Focus Groups on a Shoestring Budget

By Casey Johnson

Every case has its warts.  How many warts a case has and how bad those warts usually determine whether or not a case ultimately gets sent to a jury for determination.  There are many excellent jury consultants and companies that do focus groups and mock trials (many of whom are loyal sponsors for CAOC).  These vital resources should absolutely be used on high-value cases so that you have the opportunity to really explore the strengths and weaknesses of your case, and to help you craft the best possible presentation for trial. Whether using such vendors to focus group-specific issues in your case, or conducting an entire mock trial, their services can be invaluable in helping you fine tune the best way to present your case.

Unfortunately, spending $8,000 to $30,000 or more to run sophisticated focus groups or a mock jury on most run-of-the-mill, modest value, premises liability or automobile accident cases is not economically feasible.

What if you could get the valuable use of a focus group for under $1,500? Just as working with a more costly consultant or operator, there is a lot of preparation work and time involved for the attorneys and their staff, but many moderate value cases would certainly support a $1,500 cost (compared with $8,000 or more) for the chance to see what real people think about their case.

The benefits of focus grouping a case are many.  Developing favorable juror profiles, honing themes and characterizations of evidence and identifying how people truly view the “warts” on your case are just some of the many benefits of dedicating the time and resource to such an effort.  Although you’ve likely handled many cases with some similarities to your client’s current case, remember that this is likely their first and only experience with the civil justice system, so they may not understand your concerns about their case, or how you’ve reached your evaluation regarding potential settlement value range.  In instances where your clients have extremely unrealistic views of their case (regarding liability or damages), a focus group can provide the perfect, independent opportunity for your client to see how a sampling of folks such as the jury is likely to view their case.  Focus groups can be incredibly beneficial to tempering clients’ expectations.

So how does an economical focus group work?

Choosing a Time

Choosing the day of the week and time for your focus group can impact the type of individuals that may participate. For example, if you want to run a focus group during the week and during normal working hours, most individuals with typical 9-5 jobs will not be able to participate.   Thus, if you are only looking to do a single focus group (3 hours) you could run it from 6pm to 9pm, which will broaden the scope of possible participants to include those who work bankers’ hours.  On the other hand, if you want to do two different focus groups in one day (3-4 hours each), you’re probably best running it on a Saturday, with the first group beginning at 9 am and the second group beginning at either 1 pm or 2 pm.  Saturdays tend to provide the broadest possible pool of participants.  While the costs will double by running two groups, you’ll have the benefit of input two groups, and can even consider “testing” new information you learn during the first group.

Choosing a Location

Next, you will need to determine a location for your focus group. In order to do this, you must decide what room layout you want. For example, are you going to run the group and simply videotape the group for you to consult later?  Do you plan on having colleagues or clients observing the focus group from an adjacent conference room?

Many larger plaintiffs’ firms have their own mock courtrooms in their office and/or conference rooms with built-in videotape technology to allow you to live feed the focus group in an adjoining conference.  If you happen to know such an attorney, oftentimes they are more than happy to loan the space out to you for little or no charge. And most can preserve the video of the focus group for your review.

Another alternative is using a court reporters’ office.  Many court reporting agencies have space specifically set up for focus groups.  Some even have rooms prewired with cameras, so that the focus group participants and moderator(s) are in one room, while others (attorneys, clients, etc.) can watch from a nearby room.  In addition, they will often record the sessions for a nominal fee, so that you can review the session to check for key language, phrases and issues that you may have missed while watching or participating in it live.  You should check with the court reporting agency(s) you regularly use to see if they can accommodate focus groups, and if so, at what charge. If you are running your focus group on a weekend or after normal business hours, there may be a charge for running air conditioning, etc.

Something to consider: The importance of neutrality.  Selecting a court reporters office or other rented space that does not have any affiliation with actual attorneys can help alleviate the potential for your participants doing research on a firm ahead of time and therefore avoid any swayed results that may otherwise present themselves during a focus group.  If your focus group is held at a law firm, you can guarantee they will look up the name of the firm to determine what kind of law they practice, they attorneys, etc.  You do not want any of this information tainting your focus group.

Securing Participants

For anyone with overwhelmingly negative views of social media, know that it does have some useful purposes.  Social media is the quickest, cheapest and easiest way to secure focus group participants.  You can create an account on Craigslist, post an ad under “jobs” and wait for the responses to flood in.  You want your ad to identify: (1) in which city the focus group will occur; (2) what day and time it will occur; (3) during which hours it will occur; and (4) how much participants selected will be paid.  Do not provide any further details until you have confirmed that you actually want to use a particular “applicant” – otherwise you’ll have many unwanted folks the day of, with their hand out expecting payment.

In terms of payment, $50 – $60 for a three- or four-hour focus group will normally generate significant interest.  To ensure a prompt starting time, we offer an additional $20 to anyone who shows up 15 minutes early so you can get them started on their written questionnaires and start the actual focus group as close as possible to your start time.  If you are able to offer more money to participants, it may increase the breadth (and perhaps quality) of individuals who consider participating.

It is not unusual to receive 50 or more responses to an initial ad seeking participants.  We usually respond to all folks who express interest with a very brief list of questions to respond to via email:  (1) Name; (2) Age; (3) Occupation; (4) Marital status; (5) City of Residence; (6) Number of Children; (7) How many focus groups have they participated in during the last 12 months.

We usually try to place an ad 2 weeks before the focus group, to get the largest possible pool of applicants.  Once you have responses, you will want to comb through them to select a diverse group of participants that will hopefully mirror the jury pool for your venue, including diversity in age, occupation, ethnicity, gender, education level, etc.

Once you have selected the individuals you want to participate, you should contact them to advise them they have been selected.  Confirm with them the date, time and specific location of the focus group.  This is the time to tell them that if they arrive fifteen (15) minutes early, they can earn an extra $20. Also, advise them if you will be providing any food or beverages (which I highly encourage).  Ask them to confirm their ability to attend by return email and get a contact telephone number.  You or a member of your staff should send reminder emails the day before the focus group to remind them and should place reminder telephone calls the day of the event.  You will not always get 100% of folks who commit to show up, but in instances where we have confirmed 12 folks, we usually get at least 10 to actually show up.  You certainly don’t need 12 participants for a productive focus group.

Be warned!  There are many people on the “focus group circuit” who sign up for as many groups as possible.  You should do your best to try to screen these folks out, as their participation can negatively impact the purpose of your focus group.  If you plan on running focus groups, you should keep track of the names of the folks you have used historically and try not to select them for repeat use – particularly if you have a particularly obnoxious participant.

Identifying the Purpose(s) of the Focus Group

This is the most crucial part of deciding to focus group a case. You have to determine what you want to accomplish with your focus group.  It may be an overall evaluation of your case, or you could just want to test select issues such as liability, damages, particular defenses, effectiveness of exhibits, etc. You will have to determine this based on the particular facts of your case and what is causing you the most concern.

The Day of the Focus Group

When they arrive, have participants complete a more detailed jury questionnaire. Examples from developed under the authority of California Code of Civil Procedure §205 (c)-(d) are attached. But you are not limited to these questions.  You should ask questions on areas related to the issue presented by your case, which would be likely to be raised during any reasonable voir dire (i.e. feelings regarding medicinal marijuana, chronic pain issues, etc.)  Unless you are planning on doing an actual voir dire with your focus group, this will give you information after the conclusion of your focus group to help identify favorable and unfavorable juror profiles. If you are doing your focus group at 6pm, provide participants with a meal.  It doesn’t have to be gourmet.  Pizza, salad, sandwiches – something to make sure they are not hangry during the process will suffice.  If you are going to provide this, let the participants know when you advise them they have been selected to participate.

Once you have your participants fed and they have completed their questionnaires, get started. You should have a moderator (it can be you) to take the participants through the process.  We usually start with a disclaimer that the focus group has been commissioned by both sides to help provide the attorneys with information to help them evaluate the strengths and weaknesses of their respective cases. (This can help eliminate bias or a perceived bias towards one side or the other.)  The moderator then gives an overview of what to expect (depending on your plan for the group), and then gets started.

The moderated discussions depend solely on the purpose of the focus group.  If the plan is to test the evidence of your case or importance of an issue, start with a presentation of your case without all of the really good facts.  It’s best for the description to be neutral, but it’s better for it to favor the other side rather than favor you.  Then, after all or most of the participants have weighed in on their initial thoughts, you can start adding facts – one at a time.

You can test good facts and the warts, to get a sense as to how folks react.  By using this method, you can see what the key pieces of evidence are that shift jurors to your position. These are the facts you will need to be sure to emphasize throughout the presentation of your case at trial. Trying to “win” during a focus group defeats the purpose. What you want from the focus group is honest and forthcoming responses from participants that mirror most closely what you would expect to hear from jurors at trial. If you start with your best facts and hammer away, you may get a focus group telling you that you have a great case, but you will have learned little if anything in the process – and will potentially undersell the strength of the defenses or warts in the case.

Another use of focus groups can be for testing out your demonstrative evidence.   Have some draft graphics prepared and show them to the mock jurors and ask them if they can tell what is depicted in the demonstrative.  You can provide them with some background information to help guide them.  If you are considering multiple ways of illustrating the same or similar contexts, present them to the focus group members and have them pick which they like best, and have them explain why.  You can also ask things like “what other information would you want to see depicted on this exhibit?” or “if you could change one thing about the exhibit, what would it be?”  Through this process, you can really hone your demonstrative evidence to make sure your best possible version is what is ultimately shown to the jury.

You can also use focus groups to test your damages. In these situations, we will usually reserve the last 30 min to 1 hour of the focus group for such a purpose, including deliberations. We have the plaintiff make a presentation to the focus group, emphasizing damages (just as with a jury, demonstratives help) in a 10 to 15-minute closing. We then have the defense perspective presented in a 10-15 minute closing. After that, we provide the focus group members with a deliberation form setting forth the key issues they need to decide.

We have them select a foreperson (before the moderator leaves the room), and then tell them to deliberate on the questions presented until 9 people agree on an answer, and then they can move on to the next question.  The moderator then leaves the room and we are watching the deliberations from another room. What you can learn from this process is invaluable. You will observe what information you did not focus on that the jury finds to be really important. Allow these discussions to go on a bit to help gain some understanding of what the thinking process of the participants is, but if they are going down a rabbit hole based on an incorrect assumption, send the moderator back in to help set things straight.

We’ve even used focus groups to help us find the best terminology for a situation.  In these circumstances we present the jury with an overview of the case, and then ask them to tell us how they would describe the issue in a few words. You may be surprised at the great descriptors or analogies that focus groups can help with.  As attorneys, we get so focused on the law and the details, we sometimes forget how best to communicate even simple concepts to a jury.

As indicated above, we conclude almost every focus group session with some sort of deliberation to allow the group to deliberate without the moderator present.  We provide them with a form (much like a jury verdict form) with questions to answer.  Do not underestimate the amount of truly insightful information you can obtain once the moderator is out of the room and the group is just discussing the issues.  Sometimes, the free flow of discussion can prove even more insightful that the carefully directed discussions.

Although there are literally hundreds of “do-it-yourself” books regarding running focus groups, those relating to specific to focusing cases and legal issues will probably prove most useful to attorneys looking to focus group their case or issues within their case.  Just two examples of such books are How to Do Your Own Focus Groups by David Ball, Ph.D. (published by the National Institute of Trial Advocacy) and Focus Groups:  Hitting the Bull’s-eye, Phillip Miller & Paul Scoptur (published by AAJ Press).

This piece was originally published in the OCTLA’s The Gavel.