Many attorneys, both in-house attorneys and those in private practice, consider focus group testing[1] almost exclusively for the “bet-the-company” cases: those cases that are easily identified as posing the most obvious legal, financial and reputational risk to the client. However, focus group testing is increasingly recognized as potentially useful for every type of case.[2]

Every case would benefit from the use of a focus group. Even the simplest case has strengths and weaknesses that can be explored. It is a forum for reality testing. It is too easy to become enamored with one’s own version of the case. Believing that jurors share your view of the case is dangerous.[3]

Focus groups allow in-house attorneys to test various aspects of their cases with a group of people with the attitudes and feelings a layperson may have about the various aspects of a case, including evidence, theme, exhibits and witnesses. “A huge incentive for focus groups is to unravel any latent problems or glitches the case may be hiding.”[4] Identification of latent problems and glitches can be extremely valuable, especially early in the assessment and/or discovery phases. It provides the in-house attorney an opportunity to explore and develop ways to present a problematic fact or witness in a more positive and persuasive way. For example, an in-house attorney may see the withdrawal of a regulatory notice of violation as evidence in the client’s favor, while potential jurors could suspect fraud or improper influence obtained with withdrawal rather than the merits of the client’s position. Focus groups also provide insight unique to those living in the venue of your case and evaluate facts from a nonlawyer perspective, both of which are aspects of an effective early case assessment.[5] As in-house counsel managing a book of litigation, use of a focus group may seem counterintuitive due to the perceived time and cost of typical focus group testing. However, utilizing a focus group early “can signal what should happen with the case. ... Preparing for the next step can save a client money.”[6]

CONDUCTING FOCUS GROUP TESTING

Focus groups used to determine the strengths and weaknesses of a case are most typically conducted using a “mini mock trial” format. The typical process of a mini mock trial involves the presentation of either a live or videotaped summary of the arguments of each side in the litigation. The participants, aka mock jurors, can also be provided with written documents comprised of a narrative summary of the main facts and a summary of each side’s arguments. Presentations are followed by a facilitated group discussion of the case. It is these discussions that often reveal the weaknesses and strengths of a case because they allow lawyers to discover the reasons behind mock jurors’ reactions to both strengths and weaknesses. When faced with negative mock juror reactions, the focus group format provides an ideal opportunity to start reframing your case. When provided with positive feedback, the focus group format provides an opportunity to identify additional facts and arguments to strengthen your case.[7]

There are several ways in which a focus group can be conducted. You can pay a professional trial consultant to assemble the participants, organize the details such as location, help with the presentation of your case, provide feedback and analyze the result. You can pay for an online or web-based focus group. Finally, you can conduct a “do-it-yourself” focus group and use your staff to organize the details of the focus group(s) and gather participants while you present the case yourself and analyze results based on the feedback from the participants. If you are willing and able to partner with your outside trial team to conduct the focus group testing, you can lower the overall expense to your client. Because of the various options available, focus group testing can be tailored to meet the specific needs of your case while also staying within budgetary guidelines.

CONFIDENTIALITY IMPLICATIONS

In addition to concerns about the expense of focus group testing, in-house corporate lawyers and their clients often voice concerns about privilege and confidentiality.[8] “Proper application” of the work-product doctrine[9] and/or the attorney-client privilege[10] should result in focus group testing being kept confidential.[11] Additionally, there are precautions in-house counsel can take to ensure confidentiality is preserved.

1) Outside Trial Counsel – The addition of outside trial counsel clearly associates any jury or litigation consultants that may be hired to assist in any way with the focus group to the trial team for purposes of the attorney-client privilege and the work-product doctrine.

2) Written Engagement Letters – In addition to written engagement letters for outside trial counsel, engagement letters are also important for trial consultants. The engagement letter should clearly identify outside trial counsel and trial consultants as representatives of the trial counsel and contain a confidentiality provision requiring the consultants to only share research work product with those approved by outside counsel and/or the client on a need-to-know basis.[12]

3) Focus Group Participant Orientation and Confidentiality Agreements – “The best way to maintain privilege and protect the research process is to conduct a thorough orientation of the participants before any case-related information is shared, and to require every participant to execute a written confidentiality agreement. These agreements go to the intent of the parties and counsel and form the basis for arguing any disclosure by a focus group participant is unauthorized.”[13]

4) Rigorous Screening – Potential focus group participants should be rigorously and thoroughly screened to match the demographic composition of your trial venue.[14] Potential participants should also be screened to identify participants who would not actually serve as a juror due to eligibility issues or hardship or because of a personal connection to the case.[15] This screening should be done using a written, detailed screener during the recruiting process and immediately prior to the focus group exercise to further ensure there are no conflicts.[16]

5) Location, Location, Location – In most instances, focus group testing is ideally located in the actual trial venue. There may be some cases, however, in which an alternate location is desired or even necessary. For example, it may be difficult to recruit a sufficient sample size of participants who meet all the demographic requirements for a particular matter. Alternatively, the trial venue could be in a remote or relatively rural location in which everyone does business with your corporate client, or there has been a large amount of media coverage about the underlying incident, thus raising concerns about finding enough impartial residents and maintaining confidentiality.[17]

LIMITATIONS OF FOCUS GROUP TESTING

Although focus groups can provide the in-house lawyer with qualitative information useful in multiple phases of litigation, the tool does have its limitations. More specifically, focus groups do not accurately predict how individuals on a jury might vote. This is because the number of focus group participants needed to provide a large enough sample is generally not feasible for most litigants, especially in the early case assessment phase. Focus groups cannot tell you how widely a particular attitude or opinion is held in the community of potential jurors – only that an attitude or opinion exists in the venue. Focus groups also cannot establish an accurate value of a particular case.

CONCLUSION

Focus group testing – as part of the assessment, discovery or pretrial phases – can provide unique information essential to strategy decisions, such as which cases in a litigation portfolio should be settled instead of taking to jury trial. While the expense of focus group testing may be cost prohibitive in many circumstances, there are ways in which the costs and expenses can be controlled, such as a do-it-yourself focus group conducted in partnership with outside trial counsel.

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ABOUT THE AUTHOR

Jennifer Castillo is senior attorney and manager of litigation and claims at OGE Energy Corp. in Oklahoma City. She received her J.D. from the OCU School of Law in 2002 and her LL.M. from the Baylor University School of Law in 2022.

 

 

 

 

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ENDNOTES

[1] A focus group can be defined as 1) people 2) assembled in a series of groups 3) possess[ing] certain characteristics 4) provide data 5) of a qualitative nature 6) in a focus discussion. Uses of Focus Groups in Litigation Research. As noted by the authors of Uses of Focus Groups in Litigation Research, this definition of a focus group, “loosely construed, describe[s] a jury quite well.” Such “simulated juries” can be convened to sit as a jury for a mock trial or for a focus group discussion.

[2] Focus Groups: You Can’t Afford Not to Use Them, Joseph Brophy.

[3] Id.

[4] Use of Focus Groups, p. 2.

[5] Effective Uses of “Do It Yourself” Focus Groups, p. 4; See also, In re Tex. Prison Litig., 191 F.R.D. 164 (W.D. Mo. 2000) in which the court affirmed a settlement agreement that was partly based on the results of focus group. The court also found the focus group to accurately reflect the attitudes and views of a real jury.

[6] Use of Focus Groups, p. 5.

[7] Use of Focus Groups, p. 6.

[8] “Keeping Secrets – Protecting Privilege in Pretrial Research,” Kacy Miller, The Jury Expert, 2009, 21(2), 26-32.

[9] The work-product doctrine, governed by a uniform standard in Federal Rule of Civil procedure 26(b)(3), provides that a litigant may not discover documents and tangible things that are prepared in “anticipation of litigation or for trial” by or for another litigant or its representative, including the other litigant’s attorney, consultant, surety, indemnitor, insurer or agent.

[10] The attorney-client privilege protects confidential communications between a client and an attorney, or the attorney’s agents, for the purpose of obtaining legal advice or services from that attorney. The privilege belongs to the client and is customarily applied to communications to a lawyer and representatives of the lawyer, such as clerks, paralegals and administrative assistants. The privilege also extends to non-testifying experts, including jury consultants.

[11] In re Jefferson County Appraisal Dist.,[11] 315 S.W. 3d 229 (Tex. 2010) (holding information about a mock trial, including the jury consultant’s report, “goes to the heart of the work product doctrine and is not discoverable.”).

[12] Id.

[13] Id.

[14] “Keeping Secrets – Protecting Privilege in Pretrial Research,” Kacy Miller, The Jury Expert, 2009, 21(2), 26-32.

[15] Id.

[16] Id., “How to Preserve Confidentiality in Mock Trials or Focus Groups,” Jennifer Nemecek and Patricia Steele, Litigation Insights, Nov. 9, 2014.

[17] “How to Preserve Confidentiality in Mock Trials or Focus Groups,” Jennifer Nemecek and Patricia Steele, Litigation Insights, Nov. 9, 2014.