Contributing Attorney

John A. Kiselak, Esq.

the Topic

How Can A Focus Group Help My Case?

Whenever I speak with a trial lawyer who has never used our focus group services before, the two most common questions they have are: 1) how a focus group can help them win or settle their case, and 2) how much it will cost. If a seasoned trial lawyer is reaching out to me in the first place, there is usually an issue in their case that concerns them, and their gut is telling them it would be a good idea to learn what actual prospective jurors in the community think about that issue, as long as it will be cost efficient to do so.

While most trial lawyers are very good at predicting how jurors will perceive the facts and issues in a particular case, nobody can guess correctly every time. And the best trial lawyers understand that. More importantly, they realize knowledge is power. After all, who wouldn’t want to have the answers to the test ahead of time if they could? So, then the question becomes why some trial lawyers still aren’t using focus groups. It would seem the answer, generally speaking, is fairly straight forward. Many trial lawyers just haven’t used a focus group before, so they don’t know the value they can derive from one. For that, I hope to shed some light here.

WHAT CAN I LEARN FROM A FOCUS GROUP?

The short answer is you can learn anything and everything from a focus group, but here are some specific things attorneys commonly seek to learn:

  • Just Can’t Get Over Facts
  • Perceptions of your Client
  • Effectiveness of Opening Statements
  • Voir Dire Efficiency and Juror Profile Building
  • Impact of Demonstrative Evidence
  • Apportionment of Liability
  • Value of a Case/ Overreaching
  • Mediation Clips

Just Can’t Get Over Facts

First and foremost, focus groups help us learn the facts in a case that jurors “just can’t get over.” These just can’t get over facts can be good, with the potential to carry your case, or bad, with the potential to kill your case. Either way, you need to know what these facts are. There can be just can’t get over facts pertaining to liability, causation or damages.

Since the good just can’t get over facts are the facts that you want to build your entire case around, it is especially important to know what they are from the outset of your trial preparations. We often present narrative focus groups for the sole purpose of discovering the facts that jurors just can’t seem to get over. I can’t tell you how many times I’ve walked a group of jurors through the facts of a particular case, one fact at a time, and ultimately learned something of critical importance to the jurors that the trial lawyer ordering the focus group had not given much thought to at all. And this is no fault of the lawyer. It is impossible to predict what facts jurors will think are important in every case, when no facts are ever entirely the same.

Just Cant Get Over Fact Example (The Waterpark)

I recently presented a case to a focus group involving a plaintiff who was seriously injured at an outdoor waterpark when his foot struck a chain underwater as he was running across an attraction called the “Lily Pads.” This attraction invited patrons at the waterpark to run and jump across five circular foam discs, floating on top of the water, which were connected to the bottom of the lake with chains and carabiner connectors. One big issue in this case was that the plaintiff never actually saw what cut his foot, because the chains were underwater.

Naturally, the plaintiff’s lawyer wanted to gauge jurors’ feelings about causation for his client’s injury, based on photos of the chain and connectors, taken during the inspection thereof, and photos of the plaintiff’s wound, taken shortly after the event. When I showed these photos to focus group jurors, a just can’t get over fact emerged. The jurors noticed a red circular indentation in the plaintiff’s skin that correlated, they said, with the flat part of the open carabiner “hook,” which connected the chains underwater. Once one juror noticed this, all of the others agreed, and it was like a lightbulb turned on.

Once one juror noticed this, all of the others agreed, and it was like a lightbulb turned on. 

Using Focus Groups in Legal Cases

At this point, all of the jurors agreed the plaintiff’s injury was caused by this chain, and they were able to easily cast aside the defense’s main arguments. This was a just can’t get over fact with the potential to carry causation. And there were other just can’t get over facts that we learned in this focus group as well, pertaining to liability. For instance, the jurors could not get over the fact that the waterpark’s owner purchased these Lily Pads at an auction, for $200, and then had them installed without reviewing the manufacturer’s safety manual, which would have required a plastic sheath to be installed over the chain. If only the owner had done this, the jurors said this unfortunate event never would have occurred. Armed with these newly discovered just can’t get over facts, it was then possible to frame this case in a way that would laser focus jurors’ attention on the facts that we learned were important.   

Now, to be clear, it is every bit as important to discover the bad just can’t get over facts with the potential to kill your case. Focus groups help us learn these facts as well. More importantly, focus groups help us uncover ways to get around the bad just can’t get over facts. If a bad just can’t get over fact is really powerful, it may not be possible to totally get out in front of it, but it is almost always possible to “dent” it, and that may be all you need to do to win your case. But bad just can’t get over facts cannot be ignored. They must be uncovered and addressed. Whenever focus group jurors say they wouldn’t have done what the plaintiff did in a particular situation, or that they wouldn’t have been in that situation in the first place, the jurors are presenting negative attribution. It is important for the plaintiff’s lawyer to hear this, because they need to know how to deal with it. A skilled focus group moderator knows exactly what questions need to be asked, in order to discover all the acceptable reasons for a plaintiff’s conduct, thereby enabling the plaintiff’s lawyer to get out in front of the landmines.

John Kiselak, Trial Consultant

Perceptions of your Client

We have recently seen a surge in focus groups directed at learning how jurors perceive a particular plaintiff as a witness. Lawyers are often concerned that jurors won’t like their client, for any number of reasons. For example, maybe this plaintiff seems to have a fuzzy recollection about how they were injured, and their lawyer is worried that jurors won’t believe them at trial. Or maybe this plaintiff has a tattoo that jurors may not like. What if the plaintiff claims to have a brain injury, but they look and sound just fine? Criminal record? Overreaching concerns? Whatever the concern[s] may be, it is always helpful for the lawyer to see how jurors in the community actually do perceive their client, prior to trial, when there is still an opportunity to prepare them and do something about it. So how do we achieve this? We simply film the client, and possibly other witnesses who may be called to testify, and then we play the videos for focus group jurors and gather their feedback. We have recently begun using Zoom to film these interviews, making the process even more efficient. Focus group jurors are quick to point out everything they liked and disliked about the testimony they witnessed and, regardless of what we learn, there is an opportunity to prepare the client and further boost their confidence prior to trial.

 

John A. Kiselak, Esq.

Focus group jurors are quick to point out everything they liked and disliked about the testimony they witnessed and, regardless of what we learn, there is an opportunity to prepare the client and further boost their confidence prior to trial.

 Opening Statements and Voir Dire

Another benefit of a focus group is that you can test the impact of your opening statement on jurors, and then utilize the feedback you obtain to revise and improve your statement prior to trial. When we hold this type of focus group, the trial lawyer reads their opening statement, either live in person or with Zoom online, and then the moderator elicits feedback from the jurors. In this way, jurors can tell us what they thought was important, anything they would still like to know, and anything they disliked about the opening statement. Importantly, we can also obtain any constructive feedback the jurors may have for the lawyer who read the statement. When we obtain all of this feedback from focus group jurors, we learn whether the statement had its intended impact on jurors and, if not, what needs to be done to make that happen. I can think of one case that sticks out in my mind, where the plaintiff’s attorney initially read their opening statement, which was heavily focused on the defendant employer’s hiring practices, but then the jurors told us the case really should have been focused on the defendant’s lack of supervision of a certain employee. Based on that feedback, and much more, the attorney then went back to the drawing board and revised their statement, which we then retested at a second focus group, with a much better result. When we are working on a significant case, like this particular case, it is common for a trial lawyer to test their opening multiple times before they are confident with the version to be used at trial, when it counts.

In much the same way, attorneys can also test their voir dire questions with focus group jurors, in order to discover whether their questions have the desired impact of uncovering the “rats.” Trial lawyers understand the importance of discovering and eliminating jurors from the jury panel with core beliefs that will make them bad jurors for their case. But asking the right questions, which will actually cause these jurors to reveal themselves, is a matter of art. With a significant case, it is a great idea for the trial lawyer to test their voir dire questions with a focus group, make some predictions about which jurors they would want to keep and/or eliminate, and then watch and learn as a moderator presents the facts of the case, thereby building the attorney’s confidence level prior to trial.

 

Focus Group Voir Dire

Impact of Demonstrative Evidence

Focus groups are an excellent way to discover jurors’ thoughts about demonstrative evidence that you are considering putting before a jury at trial. As highlighted above, it is always a good idea to learn what jurors see in photos, because a group of 10-12 jurors will often see something in photos that was previously missed. In addition to photos, we also use focus groups to test animations, medical illustrations, timelines, surveillance videos, graphs, and other demonstratives. Trial lawyers know how powerful a good animation can be on a jury.  Animations also present a significant expense, so it is critically important to make sure they have their desired impact on jurors prior to trial. Medical illustrations and timelines are also very powerful, but they can easily have an undesirable impact on jurors. I recently presented a case to a focus group where the plaintiff was injured in a car crash, and then she received medical treatments over the next five years or so, before ultimately undergoing surgery. The plaintiff’s lawyer had a medical timeline created as a demonstrative, and when I presented it to a focus group, all of the jurors thought that it was a defense exhibit because, in their opinion, it tended to highlight gaps in the plaintiff’s treatment. Needless to say, it was important for the plaintiff’s lawyer to receive this feedback so this timeline could be adjusted or scrapped altogether. On the other hand, if this timeline wasn’t tested with a focus group, the plaintiff’s lawyer may have, unknowingly, gone on to trial and helped prove the defendant’s case.

Whenever there is a surveillance video that may be presented at trial, it’s always a good idea to see what jurors think about it ahead of time. Lawyers can’t help but be biased, and depending on what side you are on, you see what you want to see in a surveillance video. Focus groups take out the guess work. Just last week we played a surveillance video depicting a pedestrian being struck by a car near a crosswalk. It certainly seemed to me, from my point of view, that the defendant driving the car had plenty of time to stop before striking this elderly pedestrian, who was just outside of a crosswalk. But I don’t get a vote. The focus group jurors didn’t see it that way, and this was important for the plaintiff’s lawyer to know. More importantly, we learned that the surveillance video, by itself, would not carry the day for this plaintiff. There was a bad just can’t get over fact (i.e., police accident reconstruction report), which totally outweighed the fact that the defendant appeared to be going too fast in the surveillance video. Most importantly, we learned the plaintiff would need an expert to “dent” the impact of the police accident reconstruction report, with the potential to kill the case.

 

Apportionments of Liability

Whenever there is a significant case with multiple defendants, or when it appears a plaintiff may be comparatively at fault for their own injuries, lawyers typically want to know how jurors will apportion responsibility between the parties. The plaintiff’s lawyer may be considering settling against one or more defendants and, in that situation, there is always a concern about the “empty chair” in the courtroom. Focus groups help with this dilemma. In medical malpractice cases, in particular, there are very often several defendants with potentially culpable conduct, and focus group jurors tell us exactly which defendants, if any, hold responsibility for the plaintiff’s injuries and, more importantly, why. When it comes to liability verdicts, I generally take written responses from the focus group jurors asking them to apportion responsibility between the parties. In doing so, the jurors have an opportunity to consider all the facts and evidence they have been presented, and then provide their own opinions about liability without being influenced by the rest of the group. I then take the jurors’ feedback and enter in into a chart, which is included in the back of my focus group report.

Value of a Case/Overreaching

Without a doubt, one of the main reasons plaintiff’s lawyers consider doing a focus group in the first place is because they want to know how jurors in the community value their client’s damages. This is where, it seems, lawyers become much less willing to trust their guessing ability. And whenever a lawyer wants to know how jurors value their client’s case, I’m always happy to gather that feedback from focus group jurors, after thoroughly presenting all the facts and the chief arguments from both sides. Ironically though, the damages numbers jurors provide are really some of the least valuable information we gather from focus groups. On the other hand, it is important for us to learn why some jurors are willing to award numbers on the high end, as compared to those jurors who award the least. Some jurors have Key Beliefs and personal biases that would make them excellent jurors for a particular case, and focus groups help us better learn how to discover jurors like these in voir dire and keep them on the panel. By contrast, other jurors have Key Beliefs (e.g., compassion fatigue, tort reform) that simply won’t allow them to award full and fair compensation to an injured plaintiff. Focus groups help us figure out which questions may reveal poisonous jurors like these as well. There is another very important use of focus groups with respect to the damages side of the case. Focus groups help uncover any overreaching in the plaintiff’s demands.  Seasoned trial lawyers know that overreaching can destroy a good case. But how do you know if one of the items in your plaintiff’s life care plan will be perceived as overreaching at trial? This is not easy to predict. When I present life care plans to focus group jurors in significant cases, I allow them the opportunity to tell me whether each of the itemized future medical needs for a particular plaintiff seems reasonable. And when 11 out of 12 jurors react with shock and surprise to a certain cost listed in a life care plan, which happens all the time, this is critically important feedback. I should add that jurors don’t only react this way about high cost items, like home health aides. Rather, sometimes jurors totally disagree with low cost items (e.g., $10 for a cane every other year), and this has every bit as much potential to kill a case if jurors perceive overreaching.

When 11 out of 12 jurors react with shock and surprise to a certain cost listed in a life care plan, which happens all the time, this is critically important feedback.

Mediation Clips

In recent years, trial lawyers have begun to realize the value of utilizing focus group clips in their mediation presentations. Whenever we hold a focus group, the entire session is recorded, and we always offer the attorney ordering the group the opportunity to have some powerful clips cut for mediation. There are many different ways the attorney may choose to use the clips, including Power Point presentations and settlement demand communications with opposing counsel. Some attorneys just like to keep some great focus group clips “in their back pocket” at a mediation, in order to quickly shut down defense arguments at the ideal time, with actual feedback from focus group jurors. It is always helpful to have additional arrows in your quiver.

MAKING THE DECISION

The examples above are just a handful of some of the most common reasons why we use focus groups for legal cases. But let me be clear, not every case is worthy of being presented to a focus group, even though knowledge is always power. There is, of course, the cost factor, and not every case has the value to support the cost of a focus group. As a general rule of thumb, if you have a case ranged at less than $100,000, then you most likely wouldn’t go forward with a focus group, because the costs may start to outweigh the benefits. But if your case has significant value, and you think a focus group may assist you in your trial preparations moving forward, we are here to help.

There are three main phases of a focus group (i.e., 1) preparation, 2) presentation, 3) interpretation and reporting), which could form the basis for a different article. But long story short, it generally takes an attorney focus group moderator a few days to fully prepare for a 1 ½ – 2 hour focus group, and then a few days, on the other side, to watch the focus group video, interpret the jurors’ feedback, and draft a detailed report. All in all, the process takes time. But our costs are always all-inclusive, and they are based on the length of time utilized during the focus group presentation. Of course, all the other costs involved with recruiting and screening the focus group jurors are included as well.

CONCLUSION

If you have any questions about how a focus group may help you with your case, please feel free to reach out. We are here to assist you. An experienced focus group moderator attorney will be happy to consult with you about your case and discuss what type of focus group may work for you, at no cost whatsoever. We look forward to working together with you.

Legal Focus Group

About the Author

John is a Trial Consultant at Total Trial Solutions. He has 5+ years of experience as a skilled Senior Focus Group Moderator where he has gathered information and conducted analysis to help attorneys and law firms organize and perfect their highest value and often, most difficult cases in a way that juries can understand and relate to. John earned his Bachelor’s degree in Business Administration from Marist College and went on to earn his Juris Doctor Degree from Pace University. John’s passion for law led him to Total Trial Solutions. When John isn’t working, he’s spending time with his two sons, rooting for the Denver Broncos, enjoying backyard BBQs, beach vacations, reading, watching Netflix, and playing chess.

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