FOCUS GROUPS,

THE TRIAL LAWYER’S VERSION OF AN X-RAY:

How to do your own Mock Trial/Focus Group for $500 to $2500.

X-rays are universally used by surgeons because they allow doctors an advance look at what they will see once they are "inside." Focus Groups do the same things for lawyers. Focus Groups give lawyers a glimpse into the mind of the Jurors: how will they react to my witness?, will they understand this exhibit?, what facts will make the most difference to them? Unless you are one of the very few attorneys who can do this innately, you cannot know how the Jurors will think without a look inside the prospective jurors. Prior to facing the real jury, Focus Groups give you a look on the "inside."

We, as lawyers, may think, "I already know what the jurors will think about my arguments and facts." This is a big mistake. All attorneys, even the extraordinarily gifted, can benefit from testing their assumptions on test groups of jurors. We simply do not know how people will react to the various issues, people, and exhibits in our cases.

YOU DO NOT NEED a TRIAL CONSULTANT: While there are many Trial Consultants you can hire, see for example doar.com, www.trialfocus.com, www.courtroomperformance.com, you can do the Focus Group yourself and inexpensively.

DOING IT YOURSELF, WITH HELP: You can hire experts, or more experienced attorneys, to assist in producing the focus group. You may wish to have an expert assist you in determining content, identifying issues to test, do day of group arrangements, and the video set up-including real-time simultaneous monitoring of the deliberations. A ½ day Mock Trial Focus Group with assistance can cost less $2,500.00 or you can do it yourself for less than $500.00.

TYPES OF FOCUS GROUPS: The most common and, probably the most useful, is the mock trial. The entire case is not usually put on, but a small snapshot of the case. Other types of Focus Groups are attorney issue focus groups, where you use other attorneys to brainstorm issues, discovery, research, and other litigation issues, client or witness testimony Focus Group, where you just put on one witnesses to help them prepare for trial or deposition and there are many others.

FOCUS GROUPS DO NOT HAVE TO BE EXPENSIVE: In the past it was believed that you had to hire a special trial consultant and spend $50,000.00.

This precluded all but very few cases and very few law firms. The fact is you can do a Focus Groups by yourself for as little as $500 or, get a little help and still have it be under $2500.00. All you need are mock jurors, methods of feedback (usually questionnaires) and issues.

MOCK JURORS: You need to get unbiased (at least as unbiased as your normal jury pool) people who do not know you, your case, client, or even which side you represent. There are many ways to get good prospective jurors, from classified advertising to letter writing but we have found the most efficient method to provide a source of typical jurors is to use employment agencies (you can not use just any agency, they must be able and willing to provide certain requirements that many agencies will not do). Using employment agencies have several drawbacks, including you primarily obtain unemployed clerical level employees, but this can be overcome with a good employment agency.

METHOD OF FEEDBACK: The raison d’etre’ of focus groups is to find out how jurors will view various aspects of your case and you must have a way of getting that information from the mock jurors. There are many ways to get feedback but three of the most effective are questionnaires, debriefing sessions and viewing of Juror deliberations.  

Questionnaires: the heart of Focus Groups is putting together good questionnaires that tell you about your focus jurors, and their opinions and feelings on various aspects of the case. Provide to the Jurors questionnaires, carefully crafted for each case, at various stages of the Focus Group.

Debriefing. While debriefing the jurors can give you much more information than just forms, it must be done very carefully. You must not let the jurors know your opinions, what side you represent or push them in any directions. You must not cross-examine the jurors, criticize what they say, or try to change their opinions. Ask broad, open ended questions. You can add information during the post-deliberation debriefing session to see how that would affect the jurors.

Deliberations: You should provide the jurors with a verdict form (not one used at trial, but one that brings out the issues of your case) and video tape their deliberations. If it all possible you should view the jury deliberations while they are taking place. (Use a home video camera, with either corded or cordless transmitters to a monitor in another room--you must not be in the room while the jurors deliberate). If you watch the deliberations contemporaneously, you can be much better prepared for questioning during the debriefing sessions.

Issues: In determining what to test in a focus group, you must first understand you cannot test every single issue in just one focus group. You may need multiple focus groups. You can have multiple focus panels (e.g. you can do a presentation to one large group and then break them down into 2 or more deliberation groups). Issues to be tested commonly include: your client, exhibits, themes, and arguments.

Your Client: The most common and useful issue to test is your client. Having your client testify and be cross examined can help find weaknesses in your client and see how jurors react to him or her. a Mock Trial Focus Group with your client testifying can be useful to help your client prepare for deposition.

Exhibits: As attorneys we do not know if certain exhibits are going to be understood by jurors, or if they will be persuasive. Focus Groups can help us test several exhibits and see which resonate the most with jurors.

Themes: Having a theme in your case can help make the case understandable to jurors and can provide a continuity that is very effective in presenting your case. Focus Groups allow you to test out themes to see which ones have the most impact on jurors.

Arguments: of all the facts we attorneys have in our cases, we never know which will matter the most with jurors. The Focus Group can help. Perhaps even more importantly, we can use a Focus Group to see what facts or issues are missing and what assumptions they make. For example, while there may be no insurance, a jury may decide that there is insurance and that may sway their decision.

CAUTIONS IN USING FOCUS GROUPS: The biggest caution is that one Mock Trial Focus Group cannot determine one issue. We get ideas, we get thoughts, we get trends, but we cannot assume that the real jury will decide the issues the same way or will agree with the verdict amount.

Remember, when you do your Focus Group, make sure that the opposing side of the case is given the best arguments. If it is slanted, at all, in your favor, the Focus Group will be much less valuable.

This article was meant only to be an overview to encourage attorneys to do Focus Groups. There are many other issues affecting Focus Groups, such as confidentiality, snacks for the jurors, different types of focus groups, different types of deliberation panels, drafting of questionnaires, and other issues that can be addressed in other articles, or can be obtained through experience or study on the topic. Try doing a Focus Group or two, you will find that it is very useful, not difficult, and well worth the investment of time and money for even the smallest cases.

Joel Selik has been a member of the Nevada and California Bars Since 1985, with offices in Las Vegas and San Diego. In addition to producing low cost Focus Groups for Attorneys, Selik handles Medical Malpractice, Personal Injury, Real Estate and Business Litigation, Appeals and Collections. Joel Selik can be reached at 702-243-1790, 760-479-1515 or SelikLaw@aol.com.

Test your case before you go to trial. See how the Jury will think about your case