The Oklahoma Bar Journal January 2024

important for trial consul tants. The engagement letter should clearly identify out side trial counsel and trial consultants as representa tives of the trial counsel and contain a confidentiality provision requiring the consultants to only share research work product with those approved by outside counsel and/or the client on a need-to-know basis. 12 3) Focus Group Participant Orientation and Confidentiality Agreements – “The best way to main tain privilege and protect the research process is to conduct a thorough orienta tion of the participants before any case-related information is shared, and to require every participant to execute a written confidentiality agree ment. These agreements go to the intent of the parties and counsel and form the basis for arguing any disclo sure by a focus group partici pant is unauthorized.” 13

discussions that often reveal the weaknesses and strengths of a case because they allow lawyers to discover the reasons behind mock jurors’ reactions to both strengths and weaknesses. When faced with negative mock juror reactions, the focus group format provides an ideal opportunity to start refram ing your case. When provided with positive feedback, the focus group format provides an opportunity to identify additional facts and argu ments to strengthen your case. 7 There are several ways in which a focus group can be conducted. You can pay a professional trial consultant to assemble the participants, orga nize the details such as loca tion, help with the presentation of your case, provide feedback and analyze the result. You can pay for an online or web based focus group. Finally, you can conduct a “do-it-yourself” focus group and use your staff to organize the details of the focus group(s) and gather participants while you present the case yourself and analyze results based on the feedback from the participants. If you are willing and able to partner with your outside trial team to conduct the focus group test ing, you can lower the overall expense to your client. Because of the various options available, focus group testing can be tai lored to meet the specific needs of your case while also staying within budgetary guidelines.

CONFIDENTIALITY IMPLICATIONS In addition to concerns about the expense of focus group testing, in-house corporate lawyers and their clients often voice concerns about privilege and confidential ity. 8 “Proper application” of the work-product doctrine 9 and/or the attorney-client privilege 10 should result in focus group testing being kept confidential. 11 Additionally, there are precautions in-house counsel can take to ensure confi dentiality is preserved. 1) Outside Trial Counsel – The addition of outside trial counsel clearly associates any jury or litigation consul tants that may be hired to assist in any way with the focus group to the trial team for purposes of the attorney-

client privilege and the work-product doctrine.

2) Written Engagement Letters – In addition to

written engagement letters for outside trial counsel, engagement letters are also

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.

48 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL