One of the most common mistakes attorneys make is delaying research on a case until it is about to go to trial. The sooner you contact us the more your case will benefit from our services. For example, key witnesses should be prepared prior to depositions because their performance is often the difference with regard to future options in the case. If your witnesses perform to their potential during deposition you will be in a better position for negotiations and settlement options. Further, early focus groups are an excellent tool for guiding discovery. By identifying themes early in the process you will be able to build a solid case around those themes. Also remember that you need to allow time for adjustments between the pre-trial research and the trial/ADR. It is possible that mock jurors will reject a particular argument that is central to your case. If so we will need time to devise an alternate approach. By waiting until the last minute we will not have time to test our back-up plan.
What is the "value added" by hiring a litigation consultant?
Most litigation consultants are not attorneys so we bring something different to the table. This non-legal perspective is helpful in understanding how jurors will perceive the case. Further, litigation consultants are trained in research methodology and analysis. We know the best way to design a study that will answer the questions you have about your case, and we have experience interpreting the results and identifying patterns in the data. Having that research experience, as well as a relationship with recruiters, research facility operators, etc., litigation consultants can design the study, conduct the research, and analyze the data quickly and efficiently. In short, attorneys hire litigation consultants for perspective, research experience, and efficiency.
There are some situations in which the attorneys can conduct focus groups on their own. The question is whether or not it is a good use of your time. Most attorneys like the convenience of identifying specific unanswered questions, and then letting the consultant track down the answers. However, for low-stakes, non-complex cases it may not be cost effective to hire outside help. If so, Bradshaw Litigation Consulting will gladly give you advice on how to conduct your own focus groups. We would much prefer that you do a good job yourself so you will see the benefit of pre-trial research, as opposed to doing a poor job and concluding that focus groups are a waste of time. We will walk you through the process in hopes that you will keep us in mind for future cases.
If you do decide to conduct your own focus group, proceed with caution. There are some major pitfalls that you will need to avoid. For example, nobody wants to admit it but everyone has biases. People hope for a certain outcome and get tunnel vision down whatever path will lead them to that result. For attorneys, the tendency to give more weight to the facts that favor their case, and discount the bad facts, is natural. That having been said, if you present a case to mock jurors and they can tell which side you represent, you are wasting your time. Presentation balance is critical and having a litigation consultant involved substantially reduces the likelihood of confounds such as confirmation bias.
Whether you do it yourself, we do it for you, or you hire someone else, you should always obtain community feedback about your case. When done correctly, the benefits outweigh the costs many times over.
What is the difference between a focus group and a mock trial?
A focus group is typically used to identify key issues in the case or learn how jurors are likely to respond to specific aspects of the case. We present jury eligible community members with general information about the case and then have a candid discussion about what they think is important. This can be done at any point in the process and is a valuable tool in shaping the direction of your case. A focus group can usually be done in a few hours.
A mock trial, on the other hand, is like a dress rehearsal of what will be argued in court. Once you go to trial you only have one shot. A mock trial gives you a chance to test your strategy so you know you are walking into court with an effective argument. Generally speaking, a mock trial will include live opening arguments, witness testimony (usually from videotaped depositions), closing arguments, and jury instructions. Mock jurors are then divided into groups to deliberate until a verdict is reached. After deliberations you will have the opportunity to discuss the case with mock jurors. Mock trials are conducted later in the process and generally take an entire day. Therefore, to get an accurate sample of community members, we usually conduct mock trials on the weekend.
In short, focus groups are generally used to develop themes and strategies. Mock trials are used to test those themes and strategies.
We like to be very clear on this issue. There are no guarantees that the trial jury will return the same verdict and/or award as a mock trial jury. There are simply too many variables in the equation. To this end, a mock trial is a research tool that will help you understand the strengths and weaknesses of your case. “Losing” a mock trial is not necessarily a bad thing, as long as you understand why you lost. If it is fixable (e.g., juror misunderstanding, you did not spend enough time on an issue, or missed an issue altogether) you can adjust and try again. If it is not fixable (after all, the facts are the facts) then you know how important it is to settle. From this perspective, you come out ahead either way. This is why it is generally agreed that mock trials pay for themselves. However, again, they should not be considered a prediction of exactly what will happen at trial and you should be wary of any consultant who tells you otherwise.
Yes. Although there are subtle differences in the approach, the ultimate goal remains the same – to present the most effective, compelling argument possible. In fact, preparing for a bench trial is very similar to preparing for ADR, which has become extremely common in the litigation consulting industry. Your arguments should always be tailored specifically for your audience. We can help you do that.