By: Lauren D. Fraser, Esq.

             As a trial lawyer, I understand the need for full and proper preparation to avoid poor performance.

            My greatest anxiety related to the courtroom always is, “am I ready?”  To combat my fear, I choose to prepare and prepare and prepare. Years ago, I learned, that while perhaps over-studying and memorizing my client’s DME report might be slightly helpful, an even more helpful trial preparation tool is the focus group.

            I began running focus groups for my own cases, 11 or 12 years ago after reading David Ball’s book about doing your own focus groups. It seemed foolish not to vet as many liability and damages issues as possible prior to trial. Based on venue demographics, I would recruit a mock jury and lawyers at my firm would present both sides of a case.

            Jurors would then deliberate and decide the case. This was a helpful exercise in understanding some of the weaknesses of our cases as well as the strengths. It also was a good practice run for clients who would endure some light cross examination.

            We learned to go into trials, embracing certain weaknesses, but by the time we were standing in front of the actual jury, unfortunately it was a bit late to try to rectify any of the problems in our cases that were identified by the focus group.

            Several years ago, Phillip H. Miller, Esq., a national treasure and advocate for focusing every case, reformed my approach to conducting focus groups. He and the late, great Paul J. Scoptur, Esq.  had just published their book, Focus Groups Hitting the Bull’s-Eye.  From Phil, I learned my focus groups were occurring too late in the litigation process and they were not nearly as effective as they could be because I was trying to “win” my case.

            I took his advice and corrected the error in my ways. I started presenting a nearly exclusively defense oriented case to find out what the plaintiff needed to do to persuade a jury to find in his/her favor. I was able to collect less biased feedback because I was no longer infusing the process with my take on the plaintiff’s case. I was able to determine what proofs juries required to decide in favor of the plaintiff, such as what evidence and expert testimony was needed.

            Starting the process in enough time ahead of the discovery end date became a great advantage, because I was able to ascertain if I needed more time to bring in additional or different experts, what demonstrative evidence was needed and what information or evidence was confusing to the jurors.

            For the last six years, I have been conducting focus groups on behalf of trial lawyers across the country, for AAJ, and for my own cases. I conduct focus groups at various stages of litigation:  Discovery, Concept, Structured and Mock Trial. Many of my focus groups are now conducted on Zoom, which helps keep the costs more manageable.

            Starting as early as possible with focus groups is key because then you have the time to conduct as many as necessary to be well prepared for trial.

            It may sound counterintuitive, but you want to lose your focus group so that you have a good idea of landmines in your case before the trial.

            Some focus group juries may head down rabbit holes and address issues that are completely irrelevant or non-essential for your case but having an experienced facilitator appropriately drive the conversations among your jurors is very valuable in the process.

            Some attorneys avoid focus groups because they believe they are cost prohibitive especially in cases where the value of the case barely warrants requesting a medical narrative (for example, a case with a $15,000 automobile policy with no Underinsured Motorist coverage and very little treatment). In those cases, conducting formal focus groups on any of the issues probably is not financially feasible. One suggestion here is to ask your family and friends over dinner what they think about your case.

            In cases where the value is potentially high – significant injuries and significant coverage/defendant assets – and there are questions of liability and/or causation, a focus group is a very smart investment. Bringing in a consultant to help facilitate it is even smarter so that you can avoid infusing the deliberating jurors with client and case-oriented biases. Another great benefit to using a trial consultant is you get the added brain power of another trial attorney to help you analyze the jurors’ feedback and strategize your trial presentation.

            Typically, conducting a focus group with a facilitator may cost between $5,000 and $10,000. That cost generally includes all aspects of the focus group, including vetting and paying jurors, location costs, etc.

            If you choose the do it yourself  approach, your costs will likely include payment for the jurors, perhaps $750 to $1,500  depending upon whether you are running a half-day (three-hour) or full-day (six-hour) focus group; catering costs; outside venue cost (so the jurors are not  biased when they see your fancy law office sign); videographer; Zoom costs, as well as compensation to staff who will be assisting with finding and vetting jurors.   

            Regardless of which focus group method you select the juice will be worth the squeeze.

            This indispensable trial preparation tool can be the difference between a large verdict and a no-cause verdict. Focus groups allow us to “know before we go.”

Lauren D. Fraser, Esq. is a partner with Einhorn Barbarito, Frost & Botwinick, PC and lectures frequently around the country on focus groups and other litigation topics.  She is a member of the NJAJ Board of Governors and is Co-Chair of the American Association for Justice Jury Bias Litigation Group. She can be reached at lfraser@einhornlawyers.com  or at (973) 586-4961.