The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why.
By Trisha Renaud
Ever been caught off guard by jurors?
Maybe it was the time you were confronted with that overlooked detail that jurors found so important in their deliberations.
Perhaps it was the skeptical look on their faces as you expounded on the theme and storyline you once thought so brilliant.
If so, you should consider a test run for your next case: a focus group or mock trial.
Product marketing campaigns are tested on small groups before being launched on a large scale. New medications are subjected to clinical trials before they are approved for release. Politicians float trial balloons to see how the public reacts to their ideas.
Similarly, your cases almost always will benefit from pretrial juror research. While research can never simulate the complexities of a trial, it can provide you with valuable insights long before you enter the courtroom.
Already got your own testing methods, you say?
Bouncing ideas off colleagues, family or friends might yield some insight, but this feedback is of limited use. These folks may try to be objective, but they inevitably approach the case with a bias in your favor. And, odds are, your presentation isn’t exactly objective.
Lawyers’ objectivity inevitably suffers because they are too close to their cases and too invested in their viewpoint. They view the case with a legalistic tunnel vision, meaning that the issues or evidence they consider critical often bears little resemblance to what non-lawyers (read: jurors) find important.
The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why. Properly conducted, this type of pretrial research provides critical information that enables lawyers to fine-tune or sometimes totally revamp their case.
Focus groups typically involve six to 12 people who listen to a neutral presentation of case facts. Participants engage in moderator-led discussions that examine key facts, critical issues or witnesses. Participants may be asked to complete written questionnaires at various points during the session.
Mock trials generally more closely resemble actual trials in that they are longer and contain more formal presentations. They feature the testimony of witnesses, opening statements, closing arguments and jury charges. Jurors deliberate and reach a verdict, then are debriefed by the moderator/facilitator.
Mock jurors and focus group participants usually are recruited to reflect the makeup of the venue’s jury pool, but there are exceptions when the research aim is to explore a particular demographic.
In both types of sessions, participants sign confidentiality agreements.
Good pretrial research involves more than just rounding up people, running down the facts and asking for a vote. Why participants decide the way they do is just as important as what they decide. It is for this reason that sessions developed and run by trial consultants usually obtain more useful information than those put together by untrained staff.
In either the focus group or mock trial, trial consultants function as a neutral voice, asking questions that will get to the root of participants’ thinking. An untrained moderator will likely fail to elicit critical information and will unconsciously influence the discussion and the outcome.
It is the consultant’s responsibility to ensure that participants are representative of the venue’s jury pool and are properly screened for conflicts. A consultant will also assist in planning presentations and developing questionnaires to assess juror reaction at various points throughout the session and at conclusion.
Sounds great, but you’ve got no time, you say? Got your hands full getting ready for trial?
Viewing focus groups or mock trials as a frill or a distraction from trial preparation is short sighted. Preparation for these sessions is preparing for trial.
Working to condense the case into a streamlined presentation for a mock jury yields a clearer grasp of both what’s important and the big picture.
You’ll also learn about your opponent’s case. In any pretrial research, the opposing side’s presentation must be as strong as possible. That slant is designed to maximize the opportunity to learn what jurors like or dislike about the opposition and how its arguments might be countered.
Obviously, staging focus groups or mock trials is an added expense to trial preparation, but it is an efficient way of testing your case that can pay off. It is most useful early in the litigation process, when the knowledge can be put to use.
A word of caution: Because the sample size is too small to make accurate statistical predictions about what trial jurors will do or to determine a definitive favorable/unfavorable juror profile, focus groups and mock trials do not predict verdicts.
But they will give you insights unavailable from any other source.
