Focus groups can help lawyers know what they don’t know

June 24, 2021

Chicago Daily Law Bulletin – June, 2021
by Jeffery J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny + Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached a jeffrey@kavenykroll.com.

As I am writing this, my daughter is preparing for her dance recital. My 13-year-old teenager, going on 30-years-of age, had a couple of dress rehearsals before she encounters a live audience. It made me think, world class athletes practice for countless hours before each and every competition. For many contests, it merely lasts seconds but the training for this could span years. I find it ironic that trial lawyers will take a case to verdict, a case potentially involving enormous sums of money, however, not use similar levels of practice and preparation.

As a lawyer, you need not suffer a loss to teach you lessons about the case. Sure, cases have been won due to mistakes by an opponent. Cases have been lost because of mistakes we have made. Anyone who has ever talked with jurors after a trial becomes keenly aware of what they perceived as important. Typically, our reaction is along the lines of “I wish I would have known,” or “they don’t get it.”

After losing my first couple of trials, I was confused as to why jurors did not interpret the facts or law like I did. As lawyers, too often we have a myopic view of the facts and law instead of thinking how lay people may perceive them. By using a focus group, the judgment is not clouded by our law school education or life sitting behind a desk.

If you have tried a lawsuit more than once due to an appeal or mistrial, you are aware of how much easier the second trial becomes. Why? Issues in a case are a problem until they are no longer a problem. For a mistrial or appeal, the first trial is nothing more than a glorified dress rehearsal. Practice and preparation can eliminate problems. Focus groups enable attorneys to see firsthand how a jury may consider the case. In doing so, you learn potential issues by preparation and not by losing.

Focus groups provide invaluable insight to trial lawyers. Focus groups create an environment wherein participants typically provide thoughtful and candid views about issues that will be important in both the preparation and trial of a particular case. A focus group allows a trial attorney to develop an understanding of a future juror’s attitude at a much deeper level as well as explore whether initially communicated attitudes are actually embraced by the participants.

I am not a social scientist. As such, to some extent, it is hard for me to truly understand the mindset of an average juror. Heck, I have difficulty trying to understand my own mindset. Thus, another reason why focus groups are beneficial. We need to discover the most likely reaction to facts and potential trial issues and how best to present them for the benefit of our client. These focus groups help us identify issues, while exposing the good and the bad characteristics of a potential juror and allowing us to see the weaknesses and strengths of our cases.

Listen to the members of the focus group. People in focus groups ask questions that must be answered at trial. To have the foresight to know the questions that jurors will have and to answer them throughout your case gives you a tremendous amount of power. It gives you control. It increases the probability of a successful result for your client.

I look at my two teenagers, and I am willing to bet it would be much easier taking tests if they knew the questions ahead of time. Knowing which questions a juror will be asking makes it easier to take this “test.” Focus groups enable you to answer juror questions during trial, not after trial.

What I love most is the ability to test potential trial themes. Used properly, a focus group will enable us to present our cases most effectively for our clients. A focus group is an excellent opportunity to test your theme and build your case around the strongest theme. Just use the basic case facts to have focus group numbers explain what resonates with them. Sometimes you will be shocked.

I am often asked whether a focus group is discoverable. The short answer is no. It is protected by work-product privilege. This privilege shields materials a party prepares in anticipation of litigation. Lawyers can analyze or prepare their client’s case free from scrutiny and interference by any adversary.

Unlike dancers and athletes who execute at a distance from their audience and often absorbed in performance, trial attorneys stand face-to-face with jurors. The jury has more interest than in mere entertainment, consumed in facts and evidence and logic to render a critical decision — serving justice. Accordingly, the gravity at trial could not be clearer: the perception of each juror matters immensely.

So regardless of how prepped or practiced a trial lawyer is about their case before stepping into court, they must give due consideration to the individual personalities of jury members, including thought processes and interpretations, else they could find themselves prey to baffling and painful verdicts arising from avoidable misunderstandings. It is essential at the end of every trial I can say with confidence, “I answered every juror’s question carefully and thoughtfully, giving them the clear understanding they require.”