You may elect to use the mock trial
presentation to gauge the reaction to your client or other witnesses by presenting live or videotaped testimony. If you elect to proceed in this manner, you must make sure that whatever presentation you pro- vide is balanced. Again, the integrity of the process is key. So if you elect to present your plaintiff live, then a surrogate live defendant should likewise be presented to maintain balance. The same is true as to any videotaped testimony. If you present one of your physicians, then also present a defense expert in the same manner. For time and convenience purposes, we gen- erally do not stray from the combined opening and closing argument format described earlier. There are many alternative approaches in conducting focus group studies. For example, one popular method is to as- semble a panel of participants and advise them that their job is to learn as much as they can about the case by asking ques- tions to the moderator. They are then given a single word, such as “infection” and permitted to use up to 100 questions to learn as much as possible about the case. The moderator consults with the attor- ney for the plaintiff and the defense as needed to formulate an accurate response based on the facts of the case. This exer- cise is designed to reveal the cognitive process of the jury in analyzing and weigh- ing the subject matter of your case. It permits the attorney to identify the im- portant evidence in the case.
This
information is used to develop themes and strategical approaches. Then a new panel is brought in to which a combined open- ing and closing presentation is given using the information learned from the first panel. This second panel is then debriefed which is followed by presentations to yet a third panel. The goal is to use the infor- mation learned from each panel to continue to sharpen your presentation. Hopefully by the third or fourth panel, you have identified the most successful available approach to your case. How- ever, this type of full blown exercise requires a professionally trained modera- tor and involves increased expense because of the number of panel members needed as well as the increased food and facility costs. It is likewise an all day process. You can expect to pay around $15,000.00 for the above. As with many other things, you get what you pay for and profession- ally run focus groups are available at substantially less depending on what you want. Use of a professional organization to conduct your focus group study must be weighed against the time and expense of the more modest effort described throughout this article which tradition- ally costs from $1,500.00 to $2,500.00
Winter 2001
in our experience. And for what it is worth having done focus group studies both with and without professional help, in our experience and in most instances the difference in the value of the infor- mation between the two models is not warranted by the great disparity in the cost.
We consider the development and identification of trial themes as a very im- portant part of this process. Research and experience indicate that juries tend to make decisions centered around themes. As stated earlier, they receive, process, and organize information received from wit- nesses and exhibits using themes. Focus groups are invaluable in testing and im- proving on simple themes in simple language which capture the essence of your case. For example, in a bacterial en- docarditis case where a newly heard murmur was ignored:
“This is a case
where the doctor heard something tick- ing and treated it like a clock instead of a bomb.” Want to know if this theme will work? Use it in your presentation and them watch the deliberations. If you picked the right theme, you will see it mentioned over and over again in delib- erations.
At the conclusion of the presentation, the moderator gives final jury instructions. Using their assigned numbers, the panel is divided into juries which we have al- ready determined with a view toward balancing gender, age, and ethnicity. A foreperson is selected. A verdict sheet is provided to each jury which is explained by the moderator.
THE DEBRIEFING After the jury concludes their delib-
erations by filling out the verdict sheet, we have them complete an “Exit Inter- view”. This form which is again available with the materials provided asks for among other things, their reactions to the attorneys, the key evidence on which they based their decision, the identification of what the plaintiff needs to do to win the case, the identification of what the defen- dant needs to do to win the case, and the identification of any additional informa- tion which they think might be helpful. We follow this with a group discussion with all panel members present where both attorneys ask questions about the case. At this point, you have watched them deliberate and are able to ask specific ques- tions to help you understand the cognitive processes in their decision making pro- cess.
IS IT WORTH IT? Yes. While preparing and conducting
these exercises is a great deal of hard work, they have proved to be very effective in
Trial Reporter
our experience. We have repeatedly made significant changes in themes, exhibits, and approaches in our cases as a result of what we learned from our focus group exercises notwithstanding the combined total trial experience of my partner and I of over 75 years. One cautionary note is appropriate here: the focus groups seem to have greater predictive value as to the liability outcome then as to the damages that will be awarded. The issues surround- ing the appropriate amount of money is more difficult to duplicate in a focus group setting. In an actual trial, the nu- merous variables of the reactions to the plaintiff and his or her family, or to the neighbors and co-workers describing the before and after picture, is much more difficult to effectively present than in a truncated proceeding as described here. This is not only our own experience but that of others as well as reported in some of the available literature.3
LEGAL CONSIDERATIONS The expanding use of focus groups coupled with the expanding role of trial consultants has generated increased inter- est in the discoverability of the results of such efforts. Issues of attorney work prod- uct, attorney-client communications, discovery relating to experts, and materi- als used to assist witnesses in testifying are all implicated. The trial attorney should be aware of the issues so as to maximize efforts to avoid any challenges.4
CONCLUSION Focus groups are a weapon that should be in the arsenal of every trial attorney. Given the costs involved, focus group pre- sentations are not restricted to only the large cases. The value of these exercises in any size case is undeniable. Even in cases with less than optimal outcomes, the case file can be closed with the security that the extra mile was walked and every- thing you knew how to do was attempted in an effort to achieve justice for the vic- tim you represent. A worthy goal for a worthy profession.
3
See for example “The Use of Focus Groups: Felicity or Foible”, GAVEL, December 1995/January 1996.
4
“Discovering Trial Consultant Work Prod- uct: A New Way To Borrow An Adversary’s Wits?”, American Journal of Trial Advocacy, Spring, 1994. This 36 page treatise is in- cluded in the materials as well.
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