Use of Focus Groups to Gauge Impact of Evidence

I attended the legal seminar "Evidence to Win 2018" presented by New York State Trial Lawyers Institute. The speakers were Robert Genes, Nicolas Timko, Larry Simon, Andrew Finklestein, and Martin Edelmen. It is no mystery why these rock stars routinely secure huge verdicts and settlements. They are dedicated to the craft in all respects, especially when it comes to wielding evidence.

Watching Robert Genes present three years ago inspired me to start this blog. I point you to my prior blog discussing the Devito case, which rebuffed a defendant-doctor's attempt to avoid a missing-witness charge by arguing that his testimony would have been cumulative. But such an argument can only be used against the party using the allegedly cumulative testimony. In other words, the doctor was on the wrong side of that argument.

Use of Focus Groups

Focus groups comprise a group of strangers hired to view evidence (pictures and videos, usually) to give their initial impressions before they're employed at trial. The groups are asked for their gut reactions. The reactions are first sought in writing, anonymously, to avoid any group influence.

Questions raised by evidence could be:

  • Does a video support the narrative that a bus driver was negligent?
  • Does a recorded interview of an amputated man explaining the meaning of a tattoo help or hurt his credibility?
  • Does a lawyer's opening statement exaggerate elements of a video?

Trial lawyering seeks to "move the minds" of the jury. Lawyers who exaggerate videos or oversell their importance will hemorrhage credibility. Instead, embed the words and ideas —elicited from the focus group—into your case. Address all weaknesses and misgivings perceived by the group.

Issues raised by a focus group overlooked by counsel:

  • Should a construction worker be denied psychological therapy for a work-related injury even though the worker assumed the risk of injury?
  • Does a witness's arrogant demeanor in a previously recorded deposition elicit anger?
  • Does an economic life-care plan overreach in sought expenses?

Lawyers immersed in their own cases fail to see issues due to their own bias. Critical information, often overlooked, could be used to screen potential jurors and support better arguments. The attorney who already obtained objective input on evidence will present the case more confidently.

Politicians and corporations use focus groups regularly. So should lawyers!

Other strategies for plaintiff lawyers:

Use lay witnesses more often. Defense lawyers often use a "trial by smear" strategy to discredit a plaintiff's credibility. This is often carried out on cross examination of the plaintiff; So neutralize that attack by first producing credible witnesses to shed positive light on the plaintiff. Frame the direct examinations with good, wholesome stories to rebut character attacks before they are even launched.

Lastly, as a matter of practice, take cases to verdict. Showing your opposition that you're not scared of trial will raise your bargaining power and your reputation.

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