“Get started early.” “Just do it.” “Do it now.” These sentiments are excellent applications for so much of our personal and professional lives. In terms of preparing a case for litigation, early research efforts are also a key to success.
Often the decision to utilize trial research consultants is “last minute” and rooted in anxieties about the level of preparedness (and concerns over settlement discussions). One of our biggest challenges is to convince our clients to be proactive and to involve us in case preparation during the early stages of the process.
An excellent tool for “jumpstarting” case preparation is non-adversarial focus groups. These focus groups provide strategic direction to your litigation team prior to the start of major case preparation elements. The overall purpose of these groups is to evaluate reaction to the primary themes that may be advanced during trial preparation. Information from these exercises can then be used to prioritize case strategy elements, including providing direction for depositions, discovery and the use of expert witnesses.
For this research methodology, focus group participants are briefed about the case in a non-adversarial fashion, similar to a news report. Unlike a mock trial, the plaintiff and defense lawyers do not present extensive arguments for their respective clients. In fact, the presence of lawyers during the presentation is optional. A trained moderator sometimes presents the informational account of the case to participants in an independent, unbiased manner.
After hearing the “story” of the case, participants break into small groups (typically eight respondents) and discuss the case for a short time period. Each participant shares their overall opinion about the case and various aspects of the litigation. However, they don’t necessarily deliberate to reach a consensus or group decision (as is the case in a mock trial).
After sharing their initial impressions, a moderated discussion of the case ensues. The moderator explores the perceived strengths and weaknesses for the plaintiff and defense perspectives, and gauges the overall impression of the parties involved in the case. The moderator probes to uncover the issues that make important impressions, and the issues that participants would like to know more about. Feedback is collected on which party is favored, and why participants hold these opinions and impressions.
These groups can normally be concluded in two to three hours (start to finish), which provides the option of conducting two different sessions on the same evening (modifications can be made to the second session based on the results of the first session). Since these groups are much shorter than an all-day mock trial, they also are more affordable from a cost perspective.
So consider the use of non-adversarial focus groups to “jumpstart” your case preparation. Focus groups conducted at the outset of your case can go a long way in bringing structure and direction to many elements of your case strategy.
Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.