Using Focus Groups to Find Case Values
Not sure about the case value of a case? Finding case values can be really difficult. Sometimes, cases are difficult to assess. Maybe you’re just not sure how to evaluate this case.
There are three sources lawyers generally tap into when it comes to evaluating cases. First, they could use their own experiences, which can be great, but at times, it can be limited. Maybe because they haven’t practiced very long, or maybe because the facts are unique or the case itself is unique.
Second, lawyers can tap into other people’s experiences either by asking other lawyers who have handled a similar case. They may also use a Listserv where they can ask other lawyers in the same profession or organizations. Third, lawyers could look into jury verdicts in their location or jurisdiction.
In this episode, I’m going to share another way of finding case values, which is by running focus groups, and learn how you can use focus groups to get the most reliable data possible.
In this episode, you will hear:
- Understanding there are different categories of ways to run focus groups
- Using focus groups to find case value vs. quantitative studies
- Some cautions to think about when running the focus group
- Striving to learn more but also questioning the reliability of the data
- Different factors that determine the success of a focus group
- The challenge to stay neutral as a presenter to gather reliable data
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If you have a question or a suggestion for an episode, please email me: elizabeth@larricklawfirm.com.
Episode Transcript:
Elizabeth Larrick:
Hello and welcome to a new episode of Trial Lawyer Prep with me your host, Elizabeth Larrick. Thank you so much for tuning in today. We are going to look at a frequently asked question in focus groups. I get this question pretty much every time I talk to lawyers about [00:01:00] doing focus groups and that is. I want to use a focus group to find my case value.
Can we do that? Or rather, this is one of the goals that I want to use this focus group for is finding the case value. And I get it, finding case values can be really difficult. Sometimes cases are difficult to assess. Maybe you’re just not sure. And in our usual ways of thinking about, well, how to evaluate this case or how do I look at what the value is?
We normally use our own experience, which can be great, but at times it can be limited. Not because of anything. of our own, but just maybe because we haven’t practiced very long, or maybe because there’s unique facts, or maybe it’s just a unique case or case theory or injuries could be just a case that’s first for you.
You’ve not done one of these before. And I haven’t practiced very long. And I had many of those challenges when I would get a case in and wonder like, Hmm, I [00:02:00] wonder how do I get this case value? How do I even look at this? Because I’ve never done this before on this particular type of case, type of client, type of facts.
So if we don’t have our own experience, we generally try to use other people’s experience. So we just go ask lawyers that we know in working in a firm or mid sized firm. You’d have other lawyers to go look at, or maybe the firm has a track record that you could look at. If you’re solo, then generally we use a listserv to ask other lawyers in the same profession or organizations, Hey, I’ve got this case.
What are the recent settlements? Or maybe has anybody gone to trial recently on that? That’s always a good way to find what other people have been doing. You could also use a database. Most of the databases are paid subscriptions to go find settlements or jury verdicts, which the one caveat to that is in most of the [00:03:00] time, most settlements are confidential.
So they’re not going to get to go into those databases and sometimes they’re not, but it’s a great thing to have. access. Don’t get me wrong. That was something that I never had. I had to go ask lawyers, hey, will you look this up for me? That is a great place to go. Also. I think looking at jury verdicts that you’ve had in your location or your jurisdiction is also a really great place to find what’s happening lately or has this ever been a type of case in your jurisdiction.
Just using other people’s experience is another way to find a case value. And again, using focus groups, right? These are our potential jurors, or we hope that they’re our potential jurors, or meeting the same demographics. And so we want to know what they think. We want to get those, hey, what is the value of this particular case with these particular injuries?
And as a side note, there is a whole [00:04:00] subset of focus groups that is totally focused on finding case value. And it’s very quantitative, meaning they do studies and they’ll run the facts and those kinds of things. So, um, yeah. Okay. So um, um, what are the most common places that you can find, um, a, a data point where you can find the number, where you can find, um, a G I D A T E N T test.
So this is a, a, a fitting for a number. And so, um, we want to know what are the most common places where you can find data on which you can find a data point. And so, um, we’re going to be measuring, uh, data points, and we’re going to be measuring how many of them there are. Um, and we’re looking at the quality of the conversations and looking at that way versus having multiple studies where it’s just basically kind of a numbers game, literally to figure out what [00:05:00] it is.
And a lot of times when we run focus groups. As trial lawyers, we generally put it into one category of a mock jury trial, which is totally fine. And those work really, really great. And that is definitely a place where you are going to ask that question of them. That’s something they’re going to fill out as that mock jury.
And we’ll talk a little bit about having that mock jury setting is really helpful to get the jurors that are. Focus group people in the mindset and creating kind of a level of seriousness to the whole focus group. But of course, in also thinking about the way that I think about focus groups, which is yeah, mock trials are one category, but there are lots of other categories of ways To run focus groups and not have to be like this giant time and money investment of a mock trial, we can dial it back and just do, you know, one hour and look at things a little bit differently and just use our time [00:06:00] differently and also be able to be a little bit more efficient overall.
So what are some of the cautions I would say, whenever I hear this, Hey, Elizabeth, let’s run a focus group. I want to know what they’re putting on the value of this case. And I always say, Hey, let me just throw some caution at that. Just because at the end of the day, focus groups are just paid individuals who are there.
They’re not really invested in the process like a jury would be. And it’s not really real to them. A lot of times when I run focus groups, I’ll always. Okay, well, tell us what happened now, tell us really what the outcome was, and I always just kind of laugh because I’m thinking like, why would we waste all of your time, all of our time asking you about things that have already been decided?
We don’t want to go back and do that. We’re asking you first impressions so we can go take this information and do things better. But again, that’s just the [00:07:00] whole process. Like it’s just fake to them. They think this has already been decided. They don’t really feel like they’re in part of the process. So, you know, it’s fake money to them.
You know, they could throw 80 million dollars out there. Like it just means really nothing to them. It’s monopoly money. And that’s half the battle of a focus group. Just generally you, you’re paying them to be there. There’s already an incentive. There’s already a slight bias. You’ve got to get over that hump of them knowing, hey, I don’t want you just to sit here and tell me everything I want to know.
And that’s part of setting that neutral tone. And the other part of it is they don’t generally have a framework for it. And that’s kind of where, when we use our own experience, we have a framework, when we go and ask other people, other lawyers, based on their experience, there’s a total framework to it.
The amount of explanation you have to give is very little, right? They’re coming from that same place as you are, versus here. In a focus group, you could be having a lot of people who’ve never served on a jury. And even if you’ve got one or two, [00:08:00] the chances of them serving on a civil jury on top of that, again, it just really goes low.
So, you could spend a lot of time working through what is the framework and answering questions and spending some time on things that really are not getting to, I need this feedback. Focus group, I don’t really want you to keep asking me about, well, where’s the insurance and, you know, why are these people aren’t trying to work this out?
Just cut to the fluff. So, they don’t have a framework. And that’s generally always the pushback you get in jury selection. We get the same question all the time. Well, I don’t think I can do it. I don’t know how to do it. I don’t want to do it. That’s what we’re hearing and focus groupers generally will say, yeah, I don’t know how to do this.
Can you just tell me, do we just multiply by three or what are some other verdicts, uh, can you tell us about that? And again, they’re just trying to grasp this framework because in a focus group, we don’t have a lot of time to give that framework. And that’s at the end of the day, what I always want to let people know is we [00:09:00] can strive to learn more, You really need to be asking yourself, how reliable is the data?
How reliable are the numbers the focus group is giving you? And you have to be so careful and methodical. in your presentation to make sure that you’re not going to end up tripping the wire of the bias, right? There’s so many landmines out there in presenting to focus groups that if you tip your hat one way or the other, now you’re really worried about, is this really reliable?
Are they really just telling me what I want to know? So how confident can I really be in these numbers? And what I always tell lawyers is it’s think of it as It’s one of the one of the factors, right? Coming up with a case value, right? Let’s tap into all three of these sources, our own experience, right?
Our own trial experience. Tap into other people’s [00:10:00] experience. What have other lawyers done? What are other jury verdicts, right? And then here’s our third. Place to tap into, which is focus groups, potential jurors. All of those things need to be squished together, right as our data points to look at and then be able to feel, okay, alright, I’ve got more information.
I can now pick a number that I’m gonna feel confident and I don’t feel like is a risky number if I’m gonna get it from the jury and say this number. Now, just pause here for a second. There’s a whole other train of thought out there that says basically, you just come up with the number and you feel confident in that number.
And I totally think there’s a place for that, but my mind and the way that I work, I want more information. I want more data. I want to make sure that I’m looking at what potential [00:11:00] jurors Are thinking now and what they’ve done in the past with jury verdicts. There’s totally a different way to do it, but In keeping with kind of this particular podcast thinking and my thinking, which is, hey, let’s gather in all this information to let it help us create this number that we are going to give at mediation, or the number that we’re going to give at trial, which I suggest you could be two different numbers and probably are two different numbers, but at the end of the day, it’s a factor that goes into it because what you move.
Want to be asking yourself is okay. I’m gonna walk in this focus group. Do I know how to make this situation? feel real to the focus group meaning How do I get them into the mindset that what they are telling me or telling this? Speaking about the focus group is real It has real impact to the players because the more real it feels to them the more like wow My what I’m [00:12:00] saying is important and people are gonna listen to it and it’s it’s real It’s going to be taken into account, the more that they put thought into that number.
And it’s why you really have to try hard to make it real to your focus group. And do you really, do you know how to do that? Do you know how to provide enough information, but not too much information? So many times, this is always a teeter totter, right? Did I give too much? Did I give too little? How will I know?
Well, if you give too much, then generally you run out of time. That’s one of those things. If you give too little, then you’re dealing with too many questions. You’re not getting to the heart of the matter. So, do we really know how much information to present to get This number. Do you know what questions to ask to test the numbers with them together?
And that’s just to see okay. Well really we want to know what’s behind the number, right? So, okay, you’re telling me five million, Robert. [00:13:00] What, where does that come from? You really want to know and then test it against somebody else’s number. But do we know all the questions that we can ask to really test it to make sure did they actually take time or do they just throw something out there?
Or what also happens in focus groups is they just sit and read the chat or listen to somebody else and just say, okay, well, what they said. Okay, well, uh, yeah, I’ll take that number too, right? That means they’re not putting any thought into it, which can be very frustrating. And there are ways that we can use a private chat to make sure that nobody else sees it.
We can use breakout rooms to make sure that those conversations are private, and that’s, again, those are great ways to make the situation real, to test the information, make sure that it’s something really thought about, that it’s time consuming, of course, but also, can you truly be neutral as a presenter, as a moderator, to avoid swaying them, stepping on one of those landmines, or having the participants realize, [00:14:00] oh, you, you are involved here, because if they know that you’re involved, You’re automatically raising a flag to them, they’re either going to be saying things that they think you want to hear, which may not be their inner truth, or they’re saying things to the extreme opposite, which is like, oh, now that I know that you are a trial lawyer.
And I don’t like trial lawyers. Like, I’m going to go to the, to my extreme position. Maybe I’m always pretty in the middle and, but I’m going to go to an extreme. So either way, you’re really not getting reliable data and it’s money we’re talking about here. All right. Money just in general makes people nervous.
And now we’re asking, well, give money for an injury. And that’s a whole different principle that we’re asking people just to, Hey, can you just jump over that hurdle? And let’s talk about money. So again, Trying to be neutral is a whole nother part of it when we’re asking about, Hey, how much can you give?
Hey, how much money are you going to assess here? So [00:15:00] let me just run through an example because this happened recently. Running a focus group, I am running a focus group for another Um, and then we’re going to test damages and we’re going to try and get all that done in an hour, which was quite the feat.
We realized we needed more time, but we had done a focus group previously, but tested liability to the max and we’ve got over that hurdle. So in, in coming through material for this focus group, we really kind of skinny down liability. It’s a commercial vehicle case. It happens at night. And. I have presented this case before, so I know a little bit about it, but we’re working in front of the second group with liability, and the group gets stuck, meaning they’ve got extra questions, and they are getting very confused on the information, and at the end of the day, the group has really stuck 50 [00:16:00] 50, so 50 percent responsibility on the commercial vehicle, 50 percent on the other vehicle.
And as a moderator, you kind of got to be thinking on your toes and know, okay, do I proceed forward with my original presentation and we just start straight into damages and say, Hey, here’s how this guy got injured and how much money. Or, do I need to pivot? Do I need to switch? Do something very different to make sure that I am remaining a neutral party in this thing.
Because here’s what can happen very easily in a blink of an eye. Is if I turn and said, okay, now we’re going to look at how much money you’re going to award. They’re going to be thinking, well, Elizabeth, didn’t you just hear us? We don’t think, we think it’s this guy’s fault. We’re not going to give him anything.
You know? Okay, so, because that would be a waste of a focus group. So, you want to make sure that it is Depending on the feedback you’re getting, how [00:17:00] do I make sure we can have reliable data on the value of the case? So I did an instant change of direction. I did a pivot. And what we did was, we looked at the injuries through the mechanism of harm.
Meaning, okay, here are injuries. Tell me how this happened to this guy. Let’s look at these pictures. Are these injuries you would expect? How could that injury have happened to this person? What would you, you know, what would you expect the recovery to be, the impact of it? And then we turn to his inability to work.
Right. So he had this injury to his right arm, but now he can’t, he’s got arm weakness. He’s got, and does that make sense? What are we missing here medically that you would need to see? And then, then we stepped it into talking more about the money side of things, but again, keeping the cover of hay. This guy had this injury, he’s not able to work, he can’t do [00:18:00] X, he can do Y, but he can’t do X.
I mean, he can’t do annual labor, and he’s 27. So, could you allow a lifetime of lost earning capacity? Now that’s a great discussion, and we totally, what would you need to see and understand, and for a lot of people, the hang up was, he’s 27, he can go back to school, he can go retrain and do something different, and Uh, the divide on that was not completely shocking, but a little bit.
Our younger jurors said, Hey, you know what? It’s the era of the internet. If you want to learn to do something different, just go look it up on the internet. Most of the time you can learn how to do it for free or it’s a lot cheaper than going to college. And a lot of the, my older jurors said, well, no, if he, he needs to be, this is the injury and he can’t do the job that You know, he was making good money at, and he can’t find a job that’s even remotely similar because he can’t [00:19:00] do manual labor, then no, he needs to have a lifetime of lost earning capacity.
But that’s a great discussion. Gosh, that’s a huge part of damages. So, that information was To me, extremely valuable because we’re listening to basically what would be a deliberation on, okay, give them a lifetime of lost earning capacity or not, right? Past or future. What is it going to be? And what are people’s attitudes and thoughts and experiences?
What’s going through their mind? Great discussion. Do we really need to know what the number is? No. It could be a million, it could be 40 million, but That’s not the hang up. The money wasn’t the hang up. The money was his age. Could he go retrain? Could he go get re educated on something else and make more money?
And manual labor is making 35, 000 a year, so people are like, well, yeah, go do something on the internet. Make a whole lot more money than that. So, good [00:20:00] discussion. And, you know, what I gathered from that in the sense of Moderating and putting the focus group together was, I did not want to push them to get numbers.
How much money would you give for this traumatic brain injury? Because they would totally see I’m disregarding their 50 50 on liability and that basically I don’t care what they’re saying on liability because I want to talk about money. Let’s talk about this money. And I just, I always want to provide reliable information at, at all costs.
Because if you can’t rely on a focus group feedback, You just flush time and money down the drain. You can’t get any, you can get money back, but you can’t get your time back. And that’s just frustrating. We want to use focus groups to remove surprises, to find assumptions, to know how people think and feel about a lifetime of lost earning capacity for a 27 year [00:21:00] old.
Or a 6 year old. So whatever the age may be, what are their thoughts that’s going through their mind so that you can either Ask about it in jury selection or just know that it possibly is there and you talk about in closing. So, all in all, right, using focus groups for case value, finding that case values.
Definitely always put up some caution lights, right, just to let people know that, hey, it should be a factor. Focus groups can help you learn about damages. Understand what is on the jurors minds when you are talking about damages. These type of injuries, lost earning capacity, lifetime medical care, the cost of lifetime medical care, what is confusing to them about those things, or the numbers.
You can ask people to look at numbers and just talk to them about it without saying, well, how much money would you give? Because knowing [00:22:00] what’s on their minds when they’re seeing those numbers is just as important as how much that they’re going to give. Because you got to navigate that part of it.
Right. Before they write that number out, you got to navigate what’s on their mind. So I think it’s totally a factor, but again, we, you got to make sure that we are getting reliable information feedback we can rely on. And just knowing that it’s one. What’s one tool that we have in our arsenal to help us understand more about case value for our case?
So I hope this podcast episode was helpful. I have a feeling that we will be revisiting this topic multiple times because it comes up often or frequent and there are lots of ways that we can look at how to test And make the situation real for focus groups, because I know that this is a factor. We should be using focus groups to help us learn more about damages so that we can know how to talk to jurors about it and to feel confident when [00:23:00] we ask that number in the courtroom.
All right, thank you so much for tuning in. If you enjoyed this episode, please leave me a rating on your favorite podcast. Leave a review. That is how people can find this podcast, if it has ratings. So please go do that for me today. If you have any questions or you have any suggestions for a podcast episode, I would really appreciate that.
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