A Focus Group is a way for attorneys to gain insight from their cases through the objective presentation of case information to potential jurors in the community where they have an action. Conducting Focus Groups properly and understanding how to analyze and apply what is brought to light both qualitatively and quantitatively is critical to the successful outcome of the session. We have met with and seen dozens of attorneys who attempt to conduct and present their own Focus Groups, but do a very poor job because they cannot help but prosecute their case when they stand in front of the jurors. We have seen some of the best trial lawyers in the country try and fail. However, it is not their fault, that characteristic is what helps them be persuasive at trial, but it is not the best tactic when you are trying to test thoughts and reactions or obtain raw thoughts and information. At Total Trial Solutions, we pride ourselves on teaching our attorney moderators how to present information in an unbiased way, encourage open and honest discourse among potential jurors, and then analyze everything they learned in a detailed report.
There are a lot of ways. First, there are a few different types of Focus Groups that we conduct. However, no two Focus Groups are the same. Our attorney moderators spend dozens of hours preparing for each and every group. They need to learn every aspect of the case inside and out, and they consult with you to see what your goal of the Focus Group is. Remember our attorney moderators do this all the time. It is ok if you aren’t exactly sure where you want to go or what you want to test (or in what order), they can help you organize everything and make recommendations to you.
The short answer is: “Just about anything you want to know.” However, there are several aspects of a case that we commonly use Focus Groups to figure out for you. Here is a list of some of the things a Focus Group can help bring to light.
One of our most common types of Focus Groups are called Narrative Focus Groups, where the moderator slowly presents facts, one fact at a time, in order to discover which facts jurors attach to. We are looking for the “Just Can’t Get Over” facts, which are the facts that are so important to the jurors, that they can carry the entire case. When jurors just can’t get over a particular fact, or facts, they will continuously refer back to that fact. If it is a liability JCGOF (Just Can’t Get Over Fact), the jurors will say the event was totally preventable if only the defendant took specific actions. If it is a causation JCGOF, the jurors will say the plaintiff’s injuries are a result of this event because of the JCGOF. Lawyers are good at guessing which facts they think are the most important, but they don’t always guess correctly. Focus Groups give us the answers to the test. They take out the guess work. There are also Bad Just Can’t Get Over Facts, which have the potential to kill a case. Focus Groups let us know what they are as well, and lawyers need to know them. Focus Groups also help us discover ways to address those Bad JCGOF’s. For Example: “I can’t get over the fact that the plaintiff was looking at her phone when she fell.” Overall, once we learn the Good JCGOF’s in a case, we can frame the case, because the case should be framed entirely upon those facts that jurors think are the most important. And when we learn the Bad JCGOF’s, we know what we have to get out in front of. The Focus Group jurors help us get to this level of understanding.
Any good trial lawyer knows that themes are critical in any case you bring. However, sometimes lawyers get so caught up in the facts and evidence of their case that they lose sight of a simple story that a jury understands. This is the theme of your case. The theme needs to be identified early and embedded in every aspect of your case starting with jury selection. Next, your theme should be layered in your opening statement, the order of evidence presentation, the examination of witnesses, the cross examination of defense witnesses, and closing statement. Everything you do should be geared toward building and empowering your theme. Most lawyers understand the importance of a theme, but after a few trials, they tend to rely on the same theme and sometimes they go into a “routine” case with no theme at all. Our Attorney Moderators are always on the lookout for information in Focus Groups that will help develop a recommendation for a specific case theme.
Testing damages is important. The simple truth is that a lawyer has no idea how a jury will perceive or value their client’s injuries. Understanding how the community feels about the damages to a client can help prevent an attorney from overreaching when presenting their case or asking for an award. Nothing loses a jury faster than a lawyer who ends up looking like an ambulance chaser. Our moderators test which evidence of damages are the most important, which are less persuasive, and what the jury finds as going “too far.” Finally, our attorney moderators will often gain insight into how a person places a value on specific injuries and what that value is. This exercise is not designed to give the attorney a specific value on an injury; instead, it is to demonstrate where people fall and why they think the way they do. If the whole group values a case in the six or seven figure range, the attorney can have some confidence the actual panel will not be shocked when they ask in that range. However, if the lawyer believes that an injury is a seven figure injury, and no-one put it above mid-six figures, then we need to make some adjustments to the evidence or witnesses and retest (or ask accordingly).
The perception of witnesses, especially part witnesses or experts can make or break your case. Understanding how your witnesses come across prior to a trial is important. Our attorney moderators often play clips of witnesses to gauge jurors reactions to them. It is also enlightening to play clips of a witness explaining why something that can be viewed as negative to the case happened the way it did. Sometimes, we learn there are alternative ways to tell the same story. Experts, also get tested fairly often in our cases. Our moderators will sometimes present and compare experts on both sides of a case who wrote conflicting reports. This allows us to better advise why one is more believable than the other and possibly cure something that was lacking prior to the trial testimony.
Focus Groups can help you find language that resonates with a specific community or even sound bites that can be used in your case. This language and simple sound bites should be intertwined in your theme to communicate information metaphorically or even directly to the jurors.
Rats are the people who will kill your case. People that no matter how much information you present, they have a pre-determined mindset that cannot be changed. These people are dangerous and you need to know how to identify them and get them off your jury. Our attorney moderators are always on the look-out for rats, and once they find them in the Focus Group they hone in on them and give advice on ways you can find and identify them in the future.
Jurors are heavily tainted by television and crime novels. We have seen time and time again where people are stuck in what we sometimes call the “CSI twilight zone.” Jurors have minimum expectations on what they would like to see in a case. Sometimes, this has little to do with what the law actually says. Jurors sometimes check out when the judge talks or reads a charge. We have seen jurors ask questions of a judge during a charge that were answered minutes before, but they were not listening. That tells us that sometimes they don’t actually listen to or understand the elements of the law they are applying. Sometimes, simply meeting an expectation of a juror during the trial is enough to get them 100% on your side of the case. We find those expectations and let you know when they are there – so you can be ready to give them what they want to make a favorable decision.
Our attorney moderators pay close attention to identify and hone in on any negative attribution that jurors apply to a case. Sometimes people simply reject the most compelling part of your case because something else is present. Our attorney moderators are trained to identify this negative attribution and can often recommend a way to swift boat this within your case. Sometimes, this information can be so overwhelming among such a large sampling of jurors that it informs a decision to settle a case prior to trial.
Strengths identified are the things that our attorney moderators find that carry the day in case. These are facts and information that are so compelling that jury believes it is enough to decide the case favorably. You will want to build a strong theme around these facts. Our attorney moderators are also trained to dig deeper and find out why people feel so strongly about these facts. The truth is that jurors perceive and interpret evidence differently. It is critical to know how they all arrived at that fact so you can build your case in a way that includes every avenue to get to that point.
Attorneys will sometimes attend Focus Groups themselves and present specific parts of their case to the jurors. This allows the attorney to actually rehearse their presentation, but also for the moderator to uncover how people perceived the attorney and the information presented after the trail attorney finishes and leaves the room. Our attorney moderators then analyze the juror’s feedback and provide it to the trial lawyer to assist them in making adjustments.
We find Focus Groups to be invaluable when we send our lawyers or staff to assist with jury research, jury scouting or even jury selection. Focus groups can help develop which strategic questions should be asked and when. They also help you understand how to start to embed your theme into the Voir Dire. After all, the jury selection process should be structured in a way to identify jurors that will ultimately support your summation. This is also the time to identify core beliefs in jurors as well as reveal the rats on the panel. Conducting a high quality Focus Group helps you to understand exactly who you should be looking for on your jury and how to identify them.
Total Trial Solutions has been conducting Focus Groups for over 10 years and has presented over 1,000 cases in that time. We have developed a training system for our moderators and spend an average of one year training them before they are able to fully conduct Focus Groups on their own. Feel free to reach out to learn more about how we can help you gain insight and knowledge into your case.
Total Trial Solutions can help play a crucial role in showcasing your clients injuries fairly and accurately. Through the use of Client Biographies, DME/IME Attendance, eDiscovery and Document Management, Forensic Animations, and many more services TTS can assist your case in every step in the litigation process.
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