The Oklahoma Bar Journal January 2024

4) Rigorous Screening – Potential focus group participants should be rigorously and thoroughly screened to match the demographic composition of your trial venue. 14 Potential participants should also be screened to identify partic ipants who would not actu ally serve as a juror due to eligibility issues or hardship or because of a personal connection to the case. 15 This screening should be done using a written, detailed screener during the recruit ing process and immediately prior to the focus group exercise to further ensure there are no conflicts. 16 5) Location, Location, Location – In most instances, focus group testing is ideally located in the actual trial venue. There may be some cases, however, in which an alternate location is desired or even necessary. For example, it may be difficult to recruit a sufficient sample size of participants who meet all the demographic require ments for a particular matter. Alternatively, the trial venue could be in a remote or rela tively rural location in which everyone does business with your corporate client, or there has been a large amount of media coverage about the underlying inci dent, thus raising concerns about finding enough impar tial residents and maintain ing confidentiality. 17

LIMITATIONS OF FOCUS GROUP TESTING Although focus groups can provide the in-house lawyer with qualitative information useful in multiple phases of litigation, the tool does have its limitations. More spe cifically, focus groups do not accu rately predict how individuals on a jury might vote. This is because the number of focus group participants needed to provide a large enough sample is generally not feasible for most litigants, especially in the early case assessment phase. Focus groups cannot tell you how widely a particular attitude or opinion is held in the community of potential jurors – only that an attitude or opinion exists in the venue. Focus groups also cannot establish an accurate value of a particular case. CONCLUSION Focus group testing – as part of the assessment, discovery or pre trial phases – can provide unique information essential to strategy decisions, such as which cases in a litigation portfolio should be settled instead of taking to jury trial. While the expense of focus group testing may be cost prohibitive in many circumstances, there are ways in which the costs and expenses can be controlled, such as a do-it-yourself focus group conducted in partner ship with outside trial counsel.

ENDNOTES 1. A focus group can be defined as 1) people 2) assembled in a series of groups 3) possess[ing] certain characteristics 4) provide data 5) of a qualitative nature 6) in a focus discussion . Uses of Focus Groups in Litigation Research. As noted by the authors of Uses of Focus Groups in Litigation Research , this definition of a focus group, “loosely construed, describe[s] a jury quite well.” Such “simulated juries” can be convened to sit as a jury for a mock trial or for a focus group discussion. 2. Focus Groups: You Can’t Afford Not to Use Them , Joseph Brophy. 3. Id. 4. Use of Focus Groups , p. 2. 5. Effective Uses of “Do It Yourself” Focus Groups , p. 4; See also , In re Tex. Prison Litig. , 191 F.R.D. 164 (W.D. Mo. 2000) in which the court affirmed a settlement agreement that was partly based on the results of focus group. The court also found the focus group to accurately reflect the attitudes and views of a real jury. 8. “Keeping Secrets – Protecting Privilege in Pretrial Research,” Kacy Miller, The Jury Expert , 2009, 21(2), 26-32. 9. The work-product doctrine, governed by a uniform standard in Federal Rule of Civil procedure 26(b)(3), provides that a litigant may not discover documents and tangible things that are prepared in “anticipation of litigation or for trial” by or for another litigant or its representative, including the other litigant’s attorney, consultant, surety, indemnitor, insurer or agent. 10. The attorney-client privilege protects confidential communications between a client and an attorney, or the attorney’s agents, for the purpose of obtaining legal advice or services from that attorney. The privilege belongs to the client and is customarily applied to communications to a lawyer and representatives of the lawyer, such as clerks, paralegals and administrative assistants. The privilege also extends to non-testifying experts, including jury consultants. 11. In re Jefferson County Appraisal Dist ., 315 S.W. 3d 229 (Tex. 2010) (holding information about a mock trial, including the jury consultant’s report, “goes to the heart of the work product doctrine and is not discoverable.”). 14. “Keeping Secrets – Protecting Privilege in Pretrial Research,” Kacy Miller, The Jury Expert , 2009, 21(2), 26-32. 15. Id. 16. Id .,“How to Preserve Confidentiality in Mock Trials or Focus Groups,” Jennifer Nemecek and Patricia Steele, Litigation Insights , Nov. 9, 2014. 17. “How to Preserve Confidentiality in Mock Trials or Focus Groups,” Jennifer Nemecek and Patricia Steele, Litigation Insights , Nov. 9, 2014. 6. Use of Focus Groups , p. 5. 7. Use of Focus Groups , p. 6. 12. Id. 13. Id.

ABOUT THE AUTHOR

Jennifer Castillo is senior attorney and manager of litigation and claims at OGE Energy Corp. in Oklahoma City. She

received her J.D. from the OCU School of Law in 2002 and her LL.M. from the Baylor University School of Law in 2022.

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 | 49

THE OKLAHOMA BAR JOURNAL