Before you bought or leased your car you took it for a test drive, right? Before you signed for your mortgage or apartment lease you inspected the property, right? Before you committed yourself to a relationship you dated, right? Your cases are no different. They should be focused to assess case issues and strengthen the presentation strategy.
Have you ever heard the expression, “When the dogs are chasing you, whistle?” The goal of a focus group is to gather feedback about the issues from research participants representative of a typical jury in the jurisdiction where the case will be tried so that you can learn how jury members typical of this trial venue would perceive the case, and how those perceptions might drive the findings of liability and damages. As such, focus group outcomes are not intended as a predictive measure but rather as a source of information for understanding juror perceptions, which then allow you to strengthen your case presentation. This is the forum in which you want to lose.
Present Your Case To A Focus Group And Listen
Author Anais Nin reminds us that, “We see things not as they are, but as we are.” Similarly, focus groups help us learn about our case and its deficiencies in ways we would otherwise miss because we are so vested and immersed in it. When we are overly emotionally involved, we are absolutely certain we are on the right track through the forest.
To be sure the path is right, use focus groups early and often. You can use them first to test whether the causes of action are actually viable in the real world, and to gather some leads for discovery. As the case progresses, use the groups to further your discovery, test your causes of action, and pick apart your evidence and trial story. As you move toward alternative dispute resolution or the trial date, focus groups can test the key elements of your case, including your witnesses. This gives you a huge amount of information about how the trial story will play to a jury.
I don’t advise you to lead or moderate the focus group for your own case. Just as surgeons are dissuaded from operating on relatives, attorneys are too close to their own cases and lack the requisite objectivity and distance to participate in the focus group process. If the case is not large enough to justify the added expense of hiring an experienced trial consultant, work with one who will help organize and structure the focus group. This will free you to watch and listen; you can then analyze the research later on with the help of that experienced consultant.
Pollster Frank Lutz said, “It’s not what we say; it’s what they hear.” As you listen to the participants, your key task is to learn what they hear, which is filtered through their worldview, personal experiences, biases, expectations, and the images they are processing. Recall that we are reptilian brains first: only later do we craft intellectual reasons to support what we feel.
When you listen to the research participants, pay attention to the five critical elements of communication: facts (what is said), emotion (how it’s said), intention (why something is said, whether to persuade, clarify, emphasize, defend), sensation (how something feels to the participant) and association (how things relate in the participant’s world view).
Sort The Information Into Key Elements
The research participants will tell a variety of individual stories based on their understanding of the information they heard. Without fail, the stories will have much in common and shape themselves along several universal stories lines. Typically, the stories will be built upon a triad of integrated parts: content, context and a personal or social value or set of values that ties the content and context together. Listen for the ways in which they construct the stories they are telling, and how those constructs inform a verdict decision. Pay particular attention when participants use phrases like: “This is about .” “All that happened here is .” “I’ve seen/heard this before. It’s .” These phrases indicate that they are sorting out your story to find parallels for how things work or should work in their experience.
If they can’t find an explanation, they will create their own. Listen for phrases like, “What I want to know is .” “How come ?” These comments, no matter how off base they appear, reveal holes in your story, giving you an opportunity to clarify and emphasize the trial story. If you don’t address these concerns, you run the risk that the jurors will fill in the gaps for themselves and come up with a different story.
Often, the research participants tell us the hard facts, raw data, expert testimony or records information they need to settle issues they have with the story they heard. A piece of evidence you may have considered a slam-dunk winner may be so fraught with potential risk that it proves more harmful than helpful. Pay attention to what participants find persuasive or compelling as well as what they want to see or hear and the reasons to see or hear that thing or person. Then, decide either to provide the evidence or clarify the reason it will not be produced.
Finally, identify out the facts, perceptions, legal jargon, and unsupported conclusions that could lose your case (or a juror) if they play a significant part in the jurors’ stories in deliberation.
Apply The Elements To Trial Story Strategy
Jay O’Callahan, one of my oral storytelling mentors, had a mantra: “Choose, choose, choose.” If you have three images that tell a piece of the story, choose one image. If you have three words to describe something, choose one. Thanks to his training, I can teach lawyers to tell their case story in fifteen seconds. It’s all a matter of learning to choose the information relevant to the decision you want jurors to make and getting rid of the rest.
To choose, ask yourself, for each piece of information, evidence, and witness testimony, “Do I need it or do I want it? What price for understanding am I willing to pay to produce it? What’s the upside of having it? And what’s the downside? What will it gain me to produce this evidence or to answer this question? And what will it lose me?”
Finally, block out your legal story into three parts or acts. Act I doesn’t necessarily begin with the first chronological date of the events of the case. Instead, consciously and deliberately begin the story in a particular place based on what you learned from your focus group participants. During Act II, the proverbial plot thickens: it’s the heart of the story when you relate who did what to whom under what circumstances or because of what motives and toward what ends or consequences. Legal stories always have a special third act because this is when you ask the jury to restore balance to the life of the party you represent.
I guarantee you that when you make the time to focus your cases, you will learn something invaluable that law school did not teach you. The story we tell is not the one the decision-maker hears. However, focus groups are a tool we can use to hear what’s being said about our story so that we can change our message and improve our chance to prevail.
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