By: Lisanne L. Mikula, Esquire
In celebration of Washington’s Birthday last week, the Los Angeles Times published a fascinating article about how the views of our nation’s Chief Executives fluctuate over time.[1] Although the basic facts regarding many of our Presidents remain essentially static, changes in social norms, as well as the personal life experiences of those evaluating each President, alter the lens through which each term of office is examined.
It’s not just historians whose life experiences and core beliefs influence how they interpret facts. Jurors frequently arrive at conclusions regarding witness credibility and the critical facts of a case which differ from the viewpoints of their fellow jurors, the attorneys, and the parties. Savvy trial lawyers are increasingly relying on jury focus groups to help them understand the presumptions, conclusions, judgments, and biases which potentially impact how jurors will view the facts of a case at trial.
The goal of a jury focus group is to present the main themes and evidence of a case in an easily understood and non-adversarial manner—not as a simulation of trial—in order to elicit information from the jury focus group members about those themes and evidence. The jury focus group members may be asked their opinions and perceptions regarding the evidence at various stages throughout the presentation or they may be asked to deliberate to a verdict at the end of the presentation and then provide their reasoning for reaching their conclusions.
A typical jury focus group involves a “neutral” presenter who reads prepared summaries which set forth each party’s theories and facts. These summaries are supplemented with exhibits, documents, and other evidence that help explain the main points each party intends to make at trial. Videos or simulated live testimony of expert witnesses or lay witnesses may be presented. In cases involving personal injury, a “day in the life” video may be shown to demonstrate the injuries claimed by the plaintiff.
Neutral presentation of trial themes and anticipated evidence helps to minimize the impact that lawyer advocacy has on the jury focus group’s evaluation of the facts. Instead of focusing on the advocacy performance of the lawyers, jury focus group members can give their full attention to the substance of the presentation instead of the style.
The advantages gained through an effectively conducted jury focus group are multifold:
- The parties and their counsel can learn what questions jurors might have regarding a case, allowing counsel to prepare to answer those questions during trial. The questions of jury focus group members will show counsel whether their client’s facts and theories have been adequately explained and where clarification or additional education is needed. These questions can reveal misinterpretations of evidence and facts that would not have otherwise occurred to trial counsel or the parties, or can reveal where jurors may supply facts based on their own assumptions where certain details have not been specifically addressed.
- Jury focus groups reveal a great deal about the group dynamics at work in a jury. Simply watching focus group members interact gives valuable insight to the deliberative process undertaken by jurors. Seeing the debate and consensus building of people who are often very different from one another can be extremely instructive, and counsel can adopt for trial the arguments used by focus group members to convince and rally others.
- Jury focus groups provide an opportunity to learn how to deliver complex information and concepts to jurors in a way that is easily understood. Feedback from a jury focus group can alert counsel of the need to establish the “basics” of concepts that are not as familiar to others as they have become to the parties and their counsel.
- Jury focus groups can help in the preparation of expert witness testimony by providing insight regarding the thought processes people go through when grappling with an expert’s testimony.
- A jury focus group can reveal how jurors may interpret testimony of lay witnesses, and provide an opportunity for a client to observe that every word, every gesture, and every inflection is given meaning by jurors—and it is not always the meaning intended by the witness.
- A jury focus group can weigh in on whether the visual exhibits to be used at trial are effective or what types of visual aids, such as time lines, photographs, video recordings, computer simulations, and text enlargements, would be best to help a jury understand, piece together, and remember the evidence.
In addition to preparing a case for trial, a jury focus group can be used to guide discovery, help prepare witnesses testimony, and assist in preparing for mediation and settlement discussions. A jury focus group is a flexible tool which can be used at various stages of litigation and can be repeated as new information develops in a case, and the parties and their counsel can shape the jury focus group process to fit their particular goals.
In addition to conducting them for our law firm’s own
jury trials, our partner Mark A. Sereni, Esq. and I also offer to conduct jury
focus groups to fellow trial lawyers. To arrange an initial consultation at
no-charge, please contact me at 610-565-5700 or [email protected].
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