Why Do Focus Groups?
We've written before about the difficulty in crafting a message for a jury and assessing whether that message is getting through. We’ve discussed shadow juries, paid observers who provide real time feedback during trial, and summary juries, members of the public kidnapped by judges to help settle cases. The other, more conventional, tool is the focus group, a set of strangers recruited to provide their thoughts and opinions on a case before trial.
Focus groups have a dubious reputation in the public consciousness, as the progenitors of lame political slogans and out-of-touch advertising campaigns. When a person or product is described as “focus group tested,” that's not usually meant as a compliment. But like any tool, there are good and bad uses of focus groups in litigation and we found them to be very helpful in preparing cases for trial.
But how do you focus group a case? And what can and can't you learn from running one?
At its core, focus grouping a case means taking the arguments and evidence that both sides intend to present at trial and distilling them down to a digestible presentation, say, a half-hour or an hour per side. The presentations (sometimes done by the same person, sometimes by different folks) are then shown them to a group of lay people who know nothing about the dispute. They are then asked what they have to say about it, sometimes even encouraged to “deliberate” amongst themselves while the attorneys watch. This can be done at a variety of levels of sophistication and expense. On the low end, focus groups can be run by the lawyers themselves, at their office, with laypeople recruited from CraigsList or TaskRabbit. The lawyers pay the folks fairly small sum to listen to an hour or two of presentations and fill out a comment card. David Ball, famous in the personal injury bar for his master work on Damages, published a primer on doing this, though, like most of his useful books, it can be shockingly expensive to acquire.
On the high end, most national jury consulting firms are happy to run extremely professional focus groups for you. These can be elaborate multi-day affairs at specially equipped facilities complete with slick graphics, detailed demographic information on the laypeople recruited, and even the infamous two way glass rooms where you can watch folks off the street deliberate on the mock version of your case. These are very cool, but can easily run into the six figures (or more) particularly when done iteratively – that is, testing out an argument, seeing the result, and then testing it out again.
And like anything else, there are options in the middle. We often employ outside experts to assist with running our focus groups, picking the panels, and analyzing the resulting data. This can be a substantial expense, but something less ruinous than a “launching New Coke” style mega-session. And the outside expertise can be helpful when it comes to distilling a case down to a testable presentation.
What can you learn from focus groups? Several things:
1. Avoiding Disaster
A client comes to you with a case. You're initially skeptical, but you dig into the facts and the case law and find some genuinely persuasive arguments. You file the case. The other side comes up with a story that sounds good but you come up with a lot of reasons why it is wrong. You take it to trial and you totally out-lawyer the other side, who seem out of their depth. You know better than to promise victory, but you're feeling very confident and the client can tell that you're confident. As such you both assume that you're going to win.
But you don't win. You lose, quickly, utterly. You're shocked. The client is furious and feels betrayed. How could this happen?
You got too close to the case.
Remember, you were skeptical when you first heard the case. Then when you heard the other side’s story it initially sounded good. This is a great position for the other side! It indicates that they have very resonant, very understandable, defense. You forgot that when you dug into the weeds of the case, but the jury didn't — they are hearing the case for the first time. If you forget what your first reaction is to a dispute, you will not be able to properly assess the strength of your case or figure out what work you need to do to win.
First and foremost a focus group is a reality check on how normal people see your case without months or years of conditioning. If three quarters of them assume that your client was at fault when they hear what happened, you need to know that before trial. This can be very painful to hear, particularly when you believe that you are on the “right side.” But the first step to solving a problem is knowing that it exists. A focus group can give that to you when you might not otherwise see it.
2. What’s Easy and What’s Hard?
If you've ever read the Silmarillion, one of the challenges of following the narrative is that Tolkien chose to give many characters names that are almost exactly the same, e.g., Finwë, Findis, Fingolfin, Fingon, and Finarfin. Some cases are like that. We had one with four people named Hans (none of them elves), and it made interpreting short e-mail messages an absolute delight.
That point of confusion was easy to spot, but others are more subtle. If you've lived with a case for a while it can be very hard to see where a normal person can become confused (or worse – radically misinterpret what is going on). After you listen to a focus group discuss your presentation it becomes very clear which parts of the story are easy to follow and which parts you will need to repeat eighteen times before anyone understands them. And if your strategy for winning requires a jury to understand a set of facts that is maddeningly hard to follow you may want to consider an alternate approach.
3. Which Dogs Won’t Hunt?
Some stories are inherently believable – they rely on common tropes and lived experience. They have the ring of truth, whether they happened or not. Other stories are inherently not believable, you can almost see the jurors wince as their brains reject what they're being told, even when it’s the truth.
The evidence, the indisputable facts, and the truth are fixed. You can't change them and you shouldn't try. But the story that you tell about those facts is very much up to you. Is the plaintiff a greedy liar, or merely confused, the victim of someone else's misconduct? Is the defendant wicked or merely negligent? If you've got any sense at all, you're going to tell a story with a moral message. Is it a fable that people want to accept, maybe even one they'd come up with on their own? Or is it a moral framing that they cannot get behind, even if they ultimately agree with you 100% on the facts.
Telling your story to a focus group can't guarantee you that your story will work at trial. But if your story doesn't resonate with any of the folks that you pitch it to, you need to come up with another. It is not enough to convince yourself. It is not enough to convince others at your firm. You need to convince people who have no interest in the outcome of the case.
What can't you learn from focus groups? We're highly skeptical of anyone who tells you that they can get actionable demographic information for use in jury selection. Even if every professional woman on your focus group loved you and every retired man hated your case, the sample sizes are orders of magnitude too small to even show a favorable or unfavorable tendency. And that's ignoring the practical, legal, and ethical limitations on demography as a jury selection tool. Focus groups can tell you a lot about your case, including things that you might not enjoy learning. They can be a powerful tool to win more trials. But when it comes to learning about individual jurors and whom you want on your jury, there's no substitute for voir dire.
