Don’t Let Your Jury (Continued from page 8)
sometimes quite surprisingly, emit from group members during the discussions. They reveal fundamental biases and preju- dices. If facilitated correctly, the group will treat your evidence as bland raw meat to be pounded and cooked on both sides. Happily, you may discover that there is some fact or issue in your case to which they hold a favorable bias or prejudice. Savor it to use to your advantage later on. Focus groups also provide insightful im- pressions into key physical evidence, demonstrative evidence and the language which you think is important in the case. Eventually, members will start talking about their own life experiences and they will compare them to the facts in your case. They will explain that they have a family member who was in the same po- sition as the plaintiff or the defendant, and they will seek to justify their beliefs based on these experiences. Real jurors do the same. The challenge is to discover who on your jury panel at trial has experiences similar to your focus group members so you can try to strike or to include them in your trial. In addition to their life experiences,
focus group members will provide won- derful vocabulary, descriptions, similes and metaphors about facts or arguments in your case. They will speak in ways that
with precision will help develop your trial theme and story. Focus group members will ask ques- tions that you have never considered. They will travel paths into areas of inquiry which never dawned on you. Do a focus group early in the case to help identify those paths and to shape discovery and motions for admission. The focus group setting is the perfect place to try different ways of sequencing and introducing evi- dence to them. You will see reactions to the ordering of evidence that make your case more persuasive to them. It is also the opportunity to test your legal and fac- tual arguments. The argument that you thought was very clever and persuasive when presented to your partner, may fall flat or be counter-productive when tried on a focus group.
Listen patiently to
group members’ arguments which can be very insightful. Perhaps the most helpful goal to be
achieved by presenting your case to a fo- cus group is that it forces you to prepare your file earlier and to concentrate on a single client for an extended period of time. Lawyers tend to wait too long to decide how they are going to give an open- ing statement or closing argument. They wait too long to decide the order in which they are going to call witnesses. They wait too long to squeeze out their creative juices in forming demonstrative evidence. Fo- cus groups help us understand how people
think and how they talk about all of the issues in the case. Truly, forewarned is forearmed. In order to achieve these goals, the members of the focus group should be prodded during their discussions by the following questions: 1. What other information do you want to know?
2. What if you knew that...? 3. What would convince you that the plaintiff is right and why?
4. What would convince you that the defendant is right and why?
5. What do you want to know about in assessing the plaintiff’s damages?
Pay particular attention to the criti- cisms and shortcomings of your case, and, in addition, listen to the questions that are raised by the focus group. The real jury in your case will probably find the same shortcomings and will probably ask those same questions. You need to be prepared to overcome the criticisms and answer the questions.
Formats of Presentation There is no scientifically verified or
secret formula for presenting a case to a focus group. Ways of presenting cases are varied and limited only by the imagina- tion. After much experimentation, ATLA now conducts jury focus groups in two basic ways: One, utilizing a concept fo- cus group, which is free flowing and often used early in the case; and the other, a structured focus group which is reminis- cent of a mock trial and generally occurs closer to the trial date. A concept focus group begins with a discussion of some non-specific facts in a case and is facilitated actively by a third person. For example, they may express feelings about lawsuits, negligence or doc- tor/patient relationships as a topic to start. Limited case specific facts are then intro- duced in piecemeal fashion. Group members are asked about their reactions to the facts introduced. This is followed by asking the question, “How do you feel about that and why?” A rich debate en- sues and group members share points of view and their understanding of the evi- dence. Biases and prejudices soon appear. The facilitator “unpacks” additional in- formation about the case as the discussion progresses. Group members either indi- vidually or collectively, vote on their conclusions at the end of the discussion. A structured focus group is more for-
mal. Two attorneys present a combination of opening statements and closing argu-
10 Trial Reporter
(Continued on page 12) Fall 2005
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