CONDUCTING FOCUS GROUP STUDIES CORRECTLY

Posted on January 9, 2017 by Paul Luvera

One year ago, in January 2016, I wrote about correctly conducting focus groups. http://plaintifftriallawyertips.com/how-to-do-focus-studies-for-your-cases-correctly I recommended an article from Trial Magazine by attorneys Philip H Miller and Paul J sculptor. Over my fifty years as a trial lawyer I have been involved in many dozens  of focus  studies. I also have  observed focus studies done by others and read articles about focus studies. My experience was a feeling they were not qualified and the writing often inaccurate. When I read the  article, however, I was struck by the accuracy and quality of their observations so I strongly recommended reading it. Coincidentally, in the January 2017 issue of Trial, the same two lawyers have once again published an article entitled “Five Rules for Effective Focus Groups” which I believe should be required reading for lawyers who want to know how to run a focus group the right way.

My experience has been that the lawyers conducting focus studies and even some consultants have the wrong objective. Rather than having a goal of discovery of initial impression feedback regarding issues, exhibits or other aspects of the case, their goal appears to be testing their ability to convince the group of their position. The authors point out that “focus groups can add ambiguity to the case and suggest misleading answers to case critical issues.” They recommend spending time analyzing what is needed in advance of the study, doing multiple studies and doing them early enough to allow for adjusting discovery before trial. Otherwise, they point out it is a situation of “garbage in, garbage out.”

Here are some other observations they make. They suggest that you consider the following questions from a focus juror perspective  before the study: (1) why is this case important? (2) how can we know we aren’t being scammed or defrauded by this evidence? (3) has this happened before? (4) are there any rules or laws we can use to decide this case and (5) is there a message that needs to be sent?

One of the suggestions they make is that instead of the study being a general explanation of issues, it should test the strengths and weaknesses of the case. They next recommend that in order to get valuable and reliable information, that one uses multiple focus groups, provide a balanced presentation and utilize a question outline they provide in a list. Their list is a comprehensive checklist of items to be covered in the focus group. It includes such things as suggestions like “ask “why?” A lot. Avoid assuming the first response is everything you need to know. Ask “what else?” They recommend a technique which is helpful where the group is asked to “fill in the blank” for such questions such as: the defendant should have…. the person I most want to hear from is…., the evidence that was most important to me was….,and this would never have happened if…”

I’ve written about the problem of “confirmation bias” on many previous occasions. The authors discuss this and point out that all people are affected by this mental process, regardless of education level, social standing or worldview. As they point out “we all hear what we want to hear and see what we want or expect to see. When testimony or evidence in the case contradicts what we already believe our first response is to minimize it by assuming our witness expert or of her evidence has more persuasive weight and when we look at a photograph we see what we want to see and minimize the rest.” Confirmation bias is at its strongest when dealing with emotionally charged issues or deeply entrenched beliefs. Focus groups are a way in which we as trial lawyers can deal with our own confirmation bias problems.

Another source of helpful focus group and communication information is from Frank Luntz. Frank Luntz is unquestionably one of the most experienced experts in communication. He has a website Luntz global.com. http://www.luntzglobal.com/ His book Words That Work, is an excellent source of information about communication. His premise is: “it’s not what you say. It’s what they hear.” His advice is that we understand our audience, the opinions, attitudes and emotions that make them tune in or tune off. His service to the Republican Party has been to pinpoint language that garners support and inspires action by delivering a message that resonates and drives results. The TV program 60 Minutes featured Luntz conducting a focus study following a presidential debate. http://www.realclearpolitics.com/video/2016/10/19/frank_luntz_focus_group_of_undecided_voters_gives_trump_narrow_win.html I recommend reviewing the short video not for the results of the focus study, but to watch how he conducted it. Most notably you will see that more than 90% of the talk comes from the members of the focus study and not Luntz. One of the primary faults of lawyers conducting focus studies is that they reverse that percentage and then some. They do all the talking and even argue with the responses. The other characteristic to note is that his questions are cryptic, short  and call for impressions. Most lawyers conducting focus studies make the same mistake they make in court conducting witness examination. They make their questions too long, too complicated and distracting.

Luntz on the other hand, did things such as saying  to the group “on the count of three yell out which candidate you thought won the debate.” He then measured the respective volume of responses and decided it was evenly balanced. The significant thing is that he asked them to yell it out. Quick, spontaneous and all impression response. He also said “describe in one word what you thought of her performance.” The result was pretty amazing because people had one descriptive word that was very revealing as to their inner feelings. A much better technique than asking for long explanations. He used the the helpful question: “how do you feel about?” a lot. Significantly he never commented about the responses he received, but only moved on to another person. At one point he played a video clip from the debate and said to them: “did he show the temperament you are looking for in a president? Why? He asked questions like: “how many have overall positive opinions about the election? How many have an overall negative opinion about the election?” And, he asked “does this election make you feel more optimistic or pessimistic, raise your hand.” All short and simple questions which produce gut level responses.

For me the significant fact was that this was not an ego trip for Luntz conducting the study. He made sure to minimize himself, ask questions that were simple and short and otherwise facilitate audience response without inhibition by him. My feeling is that lawyers have a over simplistic idea about conducting focus studies and are often wrong about their conclusions. Lawyers generally think they know more than anybody else, but in the case of focus studies my experiences they are badly in need of experienced and competent consultants if they don’t want to have garbage in and garbage out.

Posted in Jury | 1 Comment

SEEING IS BELIEVING

Posted on December 31, 2016 by Paul Luvera

The Jury Expert www.thejuryexpert.com  this month published an important article by Jason Barnes, an experienced jury consultant,  titled “Graphics Double Comprehension.” My strong belief in the importance of great graphics  in trial is supported by this article which I recommend. Here are some of the major points he made.

You remember what you see far more than you remember what you hear

Barnes notes that our retinas contain 70%  of all sensory receptors in our body and are actually outgrowths of our brain. He says that while the brain’s visual system takes up to 40% of our cerebral cortex, our touch or feel system  occupies only 8% and hearing accounts for only 3%.  He therefore concludes that we are really visual people. He points out that our speaking abilities come from much smaller areas of the brain then our visual. These facts, he says, explain why we are able to remember visual images far more than we are able to remember words alone.

Words and pictures can interact with working memory to form more meaningful connections

The channels for receiving information in our brain are separate for verbal and visual. The article points out that neuroscientists refer to the visual and verbal systems as using a “dual coding model” in which each channel operates independently to process information. When  we combine words  and visuals we create an interlocking of words and picture together that are lodged in long-term memory  so that when we think of words, we see the images and when we think of the image we hear the words.

Combining visuals with words more than doubles comprehension

One of the key truths in the article is the importance of combining visuals with words for  long-term memory and comprehension both. In the study cited in the article participants who heard a lecture only identified 28% of possible correct answers they were presented with. However, when participants receive the same information both by lecture and with visual animation, they were able to identify 62% of all possible correct answers. Clearly combining words and visuals together increases comprehension.

Conclusion

The author succinctly describes the only logical conclusion from this information: “The lesson for trial advocates is clear.  If we want jurors to not only remember our evidence…  but to also understand (it), we must use visuals to strengthen our words.” That’s why when we are presenting our clients story to the jury we need to combine it with visuals like timelines  photos, maps and the like to supplement the words. We  are visual people.

He also makes the important point: “We must  be careful to remember that the jury is always looking; their visual system is a 24 hour news channel that cannot be turned off.” Not only are they observant of all of the nonverbal communication, they are also looking at everything going on in the courtroom. For them everything they see becomes visual evidence. Therefore, it is important that to the extent we can, we control what they see.  Since trial is a battle of impression and not logic that means that our clients and everybody involved in our case should be aware of the jury’s continued visual review.

Ross Perot said: “Talk is cheap. Words are plentiful and deeds are precious.” To which we can add “and, it is also true that seeing is believing.”

Posted in COMMUNICATION | Leave a comment

LEARNING HOW TO TELL OUR TRIAL STORY FROM TELEVISION

Posted on December 17, 2016 by Paul Luvera

Those who read my blog know I am a huge fan of the website The Jury Expert: www.thejuryexpert.com.   This month one of the articles is “What Television Can Teach us about Trial Narrative” by Richard Gabriel. The author points to research about how trial lawyers organize their cases in storytelling model and how this facilitates the juror’s verdict.  He points out that it is well-established that “stories are neurologically wired explanatory systems that serve to stabilize our world by labeling and orienting new, threatening, or uncertain information in our environment.” As Gerry Spence says “we  are hardwired for stories.” You know your case from voir dire to argument, including  cross examination should be your client’s story told in story telling format.

Gabriel correctly observes that trial lawyers are generally poor storytellers because we take too long, repeat too much, remove the drama from interesting parts of our cases and generally bore as well as confuse the jury. The author says that by focusing on five main components we can improve our storytelling ability: theme, character, action\structure, environment and tone.

Theme

One of the important observations he makes is that evidence, by itself, is not a story. To become a story it must be organized into a story format. A story requires a theme. A theme is a controlling idea. Robert McKee is a recognized authority regarding screenwriting for movies and television. He calls a theme a “a controlling idea” and says that “a controlling idea may be expressed in a single sentence describing how and why life undergoes change. The author recommends that we think about a central theme as what you want to hear as the first sentence out of your jurors mouth in jury deliberations when they summarize the trial and say, “this case is about…” Have you ever  asked a lawyer what their case is about and had them deliver a long narrative? Until you can answer the question in a few sentences you don’t understand your case and you don’t have a central theme for your story.

Character

The author says we make the mistake of focusing upon conduct and the actions of the people but not their character. He  points out that jurors want to know who the people really are in order to judge why they acted the way they did. When we say that a defendant is “greedy” or that  companies are “uncaring” these generalizations ring false for jurors because  it is one-dimensional without  revealing character. A trial is a contest of right and wrong for jurors and knowing the character of  those involved is an essential part of  the evaluation.

He quotes Robert McKee who says that “true character is revealed in the choices a human being makes under pressure.” Therefore jurors  in a medical malpractice case don’t accept the fact that a doctor was board-certified as a reason why they should conclude he or she complied with the standard of care. They want to know the character behind the action. The reason that reveals character. The difference between a mistake and a breach of duty or trust reveals character.  Character is demonstrated through action. Jurors want to know the full dimension of the person being evaluated.

Action/Structure

One of the mistakes lawyers make is in  presenting their case is to do so chronologically as a narrative.  However, that is not very  often the best way to do so when we want to put things in context or to emphasize the best  part of the story. The author says we should think about this issue this way: Where do we want jurors to spend most of their time in a case? In a products case, we may want to most  of the time at  the manufacturing plant. Remember that discovery volume doesn’t always indicate the best place for your story. Where you start your story is important and it should always be with the defendant not the plaintiff as explained in previous posts. But, you can start a story at the beginning, middle, end or wherever else is best.

He says “plotting” is the selection of the right series of events to reveal the story.  Instead, he points out, we make the mistake of tending to structure trials around witness availability. What we want is for  the  sequence to lead to the crises, the climax and the inevitable conclusion.

He notes that screenwriters will often write a brief description of each scene they want to show on 4 x 6 cards and then by shuffling the cards  or adding or subtracting scenes they create their plot. Not a bad idea for us  to consider in our planning.

Environment

The author notes that it’s important where we place our story. The setting for the case can actually become another character in the story, whether it’s a road, a hospital or a workplace. He also notes that in that regard there needs to be a perceived consistency in the world we are creating by our story. By that he means it must be a story which connects and doesn’t have unexplained gaps.  Even small inconsistencies in our environment can cost credibility points.

Tone

The author notes that a trial is always a reenactment of the events, but there are two different versions of the events: one by the plaintiff and one by the defendant. He correctly notes that jurors expect both parties to “put on their best show” to persuade them of their position, so they are on guard and skeptical.  They reject the idea that we only want to “get at the truth.” The jurors also know that each side is selectively presenting evidence to create the result they want.

Therefore, they are skeptical and resistant to being sold a particular position and that’s why they engage in their own construction of what they think “really happened.”  They create their own story and they will fill in gaps in the case story we present. They will use their own interpretation, experiences and beliefs. They want to make sense out of the case story and will use their own interpretation to do so. Their stories become their personal mental television show played out in their mind each day of trial. They will filter, screen and even ignore evidence by using their story as the true one in the case.

For this reason the tone of the case becomes critical. We want their story to be one of favorable impression. As the author says “do we want to communicate caring, outrage, skepticism, surprise or curiosity? We need to consider the tone we want to create. At the core of every case there is an emotional tone that tells the jurors how they should feel about the facts. Attorneys need to understand and communicate the appropriate tone to communicate the emotional message in the case.

The author also reminds us to pay attention to not only what we say in court but how we say it and how we look to the jurors. Too often we forget the significance of nonverbal communication.

Conclusion

I urge you to read the article yourself and I recommend the textbook and writings of Robert McKee for more background regarding screen writing and  story telling.  What you will learn is that telling a story involves focusing on theme, character, action\structure, environment and tone.

Posted in Advocacy | 1 Comment