Focus Groups

You have a big trial looming; let's say an infant death or quadriplegia case. You think the medicine is sound, your experts are comfortable with their positions and the client wants to go forward. At the same time, the injuries to the plaintiff are substantial. Do you 'roll the dice' with a jury, or do you settle for a 'reasonable amount'? This is the dilemma faced by medical malpractice lawyers every day, and the decisions required here are not easily made.

Medical malpractice cases are high-stakes events. Although defendants continue to prevail in 64% of trials, when the plaintiff wins, the median amount of the verdict is $1,200,000. Jury Verdict Research, LPR Publications, Horsham, PA, 2003. There were 19,007 malpractice payment reports in 2003 according to the National Practitioner Data Bank, with the median payment for physicians being $160,000; for obstetrics, $290,000.

You don't want to realize 'the morning after' that you didn't do enough to help your client avoid becoming part of these statistics, but what can you do?

Enter, the focus group. These have been employed by others for decades, but it wasn't until the last few years that lawyers came to see them as a tool when preparing for a trial. The plaintiffs' bar was the first to embrace the concept, and indeed focus groups have become so ubiquitous that some plaintiffs' lawyers think that not using them in a big case is tantamount to malpractice. Some large litigation firms now believe so strongly in them that they have their own in-house consultants working full time on focus group exercises. The medical malpractice defense community, however, has been relatively slow to embrace them.

Focus Group Limitations

Do these groups make a difference and if they do, how big a difference is it?

The marketing community ' perhaps the most enthusiastic historical user of focus groups ' is now moving away from using them. In 2001 companies spent $1.1 billion on research, primarily for traditional focus groups. Despite this, most new products fail or do not perform nearly as well as expected. Why? The most common explanation is that because of peer pressure, the truth about individuals' opinions cannot surface.

There are also other types of pressures to watch out for. Focus group members are paid significant amounts of money for their time and input and they tend to try to please the researcher. Some people have learned the system so well that they will 'become' whatever they think the researcher wants them to be. When focus group participants are earning from $75-$300 an hour, there is an inherent motivation to give the researchers what they want. According to marketing expert Mark Ritson, 'For years, many marketers have whispered about the single biggest weakness of focus group data ' the validity of those being focused upon … There is a growing army of semi-professional focus group participants, particularly among retirees, who will happily give their assent to any and all pre-screening questions to pick up some extra income.' Ritson, M: Focus Group Fiasco Gives Research a Bad Name. Marketing, July 14, 2004, p.21.

Focus Groups Are Different From Real Juries

It isn't only that money motivates actions or that people tend to agree with others in the room. Another problem with the focus group as a tool for attorneys is that the people who sign up to participate come to the experience in a very different way from real jurors. As anyone knows who has participated in selecting a jury, most people do not want the responsibility of sitting in judgment on others. They come to the task very reluctantly; they would do almost anything to avoid sitting in judgment on medical malpractice cases where the injuries can be so grave and the consequences for both sides so great. Jurors in med-mal cases are asked to weigh a provider's reputation against a patient's tragedy.

Those who choose to sit in judgment on others in a mere 'pretend' situation ' and for a price ' will be fundamentally different from actual jurors. Focus group members know that their decisions will not be binding on anyone, whereas true jurors know only too well that people's lives will be significantly impacted by their decision.

Of course, even the actions of juries in real trials cannot be considered predictive of what another jury will do in cases with virtually identical issues. Witness the recent Vioxx' trials. After a Texas jury awarded a plaintiff $253,000,000 in the summer of 2005, several of those jurors were paid $500 apiece to spend a short time answering questions from attorneys for both sides. Oddly, what those jurors reported was almost diametrically opposed to the thoughts of jurors in Atlantic City, NJ, who rendered a verdict for Merck in the second Vioxx trial a day later. Hsieh, S: Vioxx Jurors Hired to Prep Lawyers for Future Cases. Kansas City Daily Record, Nov. 26, 2005.

What Focus Groups Can Do For You

Although focus groups may not give us what we might hope for ” a key insight into the future verdict a real jury will render ” this does not mean that they have no value. Used properly, focus groups can give attorneys a new perspective on the case ' a valuable benefit. To a certain extent, having others outside of the case look at it can serve as a reality check.

One way in which focus groups can help is by allowing the attorney to test potential themes. Trials are morality plays to juries and storytelling is an important aspect of presentation. Is the basic theme of your trial strategy one that will not only make sense to, but will also be compelling to a jury? If a theme works with the focus groups, it is more likely to work in the courtroom; if it doesn't work, that feedback offers an opportunity to 'go back to the drawing board.'

Presenting your case to a focus groups can help you to prepare your witnesses to testify in court. Since public speaking is the number one fear in this country, giving witnesses an opportunity to speak in a less
formal setting before doing it in the actual trial allows them to deal with some of that anxiety. You and your witness will be able to see how others react to the testimony; if it is a positive reaction, the experience can provide your witness with a bit of confidence.

The average attention span in the United States is short, and it's dropping. This does not bode well for a system in which jurors are asked to sit passively and listen for hours, days or weeks. Thus, effective exhibits and exhibit presentation are essential. The focus group can give important feedback on the persuasiveness of intended exhibits. After you get this information, allow yourself time to refine the demonstrative exhibits in a way that will give the actual jury a better opportunity to learn what they need to learn.

Choosing the Group's Members

Proponents of focus groups vary widely in what they consider to be the proper makeup of the group. Since full mock trials can cost upwards of $50,000, their use is always going to be limited to the cases with exposure in the millions of dollars. Less than 10% of the litigation bar has cases that have stakes that high, but it is not unusual to have that type of exposure in a medical malpractice case.

Mock juries are often chosen from voter rolls in the court where the trial will take place ' the same pool of people that will be tapped to form the real jury. Other options for recruiting are temporary employment agencies, jury consultants' compiled groups, online mock jury sites, or marketing agencies that use other types of focus groups.

In a pinch, you can tap friends, family and colleagues who are willing to be critical.

Since you are not going to be able to use the focus group to actually predict the outcome of the upcoming trial, it is the input from the group, not a 'verdict,' that is most valuable. That means you have a wider range of people to choose from. This is especially helpful if the value of the case doesn't merit a full-blown mock trial because focus group participants may demand hundreds of dollars per session for their involvement.

The Format

Having a moderator who is not associated with the case or the law firm in any way is a good place to start. The discussion needs to be open ended, and if possible, the focus group should be allowed to deliberate without intervention; indeed, the best information from the focus group may come from giving them more time to themselves, after giving them specific questions to answer. Only if they are getting off track should the facilitator step back into the room and refocus them.

There are two basic types of focus groups: adversarial and non adversarial. The adversarial approach, in which opposing lawyers of similar skill give their best presentations, would seem to give the more valuable insight. However, keep in mind that no matter how vigorous the 'pretend' opposition is, it will never be able to match the investment of the actual plaintiff's lawyer. Nonetheless, every effort should be made to make the presentation as non-biased as possible. This will help you to focus on and really think about the other side's probable strategy.

The focus group can be conducted in a 1- to 2-hour evening session with lawyers for both sides
reading a synopsis of their respective positions. No witnesses are presented, and the focus group is asked to give their opinions based upon the lawyer's presentation. This method is most helpful if the goal is to test out basic strategies.

The next step up from this is a longer session, of a length of up to a day, with more detailed presentations on both sides. While the basics may be the same, the focus group will observe a more in-depth presentation of the case.

Even if you are not doing a day-long focus group, my strong suggestion is that you actually present witnesses, for the reasons already discussed. A focus group session that does not include actual witnesses will give you a limited view of what lay people think, because the human element has been taken out of their hands. Given that the plaintiff in most medical malpractice cases has significant injuries, and the impact of hindsight bias compounds that problem for the defense, the question of who is sitting on the witness stand becomes crucial. Even more important is the impression given by the person in the defendant's seat. Only if people on the jury believe the witnesses are of good character will they give them the benefit of the doubt.

Conclusion

Just as the legal community is coming to embrace focus groups, those who gave them to us ' the marketing community ' are moving to other means of obtaining information about decision-making. Perhaps, in 10 years or so, we will have found other ways to test cases on lay people. In the meantime, a focus group or mock jury can provide valuable information even when it can't tell us what the ultimate outcome at trial will be.

Linda Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with health care providers on research-based effectiveness at deposition and trial since 1985. Her firm, Linda Crawford & Associates, is based in New York City.

You have a big trial looming; let's say an infant death or quadriplegia case. You think the medicine is sound, your experts are comfortable with their positions and the client wants to go forward. At the same time, the injuries to the plaintiff are substantial. Do you 'roll the dice' with a jury, or do you settle for a 'reasonable amount'? This is the dilemma faced by medical malpractice lawyers every day, and the decisions required here are not easily made.

Medical malpractice cases are high-stakes events. Although defendants continue to prevail in 64% of trials, when the plaintiff wins, the median amount of the verdict is $1,200,000. Jury Verdict Research, LPR Publications, Horsham, PA, 2003. There were 19,007 malpractice payment reports in 2003 according to the National Practitioner Data Bank, with the median payment for physicians being $160,000; for obstetrics, $290,000.

You don't want to realize 'the morning after' that you didn't do enough to help your client avoid becoming part of these statistics, but what can you do?

Enter, the focus group. These have been employed by others for decades, but it wasn't until the last few years that lawyers came to see them as a tool when preparing for a trial. The plaintiffs' bar was the first to embrace the concept, and indeed focus groups have become so ubiquitous that some plaintiffs' lawyers think that not using them in a big case is tantamount to malpractice. Some large litigation firms now believe so strongly in them that they have their own in-house consultants working full time on focus group exercises. The medical malpractice defense community, however, has been relatively slow to embrace them.

Focus Group Limitations

Do these groups make a difference and if they do, how big a difference is it?

The marketing community ' perhaps the most enthusiastic historical user of focus groups ' is now moving away from using them. In 2001 companies spent $1.1 billion on research, primarily for traditional focus groups. Despite this, most new products fail or do not perform nearly as well as expected. Why? The most common explanation is that because of peer pressure, the truth about individuals' opinions cannot surface.

There are also other types of pressures to watch out for. Focus group members are paid significant amounts of money for their time and input and they tend to try to please the researcher. Some people have learned the system so well that they will 'become' whatever they think the researcher wants them to be. When focus group participants are earning from $75-$300 an hour, there is an inherent motivation to give the researchers what they want. According to marketing expert Mark Ritson, 'For years, many marketers have whispered about the single biggest weakness of focus group data ' the validity of those being focused upon … There is a growing army of semi-professional focus group participants, particularly among retirees, who will happily give their assent to any and all pre-screening questions to pick up some extra income.' Ritson, M: Focus Group Fiasco Gives Research a Bad Name. Marketing, July 14, 2004, p.21.

Focus Groups Are Different From Real Juries

It isn't only that money motivates actions or that people tend to agree with others in the room. Another problem with the focus group as a tool for attorneys is that the people who sign up to participate come to the experience in a very different way from real jurors. As anyone knows who has participated in selecting a jury, most people do not want the responsibility of sitting in judgment on others. They come to the task very reluctantly; they would do almost anything to avoid sitting in judgment on medical malpractice cases where the injuries can be so grave and the consequences for both sides so great. Jurors in med-mal cases are asked to weigh a provider's reputation against a patient's tragedy.

Those who choose to sit in judgment on others in a mere 'pretend' situation ' and for a price ' will be fundamentally different from actual jurors. Focus group members know that their decisions will not be binding on anyone, whereas true jurors know only too well that people's lives will be significantly impacted by their decision.

Of course, even the actions of juries in real trials cannot be considered predictive of what another jury will do in cases with virtually identical issues. Witness the recent Vioxx' trials. After a Texas jury awarded a plaintiff $253,000,000 in the summer of 2005, several of those jurors were paid $500 apiece to spend a short time answering questions from attorneys for both sides. Oddly, what those jurors reported was almost diametrically opposed to the thoughts of jurors in Atlantic City, NJ, who rendered a verdict for Merck in the second Vioxx trial a day later. Hsieh, S: Vioxx Jurors Hired to Prep Lawyers for Future Cases. Kansas City Daily Record, Nov. 26, 2005.

What Focus Groups Can Do For You

Although focus groups may not give us what we might hope for ” a key insight into the future verdict a real jury will render ” this does not mean that they have no value. Used properly, focus groups can give attorneys a new perspective on the case ' a valuable benefit. To a certain extent, having others outside of the case look at it can serve as a reality check.

One way in which focus groups can help is by allowing the attorney to test potential themes. Trials are morality plays to juries and storytelling is an important aspect of presentation. Is the basic theme of your trial strategy one that will not only make sense to, but will also be compelling to a jury? If a theme works with the focus groups, it is more likely to work in the courtroom; if it doesn't work, that feedback offers an opportunity to 'go back to the drawing board.'

Presenting your case to a focus groups can help you to prepare your witnesses to testify in court. Since public speaking is the number one fear in this country, giving witnesses an opportunity to speak in a less
formal setting before doing it in the actual trial allows them to deal with some of that anxiety. You and your witness will be able to see how others react to the testimony; if it is a positive reaction, the experience can provide your witness with a bit of confidence.

The average attention span in the United States is short, and it's dropping. This does not bode well for a system in which jurors are asked to sit passively and listen for hours, days or weeks. Thus, effective exhibits and exhibit presentation are essential. The focus group can give important feedback on the persuasiveness of intended exhibits. After you get this information, allow yourself time to refine the demonstrative exhibits in a way that will give the actual jury a better opportunity to learn what they need to learn.

Choosing the Group's Members

Proponents of focus groups vary widely in what they consider to be the proper makeup of the group. Since full mock trials can cost upwards of $50,000, their use is always going to be limited to the cases with exposure in the millions of dollars. Less than 10% of the litigation bar has cases that have stakes that high, but it is not unusual to have that type of exposure in a medical malpractice case.

Mock juries are often chosen from voter rolls in the court where the trial will take place ' the same pool of people that will be tapped to form the real jury. Other options for recruiting are temporary employment agencies, jury consultants' compiled groups, online mock jury sites, or marketing agencies that use other types of focus groups.

In a pinch, you can tap friends, family and colleagues who are willing to be critical.

Since you are not going to be able to use the focus group to actually predict the outcome of the upcoming trial, it is the input from the group, not a 'verdict,' that is most valuable. That means you have a wider range of people to choose from. This is especially helpful if the value of the case doesn't merit a full-blown mock trial because focus group participants may demand hundreds of dollars per session for their involvement.

The Format

Having a moderator who is not associated with the case or the law firm in any way is a good place to start. The discussion needs to be open ended, and if possible, the focus group should be allowed to deliberate without intervention; indeed, the best information from the focus group may come from giving them more time to themselves, after giving them specific questions to answer. Only if they are getting off track should the facilitator step back into the room and refocus them.

There are two basic types of focus groups: adversarial and non adversarial. The adversarial approach, in which opposing lawyers of similar skill give their best presentations, would seem to give the more valuable insight. However, keep in mind that no matter how vigorous the 'pretend' opposition is, it will never be able to match the investment of the actual plaintiff's lawyer. Nonetheless, every effort should be made to make the presentation as non-biased as possible. This will help you to focus on and really think about the other side's probable strategy.

The focus group can be conducted in a 1- to 2-hour evening session with lawyers for both sides
reading a synopsis of their respective positions. No witnesses are presented, and the focus group is asked to give their opinions based upon the lawyer's presentation. This method is most helpful if the goal is to test out basic strategies.

The next step up from this is a longer session, of a length of up to a day, with more detailed presentations on both sides. While the basics may be the same, the focus group will observe a more in-depth presentation of the case.

Even if you are not doing a day-long focus group, my strong suggestion is that you actually present witnesses, for the reasons already discussed. A focus group session that does not include actual witnesses will give you a limited view of what lay people think, because the human element has been taken out of their hands. Given that the plaintiff in most medical malpractice cases has significant injuries, and the impact of hindsight bias compounds that problem for the defense, the question of who is sitting on the witness stand becomes crucial. Even more important is the impression given by the person in the defendant's seat. Only if people on the jury believe the witnesses are of good character will they give them the benefit of the doubt.

Conclusion

Just as the legal community is coming to embrace focus groups, those who gave them to us ' the marketing community ' are moving to other means of obtaining information about decision-making. Perhaps, in 10 years or so, we will have found other ways to test cases on lay people. In the meantime, a focus group or mock jury can provide valuable information even when it can't tell us what the ultimate outcome at trial will be.

Linda Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with health care providers on research-based effectiveness at deposition and trial since 1985. Her firm, Linda Crawford & Associates, is based in New York City.