Focus groups, or Jury Research Projects, as David Ball calls them, are a useful tool in trying to figure out what potential jurors might think about your case or elements of it. However, there are times when the economics of a case don’t justify hiring a professional. In such situations, it may be useful to use a more cost-effective method for determining elusive juror attitudes, like running your own focus group. You can do it.
Up front, there are a couple of points I’d like to make. First, I highly recommend David Ball’s DVD on Focus Groups. The cost ($199 at Trial Guides) is well worth it if you think you’ll want to run focus groups from time to time. Second, there are lots of ways to do this. This article shows you one way that has worked for us.
PROCEDURE
To run an effective focus group, you need at a minimum a place, some time, and some people.
Place. I do my best to keep anonymous who I am and which side I am on. To that end, we use a conference room in an adjacent building from our office. It’s big enough to fit 10 people around a table, and there’s a white board for writing, and space for a projector in the event I’m using multimedia (showing deposition excerpts, for example). In addition, I purchased a cheap pay-as-you-go mobile phone that I can add minutes to (total cost: $50 or so with 300 minutes).
Staying in your own jurisdiction is certainly easier, but you run the risk of not getting exactly the right panel of jurors. For example, we had a case filed in Walla Walla County. While we could find conservative jurors in King County, they wouldn’t be the same kind of rural conservative we might run into there. So instead of going there to run our focus group, we decided Lynden (just northeast of Bellingham) was sufficient. In that case, I was able to find a free room (at the public library) and the right mix of jurors to help us with the issues in our case.
Time. We run our focus groups on Saturdays from 9-12. People are generally free during that time, especially employed persons. I have heard of other attorneys inviting people for a session after work as well.
People. Now it gets interesting. Where to find jurors? Well I’ll tell you, I don’t do it the David Ball way, which is to obtain the voter rolls from the county of venue and cold call people. I actually attempted to do this, going down to the King County Clerk’s office. They had never heard of such a request, and after talking with two or three separate people, I was able to take a look at the list electronically. To print it out would have been prohibitively expensive (I believe the cost was somewhere near $10,000). Certainly, in a smaller venue this might be the way to go.
I also thought about finding local community gathering places (libraries, retirement homes, churches, etc.) and post flyers. But I’d only be reaching a certain subset of the population (older church-going readers, apparently). Plus, that seemed like an awful lot of work. So I did what most people do now: I went to the Internet.
Specifically, I went to Craigslist. Now Craigslist is known for many things, but in particular it is known for being very popular. I knew I was self-selecting again (Craigslist surfers), but that couldn’t be any worse than the other demographic. Plus it was loads easier.
An ad costs $25 to run (must post under “jobs,” sub-category “et cetera jobs.” (I’ve been flagged and removed before for unwittingly posting in the wrong category.) And instead of posting my phone number and having interested people call in (which means you get no other work done while fielding calls), I invite people who qualify (over 18, eligible for jury duty) to respond to the email with contact information (name and phone number) as well as the demographic information I use to properly fill the group. This can include anything you want (a good place to start is www.ofrm.wa.gov/localdata).
What I’m most concerned with is making sure I get a varied range of ages, economic backgrounds, education levels, and political views. I typically slant the group heavily towards those identifying as conservative and Republican, with a libertarian or two thrown in. I include a few identifying as Democrat/liberal, but mostly just to hear what counter arguments they might have.
I offer $75 for the three-hour session. Whenever I’ve offered this amount, we get either 9 or 10 of the 10 I’ve invited to come. One time we offered $60 and we had 7 people show up. I’m confident you could properly fill a group for $60 (or $50 or less potentially) so long as you invited more than the people you wanted to show up (perhaps 12-13 if you’re looking for 10 to show) and you are prepared if everyone does show up.
I select the option of making anonymous my e-mail address, and those responding will send their e-mails to a fictitious, computer-generated address and they will end up in my INBOX. I create a “Rule” in my email program that takes every email addressed to that computer-generated address and sends it to a specific folder, such as “Jones Focus Group.” Then I wait for the e-mails to pour in.
The best part of this system is you can select based on your demographic criteria by simply sifting through the emails, instead of screening people over the phone. Pick the folks you think will fit, call them up, make sure they are still available, and only then tell them the location. Practice tip: at least in King County, I’ve found that it’s hardest to fill the conservative/Republican box and the “less than high school diploma” education box. Start there.
I call ahead to Starbucks and order a Joe-to-Go (large cardboard box dispensing coffee, comes with cups, sugar, creamer, napkins, stir straws) and another with hot water (free), plus 10 muffins. Total cost: $36 or so. I have teas on hand. I also make sure I have the money (in correct denominations, in sealed envelopes) and notepads and pens for the participants.
Finally, there are some procedural forms that I use for every focus group. First, I have everyone sign a confidentiality form before I give any substantive content. Second, at the end of the session I have them sign next to their name indicating that they had received payment.
CONTENT
Content can vary widely, depending on what kind of information you want. Nearly all of the focus groups I’ve run (seven now) start with an introductory questionnaire, including both general questions aimed at understanding their opinions about the civil justice system, tort reform and damages awards, and more specific questions aimed at the facts about to be presented. Again, David Ball’s DVD and accompanying forms are a fantastic starting point for these and all other forms discussed in this article.
Most focus groups typically have some sort of introduction as well. Mine includes making sure all cell phones are turned off, reminding them that it’s very important to listen carefully, and explaining what a civil case is (and what a plaintiff and a defendant are). I also go over confidentiality and why that’s important.
From here, there are a number of different directions a focus group can take, depending on what you’re trying to learn. I’ve run at least three different kinds.
First is the liability/allocation of fault kind. This is where you’re trying to get a sense of who a jury will find responsible for your client’s injuries, and what factors in particular resonate with jurors in so finding. Often this will involve reading three or more statements: a neutral, a plaintiff, and a defendant (or defendants). I start by giving limited information, and then I ask jurors to fill out forms apportioning fault to each potential responsible party (including the plaintiff himself). After collecting the forms we typically have a discussion about the answers each person gave and why. Once done, I give the jury more information and another set of forms. The idea is to see what effect particular information has on swaying a jurors’ mind regarding fault.
Another kind of focus group involves both liability and damages. In these, we typically spend two hours on liability, in much the same way as described above, and the last hour on damages. Our goal is not necessarily to come up with a number for what the case is worth; rather the idea is to figure out what motivates jurors to give higher or lower numbers. If our client’s videotaped deposition has been taken, often we’ll show the jury a clip of it and get their feedback (this also works with the defendant’s deposition in the liability phase). Their reaction can help you work out whatever kinks there might be in your client’s presentation.
Finally, there is the theme-based focus group (for lack of a better term). In this kind, we were interested in having the jurors help us narrow our liability themes down in a case involving a complicated fact pattern. We started with a very simple statement of facts (four sentences) and handed out a form asking jurors to speculate as to what might have happened, and asking them what more information they’d like to know. After receiving their forms, we had a discussion in which I probed their preconceptions of the medical system in general, as well as well as why it was important to know certain additional information. After that, I passed out a much more detailed (and neutral as possible) statement of facts and we had another discussion, again, trying to see what aspects of our liability claim resonated more with them, and what didn’t.
Other potential focus groups (which I have not yet done) include trial practice, such as your opening and closing statements.
Sometimes we as lawyers get caught up in focusing on silly things like the “facts” and “causation,” and become too divorced from what real folks will think about your case. Focus groups can be a valuable and cost-effective way to test your ideas on real people. For example, three real people from our last focus group found ways to blame the unconscious patient for his respiratory arrest. Priceless!
Tyler Goldberg-Hoss is a WSAJ EAGLE member and vice-chair of the Medical Negligence Section. He is an associate in the Seattle firm Chemnick Moen Greenstreet, which limits its practice to medical negligence claims.
This article originally appeared in the March 2012 Trial News, found here:
https://www.washingtonjustice.org/index.cfm?pg=trialNewsDB&tnType=view&indexID=10133
