By Barbara Hillmer
When contemplating doing jury research, almost every client asks us, “Should I conduct a mock trial or focus group?” The answer is almost always, “It depends—what do you want to learn from the research, and where are you in the litigation cycle?”
To provide valid results you can rely upon, jury research should always be tailored to your goals, i.e., what knowledge you hope to gain. The other way to decide whether you should be doing a mock trial or a focus group (or some other type of research design) is to start with the end in mind—what you want to learn and how you will use the information you get.
Focus Group
Advantages and Disadvantages
Potential jurors have pre-existing opinions that will impact your case. Focus group research uncovers these implicit assumptions, questions, and reactions—both positive and negative. It also explores jurors’ personal experiences and concerns surrounding your case, while revealing their prejudices and expectations.
Focus groups are most helpful early in discovery (before the bulk of depositions have been taken) to help frame your witness themes, case themes, and case strategy.
For instance, in a water contamination case, the plaintiff was only seeking remediation; however, at the beginning of the focus group designed to test the issues in the case, jurors immediately asked, “How many people are sick?” Here it was clear jurors had an expectation that water contamination was linked with illness, despite the explanation that the plaintiff was looking only for remediation.
Jurors’ reactions told us that we needed to neutralize this automatic assumption with a theme that explained that there were no injuries or illnesses being claimed in the case.
While you can learn a lot of valuable information from a focus group, if you want to learn about how advocacy affects jurors’ verdict decisions (including the range of damages) a traditional focus group is not the design for you. A focus group is not designed to be externally valid—that is, it is an inductive exploration of juror reactions and therefore does not match the courtroom environment (e.g., no openings, witnesses, closing and, most importantly, no deliberations) which limits your ability to generalize the results to what will occur at trial.
Critical Information You Can Learn
Here are some sample questions you can answer using a focus group:
- Which themes are persuasive?
- What are the juror-initiated themes? That is, what are case-relevant ideas and phrases that would make great themes?
- What questions do jurors have? What do they want to know that you’re not talking about?
- Why do jurors think something is important—or not important at all?
- Which areas of your case do jurors find confusing? How can they help you simplify your case story?
- What attitudes and experiences influence how jurors view the information you are giving them?
Mock Trial
Advantages and Disadvantages
In evaluating the issues in a case, a mock trial includes three important goals:
- Testing potential case themes and strategies
- Eliciting evaluations of key witnesses
- Gaining an understanding of what reasoning jurors will use during their decision-making
Achieving these goals will help you learn about jurors’ reactions to your case as you present it. In their jury deliberations, jurors tell us how they respond to your trial strategy and arguments, and whether they understand the evidence in the case.
A mock trial is particularly good at giving you feedback about the vulnerabilities in your case and what you can do to strengthen those before going to trial.
If a mock trial is designed appropriately, such that external validity is maximized, generalizations from the data will be appropriate. However, a mock trial is not designed to predict what will happen at trial. The primary limitations surrounding a mock trial involve: 1) wanting to learn the verdict you will receive at trial; and 2) what specific damages number you will receive at trial.
During the time between when the mock trial ends and the trial begins, many strategy changes are likely to occur as a result of the mock trial findings—in effect confounding the original results. Therefore, using the mock trial to predict the actual trial results is impossible.
Critical Information You Can Learn
Here are some examples of questions a mock trial will help you answer:
- How are your case themes working—or not working?
- How do jurors respond to your witnesses?
- What is the range of damages (if any) that jurors deem appropriate?
- What is the profile of the potential juror(s) we need to “deselect” at trial?
Choosing Between a Focus Group and Mock Trial
Ultimately, the best research design for you is the one that answers your questions. Working with experienced IMS consultants to design and conduct jury research that is right for you—whether it be a focus group, mock trial, or some other design—will help give you what you need to prepare a winning case.
