BY RYALS D. STONEOnce you have completed your initial venue research, it can be extremely beneficial to test your case with Jury Focus Groups consisting of similarly situated mock jurors to see how they respond to your various claims of liability against the Defendant(s) for causing your Plaintiff’s injuries as well as your damages presentation. This should be done several weeks before your actual trial to allow sufficient time for you to digest the focus group feedback and adjust your trial presentation as needed. There are several acceptable methods of conducting jury focus groups, but our firm frequently uses the following method and have found it to be particularly effective and surprisingly accurate in predicting the actual jury verdicts that we have gone on to win at trial.
1) CHOOSE A CONSERVATIVE FOCUS GROUP VENUE GEOGRAPHICALLY CLOSE TO YOUR TRIAL VENUE
For cases based in rural venues, steer clear of your actual trial venue to prevent tainting your jury pool or having any potential jurors struck for cause at trial. Instead, choose a neighboring county with similar demographics and preferably one that is even more conservative than your trial venue. For cases in metro counties, you can safely opt to conduct your Focus Groups either within your trial venue or in an adjacent metro county that is slightly more conservative (e.g., for upcoming trials in Fulton County, consider conducting your Focus Groups in nearby Cobb County).
Presenting your case to a “tougher crowd” at the Focus Group level can reveal some of your weaker points and less-than-persuasive arguments that a more Plaintiff-favorable mock jury pool might not.
2) SCREEN AND SELECT QUALIFIED JURORS FROM WITHIN YOUR CHOSEN FOCUS GROUP VENUE
A great way to attract potential Focus Group participants is by placing detailed ads on popular online search engines such as Craigslist (See https://atlanta.craigslist.org/). You might also try placing flyers at the local college campus, civic center, or temp agency in your venue. These sources tend to attract a sufficiently broad spectrum of your Focus Group county’s population. Filter out any potential mock jurors who would otherwise be excused or prohibited from serving on your actual jury (e.g., non-residents of the county; convicted felons; those jurors who are over 75 years of age or disabled, etc.). Do this by qualifying each potential mock juror who responds to your Focus Group ad via a short questionnaire requesting their basic biographical and demographical information. Screen each focus group juror for any potential conflicts of interest regarding every named Plaintiff, Defendant, Third Party, the Plaintiff’s spouse, all attorneys of record and their law firms, as well as any non-parties with apportionment, indemnification, subrogation, or any other financial interests in the outcome of the trial.
3) ORGANIZE YOUR FOCUS GROUP JURORS BASED ON THE DEMOGRAPHICS OF YOUR TRIAL VENUE
Your Juror Qualification Questionnaire will provide you with the demographical data you will need later during your Focus Group in order to divide your pool of mock jurors into smaller mock juries proportionate to your actual trial venue’s demographics (or as close as possible). If time permits, reserve two (2) consecutive days to conduct your Focus Groups with a separate mock jury pool of 30 – 36 mock jurors assigned to each day. This will not only provide you will twice the amount Focus Group feedback but also give your trial team “two bites at the apple” to rehearse your presentation. Divide each day’s mock jury pool into at least three (3) separate mock juries, consisting of 10 – 12 mock jurors apiece. Prior to conducting your Focus Groups, you should proportionately assign each of your qualified mock jurors to either Mock Jury #1, #2, or #3 so that the demographics of each mock jury mirrors that of your trial venue to the extent possible.
4) CONDUCT CONDENSED TRIAL PRESENTATIONS BY ATTORNEYS FOR BOTH PLAINTIFF AND DEFENDANT
The goal of your jury focus group should be to discover which legal arguments and facts your mock jurors considered to be the most (and least) persuasive by both sides of the case. Our firm’s Focus Group model allows for both the Plaintiff and the Defendant equal opportunity to present a “Reader’s Digest version” of their client’s case. First, the Plaintiff’s attorney is permitted to give a 30-minute trial presentation; Next, the Defense counsel gets 35 minutes to present his case. Plaintiff is then allowed a 5-minute Rebuttal.
Your “defense counsel” should be someone who is intimately familiar with the case – either a member of your own trial team or a formidable defense attorney colleague unrelated to the case who hire to play the role (and who you trust to keep the Focus Group results confidential). It is impossible to squeeze your entire case-in-chief into a 30-minute presentation, so don’t try. Instead, use the time you have with your mock jurors wisely by highlighting the best facts and strongest arguments of your case. You may choose to proactively address any “bad” facts or testimony in your initial trial presentation or opt to rehabilitate during your Rebuttal if the defense attorney relies on them during his argument. A PowerPoint slideshow is recommended to keep you on point, off your soapbox, and out of tangential rabbit holes. Likewise, playing short but incriminating video clips from a key deposition (e.g., Defendant’s corporate representative or an eyewitness) can be both persuasive and efficient. Consider using some of your allotted time to show a short “Day in the Life” video to introduce your mock jurors to your injured Plaintiff. All trial presentations should be videotaped for your future reference; a “film study” of your presentation will reveal which facts and issues you presented well, which ones need improvement, and which points caused your mock jurors to exhibit positive or negative body language. Your Focus Group trial presentation also forces you to go through one or more “dress rehearsals” before you give your Opening Statement at trial.
5) POLL YOUR MOCK JURORS WITH SURVEY QUESTIONS IMMEDIATELY AFTER EACH PRESENTATION
After each trial presentation and before the next presentation begins, have your Focus Group participants complete a short survey, or “Measure”, in which each individual mock juror is asked to describe his or her feelings toward the case and the parties, as well as which side they tend to favor and agree with after just hearing the latest trial presentation. Certain Measure questions require only a simple “Check Yes OR No” answer (e.g., “Were you persuaded to side with the Plaintiff by this presentation? YES or NO), while others are “sliding scale” questions with available answers ranging from “On a scale of 1 to 10” or “Strongly Agree” to “Strongly Disagree” (e.g., “Were the arguments made by the Plaintiff’s attorney: Easy to understand? _____ ).
You will often need to know for apportionment purposes which defendant(s) and non-party(s) the mock jurors hold the most/least responsible for causing our Plaintiff’s injuries. Before all our trials involving apportionment of fault, we ask our mock jurors, “What percentage of responsibility do you assign the following parties for Plaintiff’s injury?” [*NOTE: The total of all lines below must equal 0% or 100%] ___ % of responsibility to Defendant Physician; ___ % responsibility to non-party Hospital).
At the end of each Measure, inquire as to how much compensation each individual juror thinks your Plaintiff(s) should receive from Defendant(s) for causing their personal injuries (e.g., “Which of the following damages amounts do you think would be a reasonable amount for Defendants to pay Teresa Foster for the death of her Husband William Foster?” 0_ Zero ($0); _0_ $100,000; _0_ $1M; _1_ $5M; _2_ $15M; _4_ $25M; _11_ $50M; Note: Actual verdict in that case at trial was $40.2 million). Although not the primary objective of a Jury Focus Group, the amount that mock jurors believe your Plaintiff should be compensated can prove very helpful in settlement negotiations (or alternatively, can steel your client’s nerve and strengthen their resolve not to settle).
6) READ YOUR PROPOSED TRIAL JURY INSTRUCTIONS OF LAW BEFORE JURY DELIBERATIONS BEGIN
After you have presented both sides of your case, your Focus Group moderator should read the Instructions of Law that you intend to propose to your trial judge. These jury charges should include both “General Instructions” (concerning the duty of jurors, evidence, credibility of witnesses, applicable burden of proof, etc.) as well as “Specific Instructions” (e.g., Plaintiff’s specific claims of negligence by Defendant(s), Plaintiff’s alleged damages, and/or any specific affirmative defenses proffered by Defendants). Your focus group Jury Instructions should also include the legal definitions of certain relevant terms (e.g., “medical negligence”, “standard of care”, “causation”, “fault”, “specialist”, “expert”) as well as all elements of each tort that the Plaintiff has the burden of proving (e.g., duty, breach, proximate cause, and damages). Provide your mock jurors with clear charges as to how they are to determine issues of liability and damages issues (i.e., the full amount of money that will reasonably, fully and fairly compensate the Plaintiff for his conscious pain and suffering, past and future medical expenses, lost earning capacity, loss of marital relationship, and punitive damages, if applicable). Finally, instruct your mock jurors they are to first elect a jury foreperson and then consider and answer the questions on their Special Verdict Form in the order in which they appear. Each mock jury will have one hour to deliberate, and each verdict must be unanimous.
7) ALLOW YOUR MOCK JURIES TO DELIBERATE FOR 1 HOUR AND RETURN UNANIMOUS VERDICTS
Once you have read the Jury Instructions, split your Focus Group into at least three (3) separate juries of 10 – 12 mock jurors each according to your trial venue’s demographics and in their own private room to begin their deliberations. Always videotape and/or have a court reporter transcript each separate jury deliberation so you can review and make the necessary adjustments to your presentation before trial. Once each mock jury has reached a unanimous verdict, have each individual mock juror complete a Final Measure in which they provide in their own words the best and worst argument(s) made for both the Plaintiff and the Defendant during deliberations.
8) REVIEW ALL YOUR FOCUS GROUP FEEDBACK, NOT JUST THE ACTUAL MOCK JURY VERDICT AMOUNTS
It is always a good sign that your Focus Group presentation will likewise be persuasive at trial if all of your mock juries bring back favorable Plaintiff’s verdicts; However, if you rest on your laurels without further review of the mock jurors’ feedback, you will have missed the point of the exercise. The primary objective of a jury focus group is to have your case critiqued by a pool of demographically-similar mock jurors located in or near your trial venue so that you may absorb their collective criticisms and then address and adjust (or opt to avoid altogether at trial) your arguments which they perceived to be weak, ineffective, or unpersuasive. Compile the results of your mock jurors’ Measures into a spreadsheet and tally their responses to each question by percentage in order to determine their majority or consensus opinions.
Conducting Focus Groups in advance of trial, reviewing the data provided by your mock jurors, and applying the same to your actual trial presentation will better prepare you to try a mistake-free and convincing case at trial. ●
About the Author
Ryals D. Stone is a lawyer in the Rome office of The Stone Law Group who represents individual and corporate plaintiffs in the areas of catastrophic personal injury, wrongful death, products liability, medical negligence, civil fraud/RICO, as well as commercial and consumer litigation. Ryals currently serves on the Board of Directors for the Young Lawyers Division of the State Bar of Georgia, as well as the Civil Justice PAC Board of Directors, and is a member of the GTLA Executive Committee. He can be reached at email@example.com.