With the increasing monetary stakes of civil litigation, counsel and clients must work together to develop tools to decrease the likelihood of nuclear verdicts and nuclear settlements. Jury research, including focus groups, is one way to evaluate the strengths and weaknesses of any case, which can lead to better results. The plaintiff’s bar openly advertises their use of early jury research as a critical part of their case assessment process, while the defense bar is slowly increasing its use of early jury research. Insights from a focus group can help shape an attorney’s trial strategy – including the decision to settle, and for how much.

The purpose of a focus group is to pinpoint various issues in a case using a “town hall meeting” format. They can help highlight what jurors do and do not understand; identify the most effective witnesses, exhibits, and case facts; and perhaps most importantly, pinpoint what confused the group. This can all shape how attorneys handle discovery, settlement negotiations, and trial strategy. To effectively run a focus group and test the elements of a case, though, there are several mistakes trial attorneys need to avoid. This article will describe five common mistakes trial attorneys make when conducting focus group research. 

5 Common Mistakes

Properly conducting a focus group takes careful planning and preparation. Below is a list of the common mistakes in focus group research which can have negative effects on outcomes and subsequent decision-making.  

Mistake #1: Slides with Too Much Information

PowerPoint slide presentations are often used in focus groups, but many of these presentations are ineffective. Juror attention span is poor, and when slides have too much information, the juror's brain is unable to handle or process all the material. In addition to too much information, other common problems with slides are that the font is too small to be legible or the font colors make them difficult to read. 

When it comes to slides, less is more. Rather than trying to cram twelve bullet points onto one slide, including three to four at a maximum would better serve trial attorneys. This format allows the font size to be large enough for participants to read and keeps them from being overwhelmed with information. Another way to make the slides more effective is to have the bullet points build on one another. Rather than having all the bullet points come up simultaneously, have them appear one at a time; this leads to better attention and better memory retention, allowing jurors to take notes more specifically on each point. 

Mistake #2: Too Many Focus Group Members

If a focus group has 30 mock jurors, it is virtually impossible to get quality feedback from everyone. Instead, the number of participants needs to be smaller. Influential focus groups need approximately 12 to 18 people, ideally 14 or 15. This group size ensures that trial attorneys can get quality information from each participant. When assembling the focus group, recruiting a sample that matches your demographic for that venue is essential as well.

Mistake #3: Juror Fatigue

Focus groups that start at 9:00 in the morning and then run until 6:00, 7:00, or sometimes even 8:00 p.m. are much too long. Remember that a start time of nine in the morning means asking jurors to show up around 7:00-7:30 a.m. to get processed and fill out paperwork. This leads to jurors who are far too exhausted later in the day to be able to provide quality information. 

Anything presented to these jurors from approximately 4:00 p.m. onward will likely be a wasted effort. Rather than overwhelming jurors and causing fatigue, focus groups should be spread over two days or even a day and a half, allowing for information to be presented the next day when jurors are fresh. If jurors are so overloaded with information that they are wearing down, the focus group has ceased to be successful. Therefore, focus groups are most effective when scheduled to end between 4:00 and 5:00 p.m. Trial attorneys and moderators can also work to combat juror fatigue and ensure they are still getting quality feedback by scheduling more breaks in the afternoon.

Mistake #4: Presentation Length

One of the primary ways that jurors can get overwhelmed with information is by having presentations that are too long. A 90-minute presentation that covers three different topics is too long and gives jurors too much information, which then affects the quality of their feedback. Like with slides, less is more when it comes to presentation length. 

Rather than a few long presentations, it is more effective to divide up topics into subtopics. This way, a mock jury will hear a 15 to 20-minute presentation and immediately be asked to provide feedback. Any presentation that starts to go over 30 minutes is too long and should be subdivided. For example, the topic of liability can be as many as two or three subtopics. The goal is to isolate topics as much as possible. Topic isolation allows for focused feedback on these subtopics. In addition to the input, focus group and mock trial sessions should allow time to take questions, as these questions can frequently be just as valuable as the other juror feedback. 

Mistake #5: Approach to Testing Damages

In the focus group methodology, attorneys are looking for ballpark figures while testing damages. Attorneys should not assume that a focus group will provide accurate and precise damage awards – to scientifically test damages, mock trials are more useful. Instead, attorneys should be looking at the bigger picture and identifying the potential range of damage awards. Attorneys should present the damages information as the final topic of the day, testing the big picture numbers to find out whether jurors view the amounts to be reasonable or offensive. 

Conclusion

The financial stakes of civil litigation have not been higher. The risk of being on the wrong end of a nuclear verdict constantly looms over attorneys’ heads. Early focus groups are a tool to help attorneys reduce the risks and uncertainties of trial. However, there is the adage of “garbage in, garbage out.” This concept is especially true when conducting focus groups. By avoiding the pitfalls laid out in this article, attorneys will be in a better position to obtain the quality information they are looking for.