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Practice Tips: "Do I need a focus group or a mock trial"
The Advantage: 4.04: V.1, 2nd edition
The term “focus group” is widely misused to describe any pre-trial jury simulation research. We often have clients asking for focus group research when what they really need is a mock trial. Tsongas, and many practicing trial consultants, make a clear distinction between focus group and mock trial research, and when to use each. Focus Group research is designed to gauge a jury’s reaction to a number of different issues in a case. While there are many different ways to design a focus group, the overall goal is to “focus” the research participants’ attention on specific issues, and conduct a facilitated discussion aimed at eliciting reactions to each issue. This is a very different goal from mock trial research, in which the mock juries attempts to reach a verdict in an un-facilitated, deliberative format. The mock trial format allows you to identify how jurors prioritize the importance of evidence, arguments, and witness testimony when reaching their verdict. While a focus group gauges jurors’ responses to all issues presented, one of the findings of mock trial research might be that a jury does not discuss an issue you thought was pivotal to your case. The following list provides some tips as to when each type of research is warranted:
When to Conduct Focus Group Research:
1. When you are very early in the litigation process and your strategy is undeveloped
2. When you want a general assessment of the case strengths and weaknesses
3. When you want to decide what the most important areas for discovery are
4. When you want to evaluate multiple case themes
5. When you have multiple liability, causation, or damages theories
6. When you want to evaluate the merits of your case issues
7. When there are competing strategy ideas among trial team members
8. When you are unsure what the opposing counsels’ strategy will be, but you want to test the issues
9. When it is unclear which claims will survive summary judgment
10. When you want to identify questions for future research
When to Conduct Mock Trial Research:
1. When you are in the late stages of discovery
2. When you have a clearly defined case strategy
3. When you are fairly certain of the other sides’ strategy
4. When you want to know how jurors will react to the overall case
5. When you want to know which issues jurors focus on when determining their verdict
6. When you want to know how a jury will decide liability and causation
7. When you want to gauge a jury’s reaction to the verdict form questions
8. When you want to know if and how a jury will use the anticipated jury instructions
9. When you want to evaluate potential damages assessments
10. When you want data to present to a mediator
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