Since the 1940s, focus groups have been used to provide feedback to product sellers, television producers, governments and political candidates. Focus groups bring together a group of “ordinary people” to share their views on a topic or product. The information gathered during focus groups is used for subsequent decision-making and planning, such as developing strategies for marketing a product or a decision of whether or not to launch a TV series.
Since the 1990s trial lawyers have begun utilizing focus groups as part of the trial preparation processes. When attorney-driven focus groups first appeared on the scene, they were usually structured as mock trials, with focus group members serving as the jury. The purpose of these early focus groups was often to evaluate cases for potential settlement, to determine the attitudes of potential jurors to the case, or to generally help develop trial strategy. Lawyers prepared for focus groups like they would for trials, and often regarded the results as predictive of ultimate trial outcomes. Lawyers presented “clopenings” to focus groups, in which they would lay out the case as they would in an opening, and make arguments as they would in a closing. A lawyer representing one of the parties would present one side, and a lawyer pretending to be adverse counsel might provide opposing evidence and arguments. In addition, witnesses might testify, and actual exhibits might be presented. Convening a focus group was considered an expensive endeavor, and as a result relatively few lawyers took advantage of the opportunity.
At the time, conventional wisdom held that the more information provided to the jury, the better. Jurors were given a charge and left to deliberate, sometimes in two or three separate groups that would provide two or three sets of deliberations and verdicts. The jury’s “verdicts” were often used as guidance for settlement evaluation and trial preparation. It was rare that more than one focus group was carried out for a particular case. Frequently, the focus group “verdict” was used to dictate the settlement position of the attorney convening the group. The “deliberations” were often videotaped so that the lawyers could determine what evidence or arguments were well received, and which were not, based on verbal and nonverbal communication by participants. Focus groups represented a major aid in trial preparation that had not been available previously.
The methodology for conducting focus groups has evolved substantially in the years following. More lawyers are availing themselves of the opportunity to convene focus groups. Critical thought, reflection and dialogue among attorneys utilizing focus groups have helped identify best practices for conducting groups and managing participant engagement, cost-effectiveness, and eliciting the most valuable information from the participants. Over the last decade, consensus has emerged among attorneys experienced with focus groups that putting on a great presentation and “wining” focus group trials was insufficient for assessing the broad range of dynamics that play out in trial. Rather, it has become accepted that more important is to elicit the most useful information i.e., “debriefing,” for refining the trial preparation process. Before this consensus emerged, lawyers viewed negative feedback in focus groups as a reason to resolve a case on less than favorable terms. Now, eliciting negative feedback is viewed as an important first step in the focus group process, a necessary source of information that can be used to develop more sophisticated arguments. As a result, multiple focus groups are utilized in the same case to test the lessons learned from the first focus group.
Attorneys have also begun to realize that deliberation in focus groups, while helpful, may not be a gold standard for evaluating potential juror reaction. Deliberations, it seems, are useful only to a limited extent, due to barriers such as differences in participants’ comfort talking within the groups and dominating personalities controlling conversations and limiting output from others. Groups may also make collective decisions quickly to avoid tension or shorten the duration of the focus group, thereby minimizing meaningful input from the group. In response to these challenges, lawyers and jury consultants have begun to develop focus group formats that allow for maximum feedback from all participants.
A variety of evolving formats are being used to maximize input and participation from jurors. One such approach is a “narrative” focus group in which pieces of evidence are gradually disclosed and a facilitator elicits reactions from each member of the group as the story unfolds. This ensures that each person provides input and the discussion is not cut off by a dominating personality. Facilitators may conduct a focus group to test the effectiveness of exhibits or opening statements in the same way. In another approach, jurors fill out questionnaires before giving oral reactions, so that their opinions are gathered prior to potential influence by the statements of others. More structured focus groups, akin to mock trials, are still carried out; however most lawyers who use these formats use improved methods for obtaining feedback. For example, the jurors will be asked to fill out questionnaires or be subject to oral debriefing at each stage of the case.
As focus group processes become more accessible, attorneys must continue to ensure that their presentations do not “put a finger on the scale.” All information must be presented in a completely neutral fashion, and it is preferable that jurors not know which party the attorney represents (if they are conducting a focus group for their own case). Using a facilitator is one way to avoid this. Most importantly, attorneys should use focus groups as an integral part of the learning and preparation process of trial preparation. If challenges arise such as participants appear to dislike the client or your case (or even the attorneys!), these obstacles can be used as a gift and a learning experience for attorneys to further develop their case and professional skill set.
The evolution of focus groups in the legal field reveals a trend toward more flexible and strategic formats designed to maximize the utility of participant feedback. The lessons learned over the past decades have been used to improve processes and grow the field as a whole. New designs will likely emerge as focus groups continue to evolve.