• Jessica Brylo

Are Focus Groups Hurting Your Case?

You hear about focus groups at every turn – in books, at CLE events, from colleagues. They must be helpful…right? The answer is, it depends.

Focus groups are a scientific experiment. There are variables and outcomes. Playing with some of those variables will directly affect the outcome. But even more important, you’ll probably never know if your outcomes are valid and reliable measures of what actual jurors will do with your case by simply looking at the focus group results. Confused? Let’s break this down.

When consultants run focus groups, they control as many variables as possible. They match as many aspects of the focus group to a real court setting as is feasible. For example, it’s important to have jurors who match the demographics of the venue, who do not know which side is putting on the focus group, who are randomly recruited, and who are screened properly for issues in the case which could disqualify actual jurors. It’s also important that information is presented neutrally in order to remove presenter personality as an extra variable. Evidence should be sifted through to determine what is helpful to present in a focus group setting and what should be left for court. If any of these variables are off, it will affect how jurors discuss the case.

Consider, for example, during case presentation, there is a slip in wording or tone which tips off jurors as to who is putting on the focus group. Jurors may never mention having known who was paying for the study yet the knowledge will subconsciously affect how they discuss the case, knowing that one side is listening. In watching deliberations, however, you would never know that the discussion is being altered and that the information you are getting isn’t full or accurate. Or consider a scenario where a piece of information is presented out of order and later in the story than it should have been. Jurors who heard the information in the correct order could easily have formed a different story about the case than jurors who had already formed opinions and now are rationalizing a way to maintain their story of the case by dismissing or discounting the new information. In watching the deliberations, you would never know that jurors’ feedback is skewed.

If you rely on feedback that is invalid or tainted, it could hurt your case rather than help. And the scariest part is that you would never know.

So how can you prevent damage to your case from running focus groups? Be sure you know what you are doing. Talk to attorneys who have done them before – lots of them. Hire a consultant to run them for you. If budget demands that you do them yourself or you simply wanted to do “quick and dirty” focus groups, just know that you need to take the information with a grain of salt. Assume that there are other opinions you are not hearing and don’t revamp your entire case based off of what a couple jurors have said. Match your expectations to the level of expertise that has gone into your focus groups. If you do that, they can only help.

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