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Focus Groups: An Essential Trial Preparation Tool

By
Mike A. D'Amico, Esq.
D'Amico & Pettinicchi, LLC
Watertown, CT
February 2011

  1. Focus Groups: An Essential Trial Preparation Tool:

Early on in my career I did not routinely use focus groups prior to trial. Now it is rare that I try a case without one. I have found them to be invaluable in assessing the strengths and weaknesses of a case from a potential jurors' eyes, the eyes that matter most.

The most important concept of focus groups is to understand what they are not. They are not a prophecy of how the case will be decided at the actual trial. There are too many variables that cannot be duplicated such as the personality and bent of the judge, defense counsel assigned to try the case and the crap shoot of the jury pool. A focus group is, however, a good glimpse into how a jury may view certain important and disputed issues and an excellent method to hone your presentation for the best chance of success. We have found them to be immensely beneficial not only for our preparation but for client preparation (and control) as well.

I began many years ago using trial consultants and have conducted my own for the last several years. Should you wish to use a consultant a good place to start looking is the American Society of Trial Consultants. I have listed below my thoughts from focus group experiences. I have also added some thoughts I learned from reading an excellent book written by David Ball, Ph.D. entitled "How to do Your Own Focus Groups". At the end I have discussed the application of the attorney work product doctrine and the attorney/client privilege to trial consultants and, by analogy, focus group jurors hired by counsel with the expectation of confidentiality. I have also included a comment on recovering the expense of a focus group as a cost where a statute allows for recovery of 'attorney fees and/or costs'.

    1. We use "deliberation groups". This is a summary presentation of evidence after which the jurors deliberate the issues. We watch the jurors as they deliberate on TV monitors from another room and record the deliberations on DVD for future review.
    2. You need approximately 4-5 hours for most cases and preferably 6 hours for more issues, or complex issues. We have typically conducted the focus groups during the week in the evening starting at 5:30 or 6:00 and ending at 10:30. If the presentation and deliberations are believed to be longer then a Saturday or Sunday is better. We like a focus group size of 8-10 and prefer splitting them into 2 groups of 4-5 for deliberations in 2 different rooms that we have wired for audio and video. You will need to call in 40-60 people(we have typically placed an ad in the venue-appropriate local newspaper for a jury project and are swamped with calls) to get 8-10 even after screening by phone. This will be done 2-3 days before the presentation.(You should be careful not to re-use jurors that have done this before.) We then have the jury pool of 40-60 come in 2 sessions of 20-30 spaced 1 hour and 30 minutes apart. This allows time for them to fill out the juror information forms(we have typically used the juror information form that is used in court but are switching to a more detailed form) and the confidentiality agreement before conducting a box voir dire. We provide food and drinks. The jurors selected are asked to come back for the day of the presentation and we pay them $100.00-150.00 each.
    3. They need to be told that they will be videotaped.
    4. David Ball suggests that you should not let them know who you represent. I have not found this to lessen the benefit of the focus group. I always ask a very experienced colleague(usually a defense lawyer I am friendly with) to present the defense side. You must allow the defense to present the strongest opposing arguments they can or the focus group will not be beneficial.
    5. You should allow breaks for 10-15 minutes after not more than 1 hour and 30 minutes or you will lose some of them; but be sure to tell them not to discuss the issues until they are asked to deliberate.
    6. I have always allowed the jurors to write notes or questions on notebooks that we provide for use during the presentation. Any questions should be answered before they start deliberating(assuming you can answer them without a detrimental effect on the exercise).
    7. I generally use an abbreviated trial format: a short 15-20 minute opening and allow defense the same; then present live testimony of the client and any critical witnesses allowing for vigorous defense cross-examination; then excerpted videotape testimony of defendant and/or defense experts; brief closing remarks with no rebuttal closing; and then have a paralegal read the jury charge as it would be in court on all relevant issues.(Jury charges from prior trial transcripts or from the judicial website are acceptable usually) Keep it brief!
    8. For deliberations we provide a copy of all exhibits for each juror. This saves the time of waiting for one juror to pass the exhibits to the next. Do not load them up with medical records. There is not enough time. Pick and choose carefully the most critical ones being sure to include the good and the bad, especially the bad. If there are demonstrative or other visual effects exhibits you want to use at the actual trial and you wish to test the effectiveness of them, this is a good opportunity. We also provide a Verdict Form similar to one that they would receive in court. You may want to consider Jury Interrogatories on critical issues you want to be sure they discuss.
    9. After the presentation allow them a short break and then let them deliberate. We have them deliberate in our courtroom and a conference room that we have wired for audio and visual. The audio/visual is piped to TV monitors in another conference room. We have the capability of switching from one deliberation or the other, or both at the same time.(An outside production company can accomplish this for you if you have adequate space).We watch them deliberate and take notes. The deliberations are recorded on DVD for future review as many times as necessary to be sure we hear everything(really hear!) they have to say on the issues we are concerned about. We usually allow them to deliberate for 45 minutes to an hour and one-half depending on the issues.
    10. After deliberations we talk with them. First in the separate deliberating groups, and then all of them together. We ask lots of open-ended questions about their thoughts on the issues and their conclusions and just listen(listen!) to what they have to say. A paralegal takes notes. These are referred to as debriefing sessions. David Ball suggests debriefing them on what they think the law is. This can provide valuable insight into what areas of the jury charge you need to be sure you speak with the trial judge about.

If you have never done a focus group don't be afraid to speak with other lawyers and paralegals that have; and if you are uncomfortable attempting one yourself hire an experienced jury consultant until you get the hang of it. As David Ball aptly said "doing a focus group wrong is like getting a serious misdiagnosis from a doctor; you confidently believe it and it kills you."

There is little case law in Connecticut concerning focus groups, but there are a number of cases nationwide dealing with trial consultants, trial simulations, mock juries, etc., that do shed some light on issues such as the confidentiality of the process and the recovery of its costs as an award of attorneys fees. Also American Jurisprudence Trials gives a fairly thorough overview of focus groups and other trial consultant tactics. See Susan E. Jones, Use of Jury Consultants in Civil Cases, 49 Am. Jur. Trials 407 (2007); see also Murray Ogborn and Theresa Zagnoli, ATLA's Litigating Cases 36.23, 36.54 (2007).

A. Confidentiality

Of course, all attorney-client communications concerning the subject of the representation and all work product prepared in preparation of litigation are privileged and generally not subject to discovery. See Practice Book 13-3(a); Conn. R. Prof. Resp. 1:6.; see generally State v. Weber, 49 Conn. Supp. 530, 896 A.2d 153 (Super. Ct. 2004).

The Federal District Court of Connecticut has recognized that a party's consultant on legal issues may have possession of confidential attorney work product and that the opposing party?s ex-parte contact with such a consultant can constitute grounds for disqualification of counsel. MMR/Wallace Power & Industrial, Inc. v. Thames Associates, 764 F.Supp.712 (D. Conn. 1991); see also United States v. Housing Authority of the Town of Milford, 179 F.R.D. 69 (D. Conn. 1997); Shoreline Computers, Inc. v. Warnaco, Inc., 27 Conn. L. Rptr. 30, 2000 WL 371206 (Super. Ct., April 3, 2000). These cases do not deal with a trial or jury consultant, per se, but with an ex-employee who was substantially involved with his employer's pretrial preparation. Nonetheless, these cases illustrate that any consultant or person who helps prepare a party for trial and who had access to privileged work product is also covered by the attorney-client privilege.

In MMR/Wallace, Thames Associates contracted to build a cogeneration plant and Thames subcontracted with MMR/Wallace to do mechanical construction work on the project. Thames terminated MMR/Wallace's contract. MMR Wallace then created an office for the purpose of closing out project-related activities and to prepare for litigation. MMR Wallace transferred its office manager Richard Willett to run this new office.

In the course of preparing for litigation, Willett aided MMR/Wallace's attorneys in setting up a document control system to organize thousands of documents pertaining to the construction project. Willett also was responsible for reviewing, indexing, and digesting all of the discovery materials. He also prepared a number of reports and analyses concerning issues involved in the litigation, as well as attending numerous confidential meetings to discuss litigation tactics and strategies. He assisted in the preparation of interrogatories and consulted with counsel regarding the topics to raise in deposing different persons.

During the course of this pre-litigation work, MMR/Wallace filed for bankruptcy, and its surety took over the financing and direction of litigation. The surety and Willett were unable to come to terms on a contract to serve as a litigation consultant, so Willett approached Thames' counsel and offered to it his services as a litigation consultant. Thames attorneys hired Willett as a consultant, and the surety filed a motion to disqualify opposing counsel based on its ex parte contacts with a person who had access to and knowledge of MMR/Wallace's work product and attorney-client communications.

The District Court of Connecticut likened Willett to a trial consultant and held that he had been privy to privileged work product that was necessarily confidential:

  • Defendant's contention that Willett was merely a document clerk whose knowledge bearing on the litigation is purely factual in nature is inaccurate at best, and misleading at worst. While it is true that Willett had only limited responsibilities while serving as office manager at the construction site between December, 1987 and February, 1988-responsibilities accentuated by the defendant-his role for MMR changed after its contract with Thames was terminated. For fully ten months following MMR's termination, Willett served almost exclusively as a trial consultant and paralegal, responsibilities barely acknowledged by the defendant. As such, Willett's factual knowledge and opinions about the construction project were most likely shaped, in large measure, by his post-termination review of records and documents provided to him by plaintiff's counsel and by his discussions with them about the case. Moreover, in his role as trial consultant/paralegal, Willett had access not merely to confidential information regarding the project itself, but also about the plaintiff's litigation strategy. Willett's extensive contact with plaintiff's counsel, and his access to confidential litigation materials distinguishes him from a mere adverse fact witness with whom defense counsel would have been entitled to discuss the case outside the presence of MMR's attorneys.

764 F. Supp. at 725.

Having concluded that Willett had obtained confidential information, the court stated that it was presumed that Willett had shared this information with Thames' attorneys, and their denials and evidence presented were insufficient to rebut that presumption. Accordingly, the court granted the motion to disqualify. Id. at 726-28.

Later, the District Court of Connecticut again faced this trial consultant issue in Milford. In that case, HUD sued the housing authority of Milford for violations under the Fair Housing Act. HUD filed a motion for leave to contact the former executive director of the housing authority, ex parte, and the housing authority contended that the ex-director was a trial consultant ala' the former employee in MMR/Wallace and that the ex-director was privy to work product subject to the attorney-client privilege. The court allowed HUD to contact the ex-director, with some limitations, because the court found there was no evidence that the ex-director had participated in the formulation or discussion of litigation tactics or strategy. 179 F.R.D. at 73-74.

These Connecticut federal court cases at the least establish that a third party who consults with an attorney in preparation for litigation is subject to the attorney-client privilege and the work product doctrine. In other cases with a mock trial or other trial consultations at issue, this point is reiterated.
For example, the leading case concerning trial consultants outside of Connecticut is In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003). In that case, a cross claimant moved to compel discovery from the cross defendant's former auditor concerning conversations the auditor's employees had with its former trial strategy consultant. The Third Circuit first held that litigation consultants come under the attorney work product doctrine:

  • Litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work product doctrine. Moreover, a litigation consultant's advice that is based on information disclosed during private communications between a client, his attorney, and a litigation consultant may be considered 'opinion' work product which requires a showing of exceptional circumstances in order for it to be discoverable. Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1219 (4th Cir.1976) ('[O]pinion work product immunity now applies equally to lawyers and non-lawyers alike.'); Stanley D. Davis & Thomas D. Beisecker, Discovering Trial Consultant Work Product: A New Way to Borrow an Adversary's Wits?, 17 Am. J. Trial Advoc. 581, 619 (1994) ('[T]he attorney's discussions of case theory and the consultant's suggestions thereon should qualify for the higher protection accorded mental impressions.').

343 F.3d at 665-66.

The Third Circuit first explained the cross claimant's argument for discovery and then the district court's basis allowing discovery:

  • Cendant contends that a non-attorney's advice regarding witness testimony does not fall under the work product doctrine. Cendant asserts that the jury is entitled to know the consultant's communications with the witness, in the same way it is entitled to know and assess all other factors that may have informed the witness's testimony and may affect credibility . . .

As noted, the District Court held that the work product doctrine should be cabined to lawyers and be strictly limited when applied to a lawyer's agent. The District Court said:

  • I admit that if an attorney had prepped his witness like I think all of us who are single or small firms have done without the need for a jury consultant X, you've got to shave, you've got to do this, you got to put this question, you've got to put that answer that way and all of that, I'm quite sure anyone in his right mind would consider that part of work product and attorney-client activity and no one even tries to find out what went on.

    But my problem is when you don't bring in a lawyer, you bring in someone who is not dealing with the law but dealing with the manner in which things are presented, then I think it may be a little bit much to expect that to be countenanced....

After the District Court made this determination, Cendant conceded that it was not accusing Ernst & Young of fabricating false testimony in the meetings between Wood, his attorney, and Dr. McGraw. But Cendant argued that, as a result of the District Court's conclusion that the work product doctrine did not extend to meetings with Dr. McGraw, they were entitled to inquire into the content of those meetings. Cendant said 'We are not here now deciding what they did or accusing them of anything. But once it is not privileged ... once that veil is no longer there, we are entitled ... to show anybody, judge or jury, what went on as they practiced with the witness.' (Tr. Dec. 13, 2002).

Id. at 666-67.

The Third Circuit, though, reversed the district court's discovery order and held that the trial consultant's discussions with prospective witnesses and the defendant's attorneys constituted privileged attorney work product:

  • We disagree and hold that the work product of Dr. McGraw is privileged and subject to only limited discovery. Ernst & Young contends that questioning into the content of advice Dr. McGraw gave to Wood during a private consultation with Wood's attorney clearly calls for attorney work product protection. In retaining Dr. McGraw, Ernst & Young expected all counsel's communications with him to be confidential and protected from discovery. Had Ernst & Young or its counsel anticipated that counsel's communications with this litigation consultant would be subject to discovery, Ernst & Young asserts Dr. McGraw would not have been retained or the nature and extent of the matters counsel communicated to him would have been severely curtailed.

    Ernst & Young asserts that, based upon the expectation of confidentiality, Dr. McGraw participated in frank and open discussions with Ernst & Young's counsel regarding counsel's view of the important facts of the case, the contentions of the parties, and Ernst & Young's trial themes, theories, and strategies. These discussions were at all times understood and intended to be confidential by all participants. Furthermore, in connection with these discussions, Dr. McGraw was provided with documents prepared by Ernst & Young's counsel reflecting counsel's mental impressions, opinions, conclusions, and legal theories. In addition, Dr. McGraw's notes of these discussions may reflect the mental impressions, opinions, conclusions, and legal theories of Ernst & Young's counsel. Discovery of this information goes to the core of the work product doctrine and, therefore, is discoverable only upon a showing of extraordinary circumstances. Cendant has failed to cite any extraordinary circumstances that would justify discovery of the information sought. Thus, the private communications between Wood, Dr. McGraw, and counsel merit protection under the work product doctrine, as they reflect and implicate Ernst & Young's legal strategy regarding a deposition taken as part of this litigation.

Id. at 667; see also Hynix Semiconductor, Inc. v. Rambus, Inc., 2008 WL 397350 (N.D. Cal., Feb. 10, 2008) (a trial court allowed the examination of witnesses to include questions about whether the witness had spoken with a jury consultant and other circumstances concerning such discussions but disallowed any questioning as to the content of these discussions because the jury consultant's work was confidential work product); cf. Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000) (a public relations firm's consulting work with party concerning litigation preparation was privileged work product); Caterpillar, Inc. v. Trinity Industries, Inc., 134 P.2d 881 (Okla. Civ. App. 2005) (the court refused to declare a mistrial and discussed the limits on the scope of a plaintiff's jury consultant's testimony regarding mock jurors' thoughts about the defendant's liability).

B. Recovery of Costs

The court in Confederated Tribes of Siletz Indians of Oregon v. Weyerhauser Co., 2003 WL 23715982 at p. 8, n.12 (D. Ore., Oct. 27, 2003) (see cases cited in note), vacated on other grounds, Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., __ U.S. __, 127 S. Ct. 1069 (2007), noted that jury and trial consultant fees can be recovered under statutes allowing the prevailing party to recover attorney's fees and costs; see also B.D. v. DeBuono, 177 F. Supp.2d 201 (S.D.N.Y. 2001); but see Clawson v. Mountain Coal Co., 2007 WL 4225578 (D. Colo., Nov. 28, 2007).

In DeBuono, for example, the court awarded the plaintiffs the costs of trial consultants in an action under section 1983 against a city, county, and state department of health for violation of due process rights under the Individuals with Disabilities Education Act. The court held that a jury or trial consultant's fees were akin to attorney's fees and were awardable accordingly:

  • Litigation consultants (also known as litigation support specialists) are trained in various aspects of courtroom practice and procedure. They are consulted by litigators to hone their trial skills in the context of a particular case. It seems to this Court that litigation consultants, used in the manner that plaintiffs' counsel used them here, are the equivalent of additional attorneys or legal para-professionals. The services they provide are not those of an expert witness, which has been the traditional purview of expert fees. DOAR provided neither substantive testimony nor information relating to the underlying dispute. Therefore, even though they are expert at what they do, they do not fall within the rubric of "experts" as that term traditionally has been used.

    If plaintiffs' counsel had organized mock trials themselves, or done their own jury consulting research, the hourly rates they charged for those services would be reimbursable as part of an attorneys' fee award. The fact that counsel chose to engage the services of an independent contractor to perform those same services, rather than assign the same work to employees, does not alter the nature of the services rendered. DOAR's litigation consulting services fall properly under the rubric of attorneys' fees and are a reimbursable expense in a litigation of this magnitude.

177 F.Supp.2d at 204.