The Oklahoma Bar Journal January 2024

M ANY ATTORNEYS, BOTH IN-HOUSE ATTORNEYS and those in private practice, consider focus group testing 1 almost exclusively for the “bet-the-company” cases: those cases that are easily identified as posing the most obvious legal, financial and reputa tional risk to the client. However, focus group testing is increasingly recognized as poten tially useful for every type of case. 2

utilizing a focus group early “can signal what should happen with the case. ... Preparing for the next step can save a client money.” 6

in-house attorney an opportu nity to explore and develop ways to present a problematic fact or witness in a more positive and persuasive way. For example, an in-house attorney may see the withdrawal of a regulatory notice of violation as evidence in the cli ent’s favor, while potential jurors could suspect fraud or improper influence obtained with with drawal rather than the merits of the client’s position. Focus groups also provide insight unique to those living in the venue of your case and evaluate facts from a nonlawyer perspective, both of which are aspects of an effec tive early case assessment. 5 As in-house counsel managing a book of litigation, use of a focus group may seem counterintuitive due to the perceived time and cost of typ ical focus group testing. However,

Every case would benefit from the use of a focus group. Even the simplest case has strengths and weaknesses that can be explored. It is a forum for reality testing. It is too easy to become enamored with one’s own version of the case. Believing that jurors share your view of the case is dangerous. 3 Focus groups allow in-house attorneys to test various aspects of their cases with a group of people with the attitudes and feelings a layperson may have about the various aspects of a case, includ ing evidence, theme, exhibits and witnesses. “A huge incentive for focus groups is to unravel any latent problems or glitches the case may be hiding.” 4 Identification of latent problems and glitches can be extremely valuable, especially early in the assessment and/or discovery phases. It provides the

CONDUCTING FOCUS GROUP TESTING

Focus groups used to deter mine the strengths and weak nesses of a case are most typically conducted using a “mini mock trial” format. The typical process of a mini mock trial involves the presentation of either a live or videotaped summary of the argu ments of each side in the litiga tion. The participants, aka mock jurors, can also be provided with written documents comprised of a narrative summary of the main facts and a summary of each side’s arguments. Presentations are followed by a facilitated group discussion of the case. It is these

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

JANUARY 2024 | 47

THE OKLAHOMA BAR JOURNAL