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?”
Jury research that provides valid results you can rely on should always be tailored to your research goals – i.e., what you want to learn. So the 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 will you use the information you get?
Advantages and Disadvantages of Focus Groups
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, and reveals 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 (aka Early Case Assessment). 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, it doesn’t match the courtroom environment (e.g., no openings, witnesses, closing and, most importantly, no deliberations), limiting your ability to generalize the results to what will occur at trial.
Critical Information That Can Be Learned with a Focus Group
Here are some sample questions you can answer using a focus group:
- What 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 about that you’re not talking about?
- Why do they think something is important – or not important at all?
- What 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?
Advantages and Disadvantages of Mock Trials
In evaluating the issues in a case, three important goals of a Mock Trial include: 1) testing potential case themes and strategies; 2) eliciting evaluations of key witnesses; and 3) 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. In other words, 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 different 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 That Can Be Learned with a Mock Trial
Here are some sample questions you can answer using a mock trial:
- How are your themes are working – or not working?
- How do jurors respond to your witnesses?
- What is the range of damages, if any, jurors deem appropriate?
- What is the profile of the individuals we need to “deselect” at trial?
Making the Decision
Ultimately, the best research design for you is the one that answers the questions you have. Working with experienced consultants at Litigation Insights to design and conduct research that is right for you, whether it’s a focus group, mock trial, or some other design, will help you get the answers you need.
By: Barbara Hillmer, Ph.D. – Senior Consultant