Hitting the Bull’s Eye

An Interview with Trial Consultant and Focus Group Expert Phillip Miller 

BY DREW ASHBY

Phillip H. Miller is a board-certified civil trial lawyer who lives in Nashville, Tennessee. He is one of the most sought-after deposi-tion/trial strategists in the country. Miller limits his practice to no more than 15 personal injury cases at a time, and he spends 50 percent of his time consulting on depositions and trial strategy. As a result, he has run focus groups for some of the most prominent trial lawyers in the country, interviewing thousands of focus group jurors in the process. He recently published a book with Paul Scoptur entitled ‘Focus Groups: Hitting the Bull’s-Eye.’ We asked him some questions about how to better use this incredibly effective case preparation method.

 

WHY SHOULD TRIAL LAWYERS USE FOCUS GROUPS?

We don’t see our cases like the opposition does, and our assumptions about how jurors will evaluate evidence are often wrong. No matter how well we prepare a case, if someone looks at our case critically they are likely to point out that jurors:

1. May not be as persuaded, angry, or sympathetic about our case as we expect;

2. Likely want proof that is not part of the evidence we compiled and/or focused on during discovery; and

3. There are parts of the opposition’s case that are more persuasive than we could have imagined, and/or although there may be a counter, we either haven’t fully developed it or it’s not as effective as we need it to be.

       There are two reasons that are often responsible for the errors we make in case preparation. Using focus groups is one of the most effective ways to help you avoid both of them.

    First, our judgment is negatively affected by “confirmation bias”1 when we consider the possible evidence in a case and its likely persuasive weight.

    Second, we cannot readily put ourselves “in a juror’s shoes” to evaluate our case and understand how they may evaluate proof.

The “confirmation bias” phenomena explains much of why we may fall short in our preparation and strategy. We are all affected by confirmation bias, regardless of education level, social standing, or world view. We all “hear what we want to hear.” We see what we want (or expect) to see. When there is contradictory testimony or evidence in a case, our first response is to minimize it by assuming our witness, expert, or other evidence carries more persuasive weight. When we look at a photograph or document, we see what we want or need to see in it and minimize the rest. Often, we are simply blind to those other parts of the photo, document, testimony, or facts. When dealing with emotionally charged issues or deeply entrenched beliefs, the effect of confirmation bias is at its strongest. In other words, the deeper you are into the case, the stronger the effect of confirmation bias, and the more you need some other eyes on your case – like focus groups.

Focus groups provide a wake-up call to anyone who is convinced about the strength and persuasiveness of their evidence, and may suggest alternative approaches that are more effective.

WHAT ARE THE COMMON MISTAKES YOU SEE PEOPLE MAKE WHEN CONDUCTING THEM? HOW SHOULD WE USE THEM?

The most common mistakes made when conducting focus groups occur when people (often well-meaning lawyers) bias the focus group’s discussions, thereby making the “results” misleading or useless. As a practical matter, no one should “do their own” focus groups unless they have had the benefit of watching an experienced focus group moderator do several groups. Let’s look at the most common mistakes.

Everyone wants to “win.” Consciously and unconsciously we want a focus group to look at our evidence favorably. Priming and framing the facts to favor one side is a common mistake that is easy to make even when you may try to avoid making it. Here are four common mistakes that should be avoided:

1. The moderator makes sure the group knows he/she represents one side of the case by their words or actions.

2. The moderator describes or implies that the plaintiffs are worthy, without fault, horribly injured, need help, etc.

3. The moderator describes or implies that the defendant are irresponsible, negligent, and/or greedy/undesirable, etc.

4. The presentation is one-sided with little or no discussion of facts that might constitute comparative fault or alternative causation.

      And remember: facts drive jury results, not arguments. It is often irresistible for a lawyer to tell jurors/focus group members what the lawyer believes are the obvious, inescapable conclusions that “must” be derived from the evidence (i.e., argue). The unspoken response from jurors/focus group members is likely to be: “Yeah?…So says you!” The more persuasive approach (that is much more helpful to us) is to provide facts that allow jurors/focus group members to reach the conclusions on their own. When focus group members come to “your” conclusion without you suggesting it, that’s a good thing. When they do not, you know you have more work to do.

MANY PEOPLE THINK FOCUS GROUPS ARE TOO EXPENSIVE. HOW CAN THEY BE DONE COST-EFFECTIVELY?

The phrase “garbage in, garbage out,” applies to focus groups. Don’t conduct a group without preparation. Your groups will be more cost-effective if you answer the following questions from the perspective of a neutral juror before you do groups.

    Why is this case important?

Jurors want to think they are doing something important. They will look for meaning, a reason to senda message or make a change. What is the case about? Is it just about some lawyer and his client getting rich? I always ask my law-yer-client, to finish this sentence: “This case is about…” I often get a complicated, cumbersome, wrong answer. This is also a question to ask the focus group participants. What do they think the case is about, why is this case important? You MUST NOT suggest that something in a case is important,2 you want to listen to see if they come to that conclusion on their own.

How can we know we aren’t being scammed or defrauded by this evidence?

Jurors are suspicious of the plaintiff’s motives and evidence and will look for ulterior motive(s) for the claim. Every piece of evidence (testimony, photos, or otherwise) that can be minimized by a juror’s suspicion is potentially problematic. Is there case critical proof in your case that is inherently suspicious? Is there some other way to prove those points? It is never helpful if the discussion about the merits of the case gets partially de-railed because your evidence is “fishy.”

Has this happened before?

Jurors like to have context for the case. This means they need to know the prior history of the de-fendant and plaintiff’s conduct. Has the defendant done this before; has the plaintiff had problems before this; has the plaintiff ever been injured or made a claim before? Has the defendant doctor been sued before? Jurors believe that prior conduct is predictive of future conduct and always ask about it in focus groups.

Are there any rules or laws we can use to decide this case?

Jurors like to know if there are any rules that apply. They also want to believe that what they are doing is fair. Rule violations are always good topics for focus groups, but if the rule suggested doesn’t seem fair, rule violation may not be enough for a jury. The ideas of fairness discussed by focus groups often tend to favor defendants, e.g., “If it wasn’t foreseeable should we hold the defendant liable? It was just an accident.”

Is there a message that needs to be sent in this case?

Jurors like to punish and affect change/send a message. Jurors don’t naturally think about “compensation” or “making someone whole.” They do think about and believe in punishing and sending a message. What are the admissible3 bad facts that might motivate a jury to send a message?

HOW CAN GROUPS BE DONE COST EFFECTIVELY?

This is my favorite topic and the answer isn’t what you may expect. Forget about doing 8-, 10-, or 12-person focus groups, especially if you are inexperienced. Start with two or three people in a room in a neutral location. Limit yourself to 90 minutes, record the discussion, get a transcript, review the transcript, and schedule another group ASAP. You will learn an incredible amount and your costs are minimal (90 minutes of three people’s time + a neutral location + transcription of the discussion).

IN WHAT KINDS OF CASES SHOULD WE USE FOCUS GROUPS?

When you are fortunate enough to have a case where there is an opportunity for a substantial verdict or settlement, you should do a half dozen or more groups, and you should probably get someone “outside” to do the groups for you (never discount your own confirmation bias). For other cases, anything that is worth your time is worth doing a focus group. Do smaller 2- to 3-person discussion groups, do them as early as possible, and do several of them while the case is pending.

WHERE CAN TRIAL LAWYERS LEARN MORE ABOUT FOCUS GROUPS, AND HOW TO DO THEM CORRECTLY AND COST-EFFECTIVELY?

The American Association for Justice (AAJ) does a national focus group program twice yearly (called “Case Plus”) that should be on your list of things to do if you want to become facile at doing focus groups.

In addition to being able to focus your own case three times, you get to see experienced moderators and trial consultants run groups for your case and other cases. In addition to attending national programs, you might have an opportunity to observe someone else’s group, and if it’s being done by someone who knows what they are doing, all the better!

Finally, AAJ just published our book on focus groups. The substance and “how to” of using focus groups cannot be found elsewhere. Buy it, read it, and do some groups. Your cases will be better for it.

฀Focus Groups: Hitting the Bull’s-Eye

By Phillip H. Miller and Paul J. Scoptur

Published by AAJ Press and available at http://justice.org/focusgroups

ENDNOTES 1 Confirmation bias is a principle that has been written about for more than a thousand years but its application to lawsuits and how we see them was first popularized by attorneys David Wenner of Arizona and Greg Cusimano of Alabama as part of their research on jury bias. 2 Suggesting that something is important to a case is an example of “priming.” It introduces bias about facts that may be interpreted differently due to your word choice. 3 Focus group results can be completely misleading if the group(s) are provided “evidence” that may not be part of the real case for evidentiary or other reasons. Thatkind of evidence should generally be left out of focus group presentations.

ABOUT THE AUTHOR:Drew Ashby is an Associate with the Cooper Firm in Marietta, GA. He specializes in catastrophic personal injury, wrongful death, and product liability cases. Drew has a special expertise in product liability cases involving automobiles, ATVs, boats, industrial equipment, and a variety of consumer/household products. Drew is a GTLA Champion Member as well as a member of the Verdict Editorial Board. He can be reached at drew@thecooperfirm.com.

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