Best Way to do Focus Groups
The Goal of a Focus Group is to obtain the information that is necessary to win your case at trial. Many lawyers say they “know” what to tell a jury or they will speak to other lawyers as to what they believe is best to tell the jury and then try the case. However, are you understanding what the jury wants to hear simply because you want to tell the jury that fact? The goal of every trial is to make sure the jury perceives what you want them to perceive and does not substitute their facts or opinions to fill evidence gaps that we as trial lawyers have left open.
We can look no further than the political polarization and confirmation bias that has permeated everyday life. Wearing a mask has become a metaphor for not being patriotic and Courts, from both sides of the aisle, have ruled no fraud has invaded the election process yet a mob has stormed the Capital confident that fraud exists. How can two people see the same facts and reach such diametrically opposed conclusions? What must they be told to reach congruent conclusions, and in the Trial Lawyer’s world, bring back a verdict for their side.
Once you have decided to conduct a Focus Group and you have your jurors (online or in-person), now what do you do? There are many ways of conducting a Group, but a universal truth is that the moderator must be neutral. They must not imply in any question, body language or facial expression how participants should answer these questions. In many instances, the plaintiff attorney wants the Focus group to agree with their position, they will say “yea but…” or “but don’t forget that….”. These are not appropriate questions for the moderator. Questions like “tell me more” and “what do you think” are more appropriate to gain information. You are not trying to convince anybody of anything. What you want to find out is what the jury thinks and what they want to know more about.
Among the most common type is a Concept Focus Group. These groups operate by simply saying a sentence or two to the participants and get a feel for what their visceral instinct and reaction are. In a medical malpractice claim, you may say, "A person goes in to see their urologist, and 10 days later they die. Tell me what you think is happening." Let people talk and respond, use questions such as "Why do you think that?”, “What do you think?”, and” How do you feel about what that person just said?" The moderator is unconcerned about being right and only concerned about facilitating a conversation. Additional facts can be added with similar questions. The goals are to find out what the 6-8 participants of the Focus Group really feel and how different facts affect their opinions.
Like the Concept Focus Group is the Narrative Focus Group. Rather than a limited set of facts, a more developed fact pattern is produced which will allow the participants to begin to make their own conclusions. This Fact Pattern should always be drafted in the best light for the Defendant to allow the participants to identify all the problems in the Plaintiff’s case. If any positive evidence or arguments are identified in the Fact Pattern, the defenses counter must always be there as well to hear how the focus group resolves that conflict. The Focus Group is not a love fest for the Plaintiff, their lawyer, and their case, that is not the purpose. The purpose is to identify not only the flaws in the case but how to correct them and frame the case.
An additional popular form of a Focus Group is The Clopenings. Typically, you have lawyers representing each party stand before the Focus Group and give a brief (10 minutes is the optimum) argumentative statement regarding their position. It is imperative that the defense portion is rock solid and done by an exceptional attorney. Then you have another lawyer who you must make sure is exceptional at what they do. Typically, a brief jury charge is read to the Focus Group along with a sliding scale questionnaire assisting them in deliberations. In many cases, we will provide personal questionnaires for the Group to answer confidentially before the deliberations and after to drill down on their feelings and what facts did or did not resonate
Many attorneys ask the Focus Group to place a value on the case in their verdict. Quite often this becomes a “fool’s gold”. There simply is too much of a disconnect between a 2-3-hour Focus Group and the dynamics of a trial. A more beneficial request may be what the highest number a plaintiff could ask from the jury in their closing argument without offending them. This applies to those jurisdictions that allow such a request.
Additional invaluable information can be obtained with Demonstrative Evidence and Timeline Focus Groups. The goal of every piece of evidence, admissible or not, is to advance the trial story. Showing this type of evidence to a Focus Group will tell you if the evidence achieves its goal. Is it too graphic, does it need an explanation, what does it say to the jury? Is there something that would be better, these are the issues you let the Focus Group discuss to make sure you always put your most persuasive demonstrative evidence forward at trial.
There is so much to learn about why people think the way they do and how trial advocates can influence and persuade, failing to gain this information puts you at a distinct disadvantage. Whether you conduct these Focus Groups on your own or retain a Consultant to do them, it is imperative that they are done.