It is no secret that the novel Coronavirus is rapidly changing our world and how we operate as humans, as attorneys, and in our law practice businesses. Changes are happening every day and uncertainty is good for no-one. However, as humans, we have always been able to adapt to our environment, and this current situation is no exception.
Hopefully, it’s not news to you that the most important thing a trial lawyer can do to help ensure success is prepare, practice and test your case. Every time you step into court, you are stepping into a sudden death scenario (think World Series Game 7, not Hunger Games), and it is vitally essential for you and your client to make sure you are as ready and prepared as possible. A key component of this is preparation through a focus group.
In this article, I will share some options for conducting focus groups in a post-coronavirus legal landscape and outline some ways that you can still practice and keep your cases moving forward when the courts re-open. Information gained through focus groups will also continue to help you send the most important message to the other side – that you’re preparing for trial. However, to do that, we must first generally cover what a focus group is and why to use it.
The main purpose of a focus group is to gain knowledge about your case. While we as trial lawyers think we know how to best build up our cases, a focus group will help hone us in on the information and evidence that will truly carry the day. Through a focus group you can discover “just can’t get over facts,” uncover the weaknesses of a case, how to overcome those weaknesses, test demonstrative evidence and much more. Focus groups are an invaluable tool that should be utilized as often as possible. In the post-coronavirus world, we have learned that we can still conduct focus groups virtually using video conference software (ie. Zoom, RingCentral, Skype), and still get amazing insight into cases and gather critical feedback.
Generally, the first step in a virtual focus group (after deciding which video conference software you will use) is to set a date and time, then recruit a jury.
It may seem simple, but for anyone who has done it, they will confirm that scheduling and preparing for a focus group is quite an operational undertaking. First, you have to advertise for the group, collect the responses, screen potential jurors, select your participants, and then schedule a dress rehearsal a day or two prior so that you aren’t wasting time figuring things out the day of; and then you make the final coordinations and go live on schedule. It’s a new layer of complexity to the already difficult task of recruiting a focus group “jury.” On top of ensuring the right people are chosen, there is immense preparation required to conduct an effective focus group. Lawyers often try to “win,” focus groups. But that doesn’t necessarily help you. You have to methodically test aspects of your case to gather reliable and useful information.
There are various places to advertise for a focus group jury. We tend to use social media ads and Craigslist. First we place the ad strategically to target people who reside in the jurisdiction of the courthouse. This is especially important when testing damages as different communities have different views and influences. The advertisement may be something like “seeking people who are interested in participating for one day to help resolve some questions about a legal case – no experience needed.” However, in the post-coronavirus world, we also had to include the requirement that jurors have a computer with a camera and microphone so they may participate in the group, as well as a reliable internet connection. We then need a way to collect and store the respondents. We use a custom SalesForce build in our organization, but not everyone needs that. We do focus groups for hundreds of high value cases per year and need a robust system to track and keep that operation moving without re-using the same jurors and tracking who we want/don’t want when they become eligible to participate again. A simple spreadsheet will work for most firms (or you can put together a cool Google Form/Google Sheet integration on your website for people to fill out. Watch this video to learn how.
Once we receive responses from our ad, we also take an additional step to vet each potential juror to help ensure we have the right people participating. We try to get a good cross section of jurors to ensure a wide range of opinions allowing us to obtain the most reliable information possible.
Jurors should be compensated however they feel most comfortable. Typically, jurors were paid at the end of an in-person group by check. Now in this virtual forum, we pay by a traditional check sent to them, PayPal or Venmo, with the later two being preferred for us. It does require setting up accounts ahead of time. Be aware that they may see you trying to send multiple payments from a single account in the same amount and flag you as a potential fraud because of the repetition and new account. It is best to coordinate this ahead of time with the payment providers before you start recruiting jurors.
After our jurors are chosen, they are trained on the most effective ways to participate in the group. The type of focus group being conducted will determine what functions jurors may be required to use throughout the group. For example, we may need them to provide written feedback (can use survey software or even the chat box on the web meeting software). They need to know how to do this. Again, we do not want to train them the day of. We have a staff that only do the jury recruiting, vetting, and training.
Next, the moderation of the virtual group itself is very similar to that of an in-person group. The moderator’s role while conducting a focus group is to present information and steer the conversation in a direction that will uncover the most important information. This does not change during a virtual group, but doing so effectively requires adaptation from the conversational approach that is usually seen during an in-person group. It is also highly recommended that someone from your staff be on to assist the moderator. If something comes up with a particular juror, you will want someone available to help troubleshoot without tying up the entire group.
Normally, an in-person focus group is typically conducted with the goal of having 10-12 jurors participating, but sometimes more. This does not change for a virtual group. Both types of groups take roughly the same amount of time (assuming the proper preparation was done beforehand). The biggest difference between an in-person group and a virtual group is the limited ability to read body language. Unfortunately, we are limited by the abilities of technology and nothing will truly replace the read you are able to get on someone in person. On the other hand, with all of the jurors faces in view at all times in a virtual format, you are able to better asses, in real time, how each juror responds to a question or statement made by the moderator or another juror.
That is also why we record all focus groups (live and virtual). It is a critical step that we go back and watch the focus groups and pick up on the non-verbal queues and try to spot any jurors that may be taking mental shortcut (heuristics). We want to note that in our analysis report.
This is sometimes tricky, but can be accomplished with practice. During an in-person group cross talk is always encouraged, which allows the moderator to jump in when something important is said by a juror to focus in on that point further. However, in the virtual forum, cross talk is less readily available due to technological limitations. When more than one person tries to speak at the same time, both participants are “drowned out” by the other and no one is heard. There are a number of ways this can be avoided such as muting all participants and unmuting them in an orderly manner or having the jurors give a visible que to indicate they have something to add, such as raising their hand, but this does not replace the fluidity of an in-person conversation. That is probably one of the biggest difficulties and requires both the moderator and assistant to pay close attention so they can pick up on opportunities and encourage it when it arises. Sometimes you have to unmute everyone to see how a discussion pans out.
With that said, we have found that the information obtained through a virtual group is just as reliable, if not more so, than an in-person group because the virtual forum requires the moderator to have more control over the conversation. If a juror becomes uncooperative during the group or will not allow others to speak, there are functions the moderator has control of such as the ability to mute jurors, shut their camera off, or dismiss them from the group entirely. It is a far less invasive method than during a live focus group.
COVID-19 has forced a global need to adapt to a new way of going about our everyday tasks. Focus Groups are no exception. The silver lining, though, is the information gained in this virtual forum is just as reliable, if not more so, than an in-person group. The pool of potential jurors is larger now that many people have found themselves out of work or just looking for something to do. The typical person that holds a 9-5 job would usually not participate in a focus group that is scheduled during a work day. This online format paired with the fact that there are more people looking for temporary work lends to a more diverse pool of jurors that participate in our virtual groups.
One final consideration is that you should be aware that technology may cause some age limitations.
We all know that the legal system wants the jury to be a cross section of the community, but as plaintiff attorneys, we absolutely want the jury to be one that will see our point of view and award us what we want. A lot of systems of voir dire have guidelines about what a perfect juror is. I say, your focus group will tell you just who that person is. However, you need to be able to get certain people into the focus group before you can start to build juror profiles. We have found that making the transition to virtual focus groups has posed issues not present in person. There is a definite risk of losing potential jurors right off the bat because of a lack of technological understanding. These are typically elderly jurors who do not utilize technology as you or I do. Unfortunately, due to this potential bias, we have seen a decrease in the number of elderly jurors signing up to participate in our groups. At present time, losing out on a potential demographic seems to be an unavoidable trade-off to not conducting groups altogether.
During this post-coronavirus time, we have been forced into re-thinking how a focus group should be run and have some discovered some new and unique challenges. However, this re-thinking has also revealed that this virtual forum uncovers information that is just as reliable, beneficial and rewarding to our end goal as plaintiff lawyers of representing our clients to the best of our abilities. Here at Total Trial Solutions, we highly recommend you do not hesitate to utilize a virtual focus group for fear that the information gained is tainted or unreliable in any way.
If You Need Help with Your Virtual Focus Group
If you have any questions or concerns regarding what needs to be done or how to conduct a virtual focus group, please reach out and we will be happy to assist in any way we know how. Further, if you have any cases that you think may benefit from a focus group and would like us to host a group for you, please reach out to get the ball rolling!