FOCUS GROUPS: An Important Tool in a Trial Attorney’s Arsenal

How many times is a play on Broadway rehearsed before opening night? How many times is a scene in a movie shot before the final take? How often does the preacher practice his sermon on Saturday night? As grandma used to say, “Practice makes Perfect!”

So what does this have to do with lawyers and injury cases? A Broadway director wouldn’t consider opening a play without a rehearsal. Brad Pitt wouldn’t release a movie of first takes. No preacher would last long giving his sermon’s first draft each Sunday. When a major case justifies the cost1, the trial needs more than one opening night. Instead of rehearsals, good lawyers use focus groups.

Focus groups arose from the creative minds of marketing gurus of Madison Avenue. They gathered people off the street and tried out products and pitch lines on them. Today, a well done focus group is much more scientific.

The results of a focus group will only be as good as the folks who produce the results. To get quality jurors, we get real jurors. We obtain the jury lists of the last terms of court. These lists are people who meet the qualifications to serve as a juror and are a good indicator of what one can expect at the next term of court. They come from all areas of the jurisdiction in which the case will be tried and, most importantly, they will have sat through many jury trials and are familiar with the judicial system.

Focus jurors must provide an unbiased perspective on a case, so we arrange for all contact to be through a neutral third party who does not identify for whom he works. We select a neutral site, such as a hotel conference room. The jurors are told this is a real case and they sign a confidentiality agreement. We tell them their efforts will help the lawyers and parties understand the case better and their deliberations will facilitate a settlement of the dispute. Since most folks really want to help, focus jurors listen intently and give their best effort.

On focus day, the jurors fill out a questionnaire that gathers biographical information. This facilitates dividing the jurors up according to race, sex, educational level, age and other factors important to the case.

First the jurors hear a neutral statement that sets out the uncontested facts of the crash from a “judge.” The jurors then hear a brief opening statement/closing argument from a lawyer representing the plaintiff. The case is condensed into no more than a 30 minute summary. Every important exhibit is introduced. Critical testimony where the credibility of the witness is an issue is show by videotape. The jury is then polled to obtain a preliminary reading on their views about the case they heard.

Then an attorney playing the role of the defense lawyer gives a summary presentation of the defense. The jury is polled again to see how individual positions may have changed. These summary statements are “spun” as favorably as possible towards the defense positions. The last thing we need is a cheerleading verdict from a focus group that only heard the best parts of a plaintiff’s case. We need to know where the problems lie.

Then the judge instructs the jurors on the law to apply to the case and they are divided into three or four groups of seven jurors. Each is instructed to elect a foreperson and to deliberate on a verdict. Each jury’s deliberations are videotaped.

Which leads to the purpose of this effort. Focus groups are rehearsals. They provide a lawyer an opportunity to see what evidence is important to the jurors, what themes appeal and what points are most important in deliberations. The verdicts of the juries are interesting, but are not to be taken seriously as focus jurors know they are dealing with funny money–nobody is going to pay this verdict. What counts is the reasoning by which the juries reach their verdicts.

Focus groups are just another way the Allen Law Firm does its best to insure a successful outcome of a case. Focus groups are expensive and time-consuming, and not appropriate for every case, even when the cost can be justified. However, we think a major case often deserves a rehearsal before opening night.

1EDITOR’S NOTE: Focus groups may cost $7,500 or more; sometimes much more. One well-known consultant charges a $50,000 retainer for conducting focus groups in a single case !