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Focus Group Strategies: Winning and Successfully Settling Jury Trials

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Within trial science circles, the name of Dr. Robert Gordon is spoken of with deep respect, even awe. Along with a handful of other visionary professionals during the early '70s, Gordon helped to invent the field of trial science research, which concerns itself with using scientific testing procedures to reliably determine how jurors are likely to feel about a court case and its key issues. The field is now booming, and hundreds of trial scientists across the country and around the world currently use the techniques and methodologies that Gordon helped to develop and perfect.

In his book "Focus Group Strategies," the Dallas-based trial scientist shows attorneys how to employ jury focus groups, jury simulations, and related scientific studies to accurately determine which biased and/or opinionated jurors to de-select during voir dire (the trial phase in which jurors are chosen for an upcoming court case); and how the findings from such research can be used to plan the most effective case presentation strategy in order to win a favorable verdict with jurors. The book serves as an easy to follow primer that instructs trial attorneys on the ABCs of setting up and conducting jury focus groups and other jury simulations.

As Gordon points out in his book, employing such litigation research is now accepted practice for nearly every major litigation dispute today, and is even becoming commonplace for the more run of the mill court cases as well. It's easy to see why: jury focus groups enable the trial attorney, prior to actual trial, to safely test-market alternative case strategies to see what will work best with jurors.

Thanks to the invaluable intelligence such professionally organized litigation research provides, the attorney can reliably determine which trial theme will resonate most strongly with the jurors. Additionally, he or she can safely predict probable jury responses to other key case presentation components, including the opening statement, closing argument, witness testimony and other evidence, the fact pattern of the case, and so on. Trial science research is like a magic crystal ball that shows how the jurors will think and - even more importantly - feel about the case.

Of course, the findings of such jury focus group research are not foolproof. But they are considerably more accurate than the methods used by attorneys prior to the development of litigation research (largely intuition and hunches) to determine what would work best in court to influence jurors. ("Scientific jury selection is only intuition made manifest," says Stephen Gillers, prominent legal commentator and vice dean at New York University School of Law.)

In "Focus Group Strategies," which was written with the assistance of his daughter, Ami Gordon, a lawyer, Gordon provides attorneys and other interested parties an interesting behind the scenes look at exactly why, how, and in what manner jury focus groups should be set up for all types of litigation disputes, including those to be determined through trial, arbitration, mediation, or other ADR (alternative dispute resolution) methods. He relates how such focus groups should be organized, where and when the sessions should be held, and most importantly, what type of targeted research goals they should be designed to achieve.

To me, a charming aspect of this book is its highly personal account of Gordon's bumpy days as a fledgling trial scientist during the early `70s, when few understood what litigation psychology was all about, or what it could accomplish.

Also interesting are the numerous colorful vignettes regarding famous trial luminaries Gordon has worked with over the years, including Texas trial masters Richard "Racehorse" Haynes and John O'Quinn. Haynes successfully represented Cullen Davis in his nationally publicized murder trial; O'Quinn was the lead lawyer in the multi-billion dollar State of Texas tobacco settlement.

As discussed, trial science research is now being routinely employed by civil and criminal lawyers for all types of cases. Indeed, this has become so much the norm that it is now somewhat unusual not to see a trial scientist sitting next to an attorney during trial. When asked to comment on the value of utilizing trial scientists for litigation disputes, one prominent New York litigator, Donald Zoeller, stated that, "It's gotten to the point where if the case is large enough, it's almost malpractice not to use them." And that's true. The attorney who proceeds to court without the benefit of litigation research is, in effect, doing his or her client a major professional disservice. It's like flying a plane at night in bad weather without radar. So where should the conscientious attorney turn in order to learn about this fascinating new field? A good place to start is by picking up a copy of "Focus Group Strategies."

Trial Science brings immeasurable value to trial attorneys and their clients. This book is an excellent guide and a must read for anyone who is interested in Scientific Jury Selection.

I received a phone call recently from a recruiter who asked if I'd be available to participate in an all-day legal-related focus group. After answering a batch of qualifying questions--"Have you ever studied or worked in law enforcement?" "Have you ever been convicted of a felony?"--I was given the date, time and location.

On the morning of the event, fourteen of us gathered in the lobby of a suburban office building. We were a mixed group: a retired postal worker, a tall black woman who was sales manager of a national computer company, a twiggy young yoga instructor and a tattooed Asian guy who worked part-time in a copy shop. (Later I realized we had been selected precisely because of our diversity.)

The young woman who greeted us in the lobby led us to one of the offices and into a huge, walnut-paneled, book lined courtroom right out of an episode of "Law & Order". She seated us in the jury box in front of a kindly judge and two tables of eager attorneys.

For most of the day my fellow "jurors" and I listened to both sides of a multi-million-dollar patent infringement suit. (We were sworn to secrecy about the details of the case.) Both sides presented snippets of videotaped depositions by experts and company officials explaining the nature of the alleged infringement and the magnitude of damages. After closing arguments, the jurors were directed to a conference room to reach a verdict.

I didn't know it at the time, but I was participating in a jury focus group similar to those described in "Focus Group Strategies: Winning and Successfully Settling Jury Trials" by Dr. Robert Gordon and Ami Gordon.

"Focus Group Strategies" describes a practice that has become increasingly common during the past fifteen years with big-purse legal cases: the use of mock jury panels to help attorneys develop winning themes and strategies for their cases. Done correctly, the Gordons declare, these jury focus groups can help an attorney forecast the results of his case, to recognize salient facts and themes that resonate with actual jurors. Structured incorrectly (or for the wrong reasons), however, these groups can provide a result no more valid than the opinion of a weekend handicapper at Churchill Downs.

For thirty years, Dr. Robert Gordon, J.D., Ph.D., has conducted jury focus groups and developed an international reputation with top-tier trial lawyers for his ability to forecast how juries decide cases. A psychologist, attorney and director of the Wilmington Institute Network, Dr. Gordon pioneered many of the successful methodologies for focus group research currently practiced. He has been a jury analyst for CBS News, CNN, USA Today, Fox News, Larry King Live and other national news outlets. His collaborator, daughter Ami Gordon, is a corporate attorney.

"Focus Group Strategies: Winning and Successfully Settling Jury Trials" presents a comprehensive, step-by-step methodology for conducting successful jury research, but the Gordons describe their book as a "why-to" as much as a "how-to". They don't scrimp on specifying the elements important to a valid focus group, from location to time of day to vital members of the focus group team. And they provide ample justification for employing the "team of professionals" as opposed to a "do it yourself" approach for attorneys or clients who may think they can conduct a valid study on the cheap.

There was nothing cheap about my own jury focus group experience. By late afternoon (after a break for a catered lunch), my fellow jurors and I decided that the defendant had, indeed, infringed on the plaintiff's patent and were deliberating damages. We weren't aware of it at the time, but a team of trial scientists was analyzing every word, expression and raised eyebrow. After we settled on a damage figure, a psychologist and the attorneys interviewed jury members about their verdict while a statistician dissected our settlement amounts.

"Focus Group Strategies" is written for trial lawyers, but it would be just as useful for clients facing expensive litigation. Expensive as such a process probably is, an authoritative strategy for accurately forecasting jury outcomes has to tempt even the most tight-fisted CEOs and corporate legal executives.

The writing style and chapter organization are straightforward and clear, generally free of jargon, hard sell or shallow affirmations. But the lagniappe with "Focus Group Strategies" are the anecdotes about notable attorneys and noted cases that appear on virtually every page. The Gordons describe how their research strategies figured in the Texas tobacco settlements, the Phen-fen suits, the Occidental Petroleum refinery explosion and a dozen other cases of national import. (Attorneys who use the strategies successfully are named; those who don't remain mercifully anonymous.) These personal vignettes make "Focus Group Strategies: Winning and Successfully Settling Jury Trials" as entertaining to the layperson as to the legal professional. Equally fascinating were the discussions of how attorneys construct and polish a storyline for each of their cases, a storyline that can be tested and further refined by the strategies described in the book.

At the end of my day as mock juror I got a polite handshake, my parking ticket validated and a check for about twenty times the amount I would've earned for a day of jury duty down at the county courthouse. I don't know whether my jury focus group was conducted for the benefit of the plaintiff or the defendant, but, after reading "Focus Group Strategies: Winning and Successfully Settling Jury Trials", I know I helped some attorney come closer to crafting a bullet-proof case before he ever walked into a real courtroom.

I must admit to being somewhat ignorant of the behind-the-scenes exigencies of trial science, so I am pleased to report that this book tells me much I did not know. Gordon is knowledgable in his subject and his writing is engaging and accessible. I recommend it!

When I was in college, I took a course in "Law And Society," and one of our assignments was to conduct a focus group. Without a clue as to how it is done, we muddled through as best we could. If only I could have had the benefit of Dr. Gordon's book!
"Focus Group Strategies" tells you everything you need to know about organizing and running your own legal focus group, or any other kind of focus group for that matter (marketing, etc.). Dr. Gordon gives you the benefit of his 25+ years of experience in the fields of law and psychology.
As a matter of fact, "Focus Group Strategies" is a good read even if you're not putting on a focus group. I found it hard to put down.

Wamrm, fuzzy and shallow. No real insights into how verdicts are reached or how to persuade jurors faced with difficult decisions. Dr. Gordon is more humanitarian than scientist and the book fails to provide a look at the practical ingredients jurors might use in reaching verdicts in real cases.