Focus Groups

"Is this going to be on the test?" Much to the chagrin of pedantic professors, shrewd students from time immemorial have asked this simple question. And trial attorneys need to ask it themselves when preparing their case. Like the student faced with a complex body of materials before an exam, an attorney's file contains hundreds of factual and legal issues. Knowing what is going to be on the test is as helpful to the trial lawyer as it is to the shrewd law student.

The "test" for a trial lawyer is the verdict form.  And the answers are the jury's completed responses. One of the best tools an attorney can use to learn the likely answers are focus groups. Our firm uses focus groups to learn the answers to the test before trial. By presenting the case first for a focus group, an attorney learns what facts and arguments are truly important to the verdict. More importantly, presenting a case for a focus group provides invaluable information about jury deliberations, a part of the case that even seasoned attorneys have little insight.

Watching a focus group deliberate is truly a life changing experience for an attorney who is used to standing outside the deliberation room pacing to await the verdict. The first lesson learned is how few jurors are truly persuadable. Instead, most jurors build their own narrative very early in the presentation and maintain it to the ultimate verdict. In focus group exercises where the jurors are polled about their likely decision at the various stages of the presentation; very few of them actually move or change their decision. What is most surprising is how little deviation occurs from the first poll conducted after a brief summary statement of the case.  Defense orientated jurors tend to assemble facts and arguments selectively from both presentations that support the defense perspective; and plaintiff orientated jurors do the same. In most exercises, there is only a very small minority of jurors that actually change sides after hearing the more detailed presentations from both sides. In other words, while jurors state and represent that they will keep an open mind about the evidence throughout the case, very few of them actually do. This suggests that jury selection is the most important stage of the trial; followed in importance by a strong coherent opening statement. Even the most effective advocates with compelling presentations fail to sway jurors orientated to their own particular narrative. The key is selecting the jurors who are likely to be most receptive to the narrative favoring your client; and tailoring the presentation to the arguments that are consistent with that narrative.

Intuitively, we know the same principle from US politics. A candidate debate rarely sways a significant percentage of voters, and national elections are decided by a small slice of undecided voters. What a debate can do is affect the voters that are in play, or sway the tiny percentage of voters that are persuadable.  The same principle becomes apparent through a focus group exercise.

In other words, careful trial preparation requires more listening than preparing for advocacy. It is critical to discover the prevailing narrative of sample jurors to the dispositive questions in this case. The strength of the arguments often bear little relationship to how the jurors will answer the questions. Many focus groups use instant feedback meters that provide information about arguments that individual jurors find helpful or persuasive. It is very disconcerting to watch a juror whose meter consistently finds your presentation and particular arguments "helpful," but answers the questions adverse to your client. Indeed, the juror may find the argument helpful, but he or she will make it fit their narrative.

Trials are not attorney competitions where the jury is being asked to vote on who was the most effective advocate. Success depends upon how the jury answers the actual verdict questions. After observing several focus group exercises, and evaluating the data, it is clear that the shrewd student has the correct approach to trial advocacy. Its all about the answers to the test. And the only way to get true insight into the answers is to find out how your likely jurors are going to answer those questions. Absent a focus group, it is very easy for an advocate to mislead him or herself into what arguments are likely to be persuasive and win the day. We need to start advising our clients that what the attorneys and clients think are important to the case are necessarily secondary to what likely jurors think is important. Conducting a focus group is an important tool to educate yourself and your client