Using Focus Groups to Improve Trial Presentations: A Cost Effective Approach
By Ted Sherwood

Types of Focus Groups

My first exposure to a focus group was while attending a National Institute for Trial Advocacy trial practice program. At the end of the 10-day event, the participants tried a mock trial using volunteer jurors whose deliberations we watched on open circuit television. Watching the jury wrestle with jury instructions and credibility of witnesses was one of the most fascinating experiences of my legal education. Indeed any lawyer would benefit from the reality check obtained from hearing his performance reviewed by a group of jurors. Since then I have conducted dozens of focus groups myself, used professionally run focus groups, participated in short mock trials using witnesses and exhibits and used simplified “issue” focus groups or town halls. I have never been disappointed with the information I gleaned.

Why Use Focus Groups?

The best thing about using a focus group before a trial is to see how non lawyers react to the basic trial story. The questions people ask, the personal experience they bring to bear in deliberations, even the words they use to describe key issues are incredibly valuable. Focus groups can be used to test voir dire questions, rehearse an opening statement, prepare witness testimony, contrast the credibility of witnesses, test demonstrative evidence, study jury deliberations and identify important questions or objections to the thrust of a case.

Doing Your Own Focus Group for Under $1,000

I believe it is beneficial to do a focus group before every case likely to go to trial. Using professional consultants on every case can be cost prohibitive. The seminal work on assembling a focus group without professional consultants is How to Do Your Own Focus Groups, A Guide for Trial Attorneys, by David Ball, Ph.D.1 In his book, Dr. Ball describes precisely how to conduct your own focus group. He also provides forms for gathering background information on the “jurors” and questionnaires for soliciting written feedback after presentation of the plaintiff’s and defendant’s respective cases. While there are things I like about Dr. Ball’s approach, I will offer some variations that seem to work well.

First, obtain six to eight prospective jurors. They should be varied in age, sex and of course be eligible for jury duty. If possible, it is wise to use jurors from the same jurisdiction in which you expect to try the case.2 An employment agency can gather the mock jurors.3 In my experience, the agency will charge a flat fee per hour, usually about $15, with a three hour minimum. Set the date for the focus group in the evening so people can come after work. As to location, any conference room will do, although most of the law schools will let you use the moot courtroom for a nominal fee.

As to presentation, I prefer to use what has been described as a “clopening”. One lawyer presents a scaled-down combination opening and closing, perhaps about 20 minutes. Another lawyer presents the same for the defense, with a short rebuttal from the plaintiff. I recommend that the lawyer who has worked up the case present the opposite side so as not to skew the results. Remember that the point of the exercise is not to win but to identify weaknesses in your case. Also, I do not present evidence likely to be hotly contested or evidence with a high risk of being excluded. Lastly, I encourage you not to reveal which side you actually represent lest some of the jurors be inclined to try to please the paying side with their opinions.

After the presentations, Dr. Ball would propose that each juror fill out a questionnaire summing up his or her views about who should win and why. I presume he recommends this because some jurors tend to be less assertive during deliberations and thus you have each person’s opinion set down in writing. Or it may be that he wants each juror’s individual impressions first, before they are adulterated by others. In any event, I prefer to let jurors deliberate with just a few instructions.

In order to get the most out of the deliberations you should arrange to tape it with a video camera and, if possible, run a live feed to a television in a separate room. That way you can watch the jurors deliberate in real time. Tell the jurors what the video camera is for; I can assure you they will ignore it within the first five minutes of deliberations. This is important because it will help you immensely in debriefing the jurors and asking follow up questions to know who said what during the deliberations. Also, by taping the deliberations you create a record that you or your client can review later. For example, while handling a product liability case recently we empaneled a focus group before mediation, testing certain issues related to the plaintiff’s conduct and damages. During the mediation we played part of the juror deliberations for our clients so they could appreciate how prospective jurors might react to some of the evidence they heard. The powerful effect of watching how prospective jurors talked about the case helped our clients appreciate the risk associated with going to trial and helped us manage their expectations.

I finish by debriefing the jurors and exploring their opinions. This might be an appropriate time to ask questions about whether or how their opinions might be affected if they knew certain additional facts. And of course I thank them for their service, pay them and send them on their way. One final thought — Dr. Ball believes focus groups are more useful on the issue of liability as opposed to the amount of damages a jury would likely award, and I agree. However that does not make their consideration of damages useless. I recently tried a case involving the sudden death of an elderly woman. The case was set in a rural jurisdiction known for its conservative values. One of our concerns was how much money could we ask for without offending the jury. The focus group we conducted gave us valuable guidance in assessing that concern.

The Issues or Town Hall Focus Group

 Another form of focus group which is even easier to pull together is what has been called the issues or “town hall” focus group. This method aims at eliciting the significant issues that come to the jurors’ minds. It is more informal and does not involve deliberations by the jurors. Essentially mock jurors are brought into a conference room and the process is briefly explained. Then the attorney tells the jurors a little bit about the case and asks “What questions do you have?” The questions get brisk and free-ranging, not unlike a typical town hall. It is the questions that are asked, and the commentary thereon, that provides value to the practitioner. Dr. Ball suggests that this method is best used early in the case and can provide guidance for discovery.

Conclusion

Focus groups, even when conducted by non-professionals, can yield a treasure trove of valuable information and help any lawyer present a better case. I encourage you to try your hand at conducting your own focus group, you will not be disappointed.

1. This book can be obtained through the National Institute for Trial Advocacy
2. You must be careful gathering mock jurors in rural jurisdictions as you could have a juror in your actual case show up in the jury pool. Before trying a case in a rural county in Iowa, we convened a mock jury from a neighboring county with good results.
3. My friend, Tony Laizure, recently used a local marketing research firm to gather mock jurors and furnish the facilities which included three separate deliberation rooms. The jurors could be secretly observed and their deliberations were piped into the observation rooms. The cost was not inexpensive however, roughly $ 7,000.

About The Author

Ted Sherwood practices in Tulsa with the Sherwood Law Firm. He focuses his practice on hospital and medical negligence. He is past president of the Oklahoma Trial Lawyers Association and is a fellow of the American College of Trial Lawyers. He earned a B. A. from the University of Tulsa and his J. D. from the University of Oklahoma College of Law.

Using Focus Groups to Improve Trial Presentations: A Cost Effective Approach
Published 79 OBJ 547 (March 8, 2008)