Focus Groups – Focus Groups represent the most frequently used tool in exploratory research. It is typically the first phase of research utilizing test respondents. This type of research is normally undertaken when enough discovery has been conducted to know the basic arguments and theories of the case by both sides, but with enough discovery still remaining to make whatever adjustments are necessary later as a result of the research findings.
Generally, focus groups provide the first glimpse of what jurors are likely to think of the case. The jurors’ receptivity to basic themes can be readily determined through discussion during the focus session, as well as through quantitative measurements. One of the most helpful aspects of this research is that jurors tell the researchers what they need to learn or comprehend in order to find for either side. Often this process involves ideas emanating from the jurors that were entirely unexpected. The ability of jurors to articulate how the case needs to be framed is often surprisingly informative.
One problem in discovery is knowing where to draw the line regarding how much evidence is “enough,” and how much is “too much.” Generally, trial teams will err on the prudent side and draw the line in the direction of too much evidence. The Focus Group is unparalleled as a tool for reducing information – that is, for identifying the precise types of evidence that a jury needs to know versus that which it finds irrelevant. This differentiation aids tremendously in separating the wheat from the chaff during discovery, so that information overload and wasted resources during discovery are minimized. Because of the resultant savings in time and expense, the Focus Group often pays for itself.
From these critical focus session results, one can then fine tune discovery strategy. The results of this research assist in identifying key issues in preparing witnesses for deposition, and augmenting requests for documents based on the particular needs and requirements for verdict decisions reported by the focus session test respondents.
Community Attitude Survey – This is the only large sample research conducted in advance of trial (by “large sample research”, we mean sample sizes of 100 to 400 people). The chief advantage of large sample research is that it allows scientifically precise estimates of specific parameters in the general population. For example, if one wants to know the exact proportion of the venire that is biased in a particular manner, the Community Attitude Survey allows a point estimate of this proportion with an error variance that can be statistically computed. In a given case, one may obtain a precise estimate of the proportion of individuals who have a favorable versus unfavorable view of a defendant company, if the company is reasonably well-known.
Perhaps more importantly, the results can be statistically analyzed to provide an empirical guide in jury selection. As an illustration, if one wanted to know whether Hispanic males or females were preferable as jurors, there would not be a sufficient number of these types from either focus group, or subsequent small sample research (e.g., mock trials) to make a scientific determination. From a group of 400, however, there would likely be 50 or 60 of each to provide a more valid basis for statistical comparison.
The same is true for experiences. If one is attempting to evaluate the effects of layoffs from downsizing, there would likely only be a handful of such individuals with this type of background who could be studied in small sample research. With larger samples, the effects of this experience can be more reliably determined. This experience can then be used as a criterion in generating favorable and unfavorable juror profiles.
When the rubber meets the road in jury selection, these types of data can be extremely useful, especially in Federal court where there is often limited information to be obtained during voir dire. Many cases are won or lost before opening statements begin, and having an edge in jury selection tilts the playing field decisively in many instances.
Confirmatory Research
Confirmatory research means to test, that is, to subject the hypothesized themes, arguments, and evidence to empirical validation. It is at this stage that the trial team takes its “best shot” based on what has been learned in discovery and in prior exploratory research to determine how well it will “fly” in a more trial-like setting. In short, confirmatory research provides the opportunity for fine-tuning to achieve optimum readiness for trial. Trial lawyers also tell us that this type of research has a valuable practice effect in helping them prepare for trial, for example by streamlining and polishing opening statements and voir dire.
Mock Trials -- Many trial attorneys use the term “Focus Group” and “Mock Trial” interchangeably, although they refer to very different types of projects from the standpoint of the researcher. Although both may use witnesses and exhibits for testing, the Mock Trial is more trial-like, and includes a jury charge with deliberations using structured verdict form interrogatories. Mock Trial jury deliberations are scrutinized to determine which types of arguments are used by jurors to convert others from one verdict orientation to another. The resulting information is extremely valuable for devising means to “arm” good jurors with the ammunition they need to hold out and persuade their peers. Because issues are now tested within the framework of the verdict form and instructions, greater reliability is obtained with regard to generalizing results to actual deliberation outcomes.
In the Mock Trial, juror verdict preferences are tracked throughout opening statements, witness examinations, and closing arguments to determine at which point during trial the vulnerabilities of each side are likely to be exposed. Quantitative data and a focus session after deliberations provide the information required to piece together the specific strengths and weaknesses of both sides. With the resulting knowledge, opening statements can be modified, witnesses can be optimally trained, and exhibits can be redesigned to maximize the likelihood of a favorable outcome.
Deliberation results provide critical information on how the jury will likely determine damages, and the potential for a runaway verdict. Specific data on the amounts awarded can provide a scientific baseline for evaluating settlement offers. If it is necessary to go to trial, jurors can provide additional information for improving witnesses and exhibits that can be further tested in an additional mock trial, if necessary.
Data on juror profiles and typologies can be compiled from all of the exploratory and confirmatory research into a master database. This database then forms the basis for development of voir dire questions and juror questionnaire items.
Witness Effectiveness Training with Jurors – There are essentially two methods of preparing witnesses. The first is the more conventional method, in which the witness meets with members of the trial team and consultants to formulate the most effective themes and to polish mannerisms, demeanor, and various aspects of courtroom behavior. We sometimes call the second variety “industrial strength” witness training: The witness is brought into a Mock Courtroom and subjected to extensive direct and cross examination by trial attorneys in front of jurors.
In contrast to merely being told what to do by attorneys and consultants, the second “industrial strength” version involves having the witness observe immediate feedback from jurors through closed circuit televised feedback. This feedback provides a powerful force in shaping the witness’ attitudes and beliefs about his own testimony. It leaves an indelible imprint on the witness – one that is not easily forgotten. In addition to the much stronger impact of this practice, the source of the information is more compelling because it comes from the people that have the only votes – namely, the jurors.
Witnesses typically do not change overnight, especially those with comparatively intractable issues and problems. The Witness Effectiveness Training protocol may have to be repeated several times. Even skilled communicators may need several iterations of this process before their performance is optimal. For example, Oprah Winfrey was involved in this exercise on four occasions before she took the stand in the Cattleman’s Association case in Amarillo in 1998.
In addition to the types of exploratory and confirmatory research noted, there exists the possibility of designing several other types of research to fill special needs. For example, some litigators find tremendous value in conducting Mock Voir Dire projects. In Texas, where voir dire can have even more impact than opening statements, this type of exercise can be extremely useful.