Tips for Conducting Focus Groups
By Marni Becker-Avin

For an “In-depth” Focus Group, the attorney involved will present the information to the jury (he/she should portray the opponent’s side), and another attorney in the firm will represent the client. Demonstrative evidence, witnesses, video depositions, documents, or other evidence can be shown to the jury for them to evaluate as part of the deliberations. Each side will have approximately 20 minutes to present their case. The moderator will facilitate the group discussions. An “informal” focus group is different only in that the attorneys are not present. The moderator presents the case to the jury piecemeal in order to determine what is or is not important to them in the decision-making process. Approximately 90% of the same information can be gleaned through an “informal” focus group, with the exception of attorney presentation analysis. In either format, the information is gathered and analyzed into a report which should offer objective results and suggestions of strategies which could be implemented at trial or mediations.

1. Plan ahead for the group simulation by studying the facts of the case and having a basic understanding of the underlying law involved. Remember, the jury is the finder of fact, so the focus of the group should be on the facts of the case (i.e. problem areas, issues of importance, what’s irrelevant, the theme, analogies, how they feel, preconceived notions, what would change their mind, etc.).

2. Hire jurors from the prospective venue area if possible, and arrange to meet them in an “objective” environment, such as a hotel conference room, so as not to influence the jurors in any way. For example, if the jurors see a sign of the law firm’s or realize that you work for one side or the other, they may be more apt to skew their answers as opposed to answering honestly. Most jurors will insist on getting paid for their time. This is to be expected, and does not influence their opinions in any significant way. Because the jurors are getting paid to listen and participate, and because they are told that they are helping the attorneys to possibly settle the matter before it gets to a courtroom, the jurors feel that they have a stake in the outcome, and are more likely than not to be open and honest with regard to their opinions, viewpoints, or biases.

3. Jurors can be procured in any number of ways: via a database compiled by the consultant, an ad in the newspaper, a university campus, an airport or bar in the area, an employment firm, a marketing research company, etc. Groups may also be conducted via email or on a website. The downside of these types of groups is that you do not get to observe the juror’s body language and interaction. However, there is an upside: the freedom to provide honest feedback and uncensored truths. Also, you can get the opinion of jurors on their own time, at night, or when they are not working and do not feel time constraints or pressure. By conducting the focus group in person, you run the risk of having no-shows (always remember to confirm the day before).

4. Do not select jurors or prejudge jurors based on demographics or physical appearance. You do not know how intelligent that person is or under what circumstances that person grew up. It is our life experiences and va lue beliefs that influence the way we perceive various issues. While you may take into consideration the person’s race, religion, or ethnicity, it should not be a main focus.

5. Set up the room so that the 6 to 12 jurors are facing each other, with the moderator at the end. Begin by explaining the expectations of participation and confidentiality. Confidentiality goes both ways, which means that the attorneys involved do not get to know the names, phone numbers, or addresses of the jurors. The environment must be conducive to open discussion, thus, make sure the room is at a comfortable temperature, there are refreshments for those that would like food or drink, the bathrooms are right down the hall, and each person has been supplied with paper and pens. If you are going to watch a video or you will have to draw something, remember to require the conference room supply you with a tv and vcr and/or an easel board.

6. Unless otherwise agreed to by the moderator beforehand, the client should not be physically present to observe the group. Likewise, the client should not be provided with the actual report containing the analysis of the group. This is because the report may create high expectations that may not be obtainable or it may discourage your client from pursuing the matter altogether, depending on the outcome of the particular research. If your clients want to know the results of the simulation, it is my suggestion that you write a letter which summarizes the results in your own words and the implications of the results from your perspective. A focus group is only one tool in an attorney’s arsenal, from which he/she can strategize, prepare, negotiate, structure opening argument, determine prospective jurors, develop themes, or settle a litigation. It is both science and an art, and while not a guarantee of results, it is understood that every little edge helps.

7. A good moderator will make sure that everyone gets a chance to speak, clarify any misconceptions, paraphrase juror’s statements or responses, highlight key points, probe past the juror’s subconscious defenses, take note of body language and non-verbal communication, encourage discussion and development of themes, etc. It is important to attempt to sway the case against the client in order to determine what it would take to convince the juror’s to rule in your favor. Questions should begin with how, what, which, when, and who. Why or Don’t questions tend to elicit a defensive response. Jurors can be asked to hypothesize in order to exp lore alternative perspectives. You can ask them to choose among a list of options to determine what is most important to them. The moderator must encourage the jurors to participate, keep talking honestly, be comfortable with one another, and above all, have fun with it.

8. Focus Groups will be more valuable to the end-user if the objectives are narrowed considerably. Instead of “ How do I win the case?,” Simplify what you want answered. For example, “How do I best communicate the complexity or the technical aspects of this case?”, “What type of Jurors do I want on my Jury?”, “What is the damage potential of this case?”, “Should I settle, and if so, for how much?”, “Does the main witness appeal to a jury or come off as a pompous ass?”, “What should I be asking these witnesses in their depositions?”, “What kind of evidence should I be looking for during discovery?”, “Should I accept this case on contingency?”, and “What is my theme in this case?”.

9. Don’t just end the deliberations at who wins, how is it apportioned (if at all), and how much. It is important to question each juror, after achieving a baseline from within the group, as to why they decided the way that they did, what was the one thing that stood out in their mind that tipped the scale in that direction, what you could tell them or show them that could change their minds to rule for the other side, and what they would like to know or see about the case that was not presented or answered for them. Some consultants like to use questionnaires as to attorney presentation, witness evaluation, evidence analysis, case strength and weaknesses, etc. in order for each juror to individually evaluate the particulars of the case prior to deliberating as a group. While the results of a focus group are work product for purposes of litigation, you want to be careful as to the amount of documentation produced. If the moderator is good, he/she will effectively glean all of this information from the jurors throughout the process and compile the information in the report.

10. Usually, what is important to a jury is never what was important to the attorney (and visa versa). The focus group helps the attorney and/or the client, who is usually too close to his/her case to view it objectively, to see outside the box and view reality from another prospective. Focus reports can also be helpful during mediations and/or negotiations. While I don’t suggest showing the report to opposing counsel, some attorneys like to “discuss” what a representative group of people thought about the case.

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