The other day I had a fascinating experience while running a focus group on one of my cases.
As usual I had assembled as close to a cross section of potential King County jurors as possible, and I was in front of the group as they sat in a half circle. I was presenting on wrongful death case, but before I got into the specifics of the case I wanted to know what their thoughts were about suing someone or some entity for causing the death of a loved one.
I knew from past experience that people have very different thoughts on wrongful death cases. Most folks haven’t spent a lot of time thinking about the subject – about compensating a family if the negligence of another causes death. As many personal injury attorneys know, lots of folks don’t have a lot of experience with the legal system, and at time conflate elements of criminal law with civil law (such as the “beyond a reasonable doubt” burden of proof or jail time or the wrongdoer).
Once I explained the concept in general terms, and once someone brought up OJ Simpson, most of us were on the right page. Once there, I talked about a hypothetical case involving a distracted driver and a pedestrian, something most folks have more experience with than my medical negligence cases.
The conversation that ensued was enlightening in a number of ways. First, I quickly realized that some folks were identifying with the plaintiff in the hypothetical situations, whereas others were identifying with the defendant having to pay a bunch of money that they didn’t have. Soon after this realization I took a quick poll: of the ten participants there, 4 identified with the plaintiff, 4 with the defendant, and 2 had not felt pulled one way or the other. For a plaintiff attorney, getting the jury to empathize with your client is very important. This information will hopefully help me to do that.
I also learned from the group that a big hang up for some people is measuring so-called “non-economic damages.” Admittedly, I attempt to skew the group in a way that disfavors my client’s case, because it’s not about winning the focus group. Rather, the point is to hear the bad things about my case (or type of case). And this was not news to me. Folks have a much easier time allowing money that will “do” something – replace an income that was lost, or pay for medical care. “Money will not bring the person back” is a not uncommon refrain.
At some point the concept of accountability was brought up – the notion that we as a society can’t just let people negligently kill others without any recourse. That idea had some traction with folks but not with others. Negligence is often equated with “accident” and certainly not due to an intentional act. Again, it appeared that those folks who identified with the defendant initially were eager to come up with ways that the amount of money wouldn’t be too much.
Finally, when I began discussing the facts of my case, it became clear that the facts of negligence can persuade jurors when discussing damages (more egregious behavior can tilt folks towards allowing more money) and who the defendant is (and his, her or its perceived ability to pay) also affected this discussion.
Focus groups are valuable exercises for a number of reasons. Certainly this one was because of the insight I got into whose shoes the jurors initially (and likely subconsciously) decided to put themselves in.
