Know Your Audience: What Trial Attorneys Can Learn from Marketers

Here’s the reality of the situation: If you are not currently using market research tools to help you prepare for trial, it is highly likely that your opponent is.

At Campos, we have had more requests for focus groups for pre-trial preparation this year than ever before. For attorneys, collecting potential juror reaction to a case prior to actually putting it in front of a jury is quickly becoming as recognized a practice as taste-testing for consumer packaged goods. But, as with all things new, there are lessons to be learned by those who have walked that road before.

Marketers who use focus groups often repeat the mantra “it’s all in the recruit” to express how critical the process of recruiting the right participants is to the success of their efforts, and why they rely exclusively on outside experts to conduct this part of the process. The importance of the recruitment screening process is just now becoming apparent to many attorneys as they learn that actually finding the right jury pool—one that is the correct mix of potential jurors to match the demographics of your potential jury pool—is a logistical and sizable task.

Recruitment experts understand both that the demographic mix changes considerably depending upon the jurisdiction where the trial will occur, and that self-selecting volunteers who respond freely to ads aren’t necessarily representative of those demographics. Professional recruiters have both the data and the expertise to ensure that mock jurors who are recruited for a mock trial focus group accurately represent the pool likely to be experienced at trial, and to ensure that the pool of juror recruits will not know the attorneys, the case, the client, or even which side is being represented. 

Marketers also understand that it is critical to the outcome of their research to remain as anonymous as possible to prevent the creation of any pre-judgments. Marketers rarely invite focus group participants into their public offices; rather they use facilities with one-way mirrors and separate client entrances so that participants don’t respond to their product or service based on factors other than those that are in play. Attorneys are similarly learning the risks of having mock jurors respond more favorably to their case, because the law firm or the attorney was visible to them as the organization that is recruiting them, or, even more critically, as the organization that is paying them. The possibility of creating significant bias, and thereby undermining the jury research efforts, is a primary motivation for most organizations in having a separate firm handle both recruitment and management of the focus group participants—be they consumers or mock jurors.

Whether you are conducting legal focus groups at a location in the jurisdiction of the case (like a hotel or community center) or at a professional facility, working with experts also provides the attorney with support staff to manage the juror recruits as they arrive, attend to whatever needs may arise, handle releases and pay out incentives when they depart, create audio and/or video recordings of the group and, of course, provide either the traditional one-way mirror situation or live video feed where junior attorneys or other staff members can comfortably observe as the group is occurring, thereby leaving open the opportunity to provide alternate scenarios for testing. 

And one more added bonus: most professional focus group facilities also employ a staff of trained moderators that attorneys (like marketers) may rely on to successfully and without bias carry out interviews of each juror. These interviews may be monitored in real time in order to gather insights and feedback separate from the mock jury or focus group itself. This capacity allows attorneys the opportunity to spot issues and develop the unique aspects of their cases prior to putting it in front of an actual jury. This aspect of partnership with a market researcher provides attorneys with an unprecedented degree of juror understanding and helps them achieve the best possible outcome from a given set of facts.

So, at the end of the day, what’s driving this sudden change in attorneys approaching their pre-trial preparation through the eyes of their jurors rather than based on their instincts as litigators? Research! There is a growing pool of research that is documenting both the need and the value of this form of pre-testing—much as there was for marketers years ago. And the benefits are being documented in the results.