Do we lawyers really know it all? What about the “focus group”?
Trying a business case to a jury presents unique and sometimes difficult challenges. As commercial litigators, we’re trained to develop the facts (or the parties’ versions thereof), research the applicable law, and, most often, present a persuasive argument to the judge as the trier of fact and the arbiter of the law.
It’s not that we’re unconcerned about the judge’s background, experience or biases. But, generally, we know judges, or believe we know them, from prior trials, hearings and motions, from written opinions, and from “scouting reports” that we obtain from our colleagues in the local bar. Based on this universe of available knowledge (hearsay and all), the business litigator then develops a plan to present the client’s case to that one person in the judicial robes.
But what if there’s a jury demand in the business dispute? 6 or 12 persons will determine the facts and render a general verdict and/or answer interrogatories in a special verdict based on the Court’s instructions which might involve lay person explanations of complex legal principles. What should the commercial litigator do, if the size of the case justifies the cost to develop a theme of the case most likely to resonate with the jurors – the triers of the facts?
Well, the commercial litigator should take a lead from general litigators and advise the client on the advisability and benefits of a focus group. Unless, of course, we know exactly how all the potential jurors live, think, breathe and believe.
A focus group will allow us to:
1) develop voir dire questions consistent with our theme of the case;
2) develop and refine a theory of the case;
3) disregard theories or arguments that the jurors just won’t understand or buy;
4) better evaluate prospects of a favorable decision on the facts – for settlement purposes; and
5) better design the questions for your witnesses and cross examination of adverse witnesses.
For the cost of the focus group, easily $20-40,000, a qualified professional group will organize and produce the focus group, presenting valid, condensed versions of the parties’ positions, evaluating, perhaps in real time, reactions to a witness (credible, or not?), assist you in observing and evaluating the deliberations, and receiving a written report for your use in trial preparation.
Proper timing the use of the focus group allows the business litigator to use the results in settlement discussions and trial preparation. Remarkably, even when the stakes justify it, commercial litigators may be slow to consider this process and discuss its benefits and costs with the client. I guess that is a function of the fact that commercial litigators know it all and “don’t need no stinkin’ focus group” to prepare for trial “cuz we already know it all.”William R. O'Bryan, Jr.