jury research | jurorproof

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.

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented? It’s highly probable. It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason. Most everything I post about has to do with proving your case to jurors. That may sound obvious, but please make sure you understand the significance. There is a huge difference between “legal proof” and “juror proof.” Legal proof is what you have to prove to meet the elements of the claim. The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form. But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner.

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury. Jurors may care about your client’s hopes for the future. They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups). They care that there was no secondary backup system for files even if not required. These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story. Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries. The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie. Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds. But that’s not what matters to them.

So what does all of this mean for you? For one, it means that you need to fill in gaps in your story before the jurors do it for themselves. One thing that makes for a believable story is that it is comprehensive. The less gaps the better. I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial. But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves. This is something they will care about. Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof. Deal with it in voir dire.

Secondly, do some research. Find out ahead of time what juror proof for your case is. The only way to do this is to talk to real people – people who match the demographics of your trial venue. If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors. Go to a mall and talk to strangers about your case. Buy them a coffee or ice cream in exchange for their time. Without that feedback, you would never know that having a living will means having a death wish to jurors, for example.

Don’t go into trial blind to the juror proof. You would never go into trial without knowing the legal proof you need to fulfill. This is no different and equally important.

Tag Archives: jury research

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