Fact #2: Jurors more readily accept messages with which they agree, and then filter additional information as per their version of the story.

Fact #3: Jurors relate new information to their own life experiences.

These well-documented facts make a powerful argument in favor of conducting jury focus groups prior to trial. Jury focus groups can provide a much-needed reality check. After months working diligently on a case, it’s easy to become too enamored with our own version of the case, including issue analysis, arguments, credibility of witnesses, clarity of exhibits and — unfortunately — our own skills. We have all been convinced our case story, theme or primary argument is so persuasive a jury will have no option but to quickly and unanimously hold in our client’s favor. We clearly understand what devastation is, when the verdict is against us and the post trial interview with jurors discloses our persuasive powers were truly powerless.

About the Author Dr. Joni Johnston is President and CEO of UnbeatableLawyers, a training and consulting firm that helps attorneys evaluate workplace behavior problems, gain an edge with juries in employment litigation, and promote effective law firm management. She can be reached at jonij@workrelationships.com

Properly conducted, focus groups can allow you to test your theories, themes, and arguments with a group of individuals, reasonably similar to the gathering of citizens who will constitute your jury. In essence, they provide us an opportunity to try out our arguments with surrogate panels before we risk it with a real juror. In fact, increasingly, the use of focus groups as a basis for jury selection and to gauge the likely response to courtroom arguments is becoming a standard component of courtroom strategies.

However, done incorrectly, jury focus groups can do more harm than good. Misleading results can lull even the savviest attorney into a false sense of security, provide damaging misinformation, and lead to inaccurate jury selection strategies. In this article, let’s take a look at the potential pitfalls of improperly conducted jury focus groups and how attorneys can make sure their jury focus groups are pointing them in the right direction — not leading them astray.

Six Tips For Better Focus Groups
The purpose of a jury focus group is to determine how your client’s argument stands up against the best interpretation of the opposition’s case. At the conclusion of the focus group, the attorney should have a better understanding of how the jurors will act based on information about:

• 1. How individuals perceive the case issues;


• 2. How individual jurors receive and filter case information cognitively;


• 3. How individuals differ in their reactions to the case.

But what if the jury focus group members are not like the real jurors who will hear the case? What if the focus groupers hear a slanted version of the case facts? Or what if the moderator fails to ask the right questions? Jury focus group output is only as good as the quality of the data that goes into them. The following six guidelines can help you maximize the opportunities jury focus groups provide as you prepare for battle in the courtroom.

Tip #1. Leave your fishing gear at home. >BR> Focus groups are not a fishing expedition. Before conducting a jury focus group, the first question that needs to be asked is: What are the questions we are trying to answer? Are you trying to decide whether to accept a case? Are you primarily interested in the perception of your lay witnesses? Are you struggling to identify powerful themes and analogies that will resonate with lay people? Focus groups work best when they address specific issues or problems that need answered, or conceptual approaches that need to be tested to determine the likelihood of success.

When the objectives are narrowed, the results become more precise. Some examples:
How do I best communicate the complexity or the technical aspects of this case?
What type of Jurors do I want on my Jury?
What is the damage potential of this case?
Should I settle, and if so, for how much?
Does the main witness appeal to a jury or come off as a pompous ass?
What should I be asking these witnesses in their depositions?
What kind of evidence should I be looking for during discovery?
Should I accept this case on contingency?
or
What is my theme in this case?

Tip #2. Adjust for oddballs.
Ever tried out your brilliant ideas and arguments on generous colleagues, captive office staff, or tolerant family members? If so, you’ve already conducted a kind of “focus group.” Odds are you’ve come across an oddball or two, a relative or colleague whose quirky opinions are entertaining but hardly representative of the views of the rest of your sounding board. A single jury focus group can be an anomaly, too. Results from a single focus group can be misleading. A minimum of two, and preferably three or more, in-depth group discussions produce more reliable input about how a real jury may receive and assimilate information. If two panels respond similarly, they validate each other. If they don’t, you can often see why by comparing the composition of each panel.

Tip #3. Don’t succumb to stereotypes.
“Well, judging from focus juror number 2, I guess we need to stay away from pregnant women who wear pink Prada shoes.” Open-minded attorneys who would never succumb to stereotypes in any other venue start generalizing about optimal juror demographics based on six jury focus members. One Hispanic female can become Ms Hispanic Female — the representative of how every Hispanic female will reason and vote — and attorneys begin to base their jury selection strategy on erroneous demographic data.

Focus groups can be helpful in jury selection strategy but not by extrapolating the demographics of a dozen focus group members onto a panel of prospective jurors. Unless you test your case in front of at least 100 people, you won’t have enough individual juror’s responses to show you how different kinds of people will react to the issues in the case. However, the values and belief information you gather from even ten or twenty focus jurors can be useful in pinpointing voir dire questions related to pertinent value beliefs that you want to explore with real prospective jurors.

Another potential pitfall is focusing on how your group votes versus how they decide. The jury focus group process itself is partly to blame for the ease with which attorneys fall into this trap. The lawyer sees that the focus group members have seen a fairly accurate, although condensed, presentation of what will be presented to a real jury. Both sides of a case have been thoroughly marshaled and forcefully presented and the issues seem to be squarely presented for determination. Some focus groups get really caught up in the deliberation process and conduct their deliberations with enormous intensity. When this happens it is very easy for everyone involved to pay too much attention to the result, whether positive or negative, instead of the reasoning behind the results. Properly conducted jury focus groups are powerful preparation guides in showing you how to negotiate, conduct discovery, and better present the case in trial. They are not outcome predictors.

Tip #4. Don’t stack or sway your focus group.
If the case issues are presented to the wrong audience, an invalid result will occur. If a representative test audience is presented with a misleading summary of the issues on both sides of the case, an invalid result will occur. The importance of these two elements is easy to grasp. Satisfying them is not so easy.

Attorneys cannot ignore how tempting it is for focus group members to tell them what they want to hear. On more than on occasion, I’ve witnessed a seasoned attorney start off a jury focus group by giving a case summary that more closely resembled one-sided propaganda. To guard against this, group members should not be told whom the presenters represent, the location should be neutral, and moderator or facilitators must remain absolutely neutral in posing open-ended questions or directing the flow of conversation. In fact, it is better to select your worst jury nightmare, to learn the real weaknesses of your case, than to unwittingly camouflage serious problems in the focus group that will torpedo your chances with a real jury.

Similarly, focus group members should be conducted in the community where the trial will be held. A juror’s place of residence shapes how s/he thinks about many issues, some of which will be important to your case. If low population or confidentiality concerns dictate against such an approach, a similar community is a reasonable second choice; when assembling jurors in a substitute locale, use the trial venue’s demographics to put together your focus group. In other words, your jury focus group members should have similar family patterns, ethnic and religious backgrounds, educational and occupational backgrounds, rural-urban ratio, and other characteristics that could impact juror decision making in your case.

Tip #5. Capitalize on group psychology.
It’s pretty easy to run a group discussion: to get people started, to keep them on the subject, to keep the discussion moving, to bring out the people who are not participating, to inhibit the dominators, to bring people back to the subject when they stray, and to move them along to the next subject when they run out of steam. But the mechanics of running a discussion is only a small part of what a qualitative researcher does. The qualitative researcher has to use the group dynamics to help people to get to deeper levels of meaning, to verify in different ways that he/she is getting the true story, must keep track of different motivations, and much more. The competencies of a focus group moderator are somewhat akin to that of a psychotherapist. S/he must know how to sort out what is important, to understand implications, to decode symbolism, to unravel complex situations, to interpret ambiguous behavior, to develop strategies, to generate and develop new ideas, to design persuasion, to predict behavior.

Almost every group that seems routine turns out to have something in it that takes major skill to sort out. Groups typically come up with trial themes, hot buttons, new phrases, and new insights that tend to go right by most moderators and clients. Like a surgical operation, an airplane flight, a trial, or any other complex endeavor, things can get complicated, or go wrong. Airline pilots earn their pay during about 17 critical seconds a year. But do you want to trust your life to a surgeon, pilot or lawyer who is less than the best, just in case? Admittedly, focus groups are not as dramatic as the above examples and a focus group crash does not involve loss of life. But getting to people's motivations, which is what most focus group work is all about, requires a great deal of skill.

A skilled moderator can help jury focus members avoid the "follow the leader" problem by grounding each participant’s responses to his or her thought processes. For instance, asking a focus group member to write down a few words in response to a question before discussing the question can serve as a starting place for getting the participant to talk about what s/he feels, not what s/he feels about what another participant said. After that, you may encourage further discussion or even disagreement, but you have "grounded" the opinion of each participant in advance.

Tip #6: Cross-examine yourself.
To conduct a valid and effective jury focus group discussion is not easy. Trial lawyers who desire to conduct their own focus groups must be prepared to abandon adversarial tactics and learn new interviewing and discussion techniques. You must develop a solid understanding of the psychological and sociological issues involved in group decision-making. You must be able to present your opposition’s side at its best.

You must also be able to temporarily put aside your emotional investment in your case and listen to what may seemingly be irrelevant or frivolous reasoning. For some lawyers, developing these skills is too much of a stretch. During the debriefing process at a recent jury focus group involving wrongful termination and sexual harassment claims, the focus group members used “fairness” as a primary measuring stick in their deliberations. Rather than listen and learn how to incorporate this measuring stick into legal arguments, the defense attorney wasted much of the time arguing the irrelevance of “fairness” and attempting to persuade the jurors that they were wrong. The lawyer was technically correct, but I doubt his client would appreciate his legal aptitude if it came at the expense of losing the case.

The Bottom Line
Don’t use jury focus groups as a fishing expedition. Do enough focus groups with people who are like the jurors who will hear your case. Understand what your jury focus group can do for you and what it can’t. Celebrate and learn each time you “lose” a jury focus group deliberation; it gets you one step closer to victory in the courtroom. Use a moderator who understands juror psychology and can help you keep your own emotions and biases in check.

Using these tips can help you gain the most from jury research and avoid the potential pitfalls. I once heard it said that, “Regret is insight that comes a day too late.” A well-conducted jury focus group allows us to learn how groups of individuals perceive and describe our case messages, what life experiences and perceptions they use to interpret our themes, and how they are likely to respond to our witnesses and ourselves. They allow us a trial run to victory — before the actual trial begins.

Copyright 2004 Joni Johnston.