Typically, a focus group is comprised of twelve individuals who are brought together for two to four hours to watch a short presentation of a legal case and discuss the various issues raised. It is a way of gathering information about the attitudes, beliefs and values of a community. Some trial lawyers still doubt the value of focus groups. They say they are too expensive, or too unpredictable. For those skeptics, focus groups are invaluable.
Participating in athletics taught me life long lessons. For example, after being on the wrong end of a game, it was not unusual for a coach to address us and let us know that losing is an educational experience. As a child, that may have been true. As a lawyer, you do not need to suffer a loss to educate you on “what went wrong.” Talking with jurors after a verdict is reached can be a painful experience. You learn that certain issues or pieces of evidence were important to the jurors, assumed by them, or more importantly, misunderstood by them. Typically, our reaction is something along the lines of “I wish I would have known.”
Practice and preparation can make perfect. Focus groups enable attorneys to see first hand how a jury perceives the issues of the case. In doing so, you learn by preparation . . . not by losing.
WHAT DO ATTORNEYS LEARN THROUGH THE USE OF FOCUS GROUPS?
I. FOCUS GROUPS ASSIST ATTORNEYS IN EVALUATING THE VALUE OF CASES
A focus group can help you settle a case. It is amazing to see how quickly a client’s position changes after a focus group awards a sum much different than anticipated. A focus group can quickly open a client’s eyes as to troublesome liability issues. You will also see how a focus group analyzes the non-economic and economic damages of the plaintiff.
Conversely, there are times when lawyers are intensely concerned about the difficulty of some legal issue or factual dispute involved in a case. As it turns out, the focus group that hears the case may think these issues are not nearly as significant. Under those circumstances, a modest settlement offer, which may have been somewhat tempting before the focus group, may then be rejected with a greater comfort level.
II. FOCUS GROUPS SERVE AS A MEANS OF PRACTICE AND PREPARATION
World class athletes practice for countless hours before every contest. I find it ironic that we as lawyers will take a case to verdict, a case often involving enormous sums of money, and not use similar levels of practice.
A focus group allows the attorney the opportunity to practice and prepare for their upcoming trial. It is a great time to experiment with a new argument or see how a case them works. The attorney has the opportunity to look “jurors” in the eye and determine how the presentation of potential evidence and/or testimony will be received. Without a focus group, it may be too late.
III. FOCUS GROUPS ENABLE THE ATTORNEY TO DETERMINE IF A JURY’S ATTITUDES AND EXPERIENCES WILL CO-EXIST WITH THE FACTS OF A CASE
Focus groups furnish a valuable insight in cases that involve complex, controversial or disputed issues. One key to a successful focus group is the ability to have some type of direction or control over which issue you would like addressed. A fresh outlook obtained through a focus group, especially cases involving issues that you have not been associated with, can open your eyes and enable you to see and recognize more clearly the strengths, weaknesses and viability of such claims.
IV. FOCUS GROUPS ASSIST ATTORNEYS IN DESELECTING POTENTIAL JURORS.
Jury selection or “de-selection” is unquestionably one of the most crucial aspects of any trial. Focus groups enable an attorney to listen to a number of issues that impact a juror’s thought process . . . even though there may not be any evidence to support their views.
V. FOCUS GROUPS ELICIT REACTIONS . . . BOTH NEGATIVE AND POSITIVE
In our daily lives, it is not difficult to get reactions. How many times a day do you hear the question, “what did you think of the game last night?” Inevitably, there is a reaction. You need to know a juror’s reactions prior to the trial . . . not after a trial. It is disheartening to talk with jurors after a case and learn that they did not believe your client because a specific issue was not developed. If you would have known this fact prior to the trial, you may have won. In other words, you did not know what “buttons needed to be pushed” for these potential jurors.
Listen to the members of the focus group. People in focus groups ask questions that must be answered at a trial. To have the foresight to know the questions that jurors will have and to answer them throughout your case gives you power. It gives you control. It increases the probability of advocating your client’s rights. Going back to our formative years, I think we would all agree it would be much easier taking tests if we knew the questions ahead of time. Knowing what questions a juror will be asking makes it easier to take this “test.” Focus groups enable you to answer their questions prior to trial.
CONCLUSION
Focus groups are an invaluable tool. Focus groups permit attorneys to discover important and profitable information. They allow attorneys to create, test and/or evaluate themes prior to trial. More importantly, focus groups enable attorneys to thoroughly understand community attitudes or the way potential jurors will view certain issues in a case. Examining the results from the discussions and conclusions of each focus group will offer a wealth of information.
One word of caution to attorneys is that focus groups are not the Utopia in the trial of a case. One reason we have all been successful in the courtroom is because of our instincts in understanding the reactions of individuals. Rely on your instincts in the trial of your case. Do not set aside your own experience as a lawyer in making decisions about a trial.
Jeffrey J. Kroll has obtained numerous favorable jury verdicts and settlements for his clients in matters of personal injury, wrongful death and medical malpractice cases. He often uses focus groups to help give his clients the advantage and ensure a favorable outcome at trial or mediation. Contact the Law Offices of Jeffrey J. Kroll today if you or a loved one have been injured. Attorney referrals are welcome.