The Use of Focus Groups
for The Trial Lawyer (Continued from page 23)
of thought and preparation. One of the great benefits of conducting these focus groups is the forced discipline of prepar- ing and thinking through your case at an early stage. We often have thorough dis- cussions at this early stage of ideas as to strategy, exhibits, trial themes and the like. Much of what we decide at this stage is later incorporated into the actual trial. This is the ideal place to prepare time line and similar exhibits to determine if they are effective. Do you want to know if your time line has too little or too much infor- mation? Do you want to know if certain exhibits communicate effectively? Use these during your presentation and then listen to the reaction of the panels to your exhibits during deliberations. Do you want to know if there are any improve- ments you can make to your exhibits? Follow this up with a discussion during the debriefing period following the jury
deliberations as to what worked and what did not work and what improvements they can suggest to your exhibits. This preparation phase is also
the
point at which you determine what evi- dence you will and will not present and the order in which you may present it. Suppose for example you have a “bomb- shell” piece of evidence such as perjured testimony.
whether this evidence will be admitted. It may be that this evidence is so devas- tating that it alone will become the focus of the panel discussions. In this case, you may elect to withhold it from the initial presentation so that you do not preempt discussion of your entire case. This also permits analysis of your case in the ab- sence of the “bombshell” evidence or other evidence whose admissibility is in ques- tion.
Then at the aforementioned
debriefing phase, you can ask the ques- tion: “What would have been the impact on your decision if you had known ... .” Whenever possible, you should involve actual negligence defense attorneys to present the defense. In medical negligence
There may be issues as to
cases, obtaining the cooperation of an active defense attorney becomes difficult or impossible because of the tight knit nature of this segment of the defense bar with each other and with the insurance carriers. Your concern for the confiden- tiality of the process should always be paramount. However, even in the medi- cal negligence area there are usually recent attorney converts from the dark side avail- able. And defense attorneys from areas other than medical negligence in our ex- perience perform equally well if you provide them with adequate preparation. We rarely have difficulty in obtaining the involvement of a good defense attorney. Because insurance companies are reluc- tant to pay for these types of proceedings, the defense attorneys generally welcome the opportunity to be involved and to learn from the process. We meet with them well in advance and provide an out- line of the case including key deposition testimony, etc. We provide what we view as the key defense argument points and then allow their experience as defense at- torneys to identify additional areas of argument. Our observation is that a real defense attorney gives a superior and a more accurate and realistic defense to the case than you or your law partner are ca- pable of providing.
Our typical
compensation for the defense lawyer, in addition to the invaluable experience, is a dozen golf balls and a bottle of their fa- vorite spirits.
The plaintiff is allotted an initial 30 minutes, the defense 35 minutes, and then 10 minutes for plaintiff’s rebuttal. It is more important that the panel receive the information you want evaluated than strict adherence to the allotted time. But, fidelity to the rules of evidence is impor- tant so that the information presented to the panel will accurately reflect the infor- mation which will be given to the jury. Resist the temptation to embellish the facts. If anything, you want the mock trial jury to evaluate the worst rather than the best version of the case that you will present to the jury. In our experience, the maximum learning comes when the fo- cus is on the weakest points in our case and the strongest points of the defense case. It is typical for the mock trial partici- pants to want to ask questions either during or after the presentations. Gener- ally, we respond to the questions by reminding the mock trial panel that they are playing the role of jurors who in most courtrooms are not permitted to ask ques- tions and must decide the case on the evidence presented. Exceptions are made when necessary to correct inadvertent confusion or to straighten out procedural issues.
26 Trial Reporter Winter 2001
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