Category Archives: Focus Groups

Lessons from the Deliberation Room

When you go through law school, socialize with other attorneys, and draft motions directed to attorneys and judges, you can easily lose the perspective of the rest of the non-legal world. When you go to court and have to convince a jury of lay people, you may overlook some things that come as second nature to you. I came across a blog post by an attorney who was seated on a personal injury trial. Below are some excerpts from his blog along with my commentary. I suggest reading the entire blog post, however, as I will not cover the entire post. The full post can be found at http://mnbenchbar.com/2011/07/role-reversal-a-lawyer%E2%80%99s-jury-service/ 

“Once deliberations started, things got really interesting. My fellow jurors immediately elected me—“the lawyer”—as foreperson.”

Although it is very rare that an attorney, especially a litigation attorney, make it through jury selection, there is a larger point here. Any juror who could be an expert in the topics related to your case are likely to be leaders based on their knowledge. The jury will turn to them to impart advice to the rest of the group. If you believe this juror will see the case in a light favorable to you, then keep him/her on. However, if you are at all skeptical, you should strike them as you never want a leader to be against you.

“I thought it made sense to start our deliberations by trying to separate the plaintiff’s back and neck injuries from her alleged shoulder injury. But several of the jurors wondered why we would use this approach. “The lawyers said her back and neck injuries were not at issue,” one of my fellow jurors said. “To me, that means they’re not part of the trial. We aren’t supposed to award her anything for back and neck injuries…While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case.”

Legalese can be very dangerous – even to the point of nixing out entire categories of damages. Realize that when you say things like “not at issue,” jurors have no idea what that means. Make sure that in closing, you follow the format set out by David Ball in his Damages books, wherein you massage the jury instructions, explaining them all in plain English. The danger here is that you may think parts of the instructions are plain English already. Do not assume. Test the instructions in a mock trial or hand them to some younger kids and ask what they think it means. Then apply the plain English instruction to your case. Here, you would have to explain that “not at issue” simply means that it is not argued about. It means both sides agree these injuries exist so you, the jury, do not have to decide that, you accept that they are injuries and your job is to decide how much money it will take to make up for them.

“Jurors were intensely curious about facts that had been hinted at, but not fully developed. For example, there was a single sentence of testimony about the plaintiff’s impressive weight loss since the accident. If she was heavy at the time of the accident, could that have contributed to her shoulder pain? There was no evidence presented at trial to help answer that question, but that didn’t stop the jurors from wondering.”

Often there are small inconsistencies or issues that you don’t spot in your own case because you are too close to it. Focus groups and mock trials help immensely in revealing these issues to you before you step in a courtroom.

“The jurors who had been in car accidents—including myself—saw the collision through that lens. “My accident was worse than hers, and I didn’t get hurt,” one juror said. Interestingly, during voir dire, the judge and lawyers had not asked the potential jurors about their experiences in car accidents in general. They only asked whether jurors had been involved in car accidents where someone was injured. As it turns out, it would have been equally enlightening to hear about the jurors’ experiences in car accidents where no one was injured. After all, a juror who has a car accident where everyone comes away unscathed might be more likely to doubt the alleged injuries of a plaintiff, especially if the juror’s accident was more violent.”

This is evidence of the power of good questioning. Many believe that open-ended questions are anything that does not require a “yes” or “no” answer. Truly open and useful questions, however, do not lead in any sense. Start by asking jurors what experiences they have with car accidents or what comes to mind when they think of a car accident. The less you lead them, the more likely you are to get useful information. Sometimes the most useful answers are answers that your questions would have blocked.

“One eye-opening aspect of deliberations was the importance of the exhibits that were with us in the jury room. I took on the task of going through the medical records one-by-one, reporting to the group any significant information. (Later, another juror double checked me.) More than the live testimony, this process allowed the jury to create a narrative and a time line that helped with deliberations. For example, our review of the medical records confirmed that the plaintiff had not complained of shoulder pain until long after the collision. It also showed that the plaintiff’s existing rotator cuff tear became no bigger as a result of the accident. Also, we saw that the plaintiff was involved in several accidents over the past 15 years, and visited a lot of providers about a host of medical issues—facts that had been mostly suppressed during the trial.

First off, notice that exhibits are powerful and if done correctly, they can be of great use to jurors. Be careful, however, of what your exhibits show. If a bad fact is going to become known through exhibits in the deliberation room, you need to bring up the bad fact yourself during trial. Otherwise, you can be seen as trying to hide something and jurors will hold it against you much more than if you had divulged it. Similarly, many exhibits in today’s world are not even part of the trial. Some of the most powerful exhibits are what jurors find on the internet. In David Ball on Damages 3, there is an appendix that talks about thorough internet searches on topics, parties, and witnesses in your case. If you don’t know what is out there, you can easily lose trial based on facts never brought in the courtroom.

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Filed under Focus Groups, Jury Instructions, Jury Research, Misc, Trial preparation

Acts vs. Omissions – A Small But Powerful Difference

You’re creating the story of your case for opening and trial.  You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt.  You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem.  They never put up warning signs…”  You may not have realized it, but you have already compromised your story. 

There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:

1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices.  In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on.  This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something.  If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional.  So, in the above example, you should tell the story as “the defendant sees the pot hole.  He examines it and CHOOSES to walk inside.  He DECIDES to start setting up his shop for business.  Six hours later, the plaintiff comes to shop at the defendant’s store….”  This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead.  This applies to any type of case:  “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.” 

2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive.  For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.”   Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.” 

These may seem like small changes, but to the unconscious mind, they make a huge difference.

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Filed under Closing Argument, Focus Groups, Interviews, Jury Research, Opening Statement

Group Polarization & How It Impacts Your Verdict

Juror deliberations are complicated dynamic processes.  The whole of the group is greater than the sum of its individual parts.  Often people think that deliberations are a series of compromises – and in some ways, they are.  On some issues and in some groups, jurors compromise on damages figures and charges.  But not all of deliberations are compromises.  Sometimes deliberations result in the exact opposite of compromise – a polarizing of attitudes.

Polarization means that jurors who started out with more middle of the road attitudes (just slightly leaning to one side) when put into a group setting become more extreme in their viewpoints.  This means that you can have a group of jurors who individually are fairly open-minded and undecided but who end up extremely opinionated when they enter a room with other jurors and begin discussing the case.

Part of the reason for polarization is that once a juror expresses his/her viewpoint, they are much more wed to that viewpoint in public because there is a stereotype that weak people change their minds and “give in” or admit they were wrong.  No one wants to be weak.  David Ball and his partners have done numerous years of research on jurors and the primitive brain (Reptilian brain).  Their research tells us that the weak member of a group is in danger for their lives.  It is a strong human drive to avoid being seen as weak.  Therefore, jurors may stick to a viewpoint they espoused early on even if they later feel differently.  The result can be a group of jurors who are so split on values that you end up with a hung jury.

One way to prevent this is to explain to jurors how to deliberate.  Groups that start deliberations by discussing their views on the evidence rather than taking polls on verdict questions tend to be much more collaborative and polarization is much less likely.   Suggest to jurors that when they get into the deliberation room, they first and foremost go around the room and discuss their views on the evidence without taking votes.

Polarization also has implications for how you conduct and read into focus group research.  Realize that if you do a non-deliberation type of focus group (or survey research), the results can be misleading when put into a group setting.  Jurors do not decide cases in isolation and the group dynamics make a difference.  That is not to say that those non-deliberation types of research are useless – they certainly have their separate purposes – but do not assume that you know how your deliberations at trial are likely to turn out if you rely solely on individual responses.

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Which Type of Focus Group Should You Run?

There are a multitude of ways to run focus groups depending on what you are trying to test.  The most common focus groups are:

(1) Concept Focus Group

(2) Deliberation Focus Group

(3) Testing Exhibits

There is no one setup that is better than the others.  They all serve individual purposes.  Let’s go through them one at a time:

Concept Focus Groups:  These are most similar to what you would imagine for a focus group to test a product.  The moderator stays with the group of jurors the entire time, feeding them information in small bits from the most general information to the more specifics of the case.  As the discussion progresses, the moderator probes jurors for their reactions.  This allows you to see how juror opinions shift when a new piece of evidence is presented.  It will tell you what is missing, what is important, and where jurors are confused.  What it will not tell you is how jurors process the case as a whole when presented in script format as it would be in trial.  It does not tell you how jurors would process the information individually before deliberating as a group, nor does it give any indication of how deliberations would turn out, who would be leaders in the discussions, and how jurors work together as a group.  This type of focus group is usually best suited for earlier on in the development of the case before discovery deadlines pass to test general opinions and find out what more information or experts jurors are needing.

Deliberation Focus Groups:  In these focus groups, jurors do not have the opportunity to talk amongst one another until after hearing a plaintiff’s and defendant’s statement of the case.  Questionnaires are usually administered at the start of the project and after each statement to track juror attitudes as the case progresses.  After the presentations, the moderator leaves the room and jurors are left with a verdict form and instructions to deliberate to a unanimous verdict on all questions.  This type of focus group will tell you how jurors respond to the case as a whole and what issues are likely to come up during deliberations.  You will get a good sense for what information is important and what information jurors are likely to dismiss.  These focus groups are best suited for mediation or trial preparation after there is enough discovery to have a solid idea of the case and what evidence is likely to be admissible.  It is still advisable to conduct these focus groups before discovery deadlines as you will often learn from jurors that you need exhibits and experts you had not thought to designate. 

Exhibits: Exhibits can be presented during either a concept or a deliberation focus group, but you can also run a much more streamlined and simple focus group solely for the purpose of testing juror reactions to exhibits or demonstratives.  Recruit jurors from your venue and get feedback on whether your exhibits convey the message you think they do.  You can test exhibits from multiple cases in these focus groups since you are not looking for an overall opinion of case facts but rather are probing for messages your exhibits are sending.

Timing: With the possible exception of a focus group dedicated to exhibits only, it is recommended that you run at least one focus group prior to mediation.  The insight gained during the exercise should increase the settlement figure by at least as much as the focus group cost you.  If the focus group is favorable to you, take video clips into mediation with you, accompanied either by your consultant who ran the focus group or a letter from him/her explaining the reliability of the methodology and the results.  Mediation is about predicting what jurors will do with a case if the case goes to trial.  If you can show you used reliable methods to determine what is likely to happen at trial and the results are in your favor, you will have a very good chance of increasing the settlement figure.  If, on the other hand, the focus group yields some unfavorable results with problems that are unsolvable, you will have learned some valuable information on the amount you should settle the case for to prevent a defense verdict at trial. 

Regardless of what type of focus group you run, make sure you follow scientific principles so the results do not mislead you!

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Polarization

If you’ve ever done a focus group and tracked juror attitudes as the case progresses from plaintiff’s statement through defendant’s statement and into juror deliberations, you may have seen group polarization in action.  Sometimes, jurors will indicate a viewpoint and leaning on questionnaires before deliberations which then seems to be an understatement of their actual leanings when you hear them voice their strong opinions in the group discussion.  For example, a juror who indicates that she “slightly agrees” with the defense position on a questionnaire may very quickly become a strong defense advocate in deliberations.  This process by which jurors become entrenched in their positions is called group polarization.

Research has shown that after participating in a group discussion, participants tend to advocate more extreme positions than individuals who did not participate in any such discussion.  This effect applies to liability as well as damages.  In deliberations, jurors often advocate for damage awards that are either larger or smaller than an amount the juror indicates on their individual questionnaires before deliberations begin.  Where jurors favor a relatively low award, discussion can lead to an even smaller verdict.  Conversely, where jurors individually favor a large verdict the verdict ends up even larger after deliberations.

This is one reason why deliberations are so important during focus groups and mock trials.  Concept focus groups, which do not allow for deliberations, are helpful for certain matters and at a certain point in the case.  However, if you are preparing for trial and need to know what jurors as a group are likely to do with your case, you want to see them deliberate.  Watch for the language they use to convince one another that the verdict should be larger.  Watch for language your opposition jurors use to lure other jurors more toward a defense verdict.  Observe whether the group dynamics are in your favor or against you.  Be aware that if you do a concept focus group without any deliberations, the results of a trial may be very different – for better or worse – with group polarization.  Further, when analyzing questionnaires from jurors, realize that their responses in a group discussion may differ from their responses on paper.

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