Focus Groups

FOCUS GROUPS - HOW TIME SPENT WITH MOCK JURIES CAN REALLY PAY OFF OUTSIDE AND INSIDE THE COURTROOM

by

KAREN WALKER

"Know how to listen, and you will profit even from those who talk badly."
                                                                                       Plutarch (46 AD - 120 AD)

What is a focus group?

A focus group (also known as a "mock trial" or "mock jury") is a tool used to gather information.  Participants convene in one location and are asked to engage in dialogue covering one or more topics.  Focus groups can be powerful tools for planning and decision-making and are particularly useful for exploring attitudes and feelings.

What is a litigation focus group?

A mock trial, as defined above, however one that is specifically charged with hearing a case.  Focus group members then become mock jurors and are asked to listen to the evidentiary presentation, review the jury instructions, engage in deliberations, render a decision, and then participate in questions and answers with the attorney(s) and/or facilitator.

Why use a litigation mock trial?

Perhaps the better question here is, how can you afford not to use a litigation focus group?  Foods are taste tested by focus groups.  Products are usability tested by focus groups.  Why don't more lawyers test their cases in front of focus groups before their real day in Court?  Doesn't it make sense to have real people from the same or a similar jurisdiction give real feedback to a case before it is presented to a jury?

What are the objectives of focus groups?

Determine the Strengths of Your Case.

A mock jury can help you determine which facts and arguments are most convincing and which are not as significant as you may believe them to be, thereby, helping you to determine upon which facts and arguments to build your case.

Determine the Weaknesses of Your Case.

A mock trial can help you determine significant weaknesses in your case that you had not considered.  Question the focus group about the negative reaction to your case and determine how or if you can change the participants' opinions.

Determine Information Gaps.

A focus group is an excellent tool to determine if you have clearly explained your facts, theories, and evidence and what questions potential jurors may have after hearing your case.

Simplify Complex Material.

Especially in highly technical cases, a mock trial can help you determine the most concise manner in which to present complex material so that jurors can fully understand and appreciate the issues.

Talk the Talk.

A focus group gives you insight as to how jurors talk and the language they use when discussing issues so you can speak effectively to them during trial.

Prepare Your Lay Witnesses.

A mock trial can be used as a tool to help lay witnesses become comfortable in presenting their testimony.  They can also be a valuable tool in helping you perceive the lay witnesses' testimony and the potential jurors reaction to it.

Prepare Your Expert Witnesses.

In the same way a focus group can help you prepare a lay witness, it can help you prepare an expert witness.  It can be used to help experts understand the extent of jurors' knowledge of their field and testimony and, thereby, help the expert to tailor their presentation to a lay audience of jurors.

Evaluate Your Demonstrative Exhibits.

A mock jury can help you determine the type of exhibits you need to present at trial (time lines, photographs, computer simulations, or text enlargements), the clarity and quality of your exhibits, and approprate time to present them during trial (opening, when the witness is testifying, or closing).

Evaluate Your Presentation.

Although a bit tougher to accept, a focus group can be a valuable asset to assessing your own presentation.  This is an excellent time to receive feedback on your style and tone of presentation, voice loudness, your sense of humor and how others perceive it, and even the clothes you wear in the courtroom.

Observe Deliberation.

A focus group deliberation is an excellent tool for observing how jurors work together, the deliberation process, and how they reach their verdict.  It can provide you with arguments used by the focus group participants for use during trial to persuade others to see your point as was done in the focus group.

The Danger of Jury Nullification.

During the deliberation process of a focus group, you can determine if your case involves issues that jurors would feel so strongly about that they would disregard jury instructions.

Create Your Trial Strategy.

From the feedback you receive in a focus group session, you can then create your trial strategy based on the strengths and weakness of your case, the effectiveness and ineffectiveness of witnesses and exhibits, and the order of presentation.

Create a Trial Theme.

A mock trial can help you determine a theme to your presentation from opening statements to closing arguments that ties the entire presentation together in a logical manner that the jurors will understand and relate to.

Find the Catch Phrase.

A focus group is a wonderful source for "sound-bites" that you can use during opening statements and closing arguments to concisely sum up your theme. (The famous "if it doesn't fit, you must acquit" phrase in the O.J. Simpson criminal trial reportedly came from a focus group session.)

Prepare for Trial.

You can use the mock trial session to practice your voir dire questions, opening statement, closing argument, and the way exhibits are handled and displayed.

Determine Venue.

A focus group is an excellent way to determine the amount of pre-trial publicity and/or biases that exist in the area and how it could potentially affect your trial.

Selecting Your Jury.

A focus group can assist you in developing specific questions for voir dire related to a particular event in your case, a potential weakness in your case, and personal experiences and/or characteristics that impacted focus group participants/ decisions.

Biases, Expectations and Assumptions.

A focus group can help you determine certain pre-existing biases that people have against certain ethnic groups, expectations about the character or conduct of people in certain professions, assumptions about the legal system, and the ability of focus group participants to hear and understand your case despite this.

Client Expectations.

A focus group can help your client see his case more realistically,  If your client has unrealistic expectations as to the value of his case, the chance for a favorable verdict, or the strength of his case, a focus group verdict may help him to change his attitude and expectations.

Settlement.

A mock jury deliberation and verdict can provide you with information you need to prepare a compelling demand package to submit to your opponent to convince him or her that settling the case is the best solution.

Alternative Dispute Resolution Proceedings.

A focus group can be used as a tool in other alternative dispute resolution proceedings.  They can be used in mediation to assist parties in keeping a realistic view of the case in order to reach settlement or in arbitrations and mini trials as "mock juries".

Contribution by Tracey L. Kookendoffer, Paralegal

ADR Works, located in Lexington, KY, offers alternative dispute resolution, mediation, focus group, and arbitration services to clients involved in disputes throughout Kentucky. Mediator and arbitrator Karen Walker serves clients in Fayette County and Powell, Wolfe, Estill, Perry, Knott, Johnson, Pike, Breathitt, Jackson, Laurel, Whitley, Floyd, Morgan, Rowan, Harrison, and Jefferson Counties - including but not limited to communities such as Georgetown, Nicholasville, Winchester, Frankfort, Richmond, and Paris.