Are Focus Groups Hurting Your Case?

You hear about focus groups at every turn – in books, at CLE events, from colleagues. They must be helpful…right? The answer is, it depends.

Focus groups are a scientific experiment. There are variables and outcomes. Playing with some of those variables will directly affect the outcome. But even more important, you’ll probably never know if your outcomes are valid and reliable measures of what actual jurors will do with your case by simply looking at the focus group results. Confused? Let’s break this down.

When consultants run focus groups, they control as many variables as possible. They match as many aspects of the focus group to a real court setting as is feasible. For example, it’s important to have jurors who match the demographics of the venue, who do not know which side is putting on the focus group, who are randomly recruited, and who are screened properly for issues in the case which could disqualify actual jurors. It’s also important that information is presented neutrally in order to remove presenter personality as an extra variable. Evidence should be sifted through to determine what is helpful to present in a focus group setting and what should be left for court. If any of these variables are off, it will affect how jurors discuss the case.

Consider, for example, during case presentation, there is a slip in wording or tone which tips off jurors as to who is putting on the focus group. Jurors may never mention having known who was paying for the study yet the knowledge will subconsciously affect how they discuss the case, knowing that one side is listening. In watching deliberations, however, you would never know that the discussion is being altered and that the information you are getting isn’t full or accurate. Or consider a scenario where a piece of information is presented out of order and later in the story than it should have been. Jurors who heard the information in the correct order could easily have formed a different story about the case than jurors who had already formed opinions and now are rationalizing a way to maintain their story of the case by dismissing or discounting the new information. In watching the deliberations, you would never know that jurors’ feedback is skewed.

If you rely on feedback that is invalid or tainted, it could hurt your case rather than help. And the scariest part is that you would never know.

So how can you prevent damage to your case from running focus groups? Be sure you know what you are doing. Talk to attorneys who have done them before – lots of them. Hire a consultant to run them for you. If budget demands that you do them yourself or you simply wanted to do “quick and dirty” focus groups, just know that you need to take the information with a grain of salt. Assume that there are other opinions you are not hearing and don’t revamp your entire case based off of what a couple jurors have said. Match your expectations to the level of expertise that has gone into your focus groups. If you do that, they can only help.

 

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Cut the “Bull”

Bull is a new television drama featuring a Dr. Bull, modeled after Dr. Phil in his jury consulting days. This high powered, all-knowing consultant acts as a puppet master, anticipating what jurors will think and say before they know it themselves. While entertaining, the show is mostly “Bull.”

While it is true that trial consultants try to anticipate what issues will come up in a case and what types of beliefs and attitudes will shape how a juror views the case, no jury consultant can anticipate what each individual juror or the jury as a whole will ultimately do. While Dr. Bull uses technology to trace every keystroke ever made on a juror’s computer, in most instances, a jury consultant knows nothing about the jurors sitting on a case until they walk in the courtroom doors and begin introducing themselves. On occasion, we will get some information in advance on a questionnaire but the information is limited.

Dr. Bull uses what are called “shadow juries” to determine what the real jurors are thinking at any given moment. He claims to be able to match the jury’s characteristics (including demographics, upbringing, beliefs, and even looks!) by 85% or higher. While shadow juries are used (very rarely) in very large cases, this type of matching of backgrounds is impossible.

Dr. Bull places great emphasis on a juror’s backgrounds and beliefs and while these are certainly important factors for any consultant to consider, the beliefs on their own tell us nothing. We need to know how a certain belief/attitude will impact how that juror feels about the issues in this case. Many background beliefs or personal characteristics will be irrelevant to the issues at hand. And often people with similar backgrounds react differently to the case facts due to other differences in life experiences or opinions about the subject matter. A consultant’s job is to find out what issues are pivotal in a case (in the jurors’ minds), craft the case in a way to minimize those issues, and direct attorneys on how to ask meaningful voir dire questions to get at jurors’ beliefs for that particular case. A consultant’s job is make the case stronger but no consultant can guarantee a win or know exactly what jurors are thinking. That’s just “Bull.”

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Dissecting a Case

I recently finished working on one of the most difficult, interesting, and tragic cases I have ever consulted on. I think insights can be learned by dissecting cases, so with the attorneys’ permissions, I am honored to share the facts, consulting tips, and outcome of this case with you.

CASE FACTS:

A hotel downtown (Defendant) hires some security guards. One has a background of assault charges and impersonating a police officer. He says he has put that behind him and the hotel is confident in hiring him. His friend is also hired with no criminal record but he does get written up on the job for verbal abuse. The hotel claims to have trained the guards although no paperwork was presented to reflect the training.

Meanwhile, in another state, a different hotel evicts an intoxicated guest. The guest drives away and ends up on a wreck. The Defendant hotel hears of this event and holds mandatory meetings to discuss options other than eviction as well as safe eviction procedures to prevent something similar from happening at their hotel. One of the security guards in question is not present at the meeting.

Fast forward a couple of months. The Plaintiff, a 20 year old female books a room at the Defendant hotel. She and a few girlfriends are planning on staying the night after partying with a few other friends. They go out drinking and everyone comes back to the room around 2:30am. There are no noise complaints but one of the security guards hears noise coming from the room. He knocks and enters the room to tell them to quiet down. This starts a heated exchange between the Plaintiff, a male member of the group, and the security guard. The order of events was contested but at some point, there was an offer for the girls to stay if the men would leave. At some point after this, the entire group leaves and is escorted out of the hotel into the frigid winter air. A male member of the group asks if they can wait inside and call a cab. The security guard tells them “No, get the f**k out.” There is a cab stand outside the hotel. One girl says she can drive so 7 of them pile into Plaintiff’s PT Cruiser and head down the highway. Their BAC levels are high.  Only the female driving buckles her seat belt.

About 40 minutes later, the PT Cruiser comes up upon a distressed vehicle going 8mph on the highway when there is a full shoulder open for them to drive on. The female driving is distracted by Plaintiff and her ex-boyfriend in the back seat. She doesn’t see the distressed vehicle until it is too late. She collides with it. The Plaintiff is in a permanent vegetative state. We were asking for $20 million in economic damages and $40 million for permanent impairment/pain and suffering.

ARGUMENTS

The Defense argued liability and causation. They argued that they had no duties toward unregistered guests so their only duty was to the Plaintiff. They further argued that Plaintiff chose to leave when she didn’t want to stay with just the female friends so therefore there was no eviction and no eviction procedures were broken. In addition, there was a cab stand at the hotel and everyone testified that in the past, they have called cabs when drunk. Further, the Defendant hotel argued that they had no reason to know the group members were intoxicated as they were able to walk straight up and down escalators in heels, were not slurring their speech, and even emergency personnel who came to help at the wreck didn’t notice signs of intoxication. Finally, they argued that this was a case entirely about causation. Even if the hotel did something wrong in the eviction, it surely did not cause a group of people to get into a car and drive intoxicated, nor did it have anything to do with a distressed vehicle, the fact that the group did not wear seat belts, or the fact that the driver was distracted and not watching the road.

PROCEDURAL HISTORY

I worked on this case when it was at its inception. We ran some focus groups at the time and found out that the eviction issue was huge and that many jurors felt there was no case if we failed to prove eviction. However, there were some jurors willing to give some small percentage of responsibility to the hotel – around 10%.

The case seemed to go south when the judge granted a Motion to Dismiss the case. The lead attorney, however, fought it up to the Supreme Court, who reversed the dismissal and sent the case back down for trial. This ordeal took a whole 10 years!

FOCUS GROUPS

I ran a second round of very detailed focus groups. We found that jurors were hung up on the eviction with most saying that they felt the group left voluntarily. Even the jurors who felt the hotel did something wrong then conceded that it did not cause the wreck. We ran another set of focus groups because jurors were giving varying arguments and I wanted to be sure I knew the path that the real jurors were likely to take. The second set of focus groups confirmed the main issues – the eviction, the causation problem, the drunk driving. The jurors were willing to give between 0-33% responsibility to the Defendant and only a few hundred thousand in damages.

CHANGING THE CASE

I sat down with the attorneys and we reworked the case. First, I told them we needed to make a timeline of the entire eviction process and highlight in red the several points at which the security guards or hotel said or did anything to indicate eviction. Further, we picked a different eviction point. Instead of relying on the hotel’s dishonesty in their destruction of documents and lying about training to try to get jurors to disbelieve their claim that the group was given a chance to stay, we instead embraced the fact that at one point in time the group was given an option of splitting up and having the girls stay. We did this in part because one of our witnesses was going to testify to this but mostly because the focus group jurors believed it regardless. We picked an eviction point AFTER that exchange to show eviction. We also argued that eviction was not necessarily a point in time but rather a process and showed all the times when the group was not welcomed at the hotel.

I suggested that jurors’ anger button was going to be set off by the security guards’ actions and the hotel’s “loss” of documentation as well as some other lies they told in documentation. We needed to make those issues front and center. We also needed to explain that the fact the guard entered the room is akin to someone entering your home. Even police cannot simply enter a home or hotel room. I suggested that they explain that policies, such as the eviction policies, are in place because someone got hurt before and out of that injury, a policy was created. By dismissing the policies, the hotel dismissed someone else’s tragedy. I also re-framed the lack of training and documentation to be a contract issue. The hotel, by hiring security and providing people a safe place to stay, implicitly has a contract to do so in a responsible manner. If the hotel skimps on hiring and training, they are implicitly assuming the risk that someone may get harmed and they are responsible for that harm. Same with eviction procedures.

Some focus group jurors blamed the group for getting confrontational with the guards and therefore forgave the guards for becoming belligerent and escalating the situation. I told the attorneys that we needed to explain that security guards are there only for when things go wrong. If guests are behaving, keeping noise levels down, and sleeping, there is no need for a security guard. The guards are there to calm a situation down, not to escalate it. Having guards skip protocol and escalate a situation is worse than having no guards at all.

To conquer the problem with causation, I suggested that we needed to explain it with different wording. To say the eviction “caused” the wreck was too big of a jump for the jurors. But many focus group jurors said that it “set it in motion” or that this was  a “chain of events.” Every mention of causation in opening and at trial was to me explained using these words.

JURY TRIAL RESULT

In addition to focus groups, I participated in the jury selection and editing of opening statement. The case was tried over a period of 2 weeks. The jury spent a full day deliberating and wanted to come back after a holiday weekend. They returned and spent another half day deliberating. They sent a question to the judge asking to see the hotel video surveillance again. This scared the Plaintiff into thinking the jurors were still stuck on causation so they settled. The jurors apparently had only 15 minutes to go and said that they were going to come back in favor of the plaintiff. They were going to put a high percentage of responsibility on the hotel. I do not know the amount they were going to award in damages but the attorneys have said that the client would have done very well for himself had he held out another 15 minutes.

I am honored to have worked on the case and transformed it into something everyone could be proud of.

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Pro Bono Consulting

Good news for all of you: I’d like to get some pro bono hours in. So, email me with a brief synopsis of the case and why you’d like help with it and I’ll see what I can do. My direct email is trialstrategist@gmail.com

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Memorial Day Consulting Savings

I’d like to offer to any attorney who is a Veteran or to any attorney who has a client who is either active duty or Veteran 25% off of any of my services, including but not limited to:

  • Focus Groups
  • Case Analysis
  • Editing Opening Statement
  • Voir Dire Prep
  • Witness Prep
  • Formulation of Rules of the Road
  • Etc…

To take advantage of this, please reference Memorial Day when contacting me. A contract for work to be done must be signed no later than June 15th (although work can be done at a later date).

Feel free to pass this along to others as well.

Thank you to all that serve!

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NEW: Contingency Fees for Trial Consulting

My passion has always been for the “little guy” but even within Plaintiffs work, there seems to be a disparity of resources depending on the size of the case. I would like to offer consulting services to every case, large and small. Toward that end, I am opening my consulting practice to take on some cases by contingency. This could be a large case where you would simply rather not risk any further outlay of money up front or a smaller case where the initial investment for consulting help is too steep. Every case is different and I will need to speak with you about your specific case and financial needs to work out the details. If you would like to talk with me about doing some consulting work on contingency, please contact me.

Trialstrategist@gmail.com

303-653-2233

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Holmes (Aurora Theater Shooting) Jury Selection Q&A

With the Holmes jury selection underway and the whole world watching, I thought it relevant to tap into some of the issues that are likely to be raised by the media and inquiring minds. One of the largest nets has been cast over Arapahoe County, Colorado, to find an “unbiased” group of jurors for the infamous trial. Holmes is facing murder charges and, should a jury disregard his insanity defense, a death penalty. This makes for an interesting jury selection due to the notoriety of the case as well as the issues of insanity, death qualification, and Colorado’s unusual law requiring the Prosecution to prove sanity. Let me address some general questions that will arise as the jury selection moves forward:

1. What happens to jurors who are potential jurors but who have not yet been selected?  Jury selection in this case is scheduled to take a couple months. This raises some interesting questions such as “What happens when a juror is questioned and then released back into their normal life for a couple months before trial starts?” It will potentially help some jurors get their lives in order for the impending long trial, but it also gives them time to potentially be bombarded with media information about the case. Although jurors are instructed not to look up anything about the case or read about it, it will be hard to avoid all day around work colleagues and friends especially when the potential juror doesn’t even know if they are yet on the jury.

2. For large cases like this, how do attorneys know what types of jurors they are looking for? Attorneys have likely run a series of focus groups to aid with jury selection and case strategy. Often jurors in focus groups reveal pivotal issues that the attorneys would never have considered. Those issues then need to be crafted into voir dire questions that can elicit honest discussion about juror viewpoints. In addition, attorneys may do some mock jury selection with focus group participants to practice honing in on question format as well as making sure to connect with the jury, get truthful answers (which is an art in itself), and keep up with any time limitations set by the court. Attorneys will be delving deep with jurors to find out their biases and beliefs. In a case such as this, the Defense will be looking for people who believe that mental illness can have a real effect and who are willing to follow the law regarding insanity. The Prosecution will likely be looking for jurors who are more emotional about the case and who are more apt to believe that a killing whether done in a moment of insanity or not, is a killing worthy of 1st degree murder and the death penalty.

3. What types of questions can attorneys ask to reveal hidden bias? Attorneys often need to focus on lowering the barriers to “bad answers.” What you want to hear from jurors are their honest viewpoints and often those viewpoints or biases are hard to hear when you are advocating for one side or the other. An example of a bias would be a reporter who is asked to sit as a juror on a First Amendment rights case where the reporter would obviously have a personal opinion on First Amendment rights of the press. Another example would be a doctor or nurse as a potential juror on a medical malpractice case. There is often a concern that the biases could “contaminate” the rest of the jury pool. In my opinion, this is not a valid concern. The chances of someone changing their deeply held views simply because a stranger sitting next to them voiced a conflicting viewpoint are slim to none. Therefore, attorneys need to focus on bringing forth those biases, embracing them, thanking jurors for their honesty, and using the voiced biases to generate more honest discussion.

4. What about Stealth Jurors or jurors who want a book deal out of this? The concern is less about jurors wanting a book deal per se as that is not very common, but more about jurors who may want some sort of media recognition or power. Attorneys will need to look for people who seem to want their 15 minutes of fame or who are excited about serving in this case. Those would be red flags. As for stealth jurors (or jurors who have an agenda), it is a real concern without a good solution. Stealth jurors do exist and jurors do sometimes lie to try to get on a jury. In this case, jurors could have very strong feelings about the death penalty or this defendant in particular and want to get on the jury to make a statement. The only way to find a stealth juror is through comprehensive questioning and coming at them at every angle. Attorneys should also be looking for changes in body language or tone of voice when a juror answers mundane questions as compared to when they answer more case-specific questions. Changes in nonverbal communication CAN be ONE indication of deception.

5. In a case like this, how can stress impact jurors and their decision making? How can attorneys screen for jurors who will hold up best under the stress to decide a verdict based on the evidence and not emotion? Stress can become an issue even in less high profile cases. I’ve interviewed many jurors post-verdict and if the evidence is personal to them in any way or they feel a connection to a party or witness, the trial can be emotionally taxing for them. Those same jurors, however, express a sense of civic duty to pay close attention and to listen to even the most horrific testimony. Attorneys need to be sensitive to the nature of the case and discuss the difficulty in seeing unsettling images or hearing heart wrenching testimony. Some people are better equipped to deal with such evidence than others. As for deciding a verdict based on the evidence and not emotion, this is a problem in every case, including civil cases where jurors could feel sympathetic to an injured party or to the person being sued. The law is that sympathy can be felt but cannot be a part of the verdict. The task for the defense in this case is to emphasize to jurors that emotion is human and feeling it is allowed but deciding a verdict on it is not. The defense attorneys will be looking for jurors who are able to follow the law regardless of their emotions. The prosecution, on the other hand, will benefit from jurors who have a hard time setting their emotion aside.

6. Do attorneys choose based on demographics or are they more concerned with questioning the individual? Attorneys may ask some of those questions and it can provide SOME information on jurors but what matters most is the individual. Jury selection based on demographics simply does not work in the vast majority of cases. It could be that certain groups of people will have had similar experiences in life and therefore are more likely to think a certain way but attorneys would want to confirm that with multiple focus groups and even when there may be a correlation, people are individuals and it could be a costly mistake to assume a juror will harbor one bias or viewpoint based on demographics alone.

As the trial progresses, it will be interesting to see who the jurors are and how they handle the evidence.

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