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Using Focus Groups to Prepare for Trial

A 64 year old lady with a 30 year history of acid reflux was told by her physician that the medication she was taking was no longer taking care of the problem. Her doctor recommended that she consult with a local surgeon to see if surgery would resolve it. After consulting with a surgeon, she elected to follow his advice and consented to having a fundoplication as recommended by the surgeon.

A fundoplication is a surgical procedure where the surgeon takes part of the stomach and wraps it around the esophagus and then staples or sutures the stomach together around the esophagus to prevent the stomach acid from going back up the esophagus track. During the operation, the surgeon identified what he thought was a band of fatty tissue and decided to cut into it arthroscopically. Unfortunately, the item wasn’t a band of fatty tissue at all, but instead was a sequestration (growth) attached to the woman’s aorta. After the surgeon cut into it, the sequestration retracted into the heart causing a hole the size of a dime. The surgeon worked frantically to repair the hole, but within 45 minutes from cutting into the aorta, the woman died.

The lady’s husband retained my services to prosecute a claim for medical malpractice. As with most medical malpractice cases I handle, we conducted four (4) focus groups to help us evaluate the strength and weakness of our client’s case.

There are essentially three (3) types of focus groups, namely: (1) a concept focus group; (2) a structured focus group; and (3) a mock trial.

A.    CONCEPT FOCUS GROUPS HELP IDENTIFY THE "BOMBS" WITHIN THE FACTS OF THE CASE THAT FUEL THE PRESENCE OF ANTI-PLAINTIFF BIAS.

Concept focus groups are typically moderated by a focus group facilitator who leads a discussion with a group of people typically compromised of 6 to 12 people.  The purpose of the concept focus group is to discuss various aspects of the case to determine what information the concept focus group believes they need in order to render a decision. The discussion is designed to ascertain what facts peculiar to the case that feed the presence of adverse jury biases or opinions that may be prevalent in a case.  The discussion provides the trial attorney with information that can help the lawyer prepare for trial in an organized manner to address those concerns identified by the focus group during their deliberation.

My experience over the past 34 years has taught me to have more than one concept focus group in a case in order to validate the information obtained from the group to avoid the possibility of a "false positive." A false positive is an opinion that pertains only to one group as opposed to  others which could be considered an aberration or false premise.. Therefore, I use at least two  focus groups to help us validate whether the information obtained from a single focus group is valid or not.

The concept focus group is designed to help the trial lawyer ascertain whether there are any "bombs" in the case which if the trial lawyer fails to address could result in the jury rendering an adverse jury verdict against the lawyer’s client.

In this case, two (2) concept focus groups were conducted and to my surprise (and to those attorneys that were present observing the two focus groups), both groups came back with a negative finding on behalf of the plaintiff’s case. Both concept focus groups had very little information presented to them about the case in order to allow us what information the group felt that needed in order to render a decision in the case. During the two concept focus groups we conducted, both groups believed that the deceased woman was comparatively negligent for not having obtained a second opinion before she had the surgery. In other words, both concept focus groups were prepared to render a Zero Dollar ($0.00) verdict for the plaintiff on the grounds that the woman should had obtained a second opinion from another doctor before she consented to having the surgery, and that such a failure may have allowed her to discover that the surgery wasn’t necessary which lead to her untimely death.

Armed with that valuable information, we went to work on preparing for two (2) additional "structured" focus groups.

B.      STRUCTURED FOCUS GROUPS HELP A TRIAL LAWYER DETERMINE HOW TO ADDRESS THE FACTS OF THE CASE  THAT FUEL ADVERSE JURY BIAS.

A structured focus group is different than a concept focus group. A structured focus group is also moderated by a focus group facilitator, but there are present at least two (2) attorneys that participate in the discussion.  One presents an opening statement to the group on behalf of the plaintiff and another lawyer presents an opening statement to the group on behalf of the defendant. In cases involving medical malpractice, I will always find a plaintiff’s lawyer to present my case to the focus group, and then I will present the case or argument to the group on behalf of the defense. Having been a former insurance defense attorney, I believe I am more than amply qualified to present the opposing arguments of my case to the focus group to allow them to fairly evaluate the strengths and weaknesses of the case we are intending to convey to an upcoming jury.

In this case, the structured focus group was informed that the deceased woman/patient had not only received a second opinion prior to surgery, but in her case she had sought out a total of three (3) competent physicians; each of whom agreed to the recommendation that she have the surgery.  

The lady and her husband were considered "Sunbirds," i.e., they lived in Idaho during the summer months but then moved to Arizona temporarily during the winter months to avoid the harsher climate in their older years. After consulting with the surgeon, they decided to postpone the surgery for a few months while they went to Arizona for the winter. While in Arizona they took it upon themselves to solicit an opinion of other doctors who also agreed with the recommendation that she have the surgery, and that the surgery was her best and only alternative available to her to fix her problem.

Having presented that information to the two (2) structured focus groups, the first group evaluated the value of the case at $1.3 Million, and the second structured focus group evaluated the value of the case at the sum of $1.5 Million!

Many times lawyers who participate in jury trials are merely throwing darts at a dartboard trying to guess at what facts are important to present to the jury and in what order they should be presented. By conducting research in the form of a few concept and structured focus groups, the trial lawyer takes the guess work out of the process and maximizes the opportunity for success on behalf of the client if the matter proceeds to trial.

In this case, all of the attorneys involved in the case were flabbergasted at the concept focus groups’ beliefs expressed that having a second opinion was essential to obtaining a recovery from a jury in favor of the plaintiff. None of us had ever come across that before in our work before. However, since two (2) focus groups came up with the idea independent of the other, I decided to test the information obtained in our structured focus groups. We learned that in this case, the presentation of having multiple "second" opinions was necessary in presenting the client’s case in order to overcome the adverse jury bias that was present on the issue.  We also gleaned from the focus groups a couple of themes in the case that were paramount to our case including "Don't cut what you don't know!"  In other words, it is imperative that a surgeon identify exactly what he is going to cut in surgery before doing so, and failure to do so constitutes a breach of the local standard of community care. 

C. MOCK JURY TRIALS ARE EXPENSIVE TO USE AND ARE LESS RELIABLE THAN CONDUCTING CONCEPT AND STRUCTURED FOCUS GROUPS.

Mock jury trials are simply trial runs to an actual jury trial in all of its facets.  Mock trials are time consuming even in an abbreviated fashion and are far more costly than conducting focus groups that typically take between 1 ½ to 2 hours to complete.

I follow the current thought held by a number of focus group facilitators that concept and structured focus groups are far more productive and cost effective than having a complete mock jury trial. As such, I use only concept and structured focus groups in my work; and I don’t use mock jury trials. I can conduct three to four focus groups for the cost of conducting one (1) mock jury trial, and the information I receive from the focus groups are far more reliable.

Using concept and structured focus groups can assist the experienced trial lawyer in identifying not only adverse jury bias and how to overcome it in their particular case, but can also help determine the order or sequence in which the facts of the case are presented at trrial, and how the evidence and testimony should be presented.

Focus groups take the guess work out of trial work, and help the experienced trial lawyer prepare his case for trial. The groups when recorded can also assist the trial lawyer in preparing a multi-media presentation to be used during mediation to show opposing counsel and their client and insurance claim representative the power of the client’s case as well as the weaknesses of the defense.

Not every case warrants the cost of conducting focus groups in a case, but in any case of significant value, I recommend to the client that we invest the time and expense in conducting both concept and structured focus groups to help the trial lawyer take the guess work out of the lawyer’s trial preparation in developing a case that overcomes adverse jury bias which is prevalent in every case.