Uses of Focus Groups in Litigation Research

Uses of Focus Groups in Litigation Research

Uses Of Focus Groups In Litigation ResearchA focus group or mock jury is simply a pre-test or rehearsal for the actual trial. Private jurors are selected and the jury views arguments of lawyers, testimony of witnesses and whatever issue we decide is important for consideration. While the focus group outcome does not guarantee the actual result, it lends valuable information to strategy and issue formulation.

Although focus groups have wide application to an attorney’s practice, it seems many attorneys lack familiarity with focus groups and their uses. People who know of them often think of the marketing field, where they are widely used for services ranging from taste testing to testing a new packaging design. Yet just what purpose they serve remains a little uncertain to most attorneys. A definition from an academic marketing researcher, Dr. Richard A. Krueger, describes them in terms of six characteristics: “(1) people, (2) assembled in a series of groups, (3) possess[ing] certain characteristics, … (4) provide data (5) of a qualitative nature (6) in a focused discussion.” A broader definition given by a professional marketing researcher, Dr. Jane Templeton, describes a focus group as “a small, temporary community, formed for the purpose of the collaborative enterprise of discovery.”

This definition, loosely construed, describes a jury quite well. The focus groups we describe can also be referred to as “simulated juries,” whether they are convened to sit as a jury for a mock trial or for an informal discussion group.
The use of focus groups evolved out of changes in social science research that, until the 1930s, had employed individual interviewing for research. Social scientists became concerned about the validity of data taken by one person, from one person, using closed-ended questions. As a result, social scientists and psychologists began using “non-directive interviewing” employing open–ended questions that allow people to elaborate and explain themselves instead. When researchers started interviewing groups of people rather than just individuals using open–ended questions, focus groups came into being. During World War II, they were used in studies of motivation and morale in the military. After World War II, researchers began using motivation research for marketing.

Focus groups provide attorneys and consultants with qualitative information, like insight into how people think, talk, and feel about specific topics.
Focus groups have their limitations: focus groups do not predict how individuals on a jury might “vote.” (The enormous number of participants required to have an accurate sample is not feasible, in terms of cost or time, for most litigants.) Likewise, they cannot tell you how widely an attitude or opinion is held. You cannot rely upon them to establish an accurate monetary value for your case; as great a temptation it is to ask, attorneys should not pin their hopes on the damage awards given by focus participants. They cannot replace quantitative, or statistically reliable, research—they are intended for developing qualitative information instead.
Despite the limitations of focus groups, they do provide valuable and reliable information. The kinds of qualitative information developed depends in part on the format of the focus group interview, the information provided, and the kinds of questions asked or not asked during the focus group. Time does not permit an elaborate discussion of all aspects of potential results from focus group interviewing, let alone an exhaustive discussion of the merits of the uses we describe.
Therefore, we will briefly introduce some of the many potential—and interrelated—uses for focus groups. You will find that focus groups yield a vast amount of information that can be of help to you.

Determine If a Change of Venue Is Appropriate
Use focus groups to determine whether people in your venue have biases such that a change of venue is appropriate, particularly if a large survey is infeasible. If your client is a member of a minority group in a community that is generally hostile to that group, you need to know early if people cannot view the facts objectively. You have the same problem if the case has received a great deal of publicity; again focus groups can help inform you. A caveat: Consider and research carefully the potential for your adversary to discover this information when you move for a change of venue.

Select Your Jury With Greater Confidence
We and many of our colleagues use information obtained in focus groups to assist jury selection. You will find focus groups especially helpful in identifying strategic questions for voir dire, particularly if you are permitted to converse with members of the venire in your jurisdiction.
Such questions may be directly related to the events in your case or may relate indirectly to personal characteristics and experiences that seemed to have an impact on focus group participants’ decisions. You might ask questions that reveal attitudes that suggest you want to strike a prospective juror from the venire or, conversely, that you would consider him or her an asset.

Questions might relate to anticipated weaknesses in your case that, when reframed, appear less damaging. If courts limit voir dire somewhat in your jurisdiction, focus groups can still give you clues as to how people of particular persuasions respond to typical questions.
Some researchers have criticized the use of pure demographic data in selecting jurors. Nevertheless, such data can be highly predictive when developed by qualified researchers. You do want to avoid relying on stereotypes when selecting jurors, but do not confuse demographic traits with stereotypes. You will find demographic data particularly helpful in jurisdictions where courts limit voir dire to a few questions about whether prospective jurors know the parties or the attorneys, whether they work in a particular industry, whether they can remain impartial, etc..
Together, the two techniques prove even more instructive. Interviewing focus group members chosen with sophisticated selection criteria for qualitative, attitudinal characteristics can supplement traditional demographic survey research by reinforcing consistencies predicted and by giving the attorney clues as to why some members of a demographic group tend to conform or deviate from the predicted norm. When used in conjunction with focus group research, demographic data gives the attorney has a wealth of information he or she can draw on for everything from jury selection to closing argument.

Develop a Unifying Theme
Although the concept of theme constitutes a fundamental aspect of writing, lawyers occasionally overlook the significance of its use in preparing for trial. Trial attorneys tell a story in multimedia format; the opening, direct examination of each witness, redirect after cross, and closing correspond to book chapters. You want to choose a compelling theme (or themes) that will underpin the testimony of your witnesses, anchoring a diverse group of witnesses to a common message. Jim Perdue explained that “a good theme is simple, unique and easily understood as embracing the central facts and providing motivation for an adequate award ….” Focus groups help you identify themes that resonate with people in your community.

Develop “Catch Phrases”
Develop your opening statement and closing argument based on ideas generated in focus groups. Focus groups are fertile ground for memorable “sound-bites.” (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, metaphorically or literally, the theme you develop. They can also serve solely to sow seeds of doubt and skepticism.

Learn the Language Used By “Real” People
Focus group discussions reveal the way people, like your 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.

Discern Trends in Differences of Opinion
Focus groups will help you determine how different socioeconomic or cultural groups view your case. People draw from their experiences when forming opinions and some groups have shared experiences that influence their viewpoint. Does your case involve issues will likely divide people along those lines? Although individuals may vary, you may want to play it safe and assume that someone on the jury will share those feelings. Conducting homogeneous focus groups with different demographic groups is helpful in identifying and developing themes or different ways of talking about issues that will unify members of different groups. You can also draw upon those shared experiences when conducting voir dire to try to identify those whose beliefs may be prejudicial.

Discover Latent Biases, Expectations and Assumptions
Focus group discussions also reveal preexisting biases that people have. These may range from prejudices about certain ethnic groups, expectations about the character or conduct of people in certain professions , to hostility regarding the legal system or a particular law. Other opinions surface as well, such as differing views of personal accountability and the accountability of varying levels of management in business or related settings. You may discover opinion trends that differentiate groups, e.g., a shift from accepting and requiring personal responsibility to blaming other individuals or entities, a trend many of you have seen in the “Generation X” age group. Similarly, you may discover that people’s assumptions of “the way things are” based on past experience interfere with their ability to hear and understand the facts.

Discover, Assess and Explore the Weaknesses in Your Case
The focus group discussion often reveals critical weaknesses you did not or could not see beforehand. Sometimes lay people will reject a factual element of a case that you consider crucial. For example, the attorney and client may firmly believe that the defendant’s conduct was intentional but the facts, viewed by outsiders, do not support that allegation. In some cases, such a discovery may cause you to consider settling the case before trial. The focus group format allows you to probe the reasons for participants’ negative reactions to parts of your case and develop alternative viewpoints or discover relevant facts that cause participants to feel differently. You can, again, use this information to help you in voir dire.

Discover, Assess and Explore the Strengths of Your Case
Conversely, focus groups also reveal the strengths of your case. When you identify the facts and arguments that people find most convincing, you can build a strong case on those facts. You might find it unnecessary to include everything that you or your client thinks significant; some details may lack relevance or importance in the eyes of jurors. You can use focus groups to assess whether weaker facts are still so very persuasive to a small group of people that they should be included. People interpret evidence differently and jurors can come to a consensus for very different reasons, even reaching their conclusions on the basis of entirely different facts. However, when you include every fact and argument possible, you risk confusing jurors and diluting the impact of your strong evidence. In a series of focus groups, you can better determine what to use and what not to.

Jill Holmquist
J.D.Forensic Anthropology, Inc.

Richard A. Jenson
M.S.Jenson Research and Communications

Martin Q. Peterson
Ph.D.Forensic Anthropology, Inc.

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