Advice from a Trial Strategist: Focus Groups & Mock Trials
Illustration by Hanna Barczyk
This will be a new four-part series called Advice from a Trial Strategist. Part 1: Focus Groups & Mock Trials; Part II: Witness Prep; Part III: Trial Strategy; and Part IV: Jury Selection. We will be seeking advice from trial consultant Denise De La Rue. If you don’t know Denise, it’s time you get to know who she is. Denise is an attorney, but she has exclusively worked as a trial consultant and strategist for almost thirty years. Denise has consulted on cases throughout the country. She has worked on some of our country’s most high-profile cases. She handles pre-trial research through facilitating focus groups and mock trials, and helps prepare witnesses from defendants in criminal cases, to clients in civil cases, to expert witnesses. She helps attorneys with trial strategy and participates with counsel in the jury selection process during trial. Our hope is that this series provides more comprehensive information about trial consultant tools and resources available to evaluate cases and during trial, aimed at helping us represent our clients more effectively.
Can you describe both a focus group and a mock trial? Educate us on these two pre-trial resources.
A focus group involves a relatively small number of people. Around 10, a few more or less, and it's conducted in more of a conversation style setting. A focus group is interactive. You are asking people to focus on specific issues, to listen to something and talk to you about it. And in terms of a court case, it could be very generic without getting into the facts of your particular case. For example, if you have a corporate client charged with polluting a local water source, then you might just want to talk about corporations and environmental issues in your first round and not really get into the specific facts of your case at all. Or it could be that you want to ask people to look at the broad-brush issues in your case by presenting a little bit of information and then talking to them about it. More often than not, focus groups are done more than once. You can repeat the process with multiple different focus groups. You might learn information from one group that they were curious about, that you can then provide to another group to see what they do with the information you've provided.
With the focus group technique, you're saying you might do a focus group more than once, but it’s different people that participate each time.
Yes, it would be different people each time and sometimes you might go ahead and schedule two in one day, or multiple different focus groups over a two-day period. So, you're doing it all in one setting. Or sometimes we do them in waves, so we test what we know in the beginning but as we learn more about the case, we test the facts again.
Who moderates the focus group?
I moderate. The consultant that you're using or a facilitator, but not the lawyer whose case it is. The lawyer could be at the table and usually they are. They also may have a role in presenting the information that you want focused on. They may be asking follow-up questions to the group, as long as they're not jumping in or advocating during the process. But you need to have a neutral person facilitate the group.
During a focus group, do you use locations where the attorneys are behind mirrors or are the lawyers in the same room with the focus group and the participants know that they lawyers are observing?
Typically, when you do something in a market research facility where there's a two-way mirror, you don't point out that there are people watching, but the participants get the drill that people are likely watching. But sometimes you have a case in a small town where there are no market research facilities, so you get two conference rooms at a hotel or a community college or someplace like that. You can set up a video camera in the room where the focus group is happening, cabled to a monitor in the room next door. But there might be one attorney at the table to present information and ask questions with the moderator. If it's not convenient for everyone to attend and they don't need to have input as the focus group is going on, then you record it so everybody can watch it later. So, it's not essential to have everybody there. In fact, sometimes it's helpful not to have everybody there.
What is a mock trial and how is it different from a focus group?
A mock trial is much more presentation focused and it's not really interactive during the process until deliberations. You use a larger group of people. If we had 24 people in attendance, they would all be listening to the same presentation, and then they would break into three different groups of eight for deliberations. We like groups of eight. We would have attorneys or presenters give a condensed opening statement for the prosecution and then one for the defense. Then we pass out a written questionnaire for them to give some very initial feedback, but they don't talk back to us yet. Then we would go into a summary of the prosecution's case, get more feedback after that, again only in writing. After that, we would go into a a summary of the defense case and get feedback, again only in writing. Then closing arguments for both sides and then a jury charge and you go right into splitting them out for deliberations. So mock trials are much more focused on the evidence of the case and is more presentation focused than the discussion format of a focus group.
Can you tell me what a clopening is?
One thing that I want to add is that I am giving you definitions of these research methods in their purest form, but in the real world many times what we do is a hybrid of these forms. One of these hybrids is the “clopening” and that's when you're not doing something as elaborate or structured as a mock trial, but it is more focused on the case and the evidence in the case than a pure focus group. So, you have a presenter, and it can be the same person doing both sides or you can have two different presenters presenting different sides. The advantage to the same person presenting both sides is you don’t skew results by which presenter they prefer. A clopening is a mix between an opening and a closing. The jurors get around a 45-minute to an hour presentation summarizing the evidence and issues in the case, such as what the witnesses are going to say and what the attorneys want you to believe that means. So, it's one big case summary for the prosecution, one big case summary for the defense, you can have some question-and-answer period, and then they deliberate after that. The clopening method tends to work better when there's not a lot of intricate detail or technical knowledge, such as accounting principles or expert testimony that has to be explained and understood by a jury. If it is more of a straightforward fact-based case, then it’s much easier to do a clopening method. It’s a way to learn if they latch onto your theory or your defense or if, as they say in the South, that dog won't hunt.
Can you tell us when in the process of representation you think that an attorney should be looking into conducting a focus group?
That's a great question, and hopefully the answer is not 3 weeks before trial, which is too often the case. You think I'm kidding, but I'm not. Attorneys tend to think about focus groups too close to trial, usually when they get that sinking feeling that they are going to lose. But I have done focus groups even before indictment, or in civil cases before a complaint is filed. For example, this kind of early intervention may make sense in a criminal case where there is really only one defense and jurors are either going to believe it or not. They're either going to believe the client knew what our accountant was doing, or he/she didn't know what the accountant was doing. And if nobody's going to believe it then maybe the client should try to work things out at that juncture. Actually, in civil and criminal cases, one major reason to do a focus group is to get a client more grounded in reality.
Even though that's not the typical case, it's never too early to think about a focus group if the opportunity is there. A lot of it is dependent on resources. If you are only going to have one shot at it, you don't want to do anything that early in the game. But if there are ample resources then early on it is always a good idea to do at least one or two focus groups so that you can learn what other people, who aren’t lawyers, think about your facts. It can inform your investigation, it can inform your discovery requests, it can inform what kind of experts you may need, or what kind of lay witnesses would be important for your case. You learn who people really want to hear from and who they don't care about at all. There are also circumstances where people want to obtain answers to certain questions, but there is not enough discovery to obtain these answers, so waiting is advisable, especially when there are only resources for one focus group. It’s my recommendation that you explore using the of focus group early in the game, even if you decide to wait.
The same question for mock trials?
A mock trial is really done when you know enough about the facts and evidence that you are able to present a realistic version of your trial to a mock jury. I mean if you do a big mock trial when you are still waiting for a key ruling that will be a game changer in what evidence comes in at trial, then any answers you obtained from the mock trial will in no way mirror what will happen in the courtroom. It’s not that you can’t learn anything prior to having all the facts; but it won’t be as helpful of an exercise because it won’t represent what's going to happen during the trial. Because of this, the timing of a mock trial has to be much more in anticipation of the trial.
What kind of issues should a lawyer be considering when contemplating using a focus group or a mock trial?
If you are deciding what kind of research to do, the main thing you need to think about is your goal. What are you really trying to learn? That may sound simplistic, but many times attorneys start the process not knowing what they want to research or what questions they need answers to. Understanding and identifying your goals can guide you to decide which format is best for you and your client. Many times, there are multiple goals but really knowing what you hope to learn is very important. Maybe you are interested in what jurors will think of a particular witness and you have the witness on video, or if the witness is on your side of a case you can put the witness on video in a mock deposition that you video record in your own office. But you need to start by being clear about what you want to learn and then after that you need to understand your resources. For example, if you only have the resources to do something once, then you've got to really figure out how to pack as much into that one exercise as you possibly can and you're likely going to do it later in the game because you want to do it with as many facts as you can. But you have to be mindful to do something within enough time to tweak or change things based on what you learned.
Getting realistic about the timing, financial resources, and what your questions are, are some of the primary issues. Another question for attorneys is whether to conduct research in the trial venue. And my answer to that is always yes – unless it's virtually impossible. It may make attorneys nervous for a variety of reasons, but we go to extraordinary measures to ensure confidentiality. There are also always issues around whether or not to have the clients there. It can be very important to be able to ask follow-up questions or add a fact based on what one of the jurors has said. If there is a client there freaking out during the process and you are having to do a lot of client management which prevents you from being focused and present, it will stop you from getting the most out of the process. You can always share a video with the clients later. You also need to evaluate what you are going to do with the information once you get it. I hate to say it, but some attorneys engage in focus groups or mock trials because they feel like they need to and then they really don't do much based on what they learn. But if you identify ahead of time how you think you would change your strategy in the case based on what you learn, I think it tightens up your approach throughout the process.
What are some common mistakes that lawyers make during participation in a focus groups and mock trials?
The most common mistake is when lawyers go into the process trying to win the focus group or mock trial. Attorneys always want to win, but when you're doing pre-trial research, we aren't there to win – we’re there to learn. If you go into it saying, “I have to win this thing,” then you're selling yourself short because in reality we know how to win but what we can't always see is how we can lose. And that's what we want the focus group to tell us. We don't want to give ourselves the home court advantage. If anything, we want to make it realistic. We want to give the other side their best day in court, not our best day in court. So, if I'm recruiting the focus group, or mock trial participants, I'm not going to try to make it my dream jury because it's much easier for me to win with my dream jury. I'm going to make it a jury that's not unrealistically impossible to win with, but that is going to be challenging. If I have a question as to whether some key evidence is coming in or not, and it's bad for me, I'm going to present that evidence and learn how that could take me down or what I can do to overcome it. So really going in with a desire to learn, not win, is the most common mistake. Too often I think attorneys get that backwards.
I'm going to assume that one of the first and most important questions that most lawyers ask you is what does it cost? Also, if they have a limited budget would you recommend doing one research technique over the other?
Finances is always the first question and please don't expect a consultant to be able to answer that off the top of their head because what it costs varies greatly based on the format and based on where you are. I can put a focus group or a mock trial together in a small town in the Midwest for a lot less money than I can in mid-town Manhattan because costs are simply different in those two locations. It’s just largely cost driven and then it's driven by the format such as how many participants you're going to have and how much time you need. When an attorney is looking to evaluate cost, give the consultant that you're calling the particulars about your case and what you are looking to achieve so they can give you a realistic idea of the options and what it's going to cost. If your resources are limited, then more times than not we would discuss using the clopening format that we spoke about earlier. You still learn an awful lot in that format. I would recommend you let the consultant know your budget to fully explore the options.
Let's talk about some of the most effective results that you've seen based on lawyers participating in pre-trial research, either in the focus group format or the mock trial format.
I have seen lawyers learn things that are really game changers or things they wouldn't have known without doing a focus group or mock trial. One example that comes to mind is when an attorney thinks one thing is the most important fact in a case, but they find out it is another fact.
I had a case where the attorneys wanted to know the response to a video in their case. They thought they were going to sink or swim based on the video and they put all their presentation effort on it. In fact, the mock jurors totally disregarded the video and fixated on another piece of evidence as the make or break in the case.
I worked on a case in Southern California where the trial team was really divided about whether or not to do this focus group work. Part of them wanted to do it and the other half had the opinion that the case came down to “he said/she said” credibility. It was in federal court and since they wouldn’t be able to have the person testify in the mock trial, some of the team wondered: “Why are we doing this? It comes down to credibility and in this instance, we can't test credibility. It’s a waste of time.” Well, we did the focus group anyway. And as it turns out, the camp that really wasn't into doing it was absolutely right – the case came down to one question in the case; but they were wrong about what the question was. So, it really didn't have to do with the he said/she said factor. The jury was answering the question before we even got there. And they focused on some other language in the indictment that was going to determine to them whether the defendant was guilty or not guilty. Not a person on the trial team saw that. We used the clopening format. We did it twice. With the first group that we did it with, we thought it was a fluke that the mock jurors had gotten all hung up on this one word. So the next day we presented the same case before a totally different group of people, and we received the exact same feedback. The second group of mock jurors also got all hung up on this one charge in the indictment that nobody was focused on and we didn't even get to the he said/she said part of the case before they were ready to convict the client. So again, the lawyers were right about the case boiling down to one question, wrong about what the question was. There's no way anybody would have known that, and these were brilliant legal minds. It’s just sometimes hard for even brilliant legal minds to really think like jurors.
Another story that comes to mind was when I was privileged to work on the defense of a well-known NFL football player charged with murder. There had been a street fight with people in his party and some other people, and two people died as a result of that fight. The client was charged along with two others with murder. There was no evidence pointing to the client’s involvement in the murder. Nobody saw the client with a knife or doing anything directly connected to the death of these two people. We did a good bit of pre-trial research and the one thing that came out repeatedly was that mock jurors who believed that the client was guilty, were basing their belief on things that happened after the death of the two men. They didn't cite anything he did up to or during the fight. But their focus was after the death, things like he didn't go to the police right away, or he didn't tell the truth to the police; that was what they relied on when they said he was guilty. So we realized in trial that we had to make it very clear that when these men are dead is the time to stop right now and look and say who's guilty and who's responsible. And if it's not the client at this moment then it's not ever going to be the client. This knowledge formed the questioning of jurors, our thoughts on developing questions for every prosecution witness, and the theme from opening through closing. The case ultimately resolved the middle of the trial, but the knowledge gained from the focus group was eye opening about what people would focus on to determine guilt.
How critical of role in evaluating the strength or weakness of the case do you feel a focus group or mock trial play?
I think doing some sort of pre-trial research is critical every time you're going to trial. It may not always be feasible, but it's critical to find a way to do some form of pre-trial research. Even if you don't have a lot of resources and you want to figure out where to get the best bang for your buck, then I think pre-trial research is the place to do it, because you and I, and a dozen brilliant legal minds – and I'm not including myself in that – can sit around and brainstorm a case once a week for 6 months and we would never think of what real people who aren't lawyers are going to think. This is what I tell lawyers who say we just don't know if we can afford to do this. It’s expensive and I'm not denying that. But the most expensive focus group you're ever going to do is called a trial and if you go to trial having never presented your case or the opponent's case to a group of people who don't know you and don't think like lawyers, then that's essentially what you're doing. And sadly, in post-trial interviews, if you're allowed to do them, jurors will gladly tell you how you lost then. I'd much rather people tell me how I can lose in advance so that I can do something about it.