I recently posted an ad in Craig’s List, asking for people who might want to spend 30 to 45 minutes pretending to be a jury for a personal injury case that I’m working on. Fortunately, more than 20 people responded and showed up at the Carla Madison Rec Center, where I booked a room and organized two different time slots for my prospective “jury members.” The goal: to share my case, get their verdict and learn where my case had holes and even strengths that I hadn’t considered yet.
And, as it turned out, these focus groups helped me a ton.
Why would you want to know that people think your client is partially to blame?
Never Make Assumptions About Trials
This particular case was not about a motorcycle accident or car accident but was instead about a dog bite. Sadly, this dog bit a baby so badly that her face is disfigured for life. You’d think it would be a slam-dunk case against the dog owner (aka: the dog owner’s insurance company), but I know to never make assumptions about how a jury will respond to evidence.
I presented my case to the jury, including a slide show of the baby’s face and of the dog. Then my associate, Cara New, presented the opposing side. We left the room and let the “jurors” deliberate for 20 minutes. When we came back into the room, we asked them several questions:
- What was their verdict? Was the dog owner guilty or not? How did they arrive at their decision?
- If the verdict was against the dog owner, how much did they think the baby’s pain and suffering were worth?
- Then we opened it up to discussion just to pick their brains.
It was fascinating! I learned that several of the jurors thought the baby’s parents had been partially responsible for the accident and why. They asked questions that helped me to realize an opportunity in the case that I could use to my client’s advantage. I tested out different calculations on them to help determine how to arrive at a fair pain-and-suffering total. Overall, it was like I had organized a big think tank of my client’s peers who fairly and objectively helped me hone my case for success.
Some people might say, “Why would you want to know that people think your client is partially to blame? Aren’t you supposed to defend your client no matter what?!” My answer is this: Would you rather have an attorney who blindly takes your side and waltzes into a courtroom unprepared for the challenges ahead? Or would you like your attorney to understand every angle that the other side might try to exploit and prepare for it in advance?
Using my focus groups, I actually discovered a bias among a few of my “jury” members that I needed to manage better. It had to do with the breed of the dog and assumptions made about that breed. Their thoughts made it clear that I needed to address this bias in my case.
The research company, Litigation Insights, explained the benefits of focus group research this way:
“Potential jurors have pre-existing opinions that will impact your case. Focus Group research uncovers these implicit assumptions, questions and reactions – both positive and negative. It also explores jurors’ personal experiences and concerns surrounding your case, and reveals their prejudices and expectations.
Focus groups are most helpful early in discovery, before the bulk of depositions have been taken, to help frame your witness themes, case themes and case strategy (aka Early Case Assessment). For instance, in a water contamination case, the plaintiff was only seeking remediation; however, at the beginning of the focus group designed to test the issues in the case, jurors immediately asked, “How many people are sick?” Here, it was clear jurors had an expectation that water contamination was linked with illness, despite the explanation that the plaintiff was looking only for remediation. Jurors’ reactions told us that we needed to neutralize this automatic assumption with a theme that explained that there were no injuries or illnesses being claimed in the case.”
Most Denver Personal Injury Attorneys Don’t Want to Go to Trial
Now, here’s a well-kept secret among personal injury attorneys: most of them don’t like going to court and will actually settle cases too soon so that they can avoid a trial. In my estimation, that is unethical. An attorney is ethically obligated to represent his or her clients to their maximum ability. Choosing to settle a case for less than a client needs, rather than going to trial, is unethical.
Personally, I have no problem taking cases all the way to a trial, which makes me a better personal injury attorney for my clients from the very first time we meet. How? Because my willingness to go to trial changes the way I build a case, take notes, take depositions, manage conversations with insurance companies, and even drives me to organize focus groups. Absolutely everything can impact your case in a trial. If you have an attorney who simply likes settling cases before they ever reach a jury, then he or she is approaching your case completely differently from an attorney who is willing to go all the way.
(Hint: If you’re looking for a personal injury attorney in Colorado, one of the questions you should ask is this: “How many cases have you taken to trial? How many did you win?” And ask for proof.)
Focus Groups Reflect Values
Speaking of proof: If you need more evidence of the value of focus groups, check out what Douglas Keene at The Jury Expert says:
Properly conducted focus groups are extremely useful in getting reactions to a wide array of aspects of the case. While it is not prudent to expect that the “verdict” of a small group research project will be repeated at trial, it is very likely that the same values, hot buttons, and sensibilities that engage the research group will resonate in the jury room.
- What do jurors want in the way of persuasive evidence? Brainstorm with them about the evidence that they used to come to their conclusions, and what additional evidence they would need to change their minds.
- What will a jury think of the witnesses? Show brief tape excerpts from depositions and solicit feedback.
- What sorts of demonstrative evidence will be helpful in getting this story across? Devise a focus group to examine what you have in mind and offer suggestions.
- What themes and language resonate most effectively with jurors who hear this set of facts? Lay out the story and get the group to describe their associations, impressions and reactions to the situation.
I share all of this information to illustrate how hard your attorney should be working for you. If you have been the victim in a motorcycle accident or car accident in Colorado, make sure you hire an attorney who is willing and able to fight for you all the way to a trial.