One year ago, in January 2016, I wrote about correctly conducting focus groups. I recommended an article from Trial Magazine by attorneys Philip H Miller and Paul J sculptor. Over my fifty years as a trial lawyer I have been involved in many dozens  of focus  studies. I also have  observed focus studies done by others and read articles about focus studies. My experience was a feeling they were not qualified and the writing often inaccurate. When I read the  article, however, I was struck by the accuracy and quality of their observations so I strongly recommended reading it. Coincidentally, in the January 2017 issue of Trial, the same two lawyers have once again published an article entitled “Five Rules for Effective Focus Groups” which I believe should be required reading for lawyers who want to know how to run a focus group the right way.

My experience has been that the lawyers conducting focus studies and even some consultants have the wrong objective. Rather than having a goal of discovery of initial impression feedback regarding issues, exhibits or other aspects of the case, their goal appears to be testing their ability to convince the group of their position. The authors point out that “focus groups can add ambiguity to the case and suggest misleading answers to case critical issues.” They recommend spending time analyzing what is needed in advance of the study, doing multiple studies and doing them early enough to allow for adjusting discovery before trial. Otherwise, they point out it is a situation of “garbage in, garbage out.”

Here are some other observations they make. They suggest that you consider the following questions from a focus juror perspective  before the study: (1) why is this case important? (2) how can we know we aren’t being scammed or defrauded by this evidence? (3) has this happened before? (4) are there any rules or laws we can use to decide this case and (5) is there a message that needs to be sent?

One of the suggestions they make is that instead of the study being a general explanation of issues, it should test the strengths and weaknesses of the case. They next recommend that in order to get valuable and reliable information, that one uses multiple focus groups, provide a balanced presentation and utilize a question outline they provide in a list. Their list is a comprehensive checklist of items to be covered in the focus group. It includes such things as suggestions like “ask “why?” A lot. Avoid assuming the first response is everything you need to know. Ask “what else?” They recommend a technique which is helpful where the group is asked to “fill in the blank” for such questions such as: the defendant should have…. the person I most want to hear from is…., the evidence that was most important to me was….,and this would never have happened if…”

I’ve written about the problem of “confirmation bias” on many previous occasions. The authors discuss this and point out that all people are affected by this mental process, regardless of education level, social standing or worldview. As they point out “we all hear what we want to hear and see what we want or expect to see. When testimony or evidence in the case contradicts what we already believe our first response is to minimize it by assuming our witness expert or of her evidence has more persuasive weight and when we look at a photograph we see what we want to see and minimize the rest.” Confirmation bias is at its strongest when dealing with emotionally charged issues or deeply entrenched beliefs. Focus groups are a way in which we as trial lawyers can deal with our own confirmation bias problems.

Another source of helpful focus group and communication information is from Frank Luntz. Frank Luntz is unquestionably one of the most experienced experts in communication. He has a website Luntz His book Words That Work, is an excellent source of information about communication. His premise is: “it’s not what you say. It’s what they hear.” His advice is that we understand our audience, the opinions, attitudes and emotions that make them tune in or tune off. His service to the Republican Party has been to pinpoint language that garners support and inspires action by delivering a message that resonates and drives results. The TV program 60 Minutes featured Luntz conducting a focus study following a presidential debate. I recommend reviewing the short video not for the results of the focus study, but to watch how he conducted it. Most notably you will see that more than 90% of the talk comes from the members of the focus study and not Luntz. One of the primary faults of lawyers conducting focus studies is that they reverse that percentage and then some. They do all the talking and even argue with the responses. The other characteristic to note is that his questions are cryptic, short  and call for impressions. Most lawyers conducting focus studies make the same mistake they make in court conducting witness examination. They make their questions too long, too complicated and distracting.

Luntz on the other hand, did things such as saying  to the group “on the count of three yell out which candidate you thought won the debate.” He then measured the respective volume of responses and decided it was evenly balanced. The significant thing is that he asked them to yell it out. Quick, spontaneous and all impression response. He also said “describe in one word what you thought of her performance.” The result was pretty amazing because people had one descriptive word that was very revealing as to their inner feelings. A much better technique than asking for long explanations. He used the the helpful question: “how do you feel about?” a lot. Significantly he never commented about the responses he received, but only moved on to another person. At one point he played a video clip from the debate and said to them: “did he show the temperament you are looking for in a president? Why? He asked questions like: “how many have overall positive opinions about the election? How many have an overall negative opinion about the election?” And, he asked “does this election make you feel more optimistic or pessimistic, raise your hand.” All short and simple questions which produce gut level responses.

For me the significant fact was that this was not an ego trip for Luntz conducting the study. He made sure to minimize himself, ask questions that were simple and short and otherwise facilitate audience response without inhibition by him. My feeling is that lawyers have a over simplistic idea about conducting focus studies and are often wrong about their conclusions. Lawyers generally think they know more than anybody else, but in the case of focus studies my experiences they are badly in need of experienced and competent consultants if they don’t want to have garbage in and garbage out.

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  1. Mark Swendsen Sr says:

    I especially liked this post.
    Confirmation bias is deadly, just deadly, both for the jury and for the lawyer trying to do a focus group. It smothers everyone’s ability to evaluate negative evidence.
    In Deanna Kuhn, Michael Weinstock and Robin Flaton, “How Well Do Jurors Reason? Competence Dimensions of Individual Variation in a Juror Reasoning Task,” Psychological Science, vol. 5, no. 5, Sept. 1994, p. 289, researchers found that jurors not only looked for evidence confirming their own individual story of what the case is about, and ignored evidence to the contrary; they even actually mentally manufactured their own evidence to explain why their story was correct—that is, the story each individual juror had made up in their minds about the case.
    Story telling is supreme. It controls everything, including the evidence.
    So, how do you make sure your own mental story doesn’t strangle your own evaluation of the jury, the evidence, and your case?

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