Focus Groups and Mock Trials

In the past 20 years many trial attorneys have successfully applied social science research methodology to the courtroom. Small group qualitative research methods called focus groups and mock trials are especially useful tools allowing the attorney to gain an advantage in understanding the deliberative process of potential jurors. This understanding can then guide his or her strategy and tactics during the trial. Conceptualization of the case, jury selection, witness preparation, demonstrative evidence, and even opening statements and closing arguments are enriched and aided by the knowledge gained from the trial research. Of course, trial research cannot replace the need for attorney skills like understanding the law or interpreting the quality of the evidence, and the research consultant does not and should not tell an attorney what to do or how to conduct the case. However, the data from trial research can provide an informational base from which an attorney can make better decisions. A growing number of trial attorneys rely on data from focus groups and mock trials as a beacon for their cases, i.e., to illuminate a safe and more certain course while maintaining the need for careful stewardship.

Benefits. Generally speaking, focus groups and mock trials allow comprehension of the case from the point of view of the prospective juror. The “focus” for a group of mock jurors can be the issues, facts, demonstrative evidence, witness testimony or any other aspect of the presentation of the case. Attorneys become much better prepared to match their presentation to the jury in a manner that acknowledges and adapts to the ways in which jurors perceive the content and context of the case.

There are many benefits to pre-trial research:
  • Trial research can answer the question: “Does this case have merit in the eyes of the jurors?” and thus assist the attorney in deciding whether to accept a case.
  • Trial research can identify the salient issues of the case and advise the attorney of the strengths and weakness of that specific case.
  • Trial research can help the attorney make correlations between jurors/ beliefs and attitudes and their subsequent verdict.
  • Trial research can instruct the attorney about ideal and undesirable juror profiles, and then guide the attorney through incisive voir dire questioning and jury selection strikes.
  • Trial research can give the attorney the juror’s perception of the value of potential awards for that case and aid in decisions regarding negotiation and settlement should the case not go to trial.
  • Trial research generally can direct the attorney’s strategy and tactics during the trial, thereby providing a sense of conviction and assurance about the potential effectiveness of each phase of case presentation such as opening statements and closing arguments, testimony of witnesses, and presentation of demonstrative evidence.
  • Trial research can motivate attorneys to prepare well and prepare early for trail. Trial research is test marketing, but also a great way to rehearse and practice the skills of presentation.
  • Trial research can unearth the counterintuitive and unexpected responses of the jury, and confirm the attorney’s best hunches and theories. In the courtroom, usually the fewer number of surprises, the better.

The edge in the courtroom rests on the degree of certainty an attorney has in knowing what will be on the minds of jurors when they go to deliberate. In professional sports, teams of equal ability win a much higher percentage of games on their home court. It is important for the lawyer to get the home court advantage as well by presenting his or her case before as many sympathetic jurors as possible, or at least presenting arguments best suited to the jurors sitting on that particular panel.

Formats. Focus groups and mock trial are not discrete entities but points along a continuum; they are scaled-down models of a trial which differ in length and scope. On one side of the continuum, the process can resemble a town meeting discussion of issues and bear similarity to jury deliberations. On the other side of the continuum, a highly structured mock trial might run the span of several days during which every aspect of trial is approximated as closely as possible. Somewhere in the middle is a moderately structured format in which groups of mock jurors might hear summaries of each side of the case, followed by deliberations.

The issue analysis focus group is one in which the evidence of a case is revealed to the mock jurors in a stepwise manner, with facilitated discussion of their reactions, opinions, beliefs and attitudes along the way.

In a witness evaluation focus groups video-taped testimony of one or more witnesses under consideration might be shown to the group, with questionnaire responses and facilitated discussion. When experimenting with varied approaches to demonstrative evidence, different graphics, scale model representations, animations, or other materials might be tested by a demonstrative aid focus group.

As the methodology moves more towards a mini-mock trial, an arguments focus group permits opening/closing arguments to be presented by each side, with deliberations to follow. Questionnaires can be filled out after the plaintiff’s argument, the defendant’s argument, and/or deliberations as a way of assessing juror reactions as the process evolves and as deliberations influence their decisions. Final debriefing of the group, or individual exit interviews, can also enhance comprehension of juror responses.

In this type of format, research design can be very flexible and creative. For example, the nature of the arguments presented can be modified and tested with groups of similar composition as a way of determining the effectiveness of a particular case theory. In another design, voir dire and selection procedures can be applied to a “juror pool” to “select” research groups with different degrees of anticipated hostility to the case. In such a design, research can explore which arguments work best with the jurors hardest to persuade.

With the mini-mock trial, the format can expanded to include live or taped witness presentations, demonstrative evidence, and closing arguments, while in the full mock trial, a dress rehearsal presentation of the case is presented as full and realistically as possible under the constraints of time and resources.

Choosing a method. No form of methodology along the continuum is in itself better than another; rather, each presents different benefits and costs that allow for choices to be made as to what is most appropriate at a particular time in preparation for a particular case.

Before deciding to take a case, an issues analysis style of focus group might be very helpful. For example, a car rear ends a truck with a defective bumper on the highway killing the driver of the car and crippling the plaintiff passenger of the car. The lawyer thinks he may have a multi-million-dollar products case, but will the jury be sympathetic to that theory when it finds out that the driver of the car was legally intoxicated?

In mid-preparation of a case, perhaps an arguments focus group or a mini-mock trial involving multiple groups would be appropriate. For example, a baby is born with brain damage and there are multiple examples of negligence, but ambiguous evidence of causation. The attorney may want to know that the jurors will think about his or her theories and the defendant theories of causation or the attorney may want to know how the jurors might resolve apportionment of negligence among multiple defendants, as well as their valuation of potential awards.

Some cases may later warrant focus groups specifically geared to demonstrative evidence development or witness credibility. For example, does that “day in the life” video help the case or hurt it? Should that plaintiff appear in person or not be in the courtroom?

And perhaps as the trial date approaches, a large and complicated case may call for a full mock trial, going through every aspect of trial procedure as closely as possible, with lawyers, witness and actors resenting the case with an intense realism.

Whatever the choice, the research should be specific to the needs of the case.

Choosing the mock juror. The mock juror is the center of trial research.

Though subject to debate on a case by case application, the three most important concerns in choosing mock jurors are: 1) bringing to the pool a wide range of representative juror opinions, attitudes and beliefs, 2) selecting mock jurors who are willing and able to communicate their views, and 3) selecting mock jurors statistically representative of the actual potential juror pool.

Statistically speaking, sampling from a very large group to create a very small group will be fraught with sampling problems unless a large number of small samples is drawn. For instance, if you deal one five-card hand of poker from a deck of cards, you may get four of a kind. This may be a correctly drawn sample, but it would not be representative of hand of cards in general and would not be a helpful way of understanding poker. Imagine if a similar thing happened in a focus groups of eight participants, where a correctly drawn sample resulted in four Microsoft computer programmers. The sample might have been correctly drawn from the population of potential jurors, but the research might not be very useful. In doing qualitative trial research it is often more important to get a broad, representative sample of possible juror views, attitudes and beliefs than it is to put the entire emphasis on obtaining a sample that is drawn from the juror pool in a technically correct manner.

Second, jurors need to be active in discussions. During deliberations in an actual trial, it is not uncommon to find that the decision of the entire group may be led by three or four persuasive individuals affecting their own subgroup and intergroup process. It may benefit the research to have jurors who are somewhat more expressive than the norm for the juror pool.

Third, jurors should reflect the juror pool at least in the sense that they are disconnected from the particular case and would not be dismissed summarily for cause in an actual trial. The focus group should consist of people who are strangers to the case and each other, who have no obvious case prejudices or conflicts of interest, and who will not be asked to serve as part of the next juror pool.

In short, mock jurors should present as a diversified, active, and reasonable objective group who can help us identify the features of the case that are good, bad, ugly and indifferent. The purpose of trial research is not to applaud the case the attorney has created but to give the attorney perspective and needed criticism of its pitfalls. In a sense, the best reason to do focus group and mock trial research is to be prepared for the worst case scenario.

Investing in trial research for your case. The cost of trial research varies with consultant time required, number of mock jurors utilized, and type of facilities employed. Focus group research is less expensive then mock trial work due to flexibility in structure and fewer logistical concerns. A trial research investment is justified at somewhere between 1 percent to 3 percent of the value of a case, with smaller cases justifying the higher end of percent investment.

Trial research can provide wonderful relief of pressure and stress. The advantages of determining the salient features of our case form the red herrings, or the right tracks from the blind alleys, not only do justice to client representation but also save the attorney’s stomach lining. Attorneys would not consider entering the courtroom without taking depositions, hiring expert witnesses, researching the law I recent or similar cases, or creating demonstrative aids. An increasing number of trial attorneys realize it may be equally or even more important to take a barometer reading of the potential jury before the start of the trial.

Alan J. Cohen Ph.D. LLC
Jury Insights
313 N. 49th st.
Seattle, WA 98103
(206) 782-6878
ajcohen@comcast.net


Alan J. Cohen, Ph.D. LLC
Jury Insights