Excerpt From Advanced Depositions Strategy & Practice by Phillip Miller and Paul Scoptur
1. I have all the proof I need.
This statement is an example of ego gone wild. As we have said, there is lawyer proof and there is jury proof. The proof that the jury needs to find in your favor is often very different than what we as lawyers think is important. Without knowing the jury proof, you will miss critical evidence and testimony in your case.
When there is something the jurors want to know—part of their proof—and it is missing from the evidence, they will make up whatever facts they need for the story to make sense to them. This is called the filling defect. You will not like the answers the jury fills in for you at trial. The only way to learn what your jury proof is, is to talk to a focus group. Or two. Or three.
2. Focus groups are too expensive.
It is not uncommon to hear lawyers say they cannot afford to do focus groups. They may spend tens of thousands of dollars on experts, animations, reconstructions, document or product analysis, and exhibits, but they will not spend money on the one activity that will provide the most critical information possible for the presentation, framing and sequencing, and ultimately, the success of their case.
Focus groups can be much more cost effective than you think. If you have a small case, consider working with several other attorneys with similar cases and share the expenses. We are both trial consultants and trial lawyers. Because of that, we are
often willing to work on a partial or total contingent fee, which is a cost on the file, not a fee split. This minimizes the up-front cost of the focus groups. If you consider a cost-benefit analysis, focus groups are one of the best investments you can make.
3. I know how to talk to a jury.
We all went to law school and learned how to think like lawyers. Unfortunately, your typical juror does not think, or talk, like you do. Your words must resonate with the jury, and the jury must remember them. Your analogies must be something that the jury can relate to. Your themes must make sense. They must understand you. Will the jury remember and understand “preponderance of the evidence”? Not likely. But, will they understand and remember that your burden of proof is that the evidence be “more likely than not”? Will they understand that your damages are the harms and losses that your client has suffered? These phrases did not come from lawyers; they came from focus groups. Lawyers often use legalese or have other technical terms associated with the case. Juries tune this language out, and that will affect your case. You must find the themes and phrases that the jury will remember
and the ones that will hit home with their own experiences and beliefs. It is not what you say but what people hear that counts.
Frank Luntz is a Republican consultant. He was instrumental in developing the Contract with America that Newt Gingrich made famous. He has written a book, Words That Work, which is essential reading for any lawyer. He came up with “gaming” instead of “gambling,” and “death tax” instead of “estate tax.”
His key point is simple: It is not what you say, it is what people hear. And focus groups tell us what they hear, and remember, and believe.
By the way, one of the greatest themes ever came from a focus group. Johnnie Cochran did not come up with, “If it doesn’t fit, you must acquit.” It came from a focus group.
4. I have been doing this for years.
Doing the same thing the same way and expecting different results is the definition of insanity. If you have never been disappointed or surprised in trial and if you have never gotten a result that was unjust, maybe this is not for you. On the other hand, if that was true, why would you waste time and money reading this book?
You will eventually find out what a jury thinks about at trial, but that is an expensive way to get answers. Would you pay $1 million for a car without taking it for a test-drive? The focus group is the test drive for your case. Every case has land mines
that will blow up your case. Focus group participants let you know what those land mines are. And more importantly, they can tell you the fixes for them.
Your client has one day in court, and you have one chance to present the best case for her. Wouldn’t it be better if you test-drove it first? We are best at things when we have the chance to practice. A focus group lets you experiment with your presentation sequence, analogies, themes, and sequencing and see if your exhibits say what you want them to. Focus groups let you dry run your case. Focus groups give you the chance to lose without a real jury so that you can find your land mines and fix them before they come to light in the jury room. Wouldn’t you rather hear about a problem with your case while you still have the chance to fix it?
5. This case will probably settle.
Let’s face it, most cases settle. Cost-conscious (pennywise, pound-foolish) attorneys, optimists, and those who will cave at the first series of substantial offers, believe that they do not need to conduct focus groups because the case will settle. When trial is looming, they realize that a focus group will help them prepare for trial. Unfortunately waiting until discovery is closed is not the best time to do focus groups. Although you will gain new insights, there are questions you cannot ask and evidence you cannot get in.
It is equally as important to learn about your case to prepare for settlement conferences as it is for trial. When you hear jurors (focus group members) use catchphrases to describe your case and you incorporate them into your deposition questions, your proof has the potential of being more persuasive with the kind of people who are likely to be in the jury. How about learning what a jury really thinks of the opposing side’s case and explaining that at a settlement conference? You will always have the upper hand when you really understand what a jury thinks of the entire case.
6. I had a professional prepare my exhibits.
Studies show that we spend hundreds of hours working on a case to get it prepared for trial, writing and practicing an opening statement, crafting the killer cross-examination. Yet we often spend little time thinking about and creating the exhibits we use to explain the case, or, even worse, we delegate the task to someone who does not know the case well. Focus groups can describe what they want to see, and they can critique exhibits with a fresh eye. Focus groups will always help tweak the exhibits you have started so that they are the best they can be, and send the right message to the jury.
7. I already have the smoking gun discovery.
Too often, we have heard focus group participants ask for specific testimony or documents that they believe they need to determine the case or award significant damages, and the lawyers do not have it. Why? Because they waited until discovery was closed before running a focus group. In any significant case, conduct focus groups while there is still time to send out discovery requests or lock in deposition testimony. Focus groups conducted during the pretrial phase provide the opportunity to send discovery requests to the opposing side, obtain the documents and information that is important to the jury’s decision, and ask the right questions at depositions.
8. I know my case better than anyone.
Except maybe the opposing counsel, because they are running focus groups. The fact is, you don’t know what you don’t know unless you run a focus group. During recent focus groups, the lawyer told us that he learned more about his case in the two focus groups we ran than he had with his experts during the entire pretrial phase. Focus group participants say some amazing things, and every time, it is a surprise to find out what they think. Issues that we think are important or that we can handle easily at trial may not be so clear to the focus group. Focus groups often discuss things we think are irrelevant—alcohol usage, or lack of alcohol usage, in a car crash case is one example—within minutes of their deliberations. Questions or assumptions about routine documents like a police report are not so routine to focus group members. We spend much of the pretrial phase trying to obtain and learn the information that the other side possesses. We send interrogatories, take depositions, review documents, and analyze them. Why would we then fail to conduct focus groups and allow the other side to be the only one with the knowledge? To create a level playing field, you must learn what the other side knows, and the other side knows to run focus groups.
9. That evidence will never come in.
The evidence may come in and it may not, but sometimes you find out you want it in so you can explain it to the jury, as opposed to having the jury make up an answer you do not like. In a recent case, a lawyer wanted to exclude facts concerning why the client was in prison. It was evidence that he could clearly keep out, but we found out that the jurors’ reasons for him being in jail were a lot worse than the real reason. When he presented the real reason to the focus group, they were less harsh on the plaintiff. In fact, some felt sorry for him. You need to know how to handle these issues and the other points that you think will never come into evidence but the jury wants to know about it. Questions you leave unanswered can become problems for you.
10. I have an expert for that.
Lawyers think that experts are the silver bullets for all their problems.
“What about this land mine?”
“Don’t worry. I have an expert for that. I have it covered.”
Research shows that experts often cancel each other out or the jury simply does not believe them. This is based on various factors, including the amount they are compensated and the frequency with which they testify. Jurors don’t know which expert to believe, so they don’t believe either of them. Experts get you past summary judgment, but facts get you verdicts. Use focus groups to find out which facts you need to arm your jurors with to carry your fight during deliberations.
Discover more great tips and tactics about how to use focus groups and other tools for strategic case planning in:
Anatomy of a Personal Injury Lawsuit as edited by John Romano
Hardcover $465.00
Focus Groups by David Ball with Debra Miller & Artemis H. Malekpour
DVD $199.00
