Trial Magazine

Too many times, I have seen focus group participants confused by the complexity of the plaintiff’s theory, question the reason for a witness, or wonder why the attorneys never addressed a particular issue. There may be a fact or witness missing. Or worse, we may be focusing on an issue that elicits a “so what?” from jurors. When these discussions occur after the close of discovery, it leaves little opportunity to address and resolve them in time for trial.

For that reason, I am a proponent of conducting discovery focus groups early and often. When we learn what potential jurors want to know about our clients cases early on, we can craft our discovery plan to provide answers.

Participants as fact-finders. Have focus group participants imagine they are investigators tasked with uncovering the truth. Ask groups, “Who would you talk to, what would you ask, and what documents would you like to see?” Have a lawyer familiar with the case act as the person the group would like to question and field the inquiries they want answered. You might not have answers to the participants’ questions, but be open to learning the questions so you can get those answers in time for trial.

Once the group finishes with one witness, repeat the process with other potential witnesses of interest to group participants. Remember, the goal of a discovery focus group is to help shape discovery so future jurors better understand your client’s claims.

Role-playing. Having focus group participants play different roles can also be helpful. I have used role-playing for trucking cases by having focus group participants play the trucking company safety director. Through this, I discovered what qualifications potential jurors would look for in a safe driver and what oversight they thought a safe trucking company should have.

To reframe the case, I also have participants play the role of the truck driver. I ask how the trucking company may pressure them to ignore or bend safety rules and whether they feel “allowed” or “equipped” to fully do their job. Role-playing is also an excellent way to learn what participants consider to be the plain language “Rules of the Road™” that fall outside statutory or industry guidelines. Gaining this perspective allows you to explore weaknesses that you can exploit in a deposition or at trial.

Streamline your case. Focus groups help streamline cases by letting you know what jurors might think is not important. For example, take a focus group for a crash case involving a truck carrying hazardous materials in an area where this was not permitted. Although the mechanics of the crash had nothing to do with the truck’s hazardous load, the plaintiff lawyer felt it was a “gotcha” topic that proved negligence.

But the participants simply viewed it as a “so what?” issue—it made no difference to them what the truck was carrying. It only distracted them from the fact that the truck was going too fast and cut off the plaintiff’s car. The plaintiff lawyer simplified the case and chose not to hire a hazardous materials expert.

Despite our best efforts, blind spots frequently happen in our cases. Focus groups can reassure you that some strategies will work, but more important, they can show you what’s wrong and what’s missing.

Kenneth H. Levinson is a partner at Levinson and Stefani Injury Lawyers in Chicago. He can be reached at ken@levinsonstefani.com.