Episode Synopsis:When Robin Frazer Clark set out to begin her own practice, she knew it would take patience, drive and, most of all, focus to pull it off. After 33 years of successful civil advocacy, she’s got plenty of advice on how to prevail. In this episode, Scott guides us through the benefits of preparing with a focus group, the importance of getting involved in the professional community, and some ways you can protect the mental health of your colleagues.
Robin: That’s what you want from a focus group, that information that you haven’t seen, because you’re in the thick of it, you’re in the weeds. They’re seeing the forest and you’re seeing the trees, and sometimes you want that viewpoint of, here’s what it looks like to me.
Scott: That was Robin Frazer Clark, talking about her use of focus groups and what they do for her. Focus groups are so important for any litigator that has done them. They help you focus your case, they help you understand what your case is about, and most importantly, they help you understand what your case looks like from the point of view of someone else, or a group of people like the people who will be your jurors. Robin uses focus groups to decide whether to take cases, to guide her course of discovery, to pick themes, and to finally make her preparations for trial. I really enjoy talking to Robin. She talks here about her start in plaintiff’s litigation, her involvement in leadership around the state of Georgia and in the Atlanta legal community, and in the excellent work she does as a plaintiff’s attorney. So, I give you Robin Frazer Clark. Robin Frazer Clark, thanks so much for being on the podcast. It’s a pleasure to speak with you.
Robin: Thanks for having me, Scott. This was such a nice invitation, and glad to be here.
Scott: Well, I’m happy to have you on. I know you just kind of in passing. I’ve seen you at Lawyers Club, and seen you at various bar events, and I think, you know, I’ve said hello, and I know Bill kind of well, because I’ve done some lobbying when I was the…well, I did a little bit of, I don’t know if you’d call what I did lobbying. I was the president of the Georgia Association of Criminal Defense Lawyers. We do some lobbying there, and I think I’ve run into Bill a few times at the legislature. And so, I know you guys in passing, and we’re friends on Facebook, friends on Instagram. I think we follow each other on Twitter, so I generally know what you’re up to, just from social media, but it’s great to finally sit down and talk to you at length.
Robin: Same here.
Scott: So, tell me how things have been during pandemic. I know courts are opening back up. How did you guys get through pandemic in your practice?
Robin: Yeah. We stayed in our home, and I worked from home for a long period of time, although, you know, when you have your own office… No one was coming into my building. My building is downtown, on Marietta Street across from the State Bar building in [inaudible 00:02:39] I felt pretty [inaudible 00:02:41] coming here. So I only stayed away from the office a couple of weeks, worked from home during that time, then I just said, “Well, I’m going to come on to the office. And I can work just as well there, and nobody’s around me. I’m not gonna endanger anyone.” But, I don’t know if you know, but my husband Bill contracted COVID early, early, back in March or April of 2020. And it was way before doctors really knew how to treat it, and it was really scary. And he went to get tested. And I thought he was going to Georgia Tech campus to get tested. He actually had to go to St. Joseph’s, and then he never left for a week. And you don’t get to see your loved one and it was a very, very scary time. But we got lucky, and he got out of there, and did well, and we forever thank the St. Joseph’s staff. And are very, very, very thankful, and thank God, and very grateful.
Scott: And yeah, I didn’t know that he contracted COVID, particularly at the beginning of all this. Has he had lingering problems with it, like a lot of people have?
Robin: He really has not, thank goodness. He was in the hospital for about a week, but never got so ill that he had to be intubated or even, I don’t know that even had supplemental oxygen, but his doctor at the time just thought, “We don’t know how to treat this. We better hospitalize you in case it gets worse.” And most people were getting worse. So, he hasn’t had any lingering effects. And in fact, he has the antibodies. He had them before the vaccine, so he has given monoclonal antibodies I can’t tell you how many times. At least [inaudible 00:04:19] a month since he got out of the hospital, and we are hopeful that, before the vaccine was created, we hoped that that saved some lives.
Scott: Oh gosh, that’s amazing. So, he’s donated monoclonal antibodies to help for treatment with other people in COVID.
Robin: Correct. That’s exactly right.
Scott: Well, let me back up for a second. I certainly said, greeted you a minute ago, but I always have my podcast guests introduce themselves. And this always sounds like a bit of a philosophical question, and you can take it as that, but who is Robin Frazer Clark?
Robin: I am, I would say first and foremost, a mother of two now adult children. I can’t believe it, but they are. But I’m a mother, a wife, I’m [inaudible 00:05:07] I’m a golfer, and a sister, and a daughter, and a friend of many people. That’s all the things that mean probably the most to me. Professionally, I’m a trial lawyer, representing only plaintiffs exclusively, and through my professional life, have had the good fortune of being able to be in situations that give me platforms to help others, and I’m very thankful for that. I’ve been past president of the State Bar of Georgia. I’m a past president of Georgia Trial Lawyers. And I’m past president of the Lawyers Club of Atlanta. And through all those platforms, have met some amazing people, and hopefully been able to help some other people and help the lives of other people. So I’m very blessed, Scott.
Scott: And I can tell, because I see both, you know, just from following you on social media, I see both the professional and the family side of…I think I see both those components. And they both seem very abundant and great. How did you come about deciding to be a plaintiff’s lawyer? Kind of take me back to this, I guess, let’s go back to the decision to become a lawyer. Why did you become a lawyer? And say a little bit more about the path to that.
Robin: I was very interested in medicine when I was young. I thought I might be a doctor. My dad was a pharmacist. I thought I might be a pharmacist. My mother was a nurse. I kind of joke about this because I can’t believe it [inaudible 00:06:36] but I actually have a Bachelor of Science in Biology and Chemistry from Vanderbilt. And [inaudible 00:06:42] I realized I just did not want to do that with my life, being stuck in a lab somewhere, I didn’t really know what to do. …brother had decided to go, my oldest brother, had decided to go to law school. So I thought, “Well, I could probably do that. I mean, hopefully, I’m smart enough to do that.” But really, at the last minute, my senior year at Vanderbilt, just before graduation, I decided to take the LSAT, and applied to law schools, numerous law schools, and got in. I went to Emory Law School, mainly because of Atlanta, honestly. But many of my friends went to Emory Medical School, so I thought, “Well, I’ll go to Emory Law School.”
And I loved it. I loved every… I was one of the people who loved law school. I loved my professors. I loved learning the law. I loved everything about it. I clerked for a very small firm in Charleston, South Carolina, both summers of law school. I loved that. I loved every day. I’d get up, be in the office by 7 a.m. and leave at 7 p.m. I loved it. So, I’m one of those people that really, really loved practicing law. I just thought it was great. I loved it. I started out in a defense firm. And I’ve worked for two defense firms before I opened up my own office.
And in the back of my mind was my father’s very astute, very good reasoning, and recommendation, and advice, and that is to be your own boss. And I could not… I just realized… I was pregnant with my second child at a defense firm. And the hours were just enormous, just the time limits, demands on your time are just outrageous. And I knew that I would not be able to go see my kids play soccer or go play basketball, or whatever activity they were doing, and be able to devote this kind of face time that that firm wanted. So, when I was pregnant with my second child, I’d describe it as jumping off the mountain and building my wings on the way down. I left a fairly good situation, where they had asked me to be partner. I left without a [inaudible 00:08:52] file. [inaudible 00:08:57] started, just shared office space with a wonderful human being, lawyer, named Larry Jewett, who I had had cases against. We were adversaries, but we became friends. And Larry said, “Hey, I’ve got an extra office.” Actually, Gino Brogdon, you remember judge Brogdon?
Scott: I do.
Robin: He worked in that office before, became judge, he was appointed. He took the bench, and that left an empty office in Larry’s office. So Larry said, “Hey, Gino’s left. Why don’t you take his office?” So, that’s all I needed for an invitation. I wanted to be my own boss. I wanted to be able to control my own hours. I wanted to have flexibility to go walk out of the office to go see my kids play soccer when I wanted to. And that was one of the driving forces. And, you know, the other one was simply what I do. I was doing defense work, insurance defense. I did not like working for insurance carrier. I didn’t feel like I was doing anything really meaningful. And I wanted to do something meaningful. I wanted to represent the little guy, the underdog, and people who have been wronged through no fault of their own. And that’s what I decided I was gonna do. I’ve practiced law for 33 years. I’ve represented plaintiffs now for 24.
Scott: Well, so, when you decided to go to law school… Because that is not the traditional track. I mean, that’s…what you talked about as your undergraduate career, that’s your traditional medical school track. That seems like that was a departure. What was it? And you didn’t describe that same love for, you know, biology, when you were in the sciences. What was it about law school, and when you ended up being in a firm clerking in Charleston, what do you think you loved about the law? What was it that was so bright to you?
Robin: I love the intellectual discussions that we had. I loved lawyers. I thought they were very, very interesting people. And between a scientist versus a lawyer, if somebody asked me, “Who do you wanna be more like?” I’d say, “I wanna be like that lawyer. That’s who I wanna be. That’s the kind of life I want.” I just love talking to lawyers. I love being around them. I wanted to be like them. And that’s [inaudible 00:11:10] I decided to do. When I went out on my own, one of the people that I really [inaudible 00:11:17] deceased now, but was a great human being. I don’t [inaudible 00:11:21] remember him, Randy Blackwood. He was a great plaintiff’s attorney. I can just remember following his career, even as a defense lawyer, saying, “Be like Randy Blackwood. That’s who I wanna be like.”
Scott: What was he like? Describe him for people that don’t know him.
Robin: Super intelligent, a great mind, super smart, but also fun. Also, just fun to be around. You would wanna have a beer with him, you would wanna hang around him. He was just a very…had a lot of depth. I just really liked him. But the more lawyers I like, mainly plaintiff’s lawyers, but the more lawyers I like, the more I like them. We’re more [inaudible 00:12:00] we’re more [inaudible 00:12:00] we’re more interesting [inaudible 00:12:01] a lot of other folks. Come on.
Scott: I think I’m very interesting, by the way.
Robin: I’ve vouched for you.
Scott: Well, tell me, you know, it’s an interesting career choice. Plaintiff’s lawyers get a bad rap, and, you know, by reputation. Where do you think that comes from? And what’s been your experience with the plaintiff’s bar versus kind of the stereotype?
Robin: Well, for people who know plaintiff’s attorneys like me, and people I’ve worked with, they know that we’re the folks that help others in time of need. We’re making a difference in people’s lives. The stereotype out there that you refer to is probably, you know, you hear pejorative names like “ambulance chaser,” “TV advertiser.” There’s no question that TV advertising by plaintiff’s lawyers has done a job on our reputation. I mean, I have to voir dire juries over it. And I don’t advertise on TV. And lawyers have every right to do that, but there’s no question that is the view that the average citizen gets, because they get it on TV, and they think they’re all just money-grubbing ambulance chasers. But if you look at lawyers who really, their heart is in it, and helping people, helping others in need, people who, [inaudible 00:13:33] for a plaintiff’s lawyer would have no hope. Those are the kind of cases I take, that I’m making a difference in someone’s life.
Scott: When you left the firm to go out on your own, I mean, did you…you left a defense firm, or did you leave a plaintiff’s firm to go out on your own?
Robin: I left a defense firm.
Scott: So there was no chance of taking any clients with you because those were insurance [crosstalk 00:13:56]
Robin: Didn’t want to. That is the [inaudible 00:13:59] on the plaintiff’s side, is we don’t bill hours. And I tell you, I can’t remember what that firm [inaudible 00:14:07] billable hour requirement. It was, I thought, outrageous, maybe 2000 hours a year, maybe over 2000, I can’t remember. But I just knew there was no way I could bill those kind of hours and have the life I wanted to lead. So, even if I could have taken files, I didn’t wanna take files, because you had to bill. And I don’t bill by the hour.
Scott: So, going out and opening your own plaintiff’s practice, I mean, that sounds… You know, I left the criminal defense practice to start my own practice several years ago. And I had been doing criminal defense, so I wasn’t switching… I wasn’t becoming a prosecutor. I wasn’t switching sides. And so, that was scary enough as it was, but how in the world, when you opened your office, did you start getting clients? I mean, I remember the first day I showed up to my new office and sat behind my desk and waited for the phone to ring, and so I remember that feeling, but I was going from something that I was already doing. What did you do, and what was that like?
Robin: Well, this is before social media, too, keep in mind. At this time, I barely had a computer. I don’t know that people used the internet much at all. So, way, this back in the dark ages, in, to kind of put that in perspective, I mean, I practiced law for eight or nine years without a computer. That’s unheard of, obviously, now. But what I did was I went… I had several friends that had their own firms. You know, Randy Kessler is one of my very good friends. We graduated together from Emory. And so, I would meet people like Randy. I’d say, “Randy, I want to tell you what I’m doing. Would you refer me a case?” You just be point blank, would you refer me in a case? And I met with enough people that I would get a few cases trickling in here or there. And then you do a good job on a case, and that client refers you to their friend, their friend to you, you know, you get another case, you get another case. And so, you start off really slowly.
Now, I was very lucky that my husband worked. Whether my family ate and had a house didn’t depend solely on my income, so that took a lot of pressure off of me. But I just went around asking people for cases. I remember Randy told me, he said, “You know, Robin, it comes to worse, you put on a suit, and you go down to Fulton County, and you can get some [inaudible 00:16:30] for $50 an hour. I mean, worse comes to worse, you can always do that, so you’re gonna be okay.” You know, I knew I could always do that if I had to, go get some appointed work. So, I’ll never forget Randy’s advice about that. Like, well, okay. I can still…you know, I’ll be a lawyer. I can still go down and do that. Actually never had to go do that, but I knew I could if I had to.
Scott: Right. And do you remember your first big case or your first big trial on your own? I mean, is there any big milestone that kind of stands out?
Robin: Good question. Probably… This is a long time ago, in the ’90s I’m pretty sure, but probably my first big case that I took in, and I don’t remember how this client found me. But it was a sexual harassment case, which I’d never even handled one as a defense lawyer. But she comes in and tells me her story. And it was so compelling. And just some of this stuff that she had to put up with was so disgusting. Never handled one before, but I pull out the little book on the shelf and read the statute.
Scott: Here’s how to do it.
Robin: Title seven. I figured, well, I know what… I can read about burden of proof and what you have to do. And so, I read the statute and filed the case, file the EEOC complaint, and then we get a right to sue letter, we sue. We did, you know, learned a lot in that case, learned a lot about it. It was against a furniture company. And that case went to trial. And he was in Northern District. And I can tell you this. My last demand before trial was $50,000. And I was so tired of the case. It just took so much work. And I felt like I was losing money, losing money, putting so much of my time into it. Get to trial, I would get to the Northern District…you know how you would park in the Gulch. I don’t know if [crosstalk 00:18:24] building? Park down in the Gulch, cheap parking. But if you got there by 8 a.m., you got early bird really cheap parking. So, [inaudible 00:18:35] any further loss of having to pay parking every day at trial, I would get there before 8:00, and just sit in my car, and pray, and listen to music, and think.
So, I could [inaudible 00:18:46] early bird parking, because I thought well, I’m gonna lose. I don’t want, I’m gonna try to minimize what I’m gonna lose. And that case ended up being I think about a $1.65 million verdict for my client. And so, that was a vote of confidence that… I can remember telling, that was one of my first big, big cases, remember telling the jury, “I’m young, I’ve made mistakes, I’m nervous. You know, takes a lot for my client to stand up here and tell you her life story. We’re nervous.” And jury did the right thing.
Scott: And how early, like, how soon after leaving to start your practice was that verdict?
Robin: That was probably maybe three years, maybe four. And remember, I had no clients. So I was willing to take anything. I mean, if a person picked up the phone to call me to say, “Hey, I think I have a case,” I’m like, “Absolutely. Let me sign you up.” I was taking anything and everything. And that’s why I took a sexual harassment case even though I was really used to doing just personal injury, car wrecks and that sort of thing. So yeah, I took it, thinking, “I need to take some cases. I need cases.” So, that was pretty early. Because, you know, in federal court, there’s not a lot of discovery. You don’t spend a lot of time discovering stuff. You just, you get few months, and then you’re ready to try it. And we used a magistrate judge, Clayton Scofield. Do you remember him?
Scott: I do remember Judge Scofield.
Robin: Yeah. May still be the same way, but if you agreed, if both parties agreed to use a magistrate judge to try the case, you got a special setting, and you get a trial really quickly. I got the defense attorney to agree to it. And so, Clayton Scofield was our judge, and we got the trial done pretty quickly.
Scott: And when you were just sort of taking whatever would come in… What I find a lot of people that call, there’s either one thing or the other, and there’s very rarely both. There’s usually great liability and no damages. And there’s usually all kinds of damages and no liability. How did you kind of work through that? I mean, sort of at the beginning, I’m assuming, I mean, I don’t know this, but I’m assuming you’re probably more selective now. How did you sort of weather and navigate all of that as a…at the beginning of your private practice?
Robin: Yeah. At the beginning, I was not very picky. I couldn’t afford to be picky. So I would take car wrecks. I wouldn’t say where I had to prove liability, because that’s usually gonna be an expert involved, which is a lot of money. But [inaudible 00:21:18] it’s a rear-end collision and a sore back, I took a sore back case. Now, I don’t [inaudible 00:21:23] back cases anymore. But I would take any, you know, I would take cases worth less than $10,000.
Scott: And you were learning on those. I mean, that was an educational process.
Robin: Absolutely. Where you still have to put in a lot of time, but it’s gonna pay off. It’s gonna pay off. But I don’t take those kind of cases too much anymore.
Scott: Well, where have you transitioned to now? Would you consider yourself to be generally a plaintiff’s lawyer, or is there some subspecialty that you have now?
Robin: I have no subspecialty. I’m a generalist. And so, I take any plaintiff’s case that looks like I can win, and be successful, and help my client. To limit my involvement in a case, it would be based on the injury, so I tend to take very, very serious injuries, catastrophic injury, or death. I do a lot of death cases. But I also do smaller cases. I still do some smaller cases. It just depends. But I’m a generalist. I was kind of looking back over my workload right now, my caseload, and, you know, I do a variety of things. And that’s what I love about where I am right now in my career is that I can pick and choose. I can choose to work on a prison suicide case, because I enjoy that, and I wanna learn about it, and I wanna help a family. But also have medical…I have several wrongful death medical malpractice cases. And I just am wrapping up this week a very large wrongful death construction case, where a man died when a big spool of wire came off a deck, 6-story deck onto his head, and he was working, he was building a high rise in Midtown, and it killed him. So I do just a variety of things that look good, look interesting, looks like I can win, and help the family. That’s how I decide.
Scott: And it really is the feel you have for the case and the whether you like the people that are there, and obviously the potential chance of success for the case.
Robin: Right. Absolutely.
Scott: And is it just you in a solo practice? Do you practice with Bill?
Robin: No, it’s just me. But I do have a wonderful paralegal, Niki Wilson. And she’s been with me the entire way. And I couldn’t do it without her. Niki could practice law. She just doesn’t have a law license, but she [inaudible 00:23:51] as well as many lawyers, for sure. And Niki goes to every trial with me, and helps pick a jury, and takes notes, and is my audiovisual person, and everything I need.
Scott: Well, talk a little bit, because you’re one of the most involved lawyers I know. I mean, you’re, like, you, you know, you said earlier, I see you at everything. I mean, I’ve seen you at Lawyers Club, and I know that you’ve been president of GTLA, and you’ve been the president, you were the 50th president of the State Bar of Georgia. When did you start getting involved in bar activities? And what do you think that that’s done to enrich your practice over time?
Robin: The first time I really started getting involved was pretty quickly after I opened my own practice. And that was with GTLA. And that happened… I joined GTLA because Georgia Trial Lawyers is just an invaluable association for plaintiff’s attorneys. But the president at that time was Ken Canfield, a good friend of mine. Ken just calls me up, says who he is, I’d never met him before, and says, “Can I take you to lunch?” Of course you say yes. And we go to lunch. And he said, “Look, we’re this great organization, you’ve just joined, but our problem is we have no diversity. We need women involved.” And so, Ken Canfield’s one of those just wonderful, very progressive men who believed that life, and the practice of law, is better if it’s diverse in all aspects.
So he really was the person to say we would like you to get involved. And I think I became the chair of education, our education committee, which has become, the GTLA Education Committee has become one of the leading legal educators, I think, in the country. Our seminars, no one can compete with them. But that’s how I started, being in education in GTLA, and numerous really super thoughtful, super progressive males who were GTLA leaders at the time, like Ken Canfield, Jay Cook, David Bell, John Bell, these guys were very progressive, and realized we need to include more people in our [inaudible 00:26:01] more diversity. And they gave me a leg up. And ultimately, I ran for president and won.
And, you know, one of the great things, you know, you talked about, well, it’s enriched my practice, and no question, it’s enriched my practice. But I think more importantly, involvement in state bar associations like GTLA and the state bar have really [inaudible 00:26:21] because all those men who were members of GTLA, who supported me from the get-go, I don’t think I ever would have the opportunity to even cross paths with them but for GTLA, because we’re plaintiff’s attorneys. We don’t typically work together. We wouldn’t be adversaries. I wouldn’t even have the chance to develop a relationship with those men, but for [inaudible 00:26:45] lawyers. And the same can be said for the people I work with at the state bar, and with Lawyers Club. You know, I can’t tell you how many divergent people I meet at Lawyers Club of Atlanta that I would never come across but for our time together in Lawyers Club. So it’s super important, enriched my life, and always tell younger lawyers, “Get involved in your young lawyer association of your city bar. If it’s Atlanta, the Atlanta bar. Get involved in the young lawyers division of state bar. You will never regret it, and those folks will be your lifelong friends.”
Scott: Well, we kind of, you know, you said earlier, when you were talking about kind of starting off in this, you’ve loved being around lawyers, you love talking to lawyers, where I feel at home in the company of other lawyers. And so, I think there is something to the camaraderie, and there’s something to…I think it’s hard to understand kind of what we do and what we go through except for with other people that do it.
Robin: Well, that’s true, especially trial lawyers, you know, trying a case is a really taxing proposition.
Scott: And, you know, you handle some very complex, catastrophic cases. And it sounds like you’ve managed to figure out how to do it without a lot of staff. I mean, so it’s, you’re a sole practitioner, and you have a longtime legal assistant who’s very good. How have you managed… And it sounds like you, you know, you’re doing, you know, probably not a huge volume, but I mean, it sounds like you’re doing some, more than one, at least, set of complex cases. How have you learned and how have you figured out how to do all of that without a big staff?
Robin: Well, that is just old-fashioned elbow grease. You roll up your sleeves and you get to work. It’s a lot of work. I think some people, and some defense attorneys, think plaintiff’s lawyers don’t work that hard because we don’t bill hours, and we don’t have to be in the office 15 hours a day. But plaintiff’s attorneys who are successful work their butts off, and it’s just good old-fashioned, get into it, do the reading, doing the prep, taking the depositions, all of that. So, yeah, I take every deposition in every case. Lately, on med mal cases, I’ve partnered with a couple other lawyers just to help bear the load, as far as, you know, when you have 30, let’s say 30, 35 depositions in a case, especially when we were, back in the old days, when we would fly to take experts’ depositions all over the country, that’s kind of hard for one person to cover that many depositions when you’re flying all over the country. It’s tough. I’ve done it, but you’re exhausted. So a couple of times, we’ve, I’ve associated another lawyer just to, you know, bear that load with me. But it’s usually me. I was looking at in my last, I did a prison suicide case that we resolved in 2019, right before COVID. And I think I took 30 depositions. Almost all of them in Reidsville, where Georgia State Prison is. So, that involves driving down to Statesboro, because there’s no hotel in Reidsville.
Scott: There isn’t. [crosstalk 00:30:04]
Robin: No. Not a single, not a one. You can stay in Dublin or you can stay in Statesboro. And I always chose Statesboro. And then you get up and drive an hour to Reidsville, and do however many depositions you can fit in a day. But I didn’t count up how many trips I made to Statesboro, but easily 10 or 13 of those, and 30 depositions. And that’s not even including the experts. That’s just officers, you know, [inaudible 00:30:29]. So, it’s a lot of work. It’s good old-fashioned hard work, doing what you need to do to make sure you’re a success. Talked about Vanderbilt. Vanderbilt U has this great video of their baseball team about how to be a champion. It’s based on Grantland… I don’t know if you know Grantland Rice, the poet?
Scott: I don’t. Grantland Rice.
Robin: Grantland Rice, a sports journalist from Vanderbilt, but also wrote little poems, and one of them is “How to Be a Champion.” And the last two verses say, “Most of it is practice and the rest of it is work.” That’s how to be successful. Most of it is practice and the rest of it is work. Work and practice. It’s not magic. It’s just hard work.
Scott: So, what do you do, I mean, when you’re preparing for a big trial? And this is gonna sound like a vague question, and it may not be a very good question, but what do you do? What are some routines that you have, or some things that you do in your cases to prepare, that maybe you don’t see a lot of lawyers do, that you know that you do really well?
Scott: I don’t know that I have any original ideas. I get all of my ideas from other lawyers, so I do what they do to be successful. I’ve learned, and learned, and learned. But I’ll tell you one of the things we always do before trying a case, at least once, and maybe several times, is a focus group. And when I first started out, nobody was doing focus groups, and they slowly and slowly became popular. Now, at least on the plaintiff’s side, I really don’t know about the defense side, but I wouldn’t try a case with, unless I’d done at least one focus group, but hopefully two or three. So, we’ve got a med mal wrongful death case coming up that hopefully we’re gonna try this fall. And we just did two virtual focus groups, a new thing for me. I don’t like them as much as having them in-person. I do my focus groups over at the state bar, and the moot courtroom looks just like a real courtroom. And I usually do my focus groups over there and videotape them.
But the focus groups are invaluable, because you learn something about every aspect of your case, what you need your experts say, you learn about what kind of jurors are gonna be bad for you, you learn about if there’s a hole in [inaudible 00:32:46] you’re gonna have to fill it, like, maybe you hadn’t thought of that. And if a focus group keeps telling you, “Well, I wish I knew blank,” then you better go get that evidence. So, focus groups, I just rely on them so much before I’ve tried a case. And bottom line is if I do end up doing well, and we always try to do our focus groups where we try to make the defense case much, much better than the plaintiff’s, so that we make it really, really hard for the plaintiff to win in a focus group, so that when we do win with the focus group, and it’s beyond our wildest dreams, it at least gives me confidence. I know I can’t count on that verdict that the focus group gave, but it gives me confidence that, you know, 12 normal people from that county, we always get them from the county where I’m trying these, but 12 normal people from that county saw the case the way I see it. And so, I always have that, at least, you know, giving me a little boost of confidence. But that’s one of the big things I do to prepare. And we do some throughout the case, but we almost always do one or two last ones right before trial.
Scott: And how do you, I mean, and I’m assuming that you do these differently, depending upon where you are in the case and what kind of case it is, but generally, are you using a jury consultant? Are you kind of putting this together yourself? Kind of walk me through what a focus group would look like.
Robin: Yeah, I do it both ways. If I use a…and I don’t know if you would call him a jury consultant. He’s, I’m not sure what you would call him. Linton Johnson is who I use, if I use a consultant. And he gets the jurors, I prepare the questionnaires, but he makes sure they answer the questionnaires, and does all that, and he is the person… So, you don’t want your focus group thinking it’s all about you, that you don’t want them thinking this is all the plaintiff, that you want them to believe it’s a real case, and there’s a real defense attorney in front of them, and a real plaintiff’s attorney. If they think it’s only the plaintiff putting this on, then that skews things. So, that’s why it’s important to have a consultant stand up and act like a totally impartial…and he talks about both sides, plaintiff’s and defense. So, sometimes I use that.
Sometimes we do it on our own, with this virtual…two virtual focus groups, we did last month. We did them all by Zoom. Niki got jurors, and that was a case in Fulton County. So we got…we did six and six. I prepare questionnaires, so, you want to do demographic questionnaires, what, all about the juror. And then you wanna do a questionnaire after the plaintiff’s case, questionnaire after the defense case, and most importantly, a questionnaire before they deliberate, because we know from neural science, jurors have such an effect on each other that the number they give, the number they wanna give before they ever discuss it with anyone else, is usually higher than when they’ve discussed it with their group.
So it’s very important to get that number first, and then we allow them to deliberate, we film it, then we go in into the questionnaire and the answers, and really look and try to figure out what are they telling us? This last one, we had a hole in the evidence… Well, we had two ways to go, and we were gonna go one way. And these jurors kept telling us this very strong position on the other way. And we just said, “We’ve got to go that way. These jurors are telling us they wanna hear that.” So it really tells you which path to take at trial.
Scott: Are you putting up evidence at these focus groups, or are you doing, like, an opening/closing for both sides?
Scott: And are you using a different lawyer to present both sides? Sort of, walk me through what that would look like.
Robin: Yeah. We use different lawyers and act like we’re all from different firms. We act like we’re really adversaries. Sometimes I just ask a friend to act as the lawyer. Sometimes if I…in this last case we were talking about, I have two other lawyers who are with me on the plaintiff side. One of them took one defendant, one of them took the other defendant, and I took the plaintiff. So, we say we’re…we change our names, so that they can’t figure that out, and tell them we’re from so-and-so firm, and we represent the defendant, or whoever it is you represent. But yeah, I think it’s important. You should not, as a plaintiff’s attorney, try to present the defense side and the plaintiff’s side by yourself all… That will not help you. That will get you no good [inaudible 00:37:15]. You have to act like it’s a real, like you’ve got real defense attorneys [inaudible 00:37:22] both sides wanna hear what you have to say. If you don’t do that, you’ve wasted your time and money on a focus group.
Scott: Uh-huh. And what, this is generally, like, a half-day sort of exercise, or a day?
Robin: Yeah. Usually…you know, it depends. If you’re getting ready for trial, I would say we do one focus group that’s three to four hours. And sometimes we’ll either have breakfast for them, or lunch, depending on the schedule. And we do this, typically, when they’re in person, all over the state bar, bring food, bring our videographer, we pay for their parking, and we pay for their time. If it’s a focus group early on in the case, you know, sometimes we’ll do a focus group on whether you take a case, because, you know, I may like the case, but there may be a big problem with it. And if it’s too big of a problem, if you’re looking at too much contributory negligence, for example, or maybe your client had been drinking or, you know, something bad about your case, but you still like the case, it’s a good idea to focus that, and see what normal citizens think, because it may make you change your mind about whether even to take the case.
Scott: Now, and I’m assuming if you’re deep into a case, you know, you have discovery, and you have a pretty good idea of what evidence will come in at trial, and so you’re… And I’m assuming you probably play it a little conservative. You probably… I think you said a second ago, you just assume the defense’s dream day. I guess anything that’s questionable in terms of admissibility or something, you wouldn’t go for that as the plaintiff. But how do you do that on the front end, when you do a focus group, and, you know, you’re deciding whether to take the case and you, you know, you don’t necessarily have a lot of established facts yet?
Robin: Right. That is just pure experience. That’s experience of a lawyer knowing what to look for, picking up on issues from the get-go. It’s the same as whenever you get that first call from a client. You ask them questions. And some questions to the client, the potential client, might sound crazy, like, “Why are you asking me that?” It’s because of experience. You can see… If you’ve done it as long as I have, you can look down the road and determine what issues are gonna pop up even two, three years down the road. You can see it already. But that’s just pure experience, and having done similar cases for a long time.
Scott: Uh-huh. And what might a focus group at that stage look like, compared to what it would look like later in the process?
Robin: Same. It would look the same. You might have 12 in person. And if you’re doing one about, that early in the process, to determine whether even to take a case, in a focus group like that, early on, you [inaudible 00:40:05] spend three hours on one case. You might spend 45 minutes on one case, and then you move to the next, and you tell them the facts of the next case and see what they think. So, those are a little different. I would call those more of a… I call the [inaudible 00:40:18] concept focus group, not a trial focus group. When we get closer [inaudible 00:40:23] these that I’m telling you about last month, I would call those trial focus groups.
Scott: Okay. How often are you surprised that, you know, what you thought the case was about, or what you thought was important… Do the focus groups generally confirm what you thought? Or, how often are you surprised by what focus groups will sort of focus in on or what they’ll consider to be important?
Robin: I would say almost every time I am surprised. Almost every time, and that’s why they’re so invaluable. [inaudible 00:40:55] in, like, a car wreck case, it’s pretty predictable. But otherwise, any case where you’re using a lot of expert testimony, which pretty much is every one of my cases, you’re using expert testimony, you’re criticizing perhaps a professional’s handling of something, you’ll be surprised. And that’s what you want. That’s what you want from a focus group, that information that you haven’t seen because you’re in the thick of it, you’re in the weeds. They’re seeing the forest, and you’re seeing the trees. And sometimes you want that viewpoint of, “Here’s what it looks like to me.”
Tell you, one case I tried right before COVID, in 2019. It was a wrongful death case. And because I had done every single thing on that case, I don’t even know how many depositions, but a lot of time. I mean, we had traveled, in that case, we’d been to Chicago, we’d been to San Diego, for expert depositions, just crazy amount of travel and time. But did a final trial focus group right before we get ready for trial, and two or three of the focus group jurors had said, “I’m not even sure what the cause of death was.” And I’m like, “Oh, my goodness.
Scott: Oh, that’s scary.
Robin: “It seems so obvious to me.” Yeah. So, guess what I do at trial? I got every expert say, “What is your opinion about the cause of death?” [inaudible 00:42:16] every cause of death, cause of death. So, you learn a lot. You think that’s so obvious. Obviously, you haven’t if they’re questioning it. So that’s [inaudible 00:42:25] examples of why a focus group can be so invaluable.
Scott: And are you using these… I mean, it sounds like you’re using these primarily, at least on the front end, to evaluate sometimes whether to take the case, and if you’re more toward the trial focus group, you’re using it to prepare for trial. Do you use the focus group as a reality check for the client ever? Or do you use the focus group in negotiations to… Or is it primarily a trial preparation tool?
Robin: No. I don’t do any of that. It’s trial preparation for me, and me only. I don’t invite my clients to the focus group. They know it’s gonna occur. But you don’t want your client to think that’s reality. That’s one thing. You can tell a defense attorney you’ve done a focus group and they returned a verdict of blank, that, I don’t think defense attorneys care.
Robin: It’s meaningless to them. Is solely for me, in my preparation. And when I’m that close to trial, I may even do a focus group just on demonstrative exhibits, because they’re crucial. And so, I’ll show a focus jury some boards that I have, or a timeline, or some video, or voicemails, and just let them tell me what they think. And that has a lot of sway on how I use that information at trial.
Scott: That’s really fascinating. So, are you putting these demonstratives together in your own office? Are you usually consulting…
Scott: …are you used to consulting with another firm, or?
Robin: No. I do usually, at the very end, I do usually consult with a firm, because I’ll have a concept, but I don’t know how to put it down in a drawing. So, a lot of my concepts, I know what I’m gonna argue. I’m thinking about my closing argument and I’ve got a concept, and here’s what I want it to look like. So I’ll get a firm to do that for me. Sometimes I just rely on my experts. Like, for an expert witnesses testimony, I’ll say, “What do you want? What kind of exhibits do you want?” And let them give them to me, and we prepare those.
But for example, yeah, I can remember I wanted to make an argument in a closing once about once some professional was accused, they all circled the wagons. They all started protecting each other, and they weren’t gonna say anything. And so, I had my guide draw up a circling the wagons, not a video, but a circling the wagons [inaudible 00:44:56]. And then I had one, because all these physicians knew each other, who were all buddies, they were golfing buddies, they went to seminars together. So I had them [inaudible 00:45:06] firm draw up this kinda arrow after arrow, all pointing in a circle. They all know each other, all circling around the defendant helping [inaudible 00:45:14]. So, you know, some of it is just, you’ve gotta sometimes take time to sit and think about it. Just think. Just think what would be good? What shows this? What would be helpful? How am I going to argue this? What can I show the jury to help my argument? So, that’s kind of the way I go about it.
Scott: Well, changing gears here a little bit, you know, you talked about that time in your career where you left defense practice to start your own. So, if there were Robin Frazer Clark out there who, you know, just suddenly had a passion for plaintiff’s law, what advice would you give to someone starting out? Maybe who is in the position that, I mean, granted, we’re in a different time, but what would you advise someone? What advice would you give to someone that wanted to start off as a plaintiff’s attorney?
Robin: Probably the best advice is to be involved with not only professional associations, but social organizations, or, if you’re religious, your faith-based organizations. You know, look at your life and say, “Where are my friends? Where are the people who [inaudible 00:46:31] Where are they?” So, in the professional world, I would say get involved in the state bar, and local, local organizations, like, for me, it’s the DeKalb Bar Association. It’s Atlanta Bar Association. And you shake as many hands as you can, and you are forthright, and say, “Look, I’m starting out. I would appreciate any case you don’t wanna take, if you would send it to me. Here’s my card. Please call me.” Because there are a lot of older attorneys that won’t take a $5,000 case, but a [inaudible 00:47:02] lawyer would. And just be forthright about it.
So, you have to do that in all of your circles. So, in your church, or your temple, or your synagogue, wherever you worship, if you worship, that’s a place. I’ve been a member [inaudible 00:47:16] fairly large churches in Atlanta in my life. The first one was St. Mark United Methodist in Midtown. And the second is Memorial United Methodist, in Druid Hills, over by where I live. And I still handle cases for people at St. Mark, even though I haven’t been there in 10 years. But I still handle their cases. I get many referrals from people from my church. So, your…reach out. You know, you need to be involved in that aspect of your life, your religious life, temple, synagogue, church, wherever you may worship. [inaudible 00:47:57] your friends, your buddies. You have to be forthright and say, “Look, I’m doing this now.” Anybody that you know gets hurt, please have him call me.
Scott: Don’t be too modest about this.
Robin: You have to [crosstalk 00:48:07] Don’t be too modest. Have them call me. I can help them. And you have to…it’s kind of constant, you have to do that. But you look at all of the circles where you’re involved. I mean, I can’t tell you… For example, I’m a member at DeKalb YMCA, Decatur Family YMCA. I swim there. I can’t tell you the number of cases I’ve gotten because of people I’ve met at the YMCA in the pool. You have to be constantly telling people what you do, what kind of case you take, what you’re willing to do, and give them your name and number, and you’ll be amazed. But you just gotta constantly be saying that, like, “This is what I do. Please call me. Please have your friend call me.”
Scott: And to sort of transition, and I know how much you love lawyers and how much you love, you know, being active in law organizations, and one of the things that you speak on frequently, and I know a topic of interest to you, is mental health issues within the profession, and in particular, suicide prevention. And I did want to give my listeners an opportunity to hear you talk about that.
Robin: Thank you.
Scott: So, what do you think it is about the legal profession that sort of makes this… I mean, I know that just, it’s part of being human. But it seems to be it’s acutely a thing with lawyers. Say a few words about that, and about suicide prevention, and some of the mental health issues that we face as lawyers.
Robin: Well, I’ve learned a lot about it, mainly because I was forced to, because I didn’t wanna ignore it. It was happening all around me and I felt like I had to do something with the platform I had as been State Bar President. And you may remember, in 2012, one of our past presidents killed himself. He not only was past president, but, I don’t wanna get upset talking about it, but one of my close friends and one of the greatest people you’d ever meet in your life, just tell you. There was no better person than him. So, that happened, and the past presidents and I started thinking, well, we gotta do something, you know, to honor him. Well, while we’re trying to figure out what to do, we get word that two or three other lawyers had just killed themselves. And we realized, we really need to do something, not to honor the memory, we can do that, but that’s not gonna be enough. And we decided we need to really focus in on a suicide prevention campaign for the state bar. And we created a program campaign called “How to Save a Life.” And we have steps about how you can do that. You, anybody who’s listening, any member of the bar, can save a life. It’s hard to believe when I’m saying that out loud to you, but I’m telling you to trust me. If you just check in on your friends, if you know what to look for, there are certain warning signs and warning words. And if you’re trained in that, because you’ve listened and learned a little bit about it, you can save a life.
Scott: What are some of, I mean, and I know that this is beyond the scope of what we’re doing here today, but what are some things, just generally, to look for?
Robin: Any time someone says, uses the word “hopeless,” or says they’re hopeless, a word that should make you think they could be…have suicide ideas. Anytime someone starts to give things away. Any time someone says, and this happens all the time, but anytime someone says to you, “I don’t really see any hope. I don’t really see any future or any point of going on. I think I’m just going to end it. I think I’m just gonna kill myself.” I think our natural inclination is to try to talk that person out of it, by saying things like, “Oh, don’t be silly. You have every reason to live. You would never do that.” That is not what this is…that’s not what to say. What you should say is, “Let me help you get help. I can help you, and someone can help you. We’re gonna get you help, right now.”
And that’s where the Lawyers Assistance Program with state bar comes in. You get [inaudible 00:52:31] as a member of the bar. And I urge everyone to use #USEYOURSIX. Use your six free visits with a psychiatrist or a psychologist, is for starters. The Suicide Prevention Hotline, you know, I urge people to have that number in their phone. I have mine under “suicide hotline,” or the Georgia Bar Lawyer Assistance Program number, have that in their phone, and give it to them. Don’t leave that person. There’s just so many things you can do, but the number one thing is to say…don’t try to talk them out of it, but say, “I can help you. I’m gonna get you help. We’re gonna get you help.” And there is help. And interestingly, there’s so many studies that if you can just prolong someone’s thought process of they wanna kill themselves, if you can just have them divert that for three minutes, four minutes, it goes away. And you may have saved a life by just doing that.
Let me say something else about this. This is very important. We started this campaign back in 2012. And I reached out to Jonathan Ringel, the editor of the “Daily Report,” told him what we were doing, and I said, “I would like your help in promoting it, because it needs to be out in the legal organ that lawyers read.” And of course, Jonathan was wonderful, and said, “Of course. Of course we’ll do it.” And I wanna tell you an anecdote about this. So, he starts with a piece written by [inaudible 00:54:04]. And Greg writes about the program, and what to do, and what [inaudible 00:54:09] to do, and how we hope to save lives. And it came out one day. That [inaudible 00:54:14] a woman lawyer read it, and she was suicidal. And she reached out to the person who was in charge of Lawyer Assistance Program. He got her help that night [inaudible 00:54:24] her life.
The next day, I saw Greg Land at an event at University of Georgia Law School for the bar. Greg was reporting on that. We walked out and I said, “Greg, you know, I know it’s cool to be a journalist, but there may be nothing better than to say something you wrote helped save someone’s life, and that’s what happened last night.” And I’ve told Jonathan Ringel that story. Jonathan repeats it now whenever he can, and he tells me, he’s never won a Pulitzer. He’s sure it would be great, but it can’t beat saving somebody’s life. So, it’s an issue near and dear to my heart. And every time I get a chance to promote it, I do. You can save a life. Just check in on your friends, see how they’re doing, ask if they’re okay. Do you need help? Can I get you help? It’s pretty simple.
Scott: And I think a lot of people don’t know that the state bar offers those six free sessions. And then, a lot of lawyers I’ve talked to, and this was something that we covered in JCDL, a lot of people are distrustful. They feel like if they use these sessions, that somehow something they disclose in the context of those sessions, somehow it’s not exactly privileged, and it’ll get to the bar, it’ll somehow, you know, get to the bar itself. Say a little bit more about those sessions, and if a member of the State Bar of Georgia wants to avail themselves of that, what do they do?
Robin: They call the Lawyer Assistance Program, which is on our website. I’ll give the number. It’s 800-327-9631. But it’s also on our website, gabar.org. And all the bar does is pay for the process. We pay for this member benefit, to have a psychologist ready to talk to you whenever you need it. We pay for it. It’s part of the membership dues. We provide it, but the bar does nothing else. And there is absolutely no tie-in to the General Counsel’s Office. It’s completely confidential. It’s confidential as if you went to [inaudible 00:56:40] on your own. But it’s totally confidential, never goes back to…nobody in the bar even knows you’re using it. So I just wanna emphasize, there’s no way… I know there’s a concern that, “Oh, I’ll get a bar complaint,” or, “The General Counsel’s Office will find out.” I’m telling you, trust me. They will not find out. It’s totally confidential. It’s for you. It’s to help you. And please use it.
Scott: Well, I really appreciate you taking the time, take an hour of your day to spend on my podcast. I’ve long been an admirer of yours. I can see what a successful lawyer you are, but I can see what a successful person you are, and what a great family you have. And, you know, for you to give me an hour to record this podcast, it’s a great honor, and I absolutely appreciate it.
Robin: Well, thanks for having me, Scott. I appreciate it. I wanna take one second and promote my own podcast.
Scott: Sure. I love your podcast.
Robin: “See You In Court.” We started that during the pandemic, which, the irony is not lost on us that we didn’t get to see anybody in court last year. But it is sponsored by the Georgia Civil Justice Foundation. I’m on the board, and so is Lester Tate, my co-host. And along with your podcast, while they’re downloading yours, maybe they could also download “See You In Court.”
Scott: I’ve done a blog post of my favorite podcasts, and yours is listed there. And I particularly enjoyed the one you guys did about bourbon. Bourbon and the law. I learned a lot about frontier justice. And bourbon is long a favorite topic of mine, and I think yours, as well.
Robin: Little did you know that bourbon had so much to do with the creation of trademark laws, worker’s compensation laws, labeling laws, truth in labeling. You owe that kind of law to bourbon. And it’s a nice drink, too.
Scott: All roads lead to bourbon. Well, thanks so much. I really, really enjoyed having you on.
Robin: Thanks for having me, Scott. It’s been a pleasure.
Scott: Thanks for listening to the “The Advocate’s Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to this show wherever you get your audio content.