Should you be using a focus group? That is the question every trial lawyer must answer before trying a catastrophic injury or high-stakes case. As trial lawyers, we live with our cases for years.
We talk about them with our colleagues, our spouses and friends. Before the trial begins, most attorneys have unscientifically and informally analyzed and brainstormed the case. However, rather than relying on gut instinct or preconceived notions, the most objective and informative way to determine how a jury will decide a case and gain valuable insight into key issues in the case is to present the case to a group of representative jurors. The key to finding an appropriate focus group of jurors is to replicate the typical jury composition in your geographic area-by age, gender, race, occupation and other identifiable factors. When you replicate your expected jury pool, you begin to replicate likely jury results.
The Decision to Use a Focus Group
Before you commit to a focus group, you must consider whether it makes sense for your case and, if so, what type of focus group you need. Focus groups typically cost $30,000 to $50,000 depending upon a variety of factors. With these costs, focus groups only make sense in cases with substantial damages or cases that have other significant implications.
Typically, focus groups are used after discovery is complete, as lawyers prepare for trial and seek to develop their case theory. That is not the only time focus groups can be effective. Today, few cases are won at trial. Even those cases that go to trial succeed or fail based upon the admissions obtained at depositions. Using a focus group at the beginning of discovery can help target your strongest case theories, identify key defenses, and explore alternate theories before critical depositions occur.
Focus groups can be invaluable when attorneys are asked to try a case in the weeks or months before trial. When our firm is retained on the eve of trial, we don’t have the luxury of letting trial theories marinate over years of preparation. Focus groups provide us with immediate feedback on what themes resonate and what ideas need reconsideration.
Presenting the Mock Trial
A typical focus group usually has 24 to 36 people who attend a mock trial. Our plaintiff trial team presents the plaintiff’s case and we use other attorneys from our law firm to present the defense case. The mock trial must be presented with equal skill for the plaintiff and defendant. No paper tigers. Don’t use evidence you don’t think will be admitted. Don’t try to stack the deck so that your side wins. Information and understanding of the opponent’s case, its strengths, weaknesses and vulnerabilities, are as important as learning the strengths and weaknesses of your own case-maybe even more.
The “clopening” approach is an effective method of presentation. Each party’s attorney presents a 30- to 60-minute combined opening and closing, which includes documents, photographs, excerpts of videotaped depositions and argument. The jurors use that video evidence to decide liability and evaluate the credibility and likability of the witness. At the end of each presentation, the group answers a series of questions about their opinions on the case and the evidence. After all of the presentations, the group will individually answer a final series of questions similar to a verdict sheet and then be broken into groups for deliberation.
It is both enlightening and uncomfortable to watch through a double mirror as mock jurors analyze evidence they saw, discuss information that was never presented (because it would never be admissible), engage in pure speculation, and discuss case theory and witnesses. This can show you how a juror views your case individually and allows you to target favorable jurors during jury selection.
Monitoring these deliberations shows:
- The strengths and weaknesses of the plaintiff’s case.
- The strengths and weaknesses of the defendant’s case.
- Issues and problems either side has that have not been addressed.
- Evidence or testimony the jury wanted to hear but didn’t.
- Who will win.
- How much they will award.
- How they evaluated the likability and credibility of the witnesses.
Watching the deliberations can also confirm whether your gut feelings during your presentation were right. Was that juror in the front row as big of a problem as you expected? Is she someone you would have struck from your panel? Watching deliberations can be about more than just what was being said, such as who was saying it and whether you saw it coming.
Using Focus Group Results
A properly designed and analyzed focus group can provide answers to those questions and more. Focus groups can also be used for settlement leverage. Presenting defense counsel and insurance adjusters with mock jury results can be powerful leverage at the settlement table. This can also help establish the basis for a bad-faith claim if the defendant refuses to settle despite these results, especially when they haven’t used their own focus group. It can help you understand the real value of your case. If, on the other hand, the focus group consistently rejects your theories and tells you that you’re likely to lose the case, you might want to reassess your stance on settlement.
Some attorneys believe they can’t learn anything of value from mock juries and can figure it out themselves. A more scientific, objective and sophisticated approach is to use a mock jury to better prepare your case for trial and enhance your client’s chance of success.
Robert J. Mongeluzzi is a founder of Saltz Mongeluzzi & Bendesky, where he focuses on cases involving catastrophic injury and death stemming from electrical accidents, crane accidents, aerial lift accidents, brain injuries, burn injuries, product liability and sports and recreational accidents. ?Andrew R. Duffy is a partner at the firm, representing severely injured people and their families. Jeffrey P. Goodman is an associate at the firm. He frequently gives presentations and demonstrations to other lawyers and law students on various trial techniques, including how to properly examine expert witnesses.