The Focus Group
In many ways the focus group is the star of my trial preparation process. As is oft repeated, “frequently copied but never duplicated,” this trial preparation process is truly unique and one of a kind. The goal is to take all of our preparation, both our client’s side of the story, along with the discovery narrative and discovery review of the prosecutor’s case, and identify the hot button issues and emotional high points, all in an effort to finalize the defense theme and theory of the case. I have done trial consulting with lawyers all over the country, and I have never seen the trial preparation focus group done the way we do it. It is extremely effective, and it is one of the things that truly sets us apart from other lawyers that do sex crime work.
The concept is simple, once again following the “KISS” (Keep It Simple Stupid) axiom. We start with a focus group of between 10 and 20 participants, and we feed them information in a remarkably simple way that is incredibly close to the way jurors learn information in the courtroom. Just as a trial, the prosecution’s story goes first, starting with revealing the formal charges or allegations. We reveal one additional key fact at a time, detrimental to the client, but only after the focus group gives us that fact. We actively try to get the focus group in the mindset of being ready to crucify the client. We press, pressure, and prod the focus group in that direction, until they push back and start slowly gravitating the other way, in favor of the accused. We do not talk, we let the focus group do the talking. We observe. Most importantly we are looking for what causes the focus group to start to change to defending or backing the accused.
We typically start by simply writing the charge on a whiteboard. Then we let the focus group talk. So we will write “criminal sexual conduct 1st degree,” or “aggravated rape,” and then ask for reactions. We might follow up and ask them something simple, “What’s going through your mind? We all think in stories; what story is your brain telling you? What picture is your mind painting for you?” The key is that we want to talk as little as possible. The leader of the focus group, or “facilitator,” is using a true Socratic method of facilitating a conversation between the focus group members. We want to know what they think, not what we think.
Incredibly, the focus group will inevitably come up with the very facts of their case, on their own, without us telling it to them. It is true, they are going to tell us the basic allegations of our case from just writing “criminal sexual conduct, 1st degree.” One of the participants will say, “I see a person meeting a girl in a bar then going home, and this guy having sex with her after she passed out.” If those are our facts, we let the focus group talk until someone gets there. Then, on the next white board, we will confirm a fact the focus group provided that is true, and write, “The victim is 21 years old.” Ok, “now, what do you see?” After a conversation among the focus group, they will identify another key fact, which we will write on the third board: “The victim and defendant knew each other for three years.” If they were coworkers, we are waiting for someone to say, “I think they’re coworkers.” We will write that on the fourth board. Then we let the group continue to discuss, until one of them correctly says, “They never dated.” That goes up on a new board. They continue to discuss everything until someone to says something like, “If they never dated, maybe they flirted. Maybe there are text messages of them flirting.”
This repeats for a while, as the focus group continues to identify key facts. We are looking for them to “discover” or confirm everything that we think is important. Let us say we have a series of text messages that show a girl flirting with this guy she is accused of sexual assault. We want to know that these focus group members agree with us that it is important. But more important than that, we are looking for what they think is important. And by listening to their conversation, why it is important to them. Eventually, we will get to what we like to call the pivot point in the focus group.
The pivot point occurs when certain focus group members start to take over the conversation, and instead of driving in a way that hurts the client, they start to helping him. The key is this: it is not the destination. It is not getting to that point. It is how the focus group got there. It is the journey; it is what the focus group members talk about that got them from Point A (I think the guy violently raped a girl) after seeing the first board with only the charge (criminal sexual conduct, first degree) to Point Z, “well, maybe the girl is lying, maybe he didn’t do it.” What did the focus group members say to each other or focus on that allowed them to get from Point A to Point Z? What happened in between that took us on that journey?
The pivot point is the reason we do the focus group. How did the focus group get there? How did they go from “guilty as hell” to “maybe not?” What did they emphasize? And what did the process or journey look like along the way. The best part of it is this: there is always a pivot point, and the focus group always gets to this critical epiphany. The process is truly magic, and a key to how and why we win cases.
Finally, the focus group can also give us a better idea of who our more favorable jurors should be.
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