Enhancing Your Argument Through Jury Testing | Method #1: Focus Groups

Fishman Haygood special counsel Lara Richards recently published an article for JDSupra on three different jury testing methods—focus groups, mock trials, and shadow juries—and how they can help litigation teams before entering the courtroom. Continue reading below for more on the first method: focus groups.

 Background

Jury testing is a powerful tool in litigation, and attorneys would be well served to think about their cases as studies worthy of experimentation. Cases are not mysteries to be solved; they are a series of testable questions that can be answered by people who, more times than not, follow predictable decision-making thought processes. The likely outcome of a case, as well as what influences its outcome, can and should be measured.

Still, many legal professionals neglect to take full advantage of these strategies. In Phillip Miller and Paul Scoptur’s Advanced Depositions Strategy & Practice[i], the authors identify why attorneys may believe jury testing is unnecessary, including some (or all) of the following feelings and assumptions:

• I have all the proof I need.
• Focus groups are too expensive.
• I know how to talk to a jury.
• This case will probably settle.
• I had a professional prepare my exhibits.
• I already have the smoking gun discovery.
• I know my case better than anyone.
• That evidence will never come in.
• I have an expert for that.

Without discrediting any attorneys’ legal aptitudes and personal expertise, you simply cannot put all your stock in a gut feeling, the artistry of trial, or the presumption of exorbitant cost. Instead, we must recognize data as a worthy investment with the power to drive verdicts. After all, it’s data—not belief—that allows attorneys to refine issues by learning what resonates with jurors, how to better coach witnesses, and which case themes need to be tailored.

The best part? You don’t need to hire a PhD jury consultant or spend a lot of money to gather quality data. With recent technological advances, do-it-yourself jury testing has become much easier. Platforms like Zoom allow events to be hosted completely online or as hybrid events with in-person jurors and attorneys and experts watching offsite. Likewise, online data collection is also simple and cost-effective with countless polling and survey platforms available, providing instant voting results by the jurors.

Interested in jury testing? Keep reading to learn how your law practice might employ three different types: focus groups, mock trials, and shadow juries. 

Method #1: Focus Groups

Focus groups involve a collection of individuals brought together to hear facts, evidence, and arguments regarding a lawsuit. Typically, attorneys and/or experts do not actually “present” at a focus group. Instead, members engage in roundtable discussions where a moderator oversees free-flowing discussion. Focus groups are most often conducted in the middle of a case, perhaps in preparation for key depositions or upcoming hearings.

The standard agenda for a successful focus group begins with the moderator providing the group a general case overview. He/she then collects initial feedback and opinions before presenting key facts one-by-one from the Plaintiff’s case, perhaps sharing key documents from evidence. The same is done for the Defendant’s case. Next, the group is shown deposition clips of key witnesses, and the moderator solicits feedback. Is the witness credible? Likable? Is the witness’ story believable? Is there something about the witness that bothers the jury? Finally, the moderator presents the damages of the case and notes reactions.

One of a focus group’s primary goals is to help you understand what to expect in court. Participant feedback aids in ensuring the soundness and clarity of your case, helps eliminate path dependency in your theory, and allows you to identify other problems in your argument with enough time to course correct. Focus groups are also meant to let you explore elements of your case more thoroughly: Which themes or what language is most impactful? What evidence is most convincing? How do people react to your witness or perceive your client?

Focus groups allow you to test theories and other points of emphasis. For example, you are able to find out if a particular video exhibit affects overall recovery or learn which attorney’s delivery the jury prefers and how certain messaging impacts their understanding of liability. Throughout the event, you might also see more clearly in what ways different personalities interact with or influence others during deliberations. How do these types of group members assign weight and credibility or judge liability and damages? Juror profiles provide a useful edge when navigating the path of least resistance to meet a client’s goals.

Stay tuned for part two in Lara’s jury testing series: mock trials.

[i] Miller, P. H., & Scoptur, P. J. (2013). Advanced depositions strategy and practice. Trial Guides.