Personal injury lawyers in Maryland and around the country are increasingly using focus groups to give accident and medical malpractice cases a test run with mock juries. When I was a defense lawyer, we had a case where we spent over $100,000 on jury consultants and focus groups, culminating in a two day run with several mock juries who heard a great deal of detail about the case that was to be tried. Naturally, after a four-month trial, we lost; the jury awarded the Plaintiff a multimillion-dollar verdict. But the focus group process done on that level was fascinating. We watched the mock jurors through one way mirrors as they deliberated. It was amazing to see one juror misinterpret the evidence and then the next juror build off the prior juror’s error. Still, it was also impressive to see how well some of the mock juries understood the case in a relatively short period of time.
Of course, most cases will not support economically a venture of that magnitude. But some lawyers have become so sophisticated about mock juries that they can conduct their own focus groups to assist in predicting what the real jury will decide in a given case. Just as importantly, particularly in Maryland where voir dire is very limited, focus groups can also help lawyers determine in demographic and attitudinal terms which jurors are most (and least) likely to be receptive to the lawyer’s client.
We do focus groups a lot. We went from thinking they were good in some cases versus thinking they are needed in almost every case we take to trial. The key to focus groups I think from the plaintiff’s perspective is to avoid the temptation to try to win the case with the focus groups. We lost a trial in 2018 where the focus group told us it would be a slam dunk. That means we did not do a good enough job articulating the defense position. The key is to find out what matters to the jurors. What are the key facts and what problems do they have with YOUR case.