The Use of Focus Groups for


The Trial Lawyer by Robert R. Michael


Robert R. Michael is a Past President of a number of organizations including the Maryland Trial Lawyers Association (1982-1983), the Montgomery County Inns of Court, the Montgomery County Bar Association, the Montgomery County Bar Foundation, and a Past Chair of the Litigation Section of the Maryland State Bar Association. In April 1999 he was one of twenty-five attorneys who received the distinguished Montgomery County Bar Association’s Century of Service Award. He is a member of the American Board of Trial Advo- cates, a Fellow in the American College of Trial Lawyers, and a Fellow of the International Academy of Trial Lawyers. He has been listed in the last eight editions of “The Best Lawyers in America” and was named by Washingtonian Magazine as one of the areas best medical malpractice lawyers. He is a partner in the Rockville law firm of Shadoan and Michael, LLP, which specializes in representing seriously injured victims in the areas of medical negligence, automobile torts, products liability, and premises liability.


INTRODUCTION There is nothing more devastating than a defense verdict compounded by a post- trial interview of the jurors which reveals a total rejection of the plaintiff’s presentation and argument of the evi- dence.


These interviews are often


followed by feelings of personal recrimi- nation and frustration, particularly when the jurors identify “critical” evidence and testimony on which they based their de- cision which the lawyer regarded as not relevant or unimportant. As trial lawyers, we know that jurors enter the courtroom with preconceived at- titudes, beliefs, and assumptions based on their life experiences. We know that the jurors cannot possibly remember and sort out all the information we present dur- ing a trial. We know that jurors more readily identify with information with which they agree and reject information with which they disagree. We know that jurors organize and remember additional information in a manner consistent with their view of the case and ignore infor- mation that is inconsistent with their view of the case. And regrettably, we also know at times that what lawyers think impor- tant and crucial to the case is of little value or no interest to the jurors.1


Trial lawyers have lagged behind in de- veloping methods to understand how jurors make decisions. For example, the concept of “test marketing” products in the commercial sector and people and ideas in the political sector has been on going for decades. Enormous expense and effort is spent in obtaining reactions to new television programs and new prod- ucts. The extensive polling performed in the election just concluded is another ex- ample of this process. Trial lawyers have been slow to recognize the importance of this type of research. Focus groups are one vehicle which allows the attorney to “test market” his or her case.


1


Trials and Deliberations: Inside the Jury Room, Singer and Maloney, Shepard’s/ McGraw Hill, Inc., Colorado Springs, Colo- rado, (1992). This is a work based on years of research in mock trial and focus group studies and represents the collaborative ef- forts of a jury trial consultant, Amy Singer, Ph.D., and a fabulous trial lawyer, Pat Maloney, Esquire.


It reports the results of


thousands of presentations on a wide vari- ety of negligence suits. It is a must read for understanding the cognitive processes of ju- ries in reaching decisions on negligence suits.


The need for this type of critical analy- sis has never been greater than in today’s anti-litigation and anti-lawyer environ- ment. Trial lawyers and the injured victims we represent are the targets of de- cades of vigorous negative advertising campaigns by the insurance industry and big business with the often willing assis- tance of the press and media. It is the professional responsibility of the trial at- torney to determine as accurately as he or she can the cognitive process of the jury in deciding their client’s case. Focus groups are a valuable tool in this process. The scope of this article is limited to


presenting a practical guide in how to con- duct your own focus group based on our experience over the past decade during which we routinely used focus group stud- ies for every major case we tried. While there is a multitude of information about the many psychological theories as to how juries make decisions,2


this is beyond the


scope of this article. A thorough discus- sion and comparison of the various alternative types of focus group studies is likewise beyond the scope of this article. In the discussion below, reference will be made to materials that we utilize to conduct our focus group exercises. These materials have been assembled by the au- thor and provided to the Maryland Trial Lawyers Association along with this ar- ticle. Anyone wishing to have copies of any of these documents is invited to con- tact the Maryland Trial Lawyers Association headquarters.


TIMING Ideally, the focus group exercise should be conducted before discovery is complete and certainly before final decisions are made respecting exhibits and witnesses. The goal is to conduct the focus group study at a point where the defense is


(Continued on page 24) 2


What Makes Juries Listen, Hamilton, Law & Business, Inc.; New York, New York, (1985).


Winter 2001 Trial Reporter 21


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