South Carolina Trial Law Blog

A friend recently asked me some questions concerning in-house focus groups. Rather than send him an e-mail back, I thought it would make a good post. Focus groups. What is the best way to conduct them? Ideally, you would have a group of about 20–25 people, have them listen and respond to your presentation, then break them up in 3 groups of six people (2 in favor, 2 neutral and 2 against) and dismiss the rest of them. Then you would repeat the process and go through 3–5 iterations until you had perfected your case and seen every possible juror outcome from the very best to the very worst and everything in between. However, most cases can’t support the $15,000 – $25,000 cost of doing the full blown focus groups.

We do most of our focus groups in house for about $500. They cost about the same as a deposition, take about the same amount of time to prepare for and give you lots of information. I learned how to do  focus groups from David Ball’s aptly named book  How to Do Your Own Focus Groups: A Guide for Trial Attorneys. Here are his questions:

• Where do you have them take place? Hotel/motel conference rooms or somewhere else? – You want to do them at a neutral site. You don’t want either positive or negative feelings about lawyers to influence the process (Dave’s a nice guy, let’s tell him what he wants to hear). We have a Kinko’s down the road from our office and typically use their conference room. If you have access to a conference room in a hotel, that works too.


• How many jurors do you get? 1 group or more (I think Ball suggested 2 at a time) and how many in each group. – The ideal would be three groups. We hire a trial consultant to help us with focus groups of that size. When we conduct them ourselves, we only use one group. Be careful though. Using one groups is NOT scientific. You can NOT rely on the results. You will learn a tremendous amount, plus you will learn from the arguments and discussions the focus group jurors have, but you will not be able to rely on the actual amount of the verdict.


• Where all have you gotten your jurors? Temp emp businesses? – Um….yes. The best way to do it is to call people at random from the phone book to match your demographic pool (or to send out letters, but you will have to send out about 10 times as many letters as you need people). We have had good success with just calling an employment agency. I think this is fine as long as you understand the limitations. You are dealing with people that are underemployed; people who can’t find a job or people that don’t want a job for whatever reason (health, mainly retired, husband works…). Most of your jury pools will have predominantly fully employed jurors. Even with the limitations, an employment agency is a quick, easy way to get six people for your focus group. You can also try average junior high students. If they understand your case, then a juror is likely to as well. While it’s tempting, don’t use the same focus group jurors again. You want someone that is not familiar with the legal process.


• How much do you pay? – $50 a person.


• How much evidence do you give them? Just the simple ‘clopening’ or do you use demonstrative evidence and/or paid or live witnesses? – Hmmm….. That depends on what we want to focus on. Do we have a question about our client or another witness? If so, then we put them up there and show them to the focus group and see what their responses is. If you put up a witness, you HAVE to put up a witness from the other side. Even if the ‘witness’ is a paralegal or secretary. If you’re concerned about whether some evidence will get in at trial, try the focus group without the key piece of evidence. It might surprise you. The focus group jurors might like your case even without the evidence. You can see how well non-lawyers understand a demonstrative exhibit. But again if you have 3 charts/exhibits on the plaintiff side you HAVE to have at least 3 charts/exhibits for the defense. You can test out whatever you want to find out about, or whatever concerns you have on the case.


• How do you monitor the jurors? We videotape them. We get one camera that can get all 6 people on the shot. I also have a set of two Shure EZB microphones and a small mixer so that we have excellent sound quality. The mic’s are about $150 a piece. I found that it’s easier to buy the equipment than try to rent it, or rely on a videographer to have the right equipment. Videographers are normally more concerned about the picture quality than the sound. I care much more about the sound than I do about the quality of the video. I don’t think you need a court reporter during the deliberations, if you need to, you can always get it transcribed later. We just cut out snippets for use at mediation.


• Ideally I would like to be able to put clips from their deliberations in my mediation PowerPoint presentations. I know that there is some speculation as to whether this stuff would be discoverable, but how much have you had to worry about this? I have never had to worry about this. It is an open question about how much of a focus group is discoverable. In reality, I don’t think it is discoverable, but there is a possibility that it might be. The way around this is as a regular matter of course, not to keep the excess video regardless of whether it is asked for.


• How long do they typically last and do you have a preferred day of the week to do them? They normally last an afternoon. About four hours. Sometimes a little longer and sometimes a little less. It really depends on how heated the deliberations are.


• How many have you done and how much insight do you think you have gotten? A number of them, and we have got tremendous insight into our cases through the use of focus groups. I’m to the point where I don’t want to try a case without doing at least a simple focus group on the case. We have never done a focus group without learning something very valuable about our case. In one case, where we had a concern about how likeable our client was, we learned that she froze under the pressure, so we practiced her hard before her deposition and it made a huge difference. In another case, I learned that the jurors didn’t like or understand my favorite exhibit, but that they were much more upset by one of the pictures than I realized. In another case there was a serious problem with pre-existing conditions and I was able to convince the client to take less money than they wanted based on the results (we still did pretty well at mediation, but not as well as the client wanted). We always learn something valuable.


• Any other suggestions or insight? – Once you get used to doing them, they are a lot of fun and it’s interesting hearing non lawyers talking about the case. It’s also interesting how perceptive they are and the things that they pick up on. Once you start doing them, you’ll love them.

David -

Thanks for the great information. I have done one focus group before, but I am definitely going to use your advice going forward.

Jonathan

David,

Thanks very much for sharing your focus group experience. Have you seen or worked with the new material on focus groups in Eric Oliver's book, "Facts Can't Speak for Themselves" (NITA, 2005)? It's quite an extension beyond David Ball's book.

Best regards, Ed