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Articles Table of Contents
A version of this article first appeared in Trial Diplomacy Journal.
Focusing on Jury Focus Groups
The Ideal Tool for Learning What Jurors
Think and
Feel About Your Case
by Amy Singer, Ph.D.
No baker worth his or her salt would make a cake without knowing the ingredients; no doctor would prescribe a pill without understanding how it will affect the patient; and no marketing executive would introduce a new product without first testing its consumer appeal. And yet many attorneys often go into court without performing essential pre-trial litigation research to determine how jurors will regard and thus decide their cases. Is it any wonder they are often shocked when negative verdicts are reached?
The attorney has a professional responsibility to determine - with as much certitude as possible - the bases, psychological and otherwise, upon which the jury will decide the case. This can only be achieved through pre-trial litigation research.
Litigation research consists of pre-trial surveys, jury simulations, focus groups, and similar scientific studies. These activities parallel the test-marketing of products common in the commercial sector and of issues and individuals in the political sector. Litigation research activities are designed to help the attorney understand the case from the perspective of the jurors, i.e., to see the case the way the jurors will.
Jury focus groups and jury simulations function like a Rorschach test, illuminating jurors' cognitive processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. They are formal scientific experiments in which the surrogate jury "response group" receives various stimuli (alternate case presentations).[1] A professional evaluation and interpretation of the jurors' deliberations (responses) is conducted. This exercise can reliably determine jury attitudes concerning the case and all of its key aspects. Just as a telescope into the minds of jurors, jury focus groups and jury simulations can provide a vivid picture of what jurors will think and feel about the case.
Pre-trial litigation research is absolutely critical for effective trial lawyering. Attorneys are trained to focus with laser beam intensity on the law in all of its sometimes mind-numbing minutiae. But most jurors have only a lay person's interest in the law, if that. What's important to the lawyer may prove to be of little or no interest to the jurors. Indeed, the jurors need not worry at all about the lawyer's concerns, but the lawyer must worry mightily about the jurors' attitudes and concerns. If not, he or she is liable to get a very sorry surprise when the verdict is announced.
All jurors enter the courtroom with preconceived attitudes. Litigation research assists in uncovering those attitudes, and how they are likely to affect the ways jurors are likely to perceive the case. Without such critical knowledge, the attorney's otherwise careful case planning and preparation efforts are beside the point - the jury decides all.
Focus groups - invaluable in deciphering juror attitudes
One of the most effective tools available to help the attorney understand jurors, the case issues they will consider most critical, and how they will evaluate these issues, are focus groups. These litigation research activities are designed to help determine what the jurors' expectations will be concerning the particular case, and how to subsequently plan the case according to these expectations. Focus groups can be used to help determine methods to improve and clarify arguments and evidence so that it will be directly responsive to the jurors' concerns. They permit the attorney to test-market alternative trial themes and case strategies to determine what works best. These options can be examined without imperiling the case before the real jury.
After planning and organizing more than 5,000 jury focus groups and jury simulations during the past 17 years, our firm has determined the following to be the most important points to consider when conducting jury focus group research.
Forget demographics
Many attorneys mistakenly believe that a properly organized focus group should represent the venue demographically. (Such a grouping is termed a "random quota sample.") But since focus groups normally are comprised of only six to 12 individuals, it is simply not possible, statistically, to create a true random quota sample among such a small grouping. You need to test at least 400 individuals for your research to achieve statistical significance.
The heavy attention attorneys place on demographics when planning their juries is completely misplaced. Overwhelming scientific evidence indicates that such factors as race, age, gender, occupation, and so on fail to relate in any meaningful way with jury verdicts; and, indeed, often increase error rate during voir dire. Attorneys should keep this primary psychological rule uppermost in their minds when selecting juries: Those variables that are most observable are least predictive of verdicts and jury behavior.
Value beliefs
The only factor which correlates with jury behavior has to do with value beliefs. These are the basic beliefs, ideas, assumptions, and attitudes that people hold most central to their personalities. [2] Numerous studies indicate value beliefs to be the key factors, along with life experiences, that correlate with how jurors will actually judge the case.
"A room full of Hitlers"
It is not useful (indeed, it's impossible) to attempt to create a demographically accurate grouping for a jury research focus group. It will be far more productive to recruit six, eight, 10, or 12 individuals (the number depends on the research design being employed, along with the research objectives) who will, in effect, constitute a "room full of Hitlers."[3] By this, I mean an assortment of highly negative and extremely verbal contrarians.
In addition to being contrary and difficult, your focus group participants should possess value beliefs and opinions that run directly counter to the desired point of view. Such individuals almost always can be counted upon to uncover and to spotlight the problem areas of even the most perfect case. They will quickly identify and hone in on the case's weak points, and thus perform the essential role of devil's advocates.
Stay away from colleagues and friends
Conversely, focus group participants should not be friends and/or associates of the attorney. A random gathering of friends and/or colleagues to judge the merits of a case seldom proves fruitful. Such individuals almost always will share the same value beliefs as the attorney, hardly an objective test. Attorneys learn to their chagrin that recommendations developed as a result of such ad hoc groupings often lead away from the optimum trial strategy. [4]
The best approach to use when organizing jury focus groups is to assess the opinions of individuals who are already negatively predisposed against the case - the true acid test. Remember: the key consideration in any jury research is to determine those arguments that will provide the greatest possible opportunity to convince the jury. This goal can best be achieved by first testing your arguments on a difficult audience to eliminate what doesn't work, so as to find what does. This is your optimal trial presentation strategy.
Setting and atmosphere
Focus groups should be conducted in a setting that will promote, not prohibit, free and open discussion. This rules out most offices, particularly law offices, which can often be intimidating. Focus groups also should not be conducted in law offices is because it is critical that a complete air of neutrality and impartiality be projected for the proceedings. Focus groups are "blind" scientific experiments. If the "test subjects" (surrogate jurors) are able to sense the identity of the party sponsoring the research from the surroundings, they may be inclined to give only socially desirable answers which favor the sponsor.
An ideal setting for focus group research is a hotel suite (the more comfortable the hotel, the better) with one or more sofas and numerous easy chairs. Everything should be as relaxed and casual as possible. Surrogate jurors will feel most free and uninhibited in such an environment. As a result, they will be more inclined to offer their true opinions about the case and its primary issues. My firm conducts the majority of our focus group research on the "Courtship," our Ft. Lauderdale-based yacht (the world's only fully equipped floating mock courtroom). The relaxed and carefree yacht surroundings help to ease any surrogate juror inhibitions, thus promoting the most free-wheeling and open discussion of the issues. (We also use other relaxed settings such as cabins in the woods, beach houses, and so on.)
Repetition and timing
In terms of the number of jury focus groups/simulations[5] that should be conducted, a typical series involves a presentation that is repeated three to five times. As in any other scientific test, this repetition is essential to ensure the validity of the results.
Regarding timing, it is always recommended that jury focus groups and simulations be conducted as early as possible in the trial planning process - at least 90 days before discovery is complete. When planning focus groups, it is useful to keep in mind that such litigation research activities help guide the attorney away from peripheral concerns that may be of little or no consequence to jurors; as such they can greatly reduce the amount of discovery time that will be required.
A second series of focus groups/simulations should be conducted immediately before trial to help determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.
What about venue?
It is commonly accepted that jury research should be conducted in the venue in which the trial will take place. In most cases, however, venue is not an overriding consideration. The key factor in securing focus group participants is to find individuals who will possess value beliefs that run counter to the desired point of view; the addresses where such individuals live is, in most cases, simply not a factor.[6]
Presentation
A universal misconception concerning focus groups is that it is important to always make your case shine in front of the surrogate jurors. In this regard, focus group leaders often attempt to provide the surrogate jurors with a biased perspective that leans heavily in their favor. They leave out incriminating evidence. They provide a questionable chronology of events that is weighted towards the client. They fail to provide the surrogate jurors with a simple explanation of the facts, and instead editorialize to color the surrogate jurors' perceptions. They emphasize their case's strong points while minimizing any trouble spots.
This approach is the exact opposite of how focus group research should be conducted. Surrogate jurors need to be able to react to the facts of the case, not to the attorney's interpretation of the facts. Presenting an overly rosy picture of the case is bound to prompt surrogate juror responses that will have no little or no relevance to what will come out in court later.
The most effective focus group research is achieved when the opposition's strongest points are stressed, along with the weaknesses of your own case. Surrogate jurors should be asked to concentrate on the various depositions that directly attack your position. All interpretations regarding minor case issues and other close calls should automatically be presented in favor of the opposition.
You can't solve a problem if you don't know you have one. This "tough love" approach to jury focus groups will spotlight the major problem areas of the case, along with effective ways to deal with them.
Scripting
What and how do you present? Jury focus group presentations are organized and handled by professional "facilitators" who are especially trained to conduct such affairs, and who bring the important element of objectivity to these research activities. The facilitator helps determine what information is presented to the surrogate jurors regarding the case's facts, issues, disputes, theories, and arguments. He or she also determines how and when this information will be presented.
A professional facilitator should be expert in interviewing individuals on a one-on-one or a group basis. He or she will normally come from a professional background and will often have worked in such fields as social or behavioral psychology, journalism, marketing, sales, or even theater. A professional facilitator should not be the actual attorney involved in the case, or his or her colleagues or office personnel.
A good facilitator will have an open and engaging manner; will possess a warm and friendly personality; and will be highly intuitive and insightful concerning what motivates people to act, think, and feel in certain ways. Often, he or she will have been trained, either formally or informally, in Rogerian psychology techniques,[7] and will be expert in getting people to open up.[8]
One of the primary attributes a good facilitator must possess is perceptiveness - he or she must be able to immediately recognize during the focus group sessions when a surrogate juror is detailing his or her value beliefs vis-á-vis the case and its primary issues. Value beliefs are the key indicators regarding how jurors are likely to evaluate, and thus decide, the case.
The facilitator is an information-getter and data-gatherer. He or she should be able to identify the theme of the case, the case's problem areas, the surrogate jurors' key beliefs and critical value beliefs, and the other points most critical to the case. Once this information has been noted and recorded, it is then turned over to the litigation psychologist. This professional analyzes and interprets the data, then makes recommendations concerning the optimum trial planning and presentation strategy.
The facilitator's primary goals are to develop the maximum amount of useful information during the focus group session(s), and to ensure that the key investigatory areas of the case are fully covered so as to promote the maximum relevant juror responses.[9]
The facilitator does not necessarily have to determine the ideal analogies and metaphors to use to explain the case to the jurors, or the optimum strategies and tactics to present the case - this is the litigation psychologist's domain. The facilitator does, however, need to be able to understand, note, and intelligently report about the information, key insights, and other valuable data developed during the focus group session(s). The litigation psychologist then takes this information and uses it to develop the most on-target and creative case planning strategies.
More than just "getting reactions"
Many attorneys mistakenly operate with various misperceptions concerning jury focus groups. Some think, for example, that focus group research simply means assembling a number of people in a room, asking for their opinions concerning a particular case, then noting their reactions. If this is all that focus groups were about, the attorney would not need the assistance of a litigation research firm. He or she could simply round up a few stray bodies, hire people from a temp agency or market research firm to ask questions and note responses, turn on the tape recorder or video recorder, and be done with it.[10]
Anyone can get and record reactions - just put a bunch of people in a room, then listen to, and note, their comments regarding whatever you tell them. Jury focus group research represent much more - opinions expressed by the focus group participants must be scientifically evaluated and interpreted to achieve meaning. Let's take a look.
Analyzing the "metaprograms"
A key aspect of litigation research concerns understanding, analyzing, and interpreting the surrogate jurors' "metaprograms"; and how such programs relate to the primary trial issues and the manner in which the case will be judged.
What are "metaprograms?" This psychological term derives from the latin word "meta," meaning "goal" or "end," and used, figuratively, to describe a "turning point," or "critical moment"; and the word "program," meaning a system under which action may be taken to achieve a desired goal. A "metaprogram" refers to the internal and quite unconscious propensities of individuals (for our purposes, jurors) to make decisions on the basis of important goals and/or events they want to achieve or avoid.
It may be helpful to think of a metaprogram in this way: people are motivated and energized to think, feel, and react in a certain way, i.e., to provide pleasure and/or happiness (a "towards" metaprogram), or to avoid pain or sadness (an "away" metaprogram). For example, a juror may want to put a limit on the amount of money a plaintiff can receive for pain and suffering (an "away" metaprogram); or the juror may want to make sure that a manufacturer keeps making a life-saving drug in case he or she may need it in the future (a "towards" metaprogram).
The attorney cannot develop an effective trial or settlement strategy, or even pick a jury, if he or she does not understand how the jurors' various metaprograms may affect the manner in which they evaluate and decide the case. The attorney needs to know, in other words, how the case will affect the jurors - i.e., which of their psychological "buttons" will be pushed. Such information can be determined most effectively through the professional analysis and interpretation of highly directed research findings accumulated during jury focus groups and jury simulations.
Metaprograms and value beliefs
Metaprograms are closely tied to value beliefs, the bedrock principles upon which people operate. Value beliefs can be identified when jurors use such words and phrases as "should," "must," and "ought to"; or when they generalize, such as "everyone" and "anyone." So, for example: "doctors should.....," "people must.....," "the manufacturer ought to.....," "the company could have.....," "everyone knows that.....," "anyone could have seen.....," and so on. Value beliefs also can be identified when people use this type of phrasing: "it is dangerous to.....," "it's natural to expect that.....," and/or "I feel.....", "I think.....," and "I want."
Juror metaprograms can be elicited by asking the following type of questions during focus group research: "What is important about.....?" "Why do we need/want.....?" "What do you expect when.....?" "How do you know when.....?" or "How can you decide if.....?" [11]
Uncovering the jurors' various metaprograms should be a key element in any litigation research; this information can provide a strong foundation for litigation planning that has the best opportunity to achieve courtroom success.
Trial theme discovery
Focus groups are the optimum research tools available to determine the all-important trial theme. What is a theme? A theme is a brief - often one or two words - summary of the case, it's raison d'être. A strong theme is absolutely essential to courtroom success; indeed, theme development is the most basic and essential concept for all planned and structured communications. You can't have the chicken without the egg, and you can't communicate in any meaningful way - in court or out - without a compelling theme.
Theme development is particularly fitting when it comes to all forms of persuasive communications, including courtroom argument and debate. Attorneys need to consider the following trilogy of truths regarding theme development: 1) trial themes personalize the primary case issues; themes help jurors form impressions, and 3) impressions win lawsuits.
Decades of jury research indicate that jurors deliberate in themes. The trial theme provides essential meaning to the jurors, and helps them organize and remember the case facts. A strong theme will prompt the jurors to look for evidence that supports the theme while ignoring evidence that doesn't. The right theme helps jurors rationalize away all the case conflicts and justify the desired case viewpoint.
Some examples of worthy trial themes include "David and Goliath" or "arrogance" (for commercial cases), "an ounce of prevention is worth a pound of cure" for negligence cases, and "covering all bases" for medical malpractice cases.
It is essential that the attorney find a theme that will achieve the widest possible level of acceptance with juries (i.e., the theme that is most consistent with the jurors' thought processes and metaprograms). This can best be achieved through focus group research.
When you find the right theme, you will know it - the whole case comes swiftly together and falls neatly into place. The jurors' individual frames of reference shift positively towards you; and it suddenly becomes clear that your point of view regarding the case dispute is the right one and the other side's is wrong. A good facilitator does not rest until he or she finds the ideal theme.
In a recent disposable lighter case in which I assisted, the manufacturer had a childproof patent for years, but did not make it available to the marketplace. The mother in the case had kept the manufacturer's non-childproof lighter well hidden. Nevertheless, her small son was severely burned after finding the lighter and playing with it.
The lighter met all applicable standards and worked precisely as intended. For these reasons our focus group participants did not accept any of the various concepts proposed by the plaintiff - i.e., that the lighter was unreasonably dangerous, that it was defective, or that the manufacturer had been negligent in its failure to warn of possible danger.
The case was going nowhere fast. Then, during additional focus group research, the concept of "effort" suddenly surfaced. It was as if someone had turned on a giant spotlight in the room, brightly illuminating and clarifying the case so all could understand and agree on it. The surrogate jurors felt in unison that while the mother had at least made an effort to prevent an accident by hiding the lighter, the lighter manufacturer had made no effort at all to market a safer product, even though it was fully capable of such action. The "effort" theme was subsequently employed in court to win a substantial award for the plaintiff.[12]
Once the appropriate theme is discovered, it needs to be rhetorically adjusted to the jurors' key metaprograms so that it will resonate most strongly. In our lighter case, for example, a valuable and revealing voir dire question was developed via this technique: "Why is it important for a manufacturer to put forth some effort to prevent injuries, even if their products meet the prevailing standards?"
Identifying the conversation
Deliberations are simply conversations among the jurors. Jury focus groups are excellent strategic planning aids because they demonstrate in vivid fashion how the jurors will likely converse about the case and its key issues. Normally there is one critical conversation regarding the defendant and another critical conversation regarding the subject of damages. Consider the following example of a deliberation conversation concerning pain and suffering: