Most litigators are skilled questioners. However, the skills used to question witnesses in an effort to advocate for one side at trial are different from the skills that will be helpful to obtain valid, unbiased feedback from mock jurors during a focus group. Because some of Trial Exhibits' attorney-clients request to participate in the questioning of mock jurors during a focus group or mock trial, Trial Exhibits' consultants prepared the following tips to ensure that attorney-moderators obtain as much valuable feedback as possible.
Tip #1: Use open-ended, non-leading questions. It is important to remember that you are not cross-examining the mock jurors. Rather than boxing jurors into a "Yes/No" response, ask them questions that will give you more qualitative information about how they came up with that "Yes/No." For example, rather than asking, "Did the jury instructions affect your verdict?" ask "What part of the jury instructions did you consider when determining your verdict?"
Tip #2: Keep the questioning balanced. Jurors often try to guess whether one side is funding the cost of the research, or both sides are invested in the effort. If jurors notice that the majority of questions are asked from the plaintiff's perspective then they may start to provide responses that they believe will sound positive to the plaintiff's attorney, whether the responses are valid or not. Try to balance out the questioning by asking a question from the plaintiff's perspective and following with a question from the defendant's perspective. For example, you may ask, "What advice would you give to the plaintiff's attorney?" and follow this question with "What advice would you give to the defense attorney?" Note that, while you want to ask balanced questions, it is still best to stick with one question at a time. If you ask, "What advice would you have for the plaintiff's attorney and what advice would you have for the defense attorney?" jurors will just pick on part of the compound question to answer, and you may miss out on valuable feedback.
Tip #3: Avoid using the word “Why?” The word “Why?” creates a feeling of defensiveness in the respondent. Just think how you would react if someone asked you, “Why did you do that?” Instead of “Why do you think that?” a skilled moderator will say, “Tell me more,” “What evidence led you to that conclusion?” or “How does that affect your verdict?” Generally, if you are starting your question with “What” or “How,” you are off to a good start.
Mock jurors, like everyone else, desire to feel that their feedback is valued. With reinforcement, jurors are likely to provide even more feedback, which is the goal. By simply stating, “That is a good question,” before you respond, you can encourage more feedback from jurors. Even if the response that a mock juror provides is negative for your case, let the juror know that you want to hear his/her honest responses. Remember that the goal is not to convert the mock jurors to your side, but to hear the weaknesses in your case so that you can strategize on how to overcome them before trial. By arguing with mock jurors (e.g., “Do you really believe that an individual is more at fault than a large corporation?”) you may convince some jurors to agree with your arguments, but most jurors will begin to shut down and will be less likely to voice their true opinion when they perceive it is not the same as yours.
Tip #4: Answer questions with questions. When a juror asks a question, that question tells you what the juror finds important. For the moderator, there is a natural tendency to want to answer the question. However, when you answer questions, you are not the one learning from the juror’s feedback, instead he/she is learning from you. You can turn this around by answering the question with a question. An example of this technique is shown below. You will see that the poor moderator answers the juror’s question, which stops the line of questioning and provides no further feedback to the moderator. The skilled moderator does not answer the juror’s question, but shows the juror that the question is valued by asking further questions. Ultimately, the skilled moderator learns volumes about how the juror made his/her decisions in the case.
Mock Juror: “Does the plaintiff have insurance?”
Poor Moderator: “Yes, but the jury will not hear that information.”
Mock Juror: “When did the plaintiff file the lawsuit?”
Poor Moderator: “In 2008.”
Mock Juror: “Has the insurance company offered to settle?”
[Mock juror becomes the questioner and the moderator learns very little]
Mock Juror: “Does the plaintiff have insurance?”
Skilled Moderator: “If you were informed by the court that no additional information could be given to jurors regarding insurance, would you believe the plaintiff has insurance, based only on what information you have been given today?”
Mock Juror: “No.”
Skilled Moderator: “What makes you believe the plaintiff does not have insurance?”
Mock Juror: “If the plaintiff had insurance, I would expect she would not need to come to court. Plus, she has a low wage job at a convenience store, so she may not have felt she could afford it.”
Skilled Moderator: “How would your belief that the plaintiff does not have insurance affect your determination of damages? Would you award more or less based on that belief?”
[Moderator continues to question juror, learning more about how decisions are made]
Tip #5: Keep questions short and simple. Attorneys are used to questioning witnesses, sometimes with a goal of creating confusion. With mock jurors, it is best to keep questions clear and concise. Save terms like “notwithstanding” for the courtroom. In fact, it is best to avoid legalese whenever possible. Remember that most jurors do not walk into a courtroom with an awareness of the definition of negligence or an understanding of the differences between criminal and civil burdens of proof. Educate when necessary and use layman’s terms when possible.
Tip #6: Make the questioning “conversational,” keeping a flow. Just like you would if you were deposing a witness, follow-up on the responses you receive and be flexible with the line of questioning you take. Sometimes juror responses are unexpected, so the questions you may have anticipated asking no longer make sense. Be prepared to think on your feet – a skill most litigators have well mastered.
Tip #7: Have mock jurors write down responses that you believe may be influenced by their peers’ feedback. Imagine you are a mock juror and you are asked how much money you would award the plaintiff for his pain and suffering. You think to yourself that the award should be about $5 million. Now, your peers are asked to state their numbers aloud. You hear, “$500,000,” then “$250,000” and then “zero.” Now, it is your turn. While there are some jurors who would still voice their honest opinion, there is pressure to conform to the group in this situation. Instead of this format, the moderator can decrease the likelihood of a conformist response by asking mock jurors to all write down their numbers first. Then, when all jurors have their responses in writing, ask them to read the number out loud. This technique will help remove the jurors’ natural tendency to conform and provide you with more valid feedback.
These few simple tips will help you get the most out of your pre-trial research. A consultant can also aid you by conducting the questioning, or developing questions specifically designed to obtain pertinent feedback targeted at your individual case issues. At your next focus group, put these tips into practice and you and your client will reap the benefits.