Over many years of my law practice one of the most valuable things I regularly used was focus studies for my cases. I made a study about conducting them, hired difference jury consultants, with often differing ways of conducting them, and generally spent time learning all I could about the correct way to conduct them for the most valid results. I also learned how too often “vanity” studies were done by lawyers who thought they knew how to run them and ended up with “false positives” they too often relied upon to their clients determent. My goal was to find the best means of using effective ways of getting past the conclusions people expressed to reach what really was their underlying opinions and views. The search was for “gut reactions” that really reflected how they felt rather than the words that often were based upon trying to be politically correct or saying something they thought the lawyers wanted to hear.
I discovered there was and continues to be a great deal of inaccurate descriptions by lawyers and by consultants about how to correctly conduct focus studies for the most valid results. There was a lot more misinformation than helpful information, But, Philip Miller in Nashville and Paul Scoptur of Wisconsin have written an article in the January 2016 issue of trial magazine “Adjust Your Focus Early” which is as good and as valid as anything I’ve reviewed recently. I think they have done a very good job of accurately outlining the basics for conducting a meaningful focus study and their advice is excellent. Here’s my interpretation of what they have written and I recommend the article to you.
To start with the writers correctly identify the common mistakes many lawyers make:
(1) They wait too long before making the focus study, instead of conducting it before the case begins to be framed and discovery takes place. You want this information before you began to frame your case and before discovery happens. The authors recommend something that most lawyers fail to do and that is to conduct early focus studies. In fact, focus studies are very helpful in deciding what cases to accept and what cases not to accept. More importantly when done early, they guide the lawyer in how to frame the case which in turn has a direct bearing on how discovery is conducted. If we wait on till after discovery before conducting focus studies we may find that our concentration in discovery was misplaced and our theories or themes not framed as they should’ve been. Conduct focus studies early in the case.
(2) They slant the facts and conduct the study favoring the outcome they want. When they get feedback that is negative to their case their reaction is to present more argument in favor of the plaintiff instead of learning from the feedback. Lawyers need to understand that a focus group is not conducted in order to win. It is to gather helpful information.
(3) They provide the focus group their conclusions instead of facts. It is presented to the group as if it were a jury argument. Instead, the less the facts the better. The less favorable the slant presented to the plaintiff the better. The more disclosers of the negative factors about the case the better. Even negative evidence which you know won’t be admitted should be presented because it helps evaluate how important it is and we have all been surprised during trial when something was admitted that had been excluded.
(4) They rely upon the results of a single focus group. Worse, it is too often a focus group that was presented facts in an incorrect manner and therefore produced an incorrect result. It’s important to use different groups of people for an appropriate demographic mix. Using more than one focus group allows you to do that. Furthermore;, it is wise to divide up issues, like exhibits to be used, issue importance and different tactical approaches by using several focus group for issues that are presented to a second focus group or to use different focus groups. Trying to test everything with one group usually results in a confused outcome
(5) They rely upon the focus groups determining the damage value. Focus groups cannot reliably give a dollar verdict because that depends upon so many factors including the quality of the defense lawyer, the rulings of the trial judge, the ability of the plaintiffs lawyers and so on. The most you can hope for is distinguishing between potentially a major damage case from a minor damage case. They can also dentify issues that have dollar value. In that regard, the authors suggest asking the group: “what fact or facts would cause you to award significant damages? What fact or facts would cause you to give less in damages?”
The authors suggest that the following areas should be explored in a discovery focus group study:
- What are the norms? That is what do people expect as normal behavior under the circumstances involved?
- Does the group find something in the case that they consider important? We are often surprised by what the focus jurors think is important. The study can identify what the jurors think the case is about as well as single out information they think is significant and which may be overlooked by us otherwise.
- Do the jurors find something suspicious and have questions about it? People make decisions by creating stories in their mind about what they think happened. Even when not given sufficient information to know the answer, they commonly “reason” to missing facts and create their own story. These focus studies offer a chance to find out what may be concerning them that is not covered in the facts presented. It may reveal suspicions or concerns they have about the facts that are presented. This can be very helpful to us in presenting our case and deciding what evidence to use.
- What questions do they have about the defendant and the plaintiff? Not only is it important to find out what questions the group may have about the defendant or the plaintiff, it is equally important to find out why they have questions. We are often surprised by the questions raised in the minds of people that we think are irrelevant or we haven’t even thought of. The benefit of these studies is to bring out those sorts of unspoken questions. We need to avoid underestimating the importance of these kinds of questions for the jurors and to answer them at trial.
- What rules do the jurors come up with on their own and what rules are they comfortable adopting? People apply rules of behavior to conduct they are asked to decide was reasonable or not. While we can propose rules, the people may not think our rules or the rules the judge gives them are fair and either won’t apply or compromise substantially in applying. We need to know the jurors ideas of fairness regarding our case of liability. We want to know how they would apply them to the plaintiff or defendant. We also need to learn what rules the group might create on their own.
- Do the facts we presented motivate the group to “want to send a message”? We know that jurors want to do the right thing and that a trial is actually a morality play of right and wrong. We know that jurors forgive mistakes of ordinary negligence but punish wrongdoing due to bad motives. They also are concerned about personal protection for themselves, their families and the community. Therefore, does the group see something in the underlying facts of the case that motivates them to want to “send a message” in anger or self protection to ensure this doesn’t happen again?
- Are there factors that promote anger? Facts which may prompt lawyers to be upset are not always upsetting to jurors. The focus group can help discover facts which tend to anger people. My friend, attorney Mark Mandel, has written about the “I just can’t get over” factor in cases. That is the juror who says after the verdict was entered for the plaintiff “I just couldn’t get over the fact that…” Focus studies have the ability to discover these kinds of motivating issues that we need to know about.
The entire subject of focus studies is one too long to present in this format, but the points raised by the two lawyers in the article cited are very important. They have captured essential truths of about conduct focus studies correctly.