one half day of court, even though she was dealing with terminal cancer. And then six months after Will was found not guilty in that case, Kat passed away. And I gotta tell you, it was the greatest to this day. I mean, I still answer the phones at my office, Kathy Bennett Associates, because when Kat passed away, I had to make the decision. Did I want to go back to being a criminal defense lawyer now that Kat had given me all these amazing tools, or did I want to try to keep her vision, her mission, her view of the world alive, and the latter was the right path for me. So that's why to this day, when you call my office, the phone is answered Kathy Bennett and Associates, and now it's answered Kathy Bennett and Associates and Verdictub, which is another area, Sharif, that you and I will get into.

unknown 18:54

Yeah.

SPEAKER_02 18:55

Wow. That's and so talk about the experience of being involved with like those high-profile trials, and then on the human side, like get into do it with somebody that you love. Like, I mean Yeah.

SPEAKER_03 19:07

Oh, and by the way, for your audience, you ready? Here comes tip number two. We've looked at all the combination of lawyers trying cases: male, male, female, female, male, female, husband-wife. We looked at, you know, father-daughter. We looked at every combination. And here's what we've learned the greatest combination of trial lawyers is when two family members try a case together. Whether it's a mother-daughter, mother-son, father-daughter, father-son, two brothers, whatever it is. If you are practicing law with a family member of yours, go try a case together. Juries love that, and they will reward that, will reward you in your verdict. But here's the only caveat the person, the family member you're trying the case with, they can't be a potted plant. They have to be contributing. They have to be doing directs or crosses or part of the closing or the opening. They've got to have a contribution to the trial. That's another way that you get these really big just verdicts.

SPEAKER_02 20:11

Would you be open to chatting about the single event, individual defendant, minimal property damage, soft tissue injury type cases? We salivate over the corporate defendant who you catch him in a lie, you find the cover-up, right? Like then you try the lie. I mean, awesome, right? I'll take that any day of the week. Yep. I am very impressed by the attorneys who are able to frame the cases I just mentioned, the soft tissue, the kind of minimal contact individual defendant. When people get good big results on those cases, I am wildly impressed. And I have a very good friend of mine who he'll say, listen, if you get, gosh, a six-figure verdict in a case like that, that's more impressive than a multi-million verdict in a wrongful death, right? With a corporate defendant. And I mean, of course, people can have arguments both ways, but based on your many years of experience doing this, what are you telling lawyers? I imagine a lot of this advice would go to kind of your younger trial lawyers because those are the cases that you cut your teeth on. What do you do? How do you get the good results for your clients?

SPEAKER_03 21:18

Okay, number one, you ready?

SPEAKER_02 21:19

Yeah.

SPEAKER_03 21:19

A little counterintuitive. If your economic damages are low, drop them. Now you've got to get your client to sign off on that. So if the lost wages, if the medical bills are low, drop them. Because now if you don't drop them, if they stay in the case, you're gonna anchor your jury to that number. That's gonna be the number that they use as kind of the starting point for assessing what your non-economic damages are. So number one, and and by the way, again, it all depends, but if you have a case that you value, it's say $100,000, and your economic damages are say ten thousand dollars, you're gonna want to drop your economic damages. You want the jury to focus on the pain and suffering, the anguish that you, your clients, their family members have been going through every minute of every hour, of every day, of every week, of every month, of every year since this defendant caused this tragedy. Right? You want to be thinking in terms of every minute, every hour, every day, right? You want to get that refrain going so the jury understands that pain doesn't go away. You might learn to live with it, but you don't ever get used to it. These are the kind of arguments that you have to make to drive that number up, and you can't be afraid to ask for a big number.

unknown 22:47

Yeah.

SPEAKER_02 22:48

Talk about making the defendant the villain. I've actually found that it's backfired when I've tried to do that in individual defendant type cases. And I I mean, and friend, I've tried it before, it doesn't r I I didn't think it really worked that well. So I mean we've for example, we've got a trial in a couple weeks now where our approach going into it, like, listen, like this lady didn't mean to hurt him. We're not here because she's a bad person. We're here because someone was because she was negligent. We get it, she gets it, and her negligence led to our client having life altering injuries.

SPEAKER_03 23:22

You can't make her a villain because she's not a villain. Right. Now, if there are facts like she's had five other accidents, there's got to be some Something that justifies the villainization of a defendant. And if you can't find that, if you can't find that thing that makes the jury mad at them, here's what you do. You want to say sometimes good people do things that hurt others. And when they do, just like when our kids do it, they gotta be held accountable. Sometimes good people do things that hurt others, and when they do, they have to be held accountable. In the case of a corporation, if you can't make them the villain, you've got to say the same thing. Sometimes, even a good corporation does things that ends up hurting people. And even though they're a good company, they still need to be held accountable. That's how you've got to frame it so they understand they don't feel like they're punishing anybody. They're not feeling like, oh, this is just an accident, because we never use the word accident, because when there's an accident, it's like nobody really wants to hold anybody particularly accountable.

SPEAKER_02 24:35

There's a mens rea element to accident, which in Virginia actually hopefully you'll be proud of me when I share this. We for the longest time our jury instructions say accident. I petitioned the Virginia model jury instruction in I think it was September, October, and it's being changed. It's going to be collision or incident instead of accident, or at least those are going to be made an option. Because it matters. Words matter, right? I'll get a now it's something that I've used to pivot to front to help kind of throw an arrow at the defense. Hey, they're calling this an accident. An accident is when my three-year-old wets his pants. Not paying attention on the road in a two-ton vehicle crashing into somebody, that's not an accident. That's negligence, right?

SPEAKER_03 25:14

It's like falling asleep at the wheel because you've worked too many hours. Being on your phone, that's not negligence, right? That is bad conduct that needs to be held accountable. Let's call it what it is. It's bad conduct when they do stuff like on the phone, fall asleep, or any of that kind of stuff.

SPEAKER_02 25:33

Yeah, and it's careless. It doesn't yeah, I mean, it's just yeah, absolutely. So I mean, those little things matter. One thing that I have, and I'd be interested in your thoughts on this, but one thing that we've done, and I think to some success, is even when your individual client, I mean, they're not the villain, and they're never going to be the villain. Again, they're a good person who did something wrong, and now they need to be held accountable. But the way that the insurance company and ultimately the defense attorney defends that case is what we'll dig into. Is instead of accepting responsibility, we've got an expert witness that was paid X much that they went and hired and has brought to this court to tell you that that shoulder tear from the car wreck, nah, that actually happened six months later because the guy had to use a cane and just happened to mess up his shoulder. That's the bad conduct, right? It's like they're not taking responsibility and they're asking you to basically believe this lie.

SPEAKER_03 26:30

Well, you know, that's a really good point you're making, Sharif, because sometimes if you can't make the corporation the villain, then maybe make their expert witness, who, by the way, in 1% of his career testifies on behalf of plaintiffs, and 99%, you know, that's why you got to find out what percent of the time they testify for plaintiffs and defendants. But if you can catch them in a lie, you know, if they're charging a crazy amount of money per hour or per diem or however they're doing it, or if they only testify for one side or the other, and by the way, be careful with your experts as well. Make sure the experts you're hiring, make sure they work both sides of the docket. Because if they're only working one side of the docket, you've got a credibility issue with your jury. So there's different ways to find the villain in a case, because every case has a villain, every case has some villain or a hero. The hero is always the jury, right? The victim is always the client. And the villain, if it's not the corporation, if it's not that nice old lady that was driving her car and wasn't paying attention, then let's make it their expert that they hired to try to save them some money. Uh let's make them the or even the defense strategy.

SPEAKER_02 27:46

Like we've had uh me and a buddy had a nice verdict a few years ago, and in the defense in their opening statement of the trip and fall case, basically implied that our client did it on purpose, right? And like, so we made them the villain, right? Like, like, really? They're coming up here and telling you jury that our client staged this, or saying one, she should have seen it and she didn't, two, she did see it and she did this on purpose. Like, what I mean, what are they trying to tell you here, right? And they got popped. Yeah, that's right.

SPEAKER_03 28:10

And all of this starts in jury selection. And what I mean by that is you've got to make sure, and I I I know there's different views on this. This is the next point I want to make. If your venue allows you to mention either an amount of money or a range of money in jury selection, vordar, as we call it in Texas, voidir, as the rest of the world calls it, if you can mention an amount of money in Vordar, voidir, you have to do it. Not you should do it, you have to do it. Number two, in your opening statement, you have to mention, as long as the rules allow you to, you have to mention the amount of money after you've explained why the defendant is liable. Now, when you get to the damages part, you have to mention the amount of money. Because if you don't, the amount of money the jury thinks is appropriate will always be lower than what you are going to be asking for. And if you don't give them your number until closing argument, it's too late. Yeah. It's too late.

SPEAKER_02 29:11

You've got to give it to them in opening. I agree. I try and do it in void direct if I can. I mean, I think it's critical. Like the question that I'll ask, I forgot where I got this from. Everything I've learned I've stolen from somebody. But the question that I try to ask is like, all right, I mean, are you open to the possibility if you heard no other no evidence, right? Who here would say in the back of their mind, like, there's just there's no way I can get to that number, right? Like, or some variation of it, but that's what I do in Voidir, just to try and anchor that way.

SPEAKER_03 29:37

So there's two different ways to deal with it, right? What you either want to do is identify the unfavorable jurors, that's called elimination, or you want to ask a question that's designed to condition the jury. So if you want to eliminate jurors that can award money, that's the kind of question Sharif you asked, which is even if supported by the law and the evidence, what I hear you saying, sir, ma'am, is that you could not award, you know, millions of dollars or or a significant amount of money in a case like this. That's an elimination question. If you want to condition them, and I'm suggesting that unless you are trying a damages case, if you're trying a damages case, you have to eliminate. If you are trying a liability case and then trying to get your damages, you need the yes before you can get the money, obviously. So if you're trying a liability jury, which leads me to another point, which is a liability jury and a damages jury don't look the same. You got to decide am I picking a liability jury or a damages jury? So if you're picking a liability jury, then you're gonna want to do not an elimination, you want to do a conditioning damages question, which sounds like this. If supported by the law and the evidence, if supported by the evidence, could you award hundreds of thousands, millions, tens of millions of dollars in damages if supported by the evidence? Okay, three times you heard me say, if supported by the evidence, because that's the big issue jurors have is oh, I'd have to hear the case. And you're preempting that by saying if the evidence supports a huge award of money, if it's justified by the facts of the case or the conduct of the defendant, can you do it? And that's how you condition the jury to award a substantial verdict.

unknown 31:28

Yeah.

SPEAKER_02 31:28

I like that. I might try that in a couple weeks. Well, bro, let's talk about verdict hub. We I know you mentioned it briefly, and I've been familiar with verdict hub. As I think I told you when we spoke a couple weeks ago, you know, I played around with it a little bit but never really dived in. What is it?

SPEAKER_03 31:42

All right, let me tell the story first. It's now 13 months ago, I'm doing an interview with Bloomberg Legal. And Bloomberg says to me, Robert, that intersection between jury consultants and artificial intelligence, what's gonna happen with jury consultants now that artificial intelligence is making a splash in the law? And I said, Great question. Here's the answer. There's two kinds of jury consultants. There's one kind of jury consultant, they charge their clients a lot of money, they come up with a jury profile, and that's what they do. And then the lawyers, you know, their whole jury selection is to try to figure out which jurors match that profile and which ones don't. Okay, that's one kind of jury consultant. Then there's jury consultants like me and Lisa Blue, my dear friend. We make decisions on juries based on instinct and intuition. So what I told Bloomberg News was this those jury consultants that use the profiles, in one year, they're gonna be knocked out. Because artificial intelligence can do the exact same thing they're doing. Me, I'm safe for now. Sooner or later, artificial intelligence is gonna learn how to do instinct and intuition. It's not there yet, but it's coming. Okay. The article appears. About a month later, the reporter calls me up. He says, Hey Robert, I got these two artificial intelligence guys, they want to talk to you. You're willing to talk to them? I said, Sure, I'll be happy to. So we set up a call, and they say to me, Robert, we've Googled you, we know the kind of work you do, we know you got a national reputation, we know you do focus groups and mock trials, we know you do surveys. What if we told you that artificial intelligence can replicate surveys without using actual people? And I said to him, wait, let me say I got this right. You can do a survey based on artificial intelligence and not real people, not like in the old days we used to call people up on the phone and ask them to participate in a survey. And then more recently, y'all have heard about big data. Big data is they run these cases by jurors on people online and get their feedback, and then they use artificial intelligence to crunch the data and write a report. Okay? But they're using people online. And I said to these guys, wait, you're telling me that you could do the exact same thing using artificial intelligence and not talk to real people? Are you kidding me? They said, No, Robert, we can do it. And I said, Okay, fellas, I'll tell you what. You're either two of the smartest dudes I've ever met in my lifetime, or you're two of the biggest bullshit con artists I've ever met. And I don't know which category you two guys fall into. Let me take you through a few tests and let's see. So what I did, and by the way, one of my partners, one of them has 30 patents. He's got a PhD in computer science, but he's got 30 patents in the field of artificial intelligence. That's one of my two partners. They both went to Wharton School of Business. I mean, these guys are the real deal. So their names are Swaroop and Gorov. And I said, okay, guys, let me take you through a couple of tests. And what I did was we had done some online surveys. We had gone to e jury or big data, we had used somebody. They call them online focus groups. They're not focus groups, they're surveys or what they are. So we had actually done them, and then we had done an actual live focus group, and then the case went to trial, and the case that I'm thinking about, it's settled. So I knew exactly what the value of the case was. All right. So we had the artificial intelligence that the guys are suggesting. All I gave them, the only information I gave them, was the exact same information that I had used for my e-jury or my big data. I didn't give them the results, I gave them just the identical information. I didn't give them the results from the live focus group I did. I didn't tell them what the outcome of the case was. The artificial intelligence came closer to the actual settlement in the case than either the e-jury, the big data, the live focus group that I did. It was of all the different vehicles that I had, it was the most accurate. And I said, okay, look, even a broken clock is right twice a day. So maybe these guys just got lucky. So let me give them a few more cases. And we did it like five or six times. And every single time these guys came in closer or on the nose of the actual verdict or the settlement that we had in the cases. So I said to them, All right, boys, let's go into business together, let's do this. The name of our company is called Verdict Hub. And what it does is it uses artificial intelligence to conduct venue-specific surveys. So we can go into any venue in the United States, whether the venue has a thousand people or a hundred million people. And artificial intelligence can not only figure out the demographics of people who show up for jury duty. That's easy. Anyone can do that, right? I could do that. You don't need artificial intelligence to tell you the demographics of people that show up. But where artificial intelligence is so game-changing, is it not only can tell you the types of people that show up, the demographics, but it can also tell you the kinds of people that show up. Let me give you an example. In West Texas, there's a lot of oil field workers out there. There's a lot of ranches out there. So you might have a white male in his 40s, college educated, that works out in the oil patch, right? The oil patch person in North Texas that's out there in the oil patch, you might have the exact same demographics in, say, Dallas, but they're not an oil patch person. Artificial intelligence can literally look at the demographics and separate out in Dallas County, it understands the kind of people that show up for jury duty, not only the demographics, but the life experience, the kind of work they do. They can do that in any venue. And it's like it's crazy. Here, I'll give you, let me give you an example. We did a case for some lawyers out on the West Coast. We did our verdict hub. We call it VHS. Here's what I want y'all to start saying. Did you VHS the case? Did you VHS stand for verdict hub survey? VHS. Did you VHS your case? So we VHS this case out in Washington State. Pretty conservative venue. Verdict Hub predicted a verdict of 13.7 million. That's what the average verdict was that Verdictub predicted. Case went to trial, jury came back 12.8. I mean, now here's the thing about Verdict Hub. You not only get 500 digital jurors that replicate the venue where you're going to be trying your case, you get the results in three days. Three business days, you get the results. Three days. Number one. Number two. You get three free reruns. So you do the verdict up, right? You VHS the case, you get the results back, and you realize, oh man, there's this piece of evidence that played bigger than I thought it was going to play. Or, you know, they wanted this piece of information, we didn't give them. So now you want to run it again. You get to run it a second time, no charge. You get to run it a third time, no charge. You get three free reruns with verdict hub. Because the case develops, right? So I encourage lawyers to do a verdict hub early in the case. In our view, every case has a life cycle. The life cycle is when you sign the case up to when the case either gets settled or you get a verdict in the case. I don't care about the appellate side because I don't give a shit about the appellate side. All I care about is I'm a jury guy, I'm not an appellate guy, right? So the life cycle to me ends with the jury or the settlement. We tell lawyers, do it early in your case so you can get an initial read. Because the VHS will tell you what is important. What is it that people that mirror your venue, what they think about your case, what's important to them, what kind of evidence do they want, what kind of witnesses do they want, what's the theme that will resonate with them? You'll get all this kind of information. And as your case develops over time, as you learn more about your case, you get good information or facts that come in that might hurt your case, you get to run it again to see what impact it will have. Verdict Hub is absolutely game-changing. Because I know some of you are saying, what's the price? We'll get to the price in one second. Here's what I want to tell you. We're not offering it to insurance companies. We're not offering it to corporations. Because my goal at I'm 69 years old, and I'm working harder now at 69 than when I was 39 years old, and I'm loving every minute of it. Because now we have an opportunity to even the score with corporations, to even the score with insurance companies. So when your lawyers, when your listeners go to a mediation or get ready to go to trial, you're gonna now, with verdict hub by your side, you're gonna have empirical data that's gonna back you up. So when you tell the mediator that you believe the case is worth $250,000 or $250 million, whatever the research shows, you've now got empirical data. It's not just what you think, it's what empirically we believe that a jury in that venue would award.

SPEAKER_02 41:46

I've got a number of questions. Go for it. Gosh, where do I even start? Testing the I some people say testing the ask. What Nick Rowley has taught me is you don't ask for money, you tell them how much it's worth, right? Correct. What you value a case at can impact the win rate, right? If I ask for 10 million, I'll get something. I don't believe that's true. You don't believe that's true? Okay.

SPEAKER_03 42:13

No. I know a lot of jury consultants, a lot of people out there espouse that, and I don't believe it, okay? I don't think just because you asked for $10 million, you're gonna hurt your case, unless it's not a $10 million case. If the facts justify it, right?

SPEAKER_02 42:27

Well, what if you should have asked for more? What about in those situations? The I'm not necessarily worried about the ticking jurors off for asking too much. I'm worried about the how do you know what to ask for to begin with, right? Like, do you ask for a million? Do you ask for a hundred million, right? Like, does verdict hub assist with that?

SPEAKER_03 42:49

Yeah, it assists in the sense you can do it one of two ways. You can leave the ask completely open. In other words, don't give a number, and we call them digital jurors. Let the digital jurors come up with their own number, but digital jurors are just like real jurors. If you don't give them the direction of what you say the case is worth, digital jurors will always award less money, just like an actual jury will always award less money when you don't give them guidance. So, yes, you can do it that way. We don't recommend that you do it that way. Here's what we recommend you do. Whatever you think the case is worth, multiply it times three, and that's what your ask should be. So if you think the case is worth $250,000, you should be asking for $750 or a million. If you think the case is worth a million dollars, when you do the VHS, you ask for three million. Now you get your first set of results. Now you see what's important to these digital jurors. Now, because you have the three free reruns, you get to do it again, and this time you can either adjust your number up or adjust your number down. You can check to see was I asking for too much and did it affect the result that I got. My experience has been as long as you're not asking for a crazy amount of money, there's got to be some justification to the facts. As long as there's some justification to the facts, you're not gonna get punished for asking for a lot of money.

SPEAKER_02 44:17

Garbage in, garbage out. How do you protect against that?

SPEAKER_03 44:21

Yeah. So we literally spent four months beta testing verdict hub. Because I said to the lawyers, this is my reputation, this is my legacy. We are not gonna screw up my reputation or my legacy because the the program we ran for the lawyers had a hallucination. That's what happened. When artificial intelligence makes stuff up, we've all heard about you know a lawyer using artificial intelligence to write a brief, and some of the citations were bogus citations. That's called a hallucination. When artificial intelligence can't find the answer, it just makes it up. That's hallucination. So what I said to my team is we are not having a single hallucination. Number one. Number two, the lawyers have to put on as strong a case for the defense as they do for the plaintiff. And so the garbage in, garbage out is a huge problem. Okay. Now, some of you might be saying, Well, Robert, it's artificial intelligence. Can't I just go to ChatGPT or Claude and do this myself? And I say to you, yeah. You can. It won't cost you anything except time. But you better know how to put in the right guardrails. You better know how to do the correct prompting. Because if you don't, you're going to get hallucinations and you're going to be led down a wrong path. And my question to you is as a trial lawyer, do you really want to spend your time screwing around with writing these prompts? Or wouldn't you rather be wanting to write the case overviews? Because this is what we need. We need a plaintiff's case overview, a defense case overview, a jury charge, and a verdict form. Everything you need either for a mediation or for trial, anyway, because I don't believe in giving lawyers busy work. So what you're going to do is put together the plaintiff's overview, defense overview, jury charge, verdict form, and then we would run this. You've got to make sure that the presentation you do on behalf of the plaintiff, the defense presentation, is at least as strong, if not stronger than the plaintiff. Because if you don't, you're dealing with garbage in, garbage out. Yeah.

SPEAKER_02 46:30

That's scary, right? If you're trying to rely on data that's premised on incorrect foundation, right? And so this well, this is very exciting. I mean, it's focused groups are incredibly important. I mean, our firm, we do them in person. We run big data with the Campbell group that was helpful to us. We are our worst evaluators of our cases, right? And sometimes we evaluate our cases too low, or if what my colleagues will all tell you without me in the room, or maybe with me in the room, is that oh Sharif thinks he's gonna get something special on this crazy case, and then I don't, right? Or I do or I pull it out, right? It happens. Yeah. But yeah, we it's so important to go and get that feedback. And to your point, it doesn't make any sense to try and do it on your own.

SPEAKER_03 47:17

Yeah, it doesn't. No. It really doesn't. So let me get to the price point. Okay? So here's what you're gonna get at Vertical. You're gonna get 500 digital jurors. You're gonna get three reruns for a total of four. You're gonna get two thousand digital jurors giving you feedback on the case. And the price is three thousand dollars. Mark Lanier, a lot of y'all know Mark Lanier. Mark Lanier said to me, My only complaint about Verdict Hub is that you've priced it too low, Robert. That's my only complaint. For what you're working, because what you're gonna get is like a 20-page written report that's just chock full of information. So the question is my father said to me, if something sounds too good to be true, it's not true. And my dad was right. May you rest in peace. And so I know some of you are saying, Robert, this shit sounds too good to be true. This can't be right. Because, you know, I've checked with E jury, I've checked with Campbell, I know what they charge. They don't charge that. How can you charge that amount of money? Here's the answer. We're back to Kathy Bennett. So Kat knew she was dying. This was after the William Kennedy Smith case, after that verdict. She knew she was dying, and she said to me, Robert, you've now got this special gift. And you've got to figure out a way. I don't know how, Robert, but you've got to figure out a way to bring it to as many lawyers as possible. Because the average lawyer can't afford to do a focus group. The average lawyer can't afford to hire you or Kathy Bennon associates. You, Robert, promise me you'll figure out a way to bring this gift that we have to lawyers every single day. The average lawyer that can never hire us. And I said, Kat, I promise. I'll try. And for 33 years, I kept looking for the answer. Because I look, we do focus groups, live focus groups, it's like $75,000. It's what it costs. When I pick juries, I think we're up to like, I'm embarrassed to say, like $25,000 a day in jury selection, right? I mean, these are numbers that the average lawyer, the cases just don't justify it. So for 33 years, I kept trying to figure out how I can keep this promise to Kat. And when Swaroop and Gorov came to me and I found out, I realized that these guys were the real deal, I literally looked up to heaven and I said, thank you, Kat. Because Kat brought them to me. This was my way of keeping my promise to Kat to give this special magic that we have to lawyers. So whether your case is worth $100,000 or $100 million or anything in between, you can now do a verdict hub on it and get what we call the Hershorn factor.

SPEAKER_02 50:31

How do you get attorneys to trust the data and to reckon to rely on it?

SPEAKER_03 50:38

It's my reputation, right? It's me. I mean, look, I've never worked really hard. I don't do AAJ, I don't do national trial lawyers. I'm just a little guy, and I've got my core clients, and I get really great results. I've I have flown under the radar my entire career. So there's a lot of people that have no idea who I am. And look, I know I'm an entity either love me or hate me. Right? It's like I tell lawyers who they should put on the jury and who they should take off, and they either like a jury consultant that does it or they don't like how pushy I get. So how you get lawyers to trust the process, I think, is number one, if they've done a live focus group, do a VHS. Don't tell me your results. Just give me the same information you gave your live focus group people. Give me the exact same information. Let me run a VHS. That's number one. Number two, I'll tell you how you can trust the results. If you get the report back and you think it's bullshit, it's not helpful, there's nothing in here that you find valuable, just tell me. We won't charge you. Because I'm not doing this for money. I'm doing this to try to keep a promise I made to try to help lawyers fight these insurance companies in these corporations. So here's what I can tell you. We've now been up and running five months. And in five months, we've now have 125 different law firms that have hired us in 26 states. And I think I'm probably using old data, but it's at least 125 law firms in 26 states, and not once as a lawyer said, uh, I don't want to pay you. It's not helpful. Everybody has loved the information. And the last way to answer your question is try using our numbers at your mediation and see if you can get more money at mediation. Sure. Use our verdict hub numbers at your trial and see what kind of verdict you get from your jury.

SPEAKER_02 52:46

How does the verdict hub compare to like to the live focus group? And does it fully replace it or does it complement it? Yeah.

SPEAKER_03 52:55

Smaller cases, smaller cases. Smaller case to me is a million dollars or less. It replaces a live focus group. Because live, even if you do them in-house, they're expensive, they're time consuming. If you learn information and you need to do it again, there's just usually not the time or the money to do it. Okay. So for smaller cases, million dollars or less, it replaces a live focus group. For your bigger cases, for the million dollars or more cases where you're gonna throw money at the case, you use verdict hub, you run your verdict hub before you do your live focus group. So you can identify what your issues are, you can identify what your key evidence is, and you can test it in your live focus group. You can test the themes that Verdict Hub gives you, you can test all that in your live focus group. Now, here's what I can tell you in terms of reliability. Here's another example. I've got a chart, I don't have it with me, but right before Christmas, we did a focus group, we had done a live focus group, we had done a verdict hub first, and verdict hub predicted that the average liability, it was an apportionment case, right? It was an apportionment between several defendants. Verdict hub predicted that the target defendant, verdict hub predicted the jury would put 60 percent on the target. We did a focus group in the morning, live focus group, and after the plaintiff's presentation, we find out what the jurors think about liability and damages and apportionment. After the defense presentation, they fill out an evaluation form on liability, apportionment, and damages, right? At the end of the plaintiff's case, we got our number. At the end of the defense case, we got our percentages on apportionment. To compare apples to apples, at the end of the defense case is the same equivalent to verdict hub. In our live focus group, remember verdict cub predicted 60, the live jury said 62 percent on the target defendant. When we averaged everybody's answers, the average was 62 percent versus verdict hub, which was 60.

SPEAKER_02 55:09

That's incredible. That's incredible. Yeah, no, I'm I mean, listen, the more information, the better. And I mean, for lawyers who aren't testing their cases, you need to. You need to. Yeah. You you you really need to. And there is, I mean, there's just the practical uh exercise of going through the workup to test it, which is helpful. It's having the insight to know how to frame your case, which is incredibly important. It's having the confidence to know that that number is a just and a righteous and the right correct number to ask for it to be in that mediation which our firm doesn't do much of anymore, but at least to have the numbers to back your ask. So when the judge says, Oh, I don't I've never seen that there, and you're like, Well, I don't care what you've seen. Like, here you share this with the other side. So, I mean, testing these cases is incredibly important, and it's mind it's mind-opening. I'll give you, I've got another question for you, Rob, but before I get there, I'll tell you one of the things that our firm learned very recently. And well, we kind of knew this, but it really solidified what we thought. We did a focus group, we had a mock jury, we ended up running three cases through it. We did probably too many, we probably should have done two, but we got some good feedback, and two of them were, I mean, orthopic injuries, serious injuries, right? But there wasn't any shocking, I mean, there was some shocking negligence in one, like just how eroded a certain railing had gotten over a period of years despite the notice of it. But then we did this one case, this is a child abuse case, and the numbers in that case and the certainty at which our mock jurors gave us that numbers was through the roof. So we're like, if you I mean, you get an abuse case, my gosh, do that. I mean, even though there's no medical bills, right? There's no there's gaps in treatment, whatever you want to say, right? Those cases have real value, and you're gonna get to try them too. So for those of you who listen to the podcast, if you want to try some cases, take on those cases because the defense is never gonna see that value. They're never gonna see the value.

SPEAKER_03 57:06

Jury always will, because you're dealing with the collective IQ, right? People make decisions based on value system and life experience, not on their demographics. So when you have a jury, they've had that kind of life experience where there's abuse, somebody in their family has been abused, somebody they know has been abused, and this is their opportunity to right that wrong.

SPEAKER_02 57:28

That's right. Yeah, it's the betrayal of trust. I was at the Jerry Spence Ranch a few years ago, and I remember one of the instructors who I think very fondly of, and an incredible trial lawyer, said that the one theme that always wins is when you can show the betrayal of trust. Absolutely. It always wins. Well, Rob, let me, last question. If we could go back in time to when you were starting out as a lawyer, and with everything that you've learned, what would you tell yourself? What would be the advice that you'd give yourself?

SPEAKER_03 57:59

Okay, there's two things. So I want to start primacy and recency. Jurors remember the first thing and the last thing you tell them. That's why you always start strong and you always end strong, whether it's voidier, opening statement, directs, crosses, closing, start strong, end strong. So I want to end with number one. The greatest verdicts, I want to remind you again. The greatest verdicts your audience is ever gonna get, I promise you, is the time you get to spend with your family. So please look for those great verdicts, spend that time with the family, number one. Number two, this is the last message I want you all to take away. If you want to be a really great trial lawyer, a great trial lawyer, you ready? Be a great person, be a great spouse, be a great dad, be a great mom, be a great cousin, be a great boss, be a great member of your community, be the absolute best person you can. When you make that your goal in your life, you not only lead a better life, but you get rewarded because jurors see that kind of character in you, and they reward that kind of genuine character. Don't be fake with jurors. Don't be fake, don't be don't play bullshit games with them, don't be pandering. Be real, be genuine, be kind, and you'll get great verdicts, I promise.

SPEAKER_02 59:27

Rob, this is a privilege to have you. I hope we get to work with you at some point. Thank you for all you've done for the plaintiffs bar, criminal defense bar, and and thanks again for being a guest on this podcast.

SPEAKER_03 59:38

Thanks for having me, Sharif. I'd love to come back anytime. Anything I could do to help you or your audience, please check us out. My email is rbh at C E B jury. Or if you want VerdictHub, just go to our website. It's verdicthub.ai.

SPEAKER_01 59:55

Thanks for listening to Courtroom Stories and Tactics by RVA Trial Lawyers, hosted by Sharif Gray and Nial Abuzaki. Please subscribe and leave us a review on Apple Podcasts, Spotify, YouTube, or any major podcast platform. Together, we're building a tribe of trial lawyers to remind the world what human life is truly worth. One verdict at a time.