The Role and Usefulness of Legal Focus Groups in Case Preparation

What Are Legal Focus Groups?

Legal focus groups are a specialized form of research tool utilized primarily in the legal field, particularly during the case preparation stage of civil litigation. These groups are slightly different from market research focus groups and focus groups used in criminal cases because they are more precise in their objectives. For example, legal focus groups typically include a specific areas of law or legal theory to test based on the current mock case being litigated . These specialized focus groups are used to help attorneys and innovators better understand juror behavior, how jurors process information in a litigation setting, what types of evidence or arguments a juror may find compelling and what types of evidence or arguments a juror would dismiss. When conducted properly with strict protocols in place, focus groups can provide valuable insights on how a jury may receive or reject evidence and in helping attorneys hone their arguments during trial.

How Do Legal Focus Groups Function?

Legal focus groups are a common method of surveying a more representative pool of potential jurors prior to trial. They are covered extensively in the text, "Focus Groups: A Legal Perspective" by Wallace and Jewell, 2001, and used successfully by law firms all over the country to improve trial preparation and trial results. You can also view two of my recent videos on the effective use of legal focus groups. While there is no easy way to characterize a legal focus group since the basic methodology and parameters are not standardized, this article will provide you with a glimpse into how they operate.
A legal focus group should be thought of as an outside consultant providing early insight into the case, much like acquiring expert testimony. First, the lead litigation attorney who is most familiar with the case describes the focus group’s purpose, objectives, and parameters in a letter to the focus group moderator. The letter used for the focus groups discussed in this article is here. In addition to outlining the purpose, objectives, and parameters, the letter provides the specific issues on which feedback is sought and the time allotment for each. The list of issues gleaned from the attorney may fall into three categories: trial themes/strategies, perceptions/sensitivity issues, and settlement issues. Depending on the complexity of the case, there may be more or fewer issues than those presented in the example letter. Also, the listed issues may not address all trial related issues that are in the attorney’s mind.
On reviewing the issues, the focus group moderator may suggest tweaking the list of issues to improve focus group efficiency and/or effectiveness. The original issue list is not shared with the focus group until the end of the session when it becomes part of the recorded record. As it turns out, structuring and timing the session for optimum effectiveness is totally dependent upon the case complexity, attorney preferences, and the number of issues to be explored.
Then the focus group moderator proceeds to select the focus group panel of jurors. To improve the representativeness of the panel, the moderator should select participants from across a broad range of demographic groups within the jurisdiction of the trial court.
While participant selection takes time and effort, it is critical because that can make all the difference between success and failure.
Legal focus groups are conducted utilizing a single day, or a multi-day, session format. The same types of sessions can be used for case evaluations, jury selection practice, advanced jury selection, and settlement negotiations. Whether a single day or multi-day session is utilized depends on the number of critical issues to be explored. Both types of sessions are discussed below.
Single Day Sessions
Multi-Day Sessions
It is important to note here that the days of using a two way mirror to observe what is going on in the focus group room may be numbered! The focus group panel members of today are highly literate, sophisticated individuals who are fully aware of the methods used to gather information about them. Being observed through a two way mirror makes them uncomfortable!
The perceived or actual discomfort can introduce undesirable biases and flaws into the focus group process. In the case of litigants attempting to record the feelings of jurors, it is only natural that jurors are uncomfortable or feel violated being taped and observed. If they were asked to rank the different forms of focus group recordation from best to worst, the tape recorder and two way mirror would be on the bottom of the list.
Ten years ago I was an advocate of the video recording of focus group sessions. At the time, the technology was embryonic and cumbersome, as was the process of having the recorded material transcribed. Now however, transcription has become so efficient that it can be accomplished almost as quickly as the recording is made. In many cases, the transcribing of the video is now done in the court reporter’s office. As for the technology, it is so small in size and so reasonably priced that you can ordinarily take the entire package in a briefcase.
I am convinced that much more accuracy can be obtained by video recording the session, leaving the technical details up to the experts who know how to create the best quality video under varying circumstances. Video does take more time to set up and break down, but since videotaping offers the possibility of enhanced, more accurate, focus group reports, in my opinion that is time well spent.

Advantages of Legal Focus Groups

We cannot overstate how important it is to understand what goes on inside a jurors’ heads (and hearts) during the entire trial process and the deliberation process. We like to uncover what themes, stories, or experiences resonate with jurors. Behler says that jurors ask themselves "Is it true? Was what that witness said believable? Does what the witness said make sense?" Focus Groups can help attorneys prepare for these questions, and others jurors may ask themselves. Litigators worry about many things, from selecting a jury to presenting an opening statement. One of the scariest things about trial is that a jury could come back with a decision that has a huge impact on their client’s life and livelihood. We can use focus groups to help litigators test their favorite approaches, language, exhibits, witnesses, and even attorney styles in an environment where failure will have no impact on a live courtroom trial. Legal focus groups give you the ability to read a jury reaction to any aspect of your case before trial. Dr. Behler loves to work with focus groups and develop a personalized profile for each juror based on what they liked and didn’t like. He says, "By the end of a trial, it is clear to me who will be favorable and who will not." Focus Groups also give Rajan & Associates the opportunity to understand how much of a litigator’s time should be spent worrying about jury selection. Sometimes, we find through detailed interviews that one gender will be more favorable than the other, for example. In another case, it is clear that the ages of jurors matter. We can pre-screen people who are very unfavorable and weed them out, based on their answers. This saves enormous amounts of time. We typically run two focus groups, one for each side of the case, and focus on any "big ticket" items that we want to spend time on. For example, we ask things like: How much were you able to follow the presenting lawyer’s story? What you thought of a particular exhibit or witness discovered through the litigation process? Would you use this exhibit or witness in your own case? Did you understand the attorneys’ jury instructions? What would you change…what did you like? What could you not understand?

Legal Focus Groups vs. Mock Trials

As the legal industry moves away from the courtroom and even the traditional deposition process, delivering the best resolution for your client still requires the very best preparation in litigation. Once a trial is on the horizon, one of the ways in which we prepare our clients and their cases is through the use of legal focus groups.
The purpose and characteristics of legal focus groups are distinguished from those of mock trials in these key areas: Legal focus groups are usually small and informal compared to mock trials. It is common to have 12 or fewer participants, but we sometimes conduct a focus group as small as eight. Mock trials are often held in an area known as a jury suite to more closely simulate the courtroom scenario. Conversely, a legal focus group may be conducted wherever there is space available to hold a meeting. Further, we welcome ideas from the participants and allow for discussion after the jury instructions and evidence presentation, and we encourage all group members to participate. While a focus group somewhat resembles a town hall meeting, a "discussion" forum, or a panel breakout session at an event, they serve a different purpose. Focus groups are not for neighborhood outreach or marketing addresses. A focus group presentation more closely resembles that of a mock trial. In both situations, an attorney presents a jury charge outlining the pertinent law that governs the case, and then the jury is presented with the evidence in a manner similar to how it would be presented at trial (opening statements, evidence, and closing arguments). Focus groups and mock trials also differ by the intended outcome. Mock trials seek to establish a likely outcome for litigation matters based on the evidence presented and the applicable law, and they are executed in a manner that is highly structured. Focus groups prioritize preference, purchasing behavior, product preferences, and issues related to community outreach or marketing. Focus groups may address peripheral topics related to the case. For example, if the case is part of a broader industry group, there may be focus group research that seeks to determine brand perception or marketing effectiveness. When a client is seeking to gain market knowledge as an indirect byproduct of legal research, that is a focus group. Many attorneys have found great success by incorporating focus groups into their case analyses and strategies. Keep an open mind as you consider how this form of research may be useful in your practice.

How to Choose Individuals for Legal Focus Groups

Aside from the logistics of date and time, the next most important task in executing a legal focus group is selecting juror candidates who will represent the demographics of the real jury pool from which jurors are drawn. The specific demographics of jury pool depend on the community from which the jury pool is summoned.
Demographic Theories
Due to the size of most counties in the United States, communities regularly contain groups of like-minded individuals, essentially forming a community within the county. While the purpose of a focus group is not necessarily to replicate the real jury pool, we still want to have members who are demographically similar to jurors. For example, if the county contains a sizable predominance of community members who represent only a small percentage of the overall population, we want juror candidates representative of that group .
In the past, we were able to determine demographics through the use of telephone books, but this is now considered to be outdated. Today, in order to obtain accurate demographics from a community, we employ juror profiling and market segmentation tools to identify prospective jurors based on census data information as well as telephone and/or cell phone numbers.
Developing Juror Profiles
Focus group candidates are encouraged to discuss their views on a wide variety of issues, including free speech, employment discrimination, third party liability for misconduct, corporate personhood, etc. It is also important that candidates speak to issues involved in the case specifically. In selecting focus group candidates we also strive to recruit those who are statistically representative of people who will be summoned for jury duty from the community from which they will be called.

Common Issues and Solutions

One of the most common challenges of using legal focus groups is confounding legal arguments with behavioral science evidence. The bottom line is that if you have a successful trial strategy, you will want to conduct an unconfounded focus group unless you have no alternative. For example, if you are a plaintiff and the defendants’ argument contains many strong legal points, you may want to off-set sentiment on the quality of your evidence with the scientific fact-finder. The rule of thumb with science-class focus groups is that no movement in opinion or behavior should be attributed to the science itself. It is true that having a focus group participant directly experience a trial-like environment can influence opinions, which is what makes this "doing" versus "saying" so important.
Another challenge is knowing when to avoid focus group science altogether versus conducting a reliable, valid study. If, for example, you are facing a very easy causation decision in court, focus group testing should have little impact on your original trial strategy. If you know the other side has a solid argument, and you have put a lot of time and capital into a scientific study, it’s worth it to dig in and figure out where the fissures really are. At best, you want 4-6 people to disagree with you on an issue, and then you can begin to figure out what to do about it.
One of the most complex issues with focus group research is the qualification of the respondents. Respondent screening is an art, and it is not easy. You can ask the basic qualification questions (age, income, education, homeownership, marital status, ethnic heritage, employment status, etc.), but you have to go deeper than that. You have to get to their level of sophistication on the issue, and how much they really know. Negotiable arts usually work well to inquire about a respondent’s level of sophistication. They can provide you with more data than a yes or no question or a multiple choice question.
The last of the usual challenges with legal focus group research is improper analysis. It is important to analyze focus group research for patterns and trends. It is easy to get lost in the data and lose sight of the movement over the entire population or the entire case.

Real-World Instances of Legal Focus Groups

Case Study 1: Mass Tort Phenomenon
A significant mass tort phenomenon was tempered by careful use of focus groups to test trial themes both for the defense and the plaintiffs. In this case, the plaintiffs were alleging that some breast implants caused certain rare forms of cancer. While this disease was rare, it was also devastating, and the public at large was concerned. Using focus group research, however, the defense was able to show that these plaintiffs were seeking unusual damages for a rare condition, and this evidence was successfully admitted to rebut the damage case put on by the plaintiffs.
Case Study 2: The Death of a Child
In another situation, both parties in a civil rights case in which a police officer killed a child brought in outside experts as focus group moderators to prepare for trial. Two separate groups were prepared for the trial. On the plaintiff’s side, focus group participants gave the decision maker a sense that the jury might be less likely to convict a minority officer (the officer was Hispanic and the child a Hispanic) in this circumstance. While it was not possible to change the facts, it was a valuable step to take with the panel to educate the decision maker about community and potential juror sentiment regarding the case.
Case Study 3: Buried to Death
In a recent case involving the death of a young employee of a government contractor, the plaintiff initially filed against the employer, seeking mental anguish damages. Part way through the trial, the plaintiff revised the theory of liability to be negligence with the claim that the defendant had improperly forced the decedent to report for work in poor weather conditions, all of this over the objections of the defense. However, the defense was successful in its use of focus group research to convince the decision maker that standing up to the plaintiff’s attempted shift in theory was the right thing to do, and the jury returned a verdict for the defense on all counts.

The Future of Legal Focus Groups

For the past few decades, legal focus groups have become an increasingly common tool for trial preparation. Their ability to provide attorneys with a range of strategic options and a realistic view of how a case might be perceived by a jury or judge has made them invaluable. As Little & Associates moves into the future, we will continue to see this trend grow. For example, we have recently expanded operations to Massachusetts, South Carolina and Indiana. We expect that trends in the law and legal practice will continue to drive focus groups. Future trends in legal focus groups will include an increased emphasis on technology-driven methodologies. For example, focus groups may utilize online juror selection and communication tools, making it possible for a wider range of individuals to be accessed for research purposes in more geographic areas. A good example of this is the web-based tools we have used for online surveys – though we don’t expect online focus groups to become as common. While our client base is primarily in the United States , international interest is growing as lawyers in other nations are realizing the potential of focus group research, and the growing use of social media in countries around the globe, but especially in Europe, makes us believe that this interest will explode even further in the coming years. We expect that we will begin to see a broader focus group presence in foreign jurisdictions, where strategic litigation counsel are looking to focus group research as an extension of their domestic array of services for their clients. We predict that more focus groups will continue to be held before motions practice as well as at the close of discovery and prior to settlement conferences as litigators recognize that a jury trial is their "D" plan (after dismissal and summary judgment). Stay tuned, we will keep you posted when we learn more…