Don’t Undermine The Value of Your Focus Group

A focus group has many benefits, among the primary the opinions the “jurors” offer on the case: strengths, weaknesses, validity of themes, etc.  However, focus group jurors can only provide opinions if they are asked the right questions. Too often, lawyers ask focus group jurors to deliberate and discuss just the verdict questions. This is a woefully inadequate use of the focus group.

Don’t rely solely on verdict questions to elicit opinion, develop a list of questions that target your areas of concern. Every single one! It is far better to develop too many targeted questions and have whoever is facilitating the juror discussion eliminate them as necessary, than to develop too few questions and miss the opportunity of hearing valuable juror opinions.

If the target questions are well designed, the juror discussion will reveal the weaknesses in the lawyer's presentation of the case. Too often, lawyers will interrupt juror deliberation to respond to juror criticisms with a vigorous “Yeah, but..." defense of their position. This response undermines the entire value of the focus group. Why should an attorney bother asking for “juror" opinions if the end result is to tell focus group members that the lawyer is right and they are wrong?

You will gain the most by embracing criticism, looking for its benefit, and not trying to defend against it. Lawyers who dismiss the focus group's criticisms and opinions and fail to incorporate them in their trial strategy might as well not conduct a focus group at all. Lawyers who do not mind losing the focus group in order to win the trial are the lawyers who will profit most from the process.

Your Client, Expert, and Witness E-Impressions Matter! Manage Them Well

What is written has more weight than what is said. Always. That is why, when something is important, we write it down. That is why, in any courtroom, jurors will believe documents over witness testimony.

Unfortunately, clients often forget this, if they even ever stopped to think about it in the first place. And the handy “delete” button on our various devices leads one to believe that whatever is written in emails or texts, or posted in the social media doesn’t really exist in the same way a written document does. We now know all too well the inaccuracy of that belief.

Educate your clients, expert and lay witnesses! E-impression is just as important as the impression your client, witness or expert makes on entering the courtroom. You need to know what e-impression already exists, should damage control be required, and emphasize to your clients, experts and witnesses the absolute necessity of being vigilant about their current e-impression.

The same goes for your team. They must manage their e-impression with the same care they manage all other aspects of their practice.

There is nothing evanescent about virtual reality; in a certain sense, it is, or certainly can be, in perpetuity. Poster, beware!

Watch Those Jurors: Body Language Trumps the Spoken Word

The courtroom setting is unfamiliar to most prospective jurors, and sitting with a group of strangers is not necessarily within most people's comfort zone, much less being grilled by counsel during voir dire. In addition to which potential jurors may respond differently depending if they want to be off or on a particular jury. Therefore, their responses may not entirely reflect that person's "truth."

However, an individual's body language will virtually always be consistent with the person's "truth," despite what is spoken. To assess the veracity of any given prospective juror's verbal response, pay close attention to their body language, in particular body language that conflicts with oral responses.

Watch each prospective juror's body language as they respond to questions, whether the

questions come from you, opposing counsel or the judge. For example, if prospective jurors say, "Yes, I can be fair" but their head is going side to side, signaling "No," believe their body language. Similarly, if potential jurors say, "No, I would not be prejudiced against . . . " but their head is bobbing up and down, signaling "Yes," believe their body language which is clearly saying "Yes, I would be prejudiced."

If prospective jurors say they would give damages in a certain type of case, but their arms are crossed in front of their chest, either they won't give damages, or they would award very little.

If prospective jurors say, "Yes, I can keep an open mind" but they squirm in their seat, something about keeping an open mind is making them anxious. Continue to observe the behavior when asking the next questions. See if the squirming continues. If so, this may indicate  a need to visit the restroom or anxiety about being a juror. If, however, the squirming ceases, the person's anxiety was only relevant to that particular question and can be read in that context.

Body language always trumps the spoken word!