Trial Consultant Phillip Miller’s Focus Group Do Not Do List

Practices To Avoid With Focus Groups

Trial Consultant Phillip Miller With Focus Group

In my book Focus Groups, Hitting The Bull’s-Eye, and in my work as a Trial Consultant, I explain why trial lawyers will benefit greatly from the use of Focus Groups. I’m a fan of plaintiff lawyers talking to regular people about cases. Although this is often referred to as a “focus group”, it can be a conversation of just an hour with 3-4 people. Listening to what potential jurors say can yield valuable insights into your case.

On the other hand I also explain the myths that have grown up around the concept of defining a Focus Group. They can be expensive but they don’t have to be. You can have a very effective Focus Group for a limited amount of money in a few hours. If you choose to take advantage of this very effective tool I have created a Do Not Do List (DNDL) for you.


Do Not argue against juror questions or points made by jurors

Arguing your case in response to jurors’ thoughts, feelings, or challenges can suppress discussion and deter jurors from taking strong opposing viewpoints that could teach you about your case.

Framing/Interpreting Pictures and Images

It’s ok to say, “What do you see?” if you are testing the image, but don’t tell focus group participants what an image shows, let them tell you, e.g. “You can see the defendant never should have hired this person.”

Do Not Characterize the opposition as bad, negligent, etc.

Even though focus group jurors may not agree, they won’t fight for their true opinions if you characterize the opposition negatively.

Do not show a document that is prejudicial – without a balancing document or argument

A favorable, one-sided document or other evidence without any rebuttal introduces bias that will not happen in a real case. It can also signal that you are looking for them to go in one direction. At the very least ask – what could explain this? Why is this important? What else would you want to know?

Do Not read to much information to participants and/or Use technical, medical, or legal jargon.

This kind of presentation may not be a fair test of case issues. Technical language can make it difficult for people to understand the case (they’d have more time in trial) and useless if it includes terms that are not part of their normal vocabulary. If you have become a subject matter expert you may reflexively use terms like “ischemic”, but it may make communication with a focus group difficult.

Do Not over-use written questionnaires that limit time for discussion:

Deliberations are VERBAL

Even simple response documents can take 10 minutes/page to complete. Too much writing eats up your time and you lose the possible juice from live discussion. including themes, analogies, metaphors and rebuttals. Strong written responses may not be indicative of what may happen in discussion.

Written responses allow quiet people to stay quiet and not expose their ideas to the others (which could generate conversation around good/bad points not mentioned by others).

What is done with the written content? If you don’t have a plan in place on how it will be used, it may be a waste of time. Ignoring questions that seem irrelevant (to you)

When a juror asks (sic) “what about the boyfriend” and you skip over it without finding out why and what they want to know, you miss the opportunity to learn how others may see portions of your case and the “filling defects” they may see in your case.

Do Not ask about medical bills, damages, or technical issues when the group has insufficient evidence or experience to answer questions.

Garbage in/Garbage out. When jurors are forced to make a choice on limited information it cannot be relied on as reflective of what may take place in the real case. At trial jurors have an opportunity to hear and evaluate evidence that involves multiple assessments and details, e.g. the character of the plaintiff, the credibility of care providers involved, before they make judgments about causation, treatment, necessity, and injury. People in a focus group need comparable information. When neither your discovery nor your investigation information isn’t sufficient to satisfy jurors’ needs, ask jurors what else they need to know, or who else they would like to hear from.

Do Not ask for verdict amounts without a full, balanced discussion

 Can be grossly misleading if not handled correctly.

The numbers can be driven by artificial factors, including who speaks up first in the group.

The defense will have a response to the damage claim, balance the presentation with the defenses and/or expert cross that is expected in the case.

Do Not bias your focus group or they will give answers that may not be completely genuine. This might include:

Do not let them know who you are and which side of the case you are working, e.g. using your office number for recruits to call in and hear “Law offices of Joe Smith” or using your office for the meeting.

Do not reward plaintiff oriented comments by “Good Point!” head nods, or other positive reinforcement and defense oriented comments with questions, challenges, or ignoring.

Do not refer to the plaintiff as worthy but using negative terms to describe the defendant.

As I said earlier in the Blog I have written a book on this topic which is loaded with information that you can use for your “big” case. If you have a “big” case and you wish to talk with me about the case to answer some of your questions just give me a call at the Miller Law Offices in Nashville Tennessee at 615-356-2000. You can see what other lawyers have to say about the program.

Practices To Avoid with Focus Groups©

Phillip H. Miller

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