Augustus F. Brown is a trial attorney and jury trial consultant. He is the owner of Jury Research Services and a Fellow at the American College of Trial Lawyers. For more info, click here.
Of all the ways we have learned over the years to prepare for a jury trial, none of them matches the value of information and insight you learn from a jury focus group. Not only do you better understand attitudes, perceptions, and biases of ordinary people you learn far more. You just have to listen. Focus groups identify land mines and kill shots in your case. They tell you how effective is your demonstrative evidence. They frame your case it in ordinary language and share with you their own life experiences. They provide you wonderful descriptions, similes and metaphors about facts or arguments in your case. They will speak in ways of precision to help develop your story and its theme.
They will also travel down paths you never saw coming. By presenting your case to several focus groups, you will find the best sequence of your evidence to tell your story.
Formats & Types of Focus Groups
This author has facilitated jury focus groups in one fashion or another for over 30 years. They generally begin very simply and by the time trial is approaching a full mock trial is usually the preferred format.
There is no scientifically verified or secret formula to present a case to a focus group. Ways of doing it are varied and limited only by the imagination. There are: narrative and concept focus groups; focus groups which test your opening statement; focus groups which test plaintiff’s opening against defendant’s opening; focus groups which test witnesses or documents; focus groups who react to jury instructions; focus groups which test the evidence and position of each party after they hear a “clopening” (a combination of opening statement and closing argument); focus groups which test the plaintiff’s closing argument; focus groups which test the closing argument of both plaintiff and defendant; and a focus group to test a slimmed down version of the trial of the case. No matter what type or format of focus group you chose the information and reactions you research will be eye-opening.
Narrative & Concept Focus Groups
Narrative and Concept Focus Groups are ones you do first in your case. They provide you with the first blush of people’s reactions to facts and arguments. They require the least amount of time to facilitate and are the least expensive to present. These focus groups can take anywhere from 45 to 75 minutes from beginning to end. Consequently, if you want to have a focus group do some research, you can present to the same focus group three or four separate files in your office. The expense is spread out among those files. You may also see different reactions to similar facts among the cases and challenge the facilitator to interpret why they are different.
Narrative and Concept Focus Groups should be done very early in the case – even before you file the lawsuit. In any event, they must be done before you begin your discovery because the information that you will receive from these groups will instruct you how to maneuver through the discovery process. What you think is important may not be. What you think is unimportant may be. What you have considered may be identified for you. But these focus groups will always provide you the land mines and kill shots in your case.
A Narrative Focus Group is a brief five-to-ten-minute neutral presentation of the topic which you want to cover. It can be a summary of the facts of your case, or it can be inquiring into a particular topic in your case – or both. You never want the focus group to know on which side of the case you stand. Asking a narrative focus group about a particular topic, such as medicine or common knowledge will help you understand that you must teach about some topics and must not talk down to potential jurors who already have a pretty good fund of knowledge about that topic.
A Concept Focus Group is also a presentation of information in a neutral fashion. However, it is a process by which the facilitator gives a little bit of information to the focus group as they ask for it and then seeks what they want to know next. This method helps identify what they feel is important in your case and may identify the sequence in which they want to know it. Of course, as in all focus groups, you want to learn why they are interested in information they request. After the facilitator has “unpacked” the important neutral facts about the case or about a particular topic, a vote is taken to record the way each member is leaning.
An Important Caveat
This article is entitled “Jury Focus Groups – The Sharpest Instrument in Your Trial Toolbox.” But understand that a focus group is not “predictive” of the outcome of your case. The more focus groups that you do in a case and the more trends that you see after each focus group, the closer you will get to what a real jury does with its verdict. But remember a real jury has a different dynamic to its deliberative process than a focus group. This is particularly true of damages. A real jury is dealing with real money. A focus group is dealing with monopoly money. An in-court jury is getting information in a piece meal fashion when a focus group is getting information pretty efficiently. And, of course, there are witnesses in a courtroom who may or may not present testimony effectively and are subjected to rigorous cross examination. You may attempt to do a similar session to a focus group, but it just does not have quite the same formality as that in a courtroom with a judge presiding. But all in all, of every trial skill we have learned throughout our careers, nothing is sharper than the observations and reactions of a jury focus group. As has been said many times, do not let your jury in the box be the first focus group to give you their insight.
Augustus F. Brown
Brown, Brown and Young, A Professional Association