Subscriber Editorials

The Importance of Focus Groups and Jury Research

Jury research – primarily focus groups – has become an integral part of our firm’s case preparation. By way of background, we handle a variety of catastrophic injury cases, including trucking, products, aviation, medical negligence, and pretty much any other type of case that could produce a major injury. We have found that jury research is critical not just for trial preparation, but also in preparing for discovery and in evaluating a case for settlement purposes. We like to conduct focus groups before discovery begins and then continue the process at various points as the case progresses.

How I realized jury research was important for all lawyers.

When I was a younger lawyer, I had two humbling experiences that taught me that even the best lawyers don’t always have a good insight into what a juror thinks. I had great training at an outstanding defense firm and got a good bit of trial experience defending products liability and medical malpractice cases. However, I was not exposed to jury research until I was the primary lawyer on a medical malpractice case with enormous damages. Our client was accused of failing to diagnose a terrible infection that led to a young lady suffering severe brain damage. During the plaintiffs’ voir dire at trial, one of the jurors explained that she lost her mother to the exact same infection and gave a nice speech previewing our causation defense for the rest of the panel. After plaintiffs’ counsel finished, the defense team, which included some of the most respected names in the medical malpractice defense bar, huddled with our jury consultant. The consensus among the lawyers was that we needed to leave this lady alone since she was obviously favorable to us. Our jury consultant disagreed and said he felt I needed to probe further because something did not seem right to him. I did as he suggested and was absolutely shocked when this juror let loose a stream of anti-doctor rhetoric. The judge eventually struck her for cause because she was so biased against my client. The jury consultant’s years of studying focus groups and jurors prepared him to recognize something that four defense lawyers with a combined 70 years of experience completely missed.

The other experience was as a new plaintiffs’ lawyer working under one of the true luminaries of the plaintiffs’ bar. We had a new case where a very nice younger woman had a wrongful mastectomy after being told she had cancer when in reality she was cancer free. We discussed the possible value and felt we had a good handle on what the case was worth. We were each surprised when our wives reacted with visceral anger to the situation, and we realized we might be undervaluing the case. We began to conduct focused but very informal research, basically running the case by regular folks in informal settings wherever we could. This research led us to conclude that we had woefully undervalued the case. The case ended up resolving for an amount many multiples higher than the range we initially considered. These two experiences taught me that if all of these far more experienced and accomplished lawyers could miss the boat, I was doing my clients a disservice by assuming I knew what real jurors would think about a case.

It doesn't have to be expensive

Hiring a top-flight jury consulting firm to conduct focus groups can easily cost in excess of $30,000. And, make no mistake, you will almost certainly get much better information from these focus groups than through the less expensive methods. However, you can spend a lot less and obtain valuable insight by conducting focus groups in house. The minimal requirements for conducting a focus group are (1) participants and (2) a location. To obtain participants, you can advertise on a site like Craigslist or use a temp service such as Randstad and specify exactly the type of person you want (e.g., X men, X women, ethnic background, age, location, etc.). Or, you can hire a research firm like Jackson & Associates to supply the participants. The location just needs to be somewhere accessible to the participants, such as a hotel conference room or a conference room not associated with your law firm (since you don’t want the participants to know which side you represent).

Learn how to conduct a focus group

Describing the various types of focus groups, the dos and don’ts, and how to conduct them is well beyond the scope of this piece. However, it goes without saying that before you try a focus group, be sure to learn as much as you can about them. Attending focus groups is a great learning tool, particularly those performed by a high-quality jury consultant. These days, there are also a number of solid books and seminars on conducting focus groups. While I’m not as familiar with what the Defense Research Institute and other defense-oriented groups have available, there are numerous books for those on the plaintiffs side, including by David Ball, Don Keenan, and Greg Cusimano just to name a few. If you have a friend you know is doing focus groups, it might be worthwhile to volunteer to help just to learn more about the process.

Getting started is the hardest part

Conducting and evaluating a focus group takes a great deal of skill and experience, so your first focus group will be far less informative than your 30th. In fact, you’ll probably spend most of your time worrying about whether you’re making mistakes. For me, the hardest part has been setting aside my desire to advocate for my client. Once you get started doing your own focus groups – particularly when you learn something about your case you never would have realized – you will gain confidence and gradually the focus groups will become more beneficial. You will benefit and, most importantly, so will your clients. We still occasionally take the more expensive route, but having the ability to do focus groups in house has proven to be a huge advantage to our practice and to our clients.