Mock Juries Can Provide Attorneys With Invaluable Info
Those Who Use Focus Groups Before Trying Cases Swear by Them
By LISA K. BRUNO
It may be the closest thing to a crystal ball a litigator has: the mock jury or focus group — a sampling of individuals who reflect the expected demographics of the jury pool before whom the case will be presented.
Widely used in marketing, from taste testing to packaging redesign, focus groups can also provide attorneys with reliable and valuable information, such as insight into what people think, feel and talk about with regard to particular topics, thus enhancing the chances of a case’s successful outcome.
In Massachusetts, where voir dire is limited, focus groups are all the more critical for effective trial practice, according to Douglas K. Sheff, former president of the Massachusetts Academy of Trial Attorneys.
Since attorneys are often unable to ask probing questions of actual potential jurors, the Boston lawyer reasons, it becomes important to test a case with a group that is the socio-economic and cultural double of the likely jury pool.
“The most important benefit is that you can identify the strengths and weaknesses of your case — and they may not be what you think,” says Susan Broome, founder of Trial Consulting Associates in Newton.
Lawyers do have a developed theory of the case, she explains. But it is most frequently framed by applicable legal terms, and that is not how jurors are going to talk about the issues involved.
“I don’t think I have ever conducted a focus session in which lawyers have not learned something totally surprising,” she remarks.
This is because jurors come from all walks of life, points out Sheff, and their thinking likely does not reflect that of trained lawyers.
“They get their information from places we don’t — anything from Oprah to late-night television,” he notes.
“Every time I’ve done a focus group, I leave with my jaw on the ground and I’m reminded of how little I really understand,” says Boston litigator Marc L. Breakstone, who declares he will never try a case of any substance without holding a focus group. “The lessons that we learn are so invaluable and oftentimes beyond our appreciation, because we cannot see the case objectively, as hard as we try.”
Form and Function
There are two types of focus groups, Sheff explains.
The structured focus group, which uses a trial format, tests the style, presence and merits of the case. The attorneys then have the benefit of witnessing the mock jury deliberate to a verdict, a process that is videotaped, followed by a debriefing and follow-up questions.
The videotaping, Broome notes, allows lawyers working on the case from various locations to view the exercise without having to be present for it.
Structured groups, however, work only if you present your adversary’s case at least as well as your own, cautions Breakstone.
“The objective of the exercise is to lose the case,” he states. “Because only by losing can you understand the vulnerabilities and only then can you understand what you need by way of evidence or argument. One of my credos is, ‘If it hurts, you’re learning.’”
Sheff agrees structured groups are helpful once all the pieces of the case have been “pulled together” and can evaluate one’s performance as a lawyer. Even more effective, he goes on to note, are the so-called concept groups.
These groups — also referred to as issue identification groups — use a process of free association. Limited pieces of information are provided to the group whose reaction, in turn, prompts further inquiry.
This type of work is best done at the beginning stages of litigation, Sheff suggests, and is most useful for identifying the case’s overarching themes and for developing catch-phrases.
“I get five of those in every case,” he says. “I get great little things I would never have thought of without the basic, unblemished, unbiased blurting-out of information.”
These groups should be conducted under the direction of a psychologist or a facilitator, recommends Sheff. “You can’t do your own case — you won’t be effective,” he warns.
Early Benefits
Focus groups can be used at every stage of litigation, but the earlier they are consulted, the greater the benefit, particularly in guiding discovery, suggests Broome.
Following a presentation, she says, “one of the questions I like to ask the jurors is ‘What more would you like to know? What evidence would be helpful to you? Who would you like to hear from?’ That can be extremely helpful early on.”
Of course, not every witness can be deposed and not every exhibit is available, Broome acknowledges. But this, at least, affords the lawyer the chance to “inoculate” the case by providing explanations for missing evidence.
In fact, attorneys agree that focus groups help neutralize this riskiest feature of jury deliberations.
“You learn that jurors have a tendency to fill in the gaps, and if you don’t connect all the dots, they will connect them for you,” says Breakstone.
Sheff also calls focus groups the single greatest tool in overcoming juror bias.
“We can overcome it completely even without voir dire by reshaping our cases and by garnering messages that resonate with people,” he reports.
Any type of case can benefit from the input provided by a focus group, confirms Broome, who says her work “runs the gamut,” including smaller cases, such as charges of operating under the influence.
But it tends to be in larger cases, lawyers acknowledge, that litigators resort to focus groups. This is not only because of the costs involved, but because of the complexities these cases may present.
“Cases that are hard to understand, cases that have a lot of legalese in them,” Sheff specifies.
He warns, however, that mock jurors are better at deciding liability issues than valuation and damages issues. “They need more time,” Sheff explains, adding that he would be less likely to recruit a focus group in a case in which liability was conceded.“
And you can’t just do one,” he stresses, pointing out that repeated sessions allow lawyers to refine their presentation based upon what they learned in earlier groups.
Money Matters?
Of course, the cost of recruiting and running a focus group, especially if done repeatedly, can add up.
Breakstone estimates that retaining a consultant — to recruit volunteers, screen the jurors to reflect the venue, design questionnaires and conduct debriefings — runs to approximately $150 to $175 per juror for a three-hour session.
But Broome emphasizes the importance of testing a case before even a small group of jurors and assures that there is enough flexibility to render her services affordable. “There are ways,” she says. “I am always happy to talk to lawyers about how we can make this happen.”
While he describes the approach as “unscientific,” Breakstone notes that some attorneys simply gather their staff in their office or enlist friends and family members in a less formal focus group.
“There are a lot more $50,000 cases being tried than multi-million dollar ones,” he remarks. “You might want to consider low-cost alternatives, such as placing an ad in a local paper, offering people $50 or dinner to participate — and you can do it for $500 on your own.”
Sheff agrees that use of focus groups should not be reserved for big cases only.
“Any case in which you want to get four times the money you were going to get before, that’s when you hold a focus group,” he asserts.
