Although trial lawyers like to think that we can present our cases in the most appropriate and persuasive manner for the “common man” to understand and be convinced, most of us do not think like the “common man” any longer. By education, training, experience and economic status, we are not as likely to think like the “common man.” When we assume that our thought processes and our likes and dislikes are the same as our potential jurors, we risk making a serious miscalculation.
Most of us instinctively talk about our cases to others, both to collect ideas and to see how different issues are received. When you talk about your case with your spouse or a friend at the gym, or with a stranger while waiting in line at a grocery store, you are seeking out the opinions of others.
Focus groups are a more structured way to do the same thing. They can be used to obtain the viewpoints of others in the community. They are not predictive but they do provide valuable information. They will not tell you what a jury will do, but they will help you make decisions about how to present your case. The following are some of the ways focus groups can be put to use in your case:
They Can Help Identify the Theme of Your Case
We know that every case must have a theme. Volumes have been written on themes and every AAJ seminar or convention stresses the use of themes. Although you may – and should – develop a theme during the preparation of your case, no theme should be chosen by counsel alone. Do not fall prey to your ego which tells you that your theme is perfect. It may be perfect … but it may not. It may reach out to the jurors … but it may not.
Focus groups are one way to find, test, and refine themes before they are used at trial. You may be surprised to find that the jury is not interested in or enamored with the theme you are very attached to. Your theme may reverberate with your peers, but not with the people who will be deciding your case. A focus group is an opportunity to test your theme or themes with people more like the people who will serve on your jury.
In a nursing home case, our theme was that the nursing home was understaffed and not taking the time to hand feed our plaintiff or to turn him regularly. We were playing with themes like:
· Too busy to listen to patients.
· They provide care to the less needy, but ignore the needy.
The main injury to our client was that he was allowed to develop pressure sores and those sores became infected and he became septic (a blood infection) and died. Turning him, communicating better with his doctor, and providing better nutrition and hydration could have prevented our client’s death.
Then we did a focus group and the focus group jumped on a smaller, almost incidental part of the case: the fact that he received IV antibiotics about 22 hours after they were prescribed because the facility was required to use a distant pharmacy owned by the parent corporation. It was a smaller issue because it was not causal … the infection was probably not reversible.
But, out of the focus group came the themes, “Rules before people.” “Profits before people.” No matter how we tried to guide the discussion to the “real” (i.e., causal) issues, the focus group saw “profits before people” everywhere. They would shake their heads and say, “There they go again, worrying about the rules rather than caring for the patients.”
As you review the tapes of the focus group discussion, you may be surprised to see that the focus group had its own theme – one you had not thought of but which, surprisingly, rings very true.
They Can Help You Uncover Bias
Focus group discussions may reveal pre-existing biases that people hold. These may include prejudices about social classes or ethnic groups, expectations about the character or conduct of people in certain professions, or hostility regarding the legal system. Sometimes the bias is specific to the locale, such as a distrust of the local hospital or a protective, proprietary feeling toward a local nursing home.
Other opinions may surface as well, such as differing views of personal accountability and the accountability of varying levels of management in business or related settings. Sometimes you can identify attitudes specific to a particular community in the county where your trial will be held. You may find that the Richfield people seem pretty good for your issues, but theYork people do not.
Occasionally you will find widespread bias toward a particular entity, family name or social class. Strange things can lurk in communities … strange things that are unknown to you, an outsider.
They Give You the Opportunity to View the Deliberation Process
If you have ever wondered how a jury went from A to B in its deliberations, you will find focus groups immensely interesting. Focus groups reveal much about how group dynamics work in all types of groups, including juries. You can take away valuable lessons in how to structure your case and how to provide ammunition to arm jurors on your side for their debates with fellow jurors. You will see how one or two strong jurors can turn an entire group.
Seeing the debate and consensus building of people who are often very different from one another can be extremely instructive. In addition, you can obtain an understanding of what the focus group participants used to support their position. What did they rely on? What facts or exhibits were particularly helpful? Harmful?
For example, a common focus group response to harsh criticism of a particular nursing home staff member is to feel sorry for him or her. Other focus group members, however, often redirect the discussion to the injured person, and then sentiment typically swings away from the staff person. Seeing – and remembering – this dynamic helps you to remember to structure the trial most effectively.
You can adopt the arguments used by focus group members for trial to convince and rally others. A particularly strong point with the focus group is likely to be equally strong with the jury.
They Help You Determine How to Simplify Issues
Focus groups give you the opportunity to learn how to deliver complex information and concepts to jurors in a way that is easily understood. Although you understand the need to simplify and hone your arguments, it will be clearer if what you think is simple is not grasped by the focus group.
An issue that can bog down juries in nursing home cases, for example, is staffing numbers. Too much information in the form of OBRA-mandated staff requirements, actual head counts, shifting bed counts, time sheets, and pages and pages of numbers loses its impact. The focus group looks at you with glazed-over eyes. The lesson to learn from that is how to get across the idea – that the nursing home was saving money by under-staffing – in an interesting and concise way. Try various simplification methods in your focus group.
Focus group members will alert you to the need to establish the “basics” of concepts that are not as familiar to others as they have become to you. This is especially important in cases involving highly technical issues. How helpful to have this lesson before the case is in front of a real jury!
They Help You Develop Your Trial Strategy
Focus group data will assist in planning your trial strategy. You will rethink and reorganize the order of proof, the order of witnesses, and the theme. The information you obtain about the strengths and weaknesses of your case helps you to highlight compelling issues and arguments in trial. What did the focus group latch on to? What did it ignore? Which defense arguments turned the group against you? Which ones should you most fear?
If your focus group is less than impressed with your fall case, but shocked by the pressure ulcer case, you know which to stress in the trial. Some claims are so uninteresting to the focus group that you may decide not to present them at trial. A theory that falls flat in the focus group may never see the courtroom.
Use focus groups as a testing ground for determining the best order of presentation of evidence and witnesses, and the documents which should be highlighted.
They Allow You to Test Demonstrative Exhibits
Visual exhibits are very important because they clarify and reinforce the evidence jurors hear so they can remember it better. Ask focus group members what demonstrative aids, such as time lines, photographs, video recordings, computer simulations, and text enlargements they need to help them understand, piece together and remember the evidence.
You can determine what aids are essential, what are ineffective and what may be a waste of your money. You may find that you need some “hard copy” aids, from jury books to regular poster board exhibits, to supplement the viewing of exhibits stored on CD–roms and viewed via television–style monitors. You can also improve the clarity and quality of demonstrative evidence you have prepared and test the best order for and timing of their presentation, i.e., in opening, when the witness is testifying, and/or at closing.
Should you use the graphic photographs? Some nursing home photographs are very graphic. See if a focus group is outraged, disgusted, or resents you for pandering. Some photos can have opposite the intended effect – don’t be surprised at trial.
They Allow You to “Enlighten” Your Client
Occasionally, focus groups serve, intentionally or unintentionally, to convince your own clients of their unrealistic expectations and lead to a change in attitude. Such expectations include excessive confidence in the effect of a witness’s testimony, their “right” to an award of damages for a particularly weak element of their case, their expectations of an astronomical verdict, and their unjustified certainty of a favorable verdict.
If your client has a large share of contributory negligence, but does not accept that fact, watching the focus group’s deliberations may help. Sometimes the results convince your client of the need to settle. In these situations, the focus group becomes a subtle tool for controlling your client.
This is especially true in nursing home cases where the “moral outrage” factor may be quite high, but the legal basis for damages is quite low. If the case has value, and a valid offer has been made, and the client believes the offer is too low, sometimes a focus group may help the client see the factors that a jury will weigh.
They Help You Develop “Catch Phrases”
We all know that we want the jury to use our words. We talk about the “child run down,” not the “child dart out.” An automobile “crash” or “collision,” not “accident.” Develop your opening statement and closing argument based on ideas generated in focus groups.
Focus groups are fertile ground for memorable “sound-bites.” (I have read that the famous “if it doesn’t fit, you must acquit” phrase in the O.J. Simpson criminal case reportedly came from a focus group.) Such phrases concisely and unforgettably sum up the theme you develop. They can also sow seeds of doubt and skepticism.
In a medical malpractice case involving a failure to diagnose coronary artery disease, we had to convince the jury that our client had many symptoms which an average doctor would have recognized as requiring a stress test. We experimented with various different phrases and found that the focus group understood and embraced the phrase, “red flags.” It made sense to them that common symptoms of CAD, like left arm numbness, jaw pain, and sweating were “red flags.”
They Force You to Learn the Language Used by “Real” People
Focus group discussions reveal the way people like your potential jurors talk about issues. In trial, you want to speak to the jurors in the language they usually use; you will communicate the meaning you intend much more effectively. If you paraphrase, you risk having your audience misinterpret your message.
Don’t say that the nursing home resident aspirated – she had fluid in her lungs. Don’t say she had dehydration issues – she was deprived of water or thirsting to death. Don’t say she had a hematoma – she had a bruise. She wasn’t septic, she had a serious blood infection throughout her bloodstream.
There wasn’t a “system failure,” it was broken. Or it simply failed. Or it did not do what it was supposed to do. The checks and balance system is not what failed – the people in charge missed it. Or ignored it.
They Help You to Test Visual Information
You definitely want to use demonstrative exhibits in your trial. Studies show that jurors learn through visual and auditory means, but words are not enough. After three hours, jurors remember 70% of what they hear, 72% of what they see, and 85% of what they see and hear. After three days, jurors remember 10% of what they hear, 20% of what they see and 65% of what they see and hear.
In creating visual information for the jury, you should have one goal – to persuade. Deliberations are fact driven, so visuals should deliver facts. They should carefully emphasize selected facts. Focus groups can be used to test this information. The group tests whether the visual enhances or detracts from the message. The message that the visual is designed to communicate should be prominent and grab attention. Unfortunately, we often present exhibits to the jury that communicate a message that is deadly, or unreadable or contrary to our purpose.
The horrible picture of a resident’s buttocks may be a great damages exhibit, but will the jury feel that you are exploiting the patient’s dignity? Does it matter if the resident is still alive? Will he or she be in the courtroom?
They Help You to Address Defense Arguments
Forewarning jurors of the defense’s upcoming attempt to influence their attitude can diminish the impact of defense arguments. Jurors may be less receptive to arguments if they know that the arguments are coming and that the intent is to change their attitudes. We should use focus groups to examine whether forewarning of defense arguments dilutes their impact.
Sometimes this technique can be perceived as defensive and may not be helpful. One view is that the strength of the defense argument influences how your preemption of it is seen. In other words, bringing up small things might be perceived as defensive, while bringing up large ones is understood as necessary. Run this by the focus group to get an idea.
When we have a serious question about this topic, we often try it out both ways – with one focus group we use the preemptive method, and with the other, we don’t. Then we see how the issue is viewed. For example, in a coronary artery disease case, our client was alleged to have taken Metabolife. We wanted to downplay the significance of this because she had taken only 1-2 pills some weeks before her death. We were uncertain whether to reveal it first or ignore it and kill it with expert testimony.
They Help You Elicit Feedback on Particular Topics
To meet this goal, the discussion is directed to more particular areas. In a nursing home negligence case, for example, you may focus on whether the family is viewed negatively because they did not keep “Mom” at home. Or whether the appalling lack of family visits will affect the damage award. What excuses for this will be accepted by the focus group?
Will family members’ testimony regarding the lack of pillows used to keep the legs from rubbing together outweigh the aides’ testimony that the pillows were always in place? Who will the jury believe?
The defense is that “God himself could not have prevented pressure sores in this resident.” Does the focus group agree? If so, what facts would help change that opinion?
They Allow You to Screen a Witness
Occasionally you will be concerned about how a witness will appear to a jury. For example, a conceited-appearing Easterner may not play well with a Midwest jury. Will the jury accept the attitude as well-deserved by the doctor? Or will the jurors be turned off? You can show a short segment from a video, and then ask:
· What is your impression?
Sometimes the records portray the resident as unpleasant, crotchety or downright mean. Or suicidal. Will the focus group look past that and evaluate the care or do you have a problem? How can you fix it?
They Allow You to Identify Potential Disasters
Disasters lurk in all of our trials. Totally unknown to you, they are waiting to destroy your case. An important function of focus groups is to uncover these hidden dangers. When they are revealed, it is important to explore each one to figure out how to defuse it at trial. It is important to listen to the focus group and not discount their concerns and comments, however unrelated or misguided they may seem. If this group was distracted by a “red herring,” your jury may be too.
You may find that the focus group feels strongly that the family should have recognized the nursing home’s poor care and moved the client out. Or, the focus group may strongly blame your client for not obtaining a second opinion. In a ski lift case, we discovered that the focus group believed (with no evidence) that our 12-year-old client and his friend were “goofing off” on the lift when the fall occurred. We discovered that putting in evidence of our client’s academic success along with the general “good citizenship” of our client and his lift-mate helped lessen that belief.
They Help You Learn Which Non-Issues Need to Be Eliminated
There is always the risk, even in simple cases, that the jury will decide the case on an irrelevant or extraneous issue. Who has not had this happen? Many times, the issue could have been effectively addressed and eliminated as a concern if only counsel had known about it before trial. Focus groups can reveal those issues.
For example, in an ATV case with numerous problematic liability issues, we were astounded to find that the focus group concluded that our client had been intoxicated when the crash occurred. The truth was that he had no alcohol or drugs in his system. There was no evidence of any alcohol or drugs. This was easily remedied by asking the ER doctor if blood tests were done and what they indicated. We would never have thought of doing this.
They Teach You to Simplify Your Language
Lawyers have a bad habit of using terms that tend to be confusing and sometimes incomprehensible to lay people. We tend to forget that we live with a case for years before we try it. Jurors, however, are hearing the case for the first time. If they are presented with a slew of complex terms and theories on the first day of trial, they are more likely to be confused and the chances for success will decrease.
To make your case understandable, make your language understandable. Many times, focus group participants use easy-to-understand language that can be incorporated into your case. Other times, you can experiment with simplified terms in focus groups.
Using inexpensive focus groups makes it easy to improve your chances of winning, even in smaller cases.