WHAT YOU NEED TO KNOW ABOUT FOCUS GROUPS AND WHY YOU SHOULD HAVE BEEN USING THEM YESTERDAY
-by Jeffrey E. Marion, Esq.
Focus groups are an everyday aspect of our life. Major corporations, politicians, and broadcast media all have been using focus groups for years to hone their messages to consumers, voters, and viewers. So, why not put together a focus group to frame a case to a jury? The purpose of this lecture and the materials provided with it is to introduce the reader to the concept of focus groups, and to explain how one can easily-and economically-put together a focus group.
WHAT IS A FOCUS GROUP?
A focus group is: “a small group of people whose response to something (such as a new product or a politician’s image) is studied to determine the response that can be expected from a larger population.” The members of the focus group are brought to a single location, and provided with information about the product, person, or idea. They are asked for their opinions on that product, person or idea.
WHY USE FOCUS GROUPS?
A focus group is unlikely to give an accurate prediction of the ultimate verdict in a given case. However, the focus group is useful to give the attorney guidance on the values, hot button issues, and sensibilities that the jurors will bring to their decision-making. The focus group is going to be helpful in demonstrating what evidence is important to the jurors, what jurors think of a witness or party, and what parts of the “story” resonate in a positive fashion.
Here are some examples of where a focus group might help an attorney at trial:
- Attorneys representing a large company in a products liability case may want to hold a focus group to determine how the juror views the client. Do potential jurors perceive that company as having a good safety record? Providing quality products? Or do they see the company as a “bad citizen?” (i.e.: putting cheap products on the market, having a reputation for poor customer service, etc.)
- An attorney who represents a motorcyclist injured in a crash may want to know what a potential juror’s perception of the type of person who rides a motorcycle is. Can the attorney overcome any negative stereotypes of motorcycle owners to obtain compensation for his/her client?
- Attorneys representing a defendant in a high-profile criminal case. Has the public made up its mind as to the guilt/innocence defendant? What news reports/articles most influenced the group’s opinion? If there is a valid defense, can the jurors’ negative image of the defendant be overcome?
- Attorneys trying a complex contract case. How can potential jurors follow the transaction? In what ways can the transaction be made easy to understand?
DOING A FOCUS GROUP ON A BUDGET
Focus groups can be assembled at a price point that works for all attorneys. While an attorney can go the route of highly paid jury consultants, and spend days with multiple groups, the cost-conscious attorney can easily assemble an effective focus group for a few hundred dollars. Advertising in a local newspaper will yield results. The attorney will get plenty of candidates for a potential focus group.
Once the attorney puts the advertisement in a local newspaper, or in an appropriate digital platform, he or she will probably receive plenty of responses. Ideally, select between 12 and 24 participants. Try to divide them equally between men and women. For budgeting purposes, this paper will assume that the attorney will select 12 members.
In the selection process, ask potential candidates for their names, addresses, dates of birth, occupations, and how long he/she has lived at the current address. Also ask if the potential member is a registered voter. If he/she wishes, the attorney can check with the County Board of Elections to confirm the registration by filing a request under New York States Freedom of Information Law. It is not a necessary step, but one the attorney may wish to take.
Generally speaking, the focus group should be held out of the office, preferably in a hotel conference room. Hold the focus group during the evening or on a Saturday morning, as your candidates are likely to be off work. The focus group should take two hours, with a break for lunch or refreshments. The attorney should provide lunch/refreshments for the participants, so that they do not have to go off-site, wasting valuable time. Participants should be paid for their time, and $25-50 per person is appropriate compensation. If the attorney has a more affluent juror pool, he or she may want to pay significantly more.
BASIC FOCUS GROUP FORMAT
There are two ways to format the discussion. The first for the attorney to have a series of questions, and ask those questions over the course of the meeting time. For the inexperienced, it is best to provide each participant with a question and answer form, and allow the participant time to fill it out. Or, the attorney can ask the questions orally, and allow the participants to write down the answers. In either case, the attorney should make sure that each participant puts his/her name on the paper.
The second format is a “mock jury deliberation.” The focus group hears a five-minute “opening statement” from both plaintiff/people and defendant. Different attorneys should give each opening statement, and the attorney convening the focus group should do the opening argument for the opposing side, and not his/her client’s side. This will facilitate thinking about flaws in the case presentation right from the off.
If the attorney has chosen to do ask questions, start the discussion once every participant has turned in his/her questionnaire. Then, the attorney should call on a participant to get the discussion going, asking the participant to explain his/her answer in greater detail. If the attorney spots another participant nodding/shaking her head, the attorney should ask: “Jane, you’re nodding your head, do you agree with what Joe is saying? Why?” Then, ask if others agree. Ask them why they agree. And so on.
It is best to let the discussion naturally flow. Let the participants debate among themselves, and ask questions only to keep discussion moving. The attorney should think of himself/herself as a late-night talk show host. Just like Jimmy Fallon, Jimmy Kimmel, or Steven Colbert, he attorney is asking an open-ended question to elicit a story or long response. The attorney should have the following questions loaded at all times:
- “You answered question ____ by saying___________. Why did you answer that way?”
- “Does anyone else agree? Disagree? Why?”
- “Why is that important to you?”
- “Why do you want to know more about ______?”
If the attorney is using the “mock jury deliberation,” once the arguments are done, he/she should ask an open-ended question like: “What did you all think of that?” If nobody volunteers, the attorney should call on someone and ask what that person’s first impressions are. The questions above are also helpful in this format. The attorney should allow deliberation to flow, jumping in only to ask why a participant finds a fact important, or what additional information that participant might need.
FOCUS GROUPS DOS AND DONTS
DO: Let focus groups know they are there at the behest of both sides;
DON’T: Let the group know that the attorney represents one side or another;
DO: Offer a greater percentage of the opponent’s evidence and case theories;
DON’T: Use “smoking gun” evidence. Use the focus group to see if the case survives its absence;
DO: Video record the proceedings;
DON’T: Argue the case. Listen to the jurors.
DO: Listen, learn, and have fun with it!