There are a multitude of ways to run focus groups depending on what you are trying to test. The most common focus groups are:
(1) Concept Focus Group
(2) Deliberation Focus Group
(3) Testing Exhibits
There is no one setup that is better than the others. They all serve individual purposes. Let’s go through them one at a time:
Concept Focus Groups: These are most similar to what you would imagine for a focus group to test a product. The moderator stays with the group of jurors the entire time, feeding them information in small bits from the most general information to the more specifics of the case. As the discussion progresses, the moderator probes jurors for their reactions. This allows you to see how juror opinions shift when a new piece of evidence is presented. It will tell you what is missing, what is important, and where jurors are confused. What it will not tell you is how jurors process the case as a whole when presented in script format as it would be in trial. It does not tell you how jurors would process the information individually before deliberating as a group, nor does it give any indication of how deliberations would turn out, who would be leaders in the discussions, and how jurors work together as a group. This type of focus group is usually best suited for earlier on in the development of the case before discovery deadlines pass to test general opinions and find out what more information or experts jurors are needing.
Deliberation Focus Groups: In these focus groups, jurors do not have the opportunity to talk amongst one another until after hearing a plaintiff’s and defendant’s statement of the case. Questionnaires are usually administered at the start of the project and after each statement to track juror attitudes as the case progresses. After the presentations, the moderator leaves the room and jurors are left with a verdict form and instructions to deliberate to a unanimous verdict on all questions. This type of focus group will tell you how jurors respond to the case as a whole and what issues are likely to come up during deliberations. You will get a good sense for what information is important and what information jurors are likely to dismiss. These focus groups are best suited for mediation or trial preparation after there is enough discovery to have a solid idea of the case and what evidence is likely to be admissible. It is still advisable to conduct these focus groups before discovery deadlines as you will often learn from jurors that you need exhibits and experts you had not thought to designate.
Exhibits: Exhibits can be presented during either a concept or a deliberation focus group, but you can also run a much more streamlined and simple focus group solely for the purpose of testing juror reactions to exhibits or demonstratives. Recruit jurors from your venue and get feedback on whether your exhibits convey the message you think they do. You can test exhibits from multiple cases in these focus groups since you are not looking for an overall opinion of case facts but rather are probing for messages your exhibits are sending.
Timing: With the possible exception of a focus group dedicated to exhibits only, it is recommended that you run at least one focus group prior to mediation. The insight gained during the exercise should increase the settlement figure by at least as much as the focus group cost you. If the focus group is favorable to you, take video clips into mediation with you, accompanied either by your consultant who ran the focus group or a letter from him/her explaining the reliability of the methodology and the results. Mediation is about predicting what jurors will do with a case if the case goes to trial. If you can show you used reliable methods to determine what is likely to happen at trial and the results are in your favor, you will have a very good chance of increasing the settlement figure. If, on the other hand, the focus group yields some unfavorable results with problems that are unsolvable, you will have learned some valuable information on the amount you should settle the case for to prevent a defense verdict at trial.
Regardless of what type of focus group you run, make sure you follow scientific principles so the results do not mislead you!