May 27, 2014 · 7:19 pm
This is an opportunity to get focus group feedback at a greatly discounted price by sharing costs among numerous attorneys. I will be coordinating this venture locally in Denver but it is open to anyone nationwide. There are two opportunities:
1. In this initial series I will be covering 8 different general topics with various groups of jurors, two topics per month for four months, and converting the footage to DVD. Examples of these topics include:
- Expectations of doctors or care providers regarding coordination of care, asking questions to elicit a proper diagnosis, wait times, etc.
- Expectations of stores regarding safety of the premises: How often do they need to be checked for safety? Does the expectation differ depending on the store or property type? What is reasonable to expect?
- Feelings about corporations and profit motive
- Feelings about federal standards in product manufacturing and the need to go above standards
- Attitudes about insurance companies
- And more topics…
I will give each topic 50 minutes and will be leading concept focus groups on each of these topics. I will be gathering a number of interested attorneys to share costs of these focus groups. Depending on how many attorneys are interested, the expense for the full 8 topic set is likely to be in the $1,000-$2,000 range.
2. If you want other things specific to your case… would like to reserve a 1-2 hour slot following one of these focus groups, I will test anything specific to your case and the fixed costs will remain low as they will have already been split among yourself and the other attorneys. This means no extra fees for venue, recruiting, food for jurors, etc. It will require an extra $25/hour per juror for their time, a very small fee for extra videographer time, and my hourly rate for the prep time and the extra hour of focus groups. This will save you a significant amount in both time and money. It is meant for smaller issues, such as:
- Testing exhibits
- Testing case issues very early on to get some opinions which can guide discovery
- Testing your voir dire
- Testing case-specific issues that are not included in the 8 group topics
Does it matter that these are Denver-based jurors?
Yes. It always matters from where you recruit. You ideally want to test your case issues on jurors in your venue. That being said, feedback is still feedback. Is this going to give you a full picture of issues for your case or your venue? No. But it is similar to going to a mall and asking people their opinions. It’s helpful to get any opinion. But if your case is not set in Denver county, you do not want to rely only on the feedback from these groups. You will want to follow up in your own venue or at the very least understand that this is just SOME information, not full information. That said, the more jurors you can watch deliberating about any topic, the better your skillset as an attorney. This is an inexpensive way (likely a couple hundred dollars per topic!) to hear juror feedback.
If you think you may be interested or have questions, contact me quickly as spots will be limited.
February 17, 2013 · 2:31 am
Over the years, I’ve come to realize that a good majority of attorneys believe that there are only one or two variations of focus groups – a full-blown mock trial (of varying lengths and levels of detail) and possibly a limited focus group to test exhibits. In reality, there are many more uses for focus groups. Whether you do them yourself or call in a consultant to help with all or part of a focus group (some consultants will work in a piecemeal format and help with some aspects and allow you to do others in order to save money while others may insist on doing the entire project themselves), you should be aware of the various uses. Broaden your horizons!
Below are just some suggestions for the use of focus groups along with the pros and cons of each:
1. Deliberation Groups. This is the one you are most likely familiar with. Mock jurors hear a Plaintiff’s statement, a Defense Statement, and possibly view some exhibits and watch some videos of parties or witnesses. Questionnaires are administered between statements and videos to track jurors’ reactions as the case progresses. At the end, jurors are left alone to deliberate (yes, this means you have to get out of the room. Do NOT stay in the room while they deliberate. Your presence will influence their discussions consciously and subconsciously). Although this may seem very straight forward, this is one of the types of focus groups where you should really consider hiring an expert to help you. The details of the statements and questionnaires are important. As with all focus groups, you should conduct these before the end of discovery (jurors will often want to hear from people you have not designated as witnesses or see things you had not considered disclosing) but far enough along that you have a very good idea of the other side’s story of the case. Never do less than two groups because you need a control group. Four is ideal.
- Pros: You will learn about group dynamics. You will see what jurors are likely to do with your case without direction from you or a facilitator. This gives you a good idea of how jurors will view your case, what issues they will have, and what problems your case has before you go to trial.
- Cons: This is generally the most time-intensive type of focus group to prepare for and also tends to be the most expensive. Further, if you are early in the case, the feedback may not be helpful if you don’t yet know what the other side is going to say.
2. Concept Groups. In general, these are run more like you would imagine a product focus group where the facilitator stays in the room with the jurors the entire time asking questions. The order of questioning and the format of questions is important. You don’t want to lead jurors in their responses or give away which side you work for. Again, never do less than two groups. You would be surprised at the influence one “atypical” juror can have over the group.
- Pros: This type of group is helpful in the earlier stages of your case to find out juror responses to general topics (such as how they view pre-existing conditions of your client or views on product manufacturing overall). It can be very helpful in directing your discovery.
- Cons:There is an artificial nature to this type of focus group. Jurors in real trials are not fed pieces of information and then questioned along the way. Your questioning can influence how they view the rest of the evidence. Further, you will not see how jurors interact with each other on their own without guidance.
3. Testing Exhibits. Focus groups are often used to test exhibits or Day In the Life videos. Often you may want to show an exhibit and ask jurors what they think it shows. You may find out that the exhibit displays something completely different from what you had hoped. Jurors may also notice things you did not in the background of a photo or video.
- Pros: These can be very informal and easy to put together. Further, you can show jurors exhibits from multiple cases in one sitting, so it can be very economical.
- Cons:Realize that jurors do not view exhibits in a vacuum but that does not detract from the usefulness of testing the exhibits to determine what they show. If testing how impactful they are, you may need to embed the exhibit in a more formal mock trial with evidence.
4. Testing Witnesses/Parties. Show mock jurors video depositions of your client, the other party, or key witnesses. You may think someone is likeable while jurors think they are lying or exaggerating. Find out whether jurors think your key expert witness is credible and whether they understand what is being said.
- Pros: These can also be very informal, although you probably want some questionnaires to get individual feedback before the group processes silence those who may think differently from the majority.
- Cons:Be careful about brining your client in person. There isn’t much case law to save you if your opponent finds out that you conducted a focus group where your client spoke to mock jurors. Although you are likely protected by being there and having jurors sign confidentiality agreements, it is possible you could lose some privileges.
5. Testing Voir Dire. In the past year, I have been offering to help attorneys hone their voir dire skills. With some mock jurors in the room, practice your voir dire. If you have a consultant with you, they can interrupt and change the format of your question or explain why certain questions are not working or how they could be reframed to elicit more truthful responses. After dropping in on random trials on my days off, I’ve come to realize that many attorneys think they are good at voir dire because they have been trial attorneys for years but they don’t realize that their questions are virtually useless. Others have decent questions but the wording is confusing to jurors such that they get blank stares. Practice (and critique) makes perfect.
- Pros: Since we don’t care about the content of the jurors’ answers, you don’t have to be strict on matching demographics when recruiting. This can be very inexpensive to run since you only need jurors for 2-3 hours.
- Cons:None. You need to be practicing this!
6. Testing Opening Statement. Rehearse your opening to find out what jurors think the case is about by the time you finish and how they would lean. In the interest of being neutral, it’s advisable to also read an opening for the opposition. This balances the information jurors receive as well as hides your stake in the game.
- Pros: You likely don’t need jurors for very long so juror pay is fairly inexpensive and you can fit in a few groups in one afternoon.
- Cons:While jurors to start to make initial leanings after opening statements, the rest of the trial does matter. Look not for jurors’ end votes but for any questions they have, parts that were confusing, what parts were most important, etc.
There are many other variations of focus groups. They can test just about anything – other than verdict numbers (you can only trust ranges, not actual figures). Just keep in mind that the quality of the results can only match the quality of what goes in. If you do your own inexpensive focus groups during discovery, you should hire a consultant toward the end of discovery to conduct a larger focus group or mock trial where the details become more complicated.
August 25, 2011 · 3:13 am
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.
January 22, 2011 · 10:32 pm
Welcome to JurorProof. There are two kinds of proof:
- Legal proof, which is the proof needed to satisfy legal elements of a claim. This is relevant when making arguments to the court or writing briefs and motions, etc.
- Juror-proof, which is needed to get jurors to find in your favor.
Who Authors This Blog?
This blog is run by Jessica Hoffman Brylo, J.D., M.A., an attorney and trial/mediation consultant as well as President and Owner of Hoffman Brylo Consulting, LLC (www.hoffmanbryloconsulting.com), a full-service trial consulting firm. This blog is meant to aid litigators in preparing cases for mediation or trial. Many attorneys do not understand the need for consultant input before a case goes to mediation, but mediation is often entirely about who can predict what a group of jurors will do with the case. The more convincing one side can be regarding the merits of their case as seen through the eyes of the potential jury, the more leverage they have in settlement. Which brings me to the purpose of this blog…
Attorneys often make the mistake of thinking that the two kinds of proof are one in the same or overestimating the degree of overlap. Jurors do not care, for example, whether you have proven duty, negligence, causation, and injury. They do care that your client is an upstanding person. They care that your client drank the night before, even if it has no relevance to the claim or to causation. And they certainly do not care that it is legally improper for them to consider insurance. Unless you understand what jurors care about, you do not have the proof you need to win your case.
So how do you find out what juror-proof is for your case? Multiple ways. Focus groups and mock trials are by far the best way to determine what juror-proof is for your case IF they are done in a scientifically reliable fashion. Many attorneys make the mistake of relying on focus groups they conduct in-house without the use of a trained consultant. I caution that those results may be misleading if the focus group was not conducted properly. Without a budget for a focus group or mock trial, however, many consultants bring to the table their experience in studying juries and working on numerous cases. With that background, they can often help draft opening statements or closing arguments or do a simple case analysis to tell the attorneys what areas they see as being problematic and how to get around those hurdles. Thirdly, I hope that reading this blog will be of assistance. From time to time, I will post on here my own thoughts as well as link to articles that seem relevant. Welcome to JurorProof!
Filed under Misc
Tagged as Focus Groups, Misc