Dr. Noelle Nelson

Practice Makes Perfect:
Focus groups can be an effective litigation tool and of great benefit in assessing the worthiness of a case
(originally published in The Daily Journal, Verdicts & Settlements)

Focus groups can be tremendously useful, but like all litigation tools, they must be properly used to be effective. Experience shows that a focus group can be of great benefit, whether conducted to assess the trial-versus-settlement worthiness of a case, or as part of pre-trial preparation. Unfortunately, when it comes to focus groups, attorneys tend to make five common mistakes that prevents them from receiving the full value from this powerful litigation tool.

Mistake #1: Misunderstanding the objectives of a focus group.

A focus group is not a mini-trial. It is impossible for lawyers to present the issues, witnesses and evidence as they would during trial in a focus group setting. Lawyers who look to a focus group to predict a trial's ultimate verdict and damages are likely to be sorely disappointed. If it were possible to forecast the outcome of a trial in this manner, our trial system would be replaced in a minute with this much more economical means of resolving cases.

Focus groups should be conducted with very different objectives in mind. The first objective is to trouble shoot; to help lawyers see a case's weak points from the point of view of “jurors,” people who are similar to the jurors who will eventually deliberate at trial. The second objective is to elicit from those "jurors" their thoughts on how to strengthen a case. This is the most valuable aspect of a focus group, because nowhere else can a lawyer obtain opinions from people who resemble the eventual jury on what will and will not be convincing in the lawyer's interpretation of the case.

Focus group members can often provide lawyers with a good feel for the potential verdict and range of damages. Lawyers, however, must remember the inevitable differences between the focus group and the actual jury when considering the validity of the focus group's verdict and damages.

Mistake #2: Getting an insufficient number of representative jurors

People of different cultures, socio-economic status, occupations and communities think differently. Lawyers who say, “Oh, I'll just get some of my friends together” for a focus group or “I'll just hire some people from a temporary agency” for the focus group are doing themselves a serious disservice. The opinions of these people may or may not reflect the opinions of a real jury pool. Even when the focus group is properly selected, there are the inevitable individual differences from the eventual jurors. To compound these differences by ignoring underlying demographic variables is unwise.

In addition to selecting representative “jurors” for the focus group, it is equally important to gather a sufficient number for use in the group. Lawyers frequently make the mistake of obtaining the same number of “jurors” for the focus group as will be seated during trial. A focus group is conducted to gather opinions. The lawyer needs enough opinion-givers to generate the kind of information sought, regardless of the eventual number of jurors at trial.

If the lawyer is already aware of community opinion regarding the issues at hand and is only interested in trouble-shooting a limited number of issues, a smaller group of “jurors” is sufficient. If, however, the lawyer is uncertain about a larger number of issues, and is unsure of the community's take on those issues, a much larger group is warranted. In addition, the more at stake, the larger the group should be.

Mistake #3: Failure to present the opposing side with sufficient zeal

There's an expression attributed to the eminent psychologist, Fritz Perls: “Garbage in, garbage out.” A focus group's opinions are only as valuable as the quality of the presentations given. Too often, the lawyers booking the focus group will spend a great deal of effort on their presentation, but only give a quick briefing and sketchy notes to the colleague role-playing opposing counsel. This tends to skew the focus group in the booking attorney's favor.

One of the purposes of the focus group is constructive criticism, not pats on the back. Lawyers gain far more if they role-play opposing counsel and let a colleague take on the lawyer's true position. The lawyer's ego may be bruised in the process, but better a bruised ego in front of a focus group than a poor result at trial.

The more preparation that goes into focus group presentations, the more accurate and beneficial the opinions of its members. It is a waste of time, energy and money to conduct a focus group with anything less than solid, thorough presentations.

Mistake #4: Failing to ask targeted questions

A focus group's value is the wonderful range of opinions the group can offer. However, focus group members can only provide opinions if they are asked the right questions. Too often, lawyers ask these "jurors" only the verdict questions to deliberate and discuss, exactly as they would an actual jury at trial. This is an under use of the focus group.

Lawyers should develop a list of questions that target the areas of concern within their case. It is far better to develop too many targeted questions and eliminate them as necessary, than to develop too few questions and miss the opportunity of hearing valuable “juror” opinions.

Mistake #5: Defensiveness

Another purpose of a focus group is to reveal the weaknesses in the lawyer's presentation of the case. Too often, during the final focus group question-and-answer segment or debriefing, lawyers will respond to criticisms by focus group members with a vigorous “Yeah, but…" defense of their position. This response undermines the entire value of the focus group. Why should an attorney bother asking for “juror" opinions if the end result is to tell focus group members that the lawyer is right and they are wrong?

Lawyers will gain most by embracing criticism, look for its benefit, and not try to defend against it. Lawyers who dismiss the focus group's criticisms and opinions and fail to incorporate them in their trial strategy might as well not conduct a focus group at all. Lawyers who do not mind losing the focus group in order to win the trial are the lawyers who will profit most from the process.

© 2006 The Daily Journal Corporation. All rights reserved.

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