Chapter 14 Another Perspective Jury Consultants, Focus Groups, and Mock Trials1

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 14 Another Perspective Jury Consultants, Focus Groups, and Mock Trials¹ Sawnie A. McEntire

No lawyer can guarantee a jury verdict against all odds. No responsible trial lawyer should provide a client with absolute assurances of victory. Regardless of skill and preparation, all trial lawyers face uncertainties at trial. The unexpected is always just around the corner, and veteran practitioners know this well. Juries are frequently unpredictable in how they react to the courtroom, the judge, the evidence, the witnesses, and even the trial lawyers. The only thing certain about a jury trial is uncertainty.

With that said, a lawyer can (and should) make educated, informed predictions based upon experience, the venue, the facts, and the law. Properly evaluating (and handicapping) trial risks is one of the trial lawyer's most important functions and a critical service provided to any client. It is frequently the lawyer's final advice that dictates whether the case "goes to the jury" or settles.

One tool for risk management is effective jury selection. Picking a good jury, and knowing how this goal is achieved, is an important skill. Another is making informed decisions concerning what evidence works and what evidence does not work. Yet another is understanding which trial themes are effective and which are not. Each of these variables are managed through honed instinct and experience. But, even then, these variables can be independently validated or, at least evaluated, through the use of professional trial consultants. In the right case, the use of such consultants can provide objective insights, improved strategies, and substantial comfort to the client.

Selecting a good jury begins before voir dire starts. Every successful trial lawyer invests energy and time to understanding and identifying the characteristics of the ideal juror. Equally important is the identification of the characteristics of a less preferred juror. And, these qualities will certainly change from case to case. These evaluations should be educated, informed decisions, and not rushed or ad hoc.

Judgments about potentially good or bad jurors are frequently intuitive, and based upon years of courtroom experience. Lawyers should certainly trust their instincts and experience; but, in complex cases involving significant financial stakes or important issues, a lawyer's intuition can be tested through mock trials, jury experiments, and focus groups. These studies, properly implemented, will yield empirical validation of the lawyer's pre-trial assumptions. If those assumptions are incorrect, then it is better to make this determination before trial begins.

Clients frequently ask their trial lawyers to predict jury outcomes. Some litigation-savvy clients use formulas for this purpose, and many lawyers also have developed techniques for handicapping verdicts. In larger cases, where budgets are more flexible, both the client and the trial lawyer are well advised to consider obtaining independent feedback from jury consultants to confirm these trial risks. Consultants can help judge the facts and other intangibles that may impact the trial outcome. They also help identify good and potentially dangerous jurors, refine trial themes, and prepare witnesses. Ultimately, feedback from jury consultants is useful to inform the lawyer and the client concerning the wisdom of settlement or "going to verdict."

The role of a jury consultant will vary from case to case depending on the unique concerns presented in each case, and the client's tolerance for expense. Consultants may be retained to provide only high-level advice concerning trial strategy and assistance in identifying evidence strengths and weaknesses. But, they are frequently used to help in jury selection, witness preparation, and demonstrative exhibit preparation.

Jury consultants are found in every major metropolitan area, and many travel cross-country to provide their consulting services. Most jury consultants are degreed psychologists or individuals with sociology backgrounds equipped to better understand and predict the dynamics of human decision making based upon controlled information. A simple Internet search for "jury consultants" yields dozens of websites throughout the country. In fact, there is now a national association serving as a forum and marketing platform for jury consulting companies across the nation. There is no shortage of professional consultants capable of handling the smallest to the most complex cases. The cost will vary depending upon the company, the issues tested, and the methods used.

Focus Groups

Focus groups are an excellent device to identify specific weaknesses and strengths in either the evidence or thematic approaches to a case. By their very nature, such groups "focus" on trial themes and the factual strengths or weaknesses supporting these themes. Akin to a marketing firm who markets consumer products, a jury consultant is used to gauge what works and what does not work with the target audience—the jury. The focus group is a proxy for the jury.

Focus group studies are distinguished from mock trials because focus groups typically do not involve live witnesses or testimony. Even then, there are different formats for such studies depending upon the goals. Focus group studies can be designed to test specific themes and specific evidence, and then phasing such themes and evidence into and out of presentations to test for receptivity. Focus groups also are used to ascertain the credibility and likeability of witnesses.

A focus group study should be conducted in or near the venue where the trial will occur. The demographics of the jury pool in the relevant forum is always an important consideration. That is why there should be a disciplined effort to recruit participants consistent with the known demographics of the trial venue. Every effort should be made to reflect the ethnic, educational, work history, and socioeconomic backgrounds unique to the trial venue. This better...