Focusing on Success: Using Focus Groups in Litigation by Zac Shaffer

“There is no such thing as an impartial jury because
there are no impartial people.” ~Jon Stewart.

Preparing for trial is one of the most difficult and time
intensive experiences an attorney may encounter. You
can be as prepared as possible for opening statements,
exhibit use, and closing statements, because you can
control and plan for the vast majority of those. But, the
one aspect that can never be controlled or perfectly
planned for is the jury. Yes, the legal system provides
voir dire but it’s not perfect. Jurors are people and
people are unpredictable.

So, how can you prepare?

This is where focus groups can help. While not perfect,
they can be extremely helpful. I had the pleasure of
getting to experience my first focus group recently.
If I had to describe the experience in one word:
enlightening.

Our office held a focus group with roughly twelve
people and it was very interesting hearing opinions
and the thought process of a sample of the public. Just
like a jury, life, or a box of chocolates, you never know
what you are going to get. Fortunately, the group that
attended was a good mix of individuals with different
ages, genders, and backgrounds. It opened my eyes
to preconceptions I had about the general public. For
example, I presumed that individuals who were as
close to the plaintiff’s demographic would be more
sympathetic; not all of them were. It was enlightening
to see that demographics was not the primary basis for
opinions on the case.

However, by far the most valuable aspect of the focus
group was listening to what the participants wanted to
know more of/see more of. Whether it was wishing the
plaintiff had done more or identifying and focusing on
conduct that made the defendant more culpable, they
were inquisitive about every aspect of the case. I was
not expecting it. Another interesting component was
hearing their opinions on the medical information and
providers. Experiencing first-hand how our sample of
society attached to certain components and focused
on specific facts was extremely helpful.

Is it worth it?

Absolutely. Each case is different. Even if the facts of
the case are similar, the parties typically are not. People
grow: physically, emotionally, and mentally. Opinions
and biases change. If you want to be successful at
trial, knowing what a potential jury would do can
make all the difference in your case. Perception
is key. We prepare witnesses and clients based
on perception. Attorneys want to make sure their
clients are perceived in the best light. How is the
non-human evidence any different? Using a focus
group to simulate a jury not only allows you to get
an early impression of how your client as a person
is perceived, but also how the facts of your case are
perceived (individually and as a whole).

If litigation is a part of your practice, I suggest using
a focus group. It is relatively inexpensive, compared
to other expenses. And it allows you to be the best
advocate for your client. As attorneys, being “devils’
advocates” is a part of our DNA. It can be easy
to anticipate opposing counsel’s arguments and
positions (most times you don’t have to anticipate
as it is relayed to you). But, when you have 8 random
people, you cannot anticipate everything. For this
reason, a focus group is one of the best litigation
tools available.