In this episode of Civilly Speaking, host Sean Harris talks with John Camillus, a trial attorney and co-founder of Camillus Trial Consulting. As an attorney and co-founder of a consulting company that specializes in focus groups, John shares a unique insider’s perspective on why they are an important trial preparation tool in an attorney’s arsenal.
Sean: Hello I’m your host Sean Harris, and this is episode 49 of Civilly Speaking, brought to you by the Ohio Association for Justice. Today is June 26th and I’m here with our guest, John Camillus from Columbus. John, thanks very much for joining us here on Civilly Speaking.
John: Thanks for having me, Sean. It’s good to be here.
Sean: Our topic today is focus groups and we all kind of know that term, but when you talk about focus group, what’s the point? What are you looking to get out of a focus group?
John: Sure, Sean we could spend our entire time today talking about the different things you can get out of focus groups, right? I mean, the possibilities are really endless, but when we think about doing focus groups, most of the time, we’re looking at a couple of different things. One is figuring out what jurors already know and what they don’t. One of the most important things in trial is to fully explain without over explaining. Right? If you don’t fully explain your jurors, don’t get it. If you over explained they hate you and you’re condescending and they’re bored, you don’t want either of those things.
Sean: It’s a balance.
John: It’s a balance, both of those things could be fatal to your case. And it’s very hard for most of time, for us most of the time, especially in relatively complex cases where we have to explain a med mal case in a products case when there’s stuff that really needs to be explained, technical stuff. How deep to go into it, how much we need to explain for them to understand or what kind of things will work. So one of the ways that focus groups can really be effective is to figure out what jurors understand coming in, what they don’t, and what kind of explanations or works that you can go into at a trial and know that when I make the presentation this way, I say this, you know, three times, that’s good enough. And then you don’t have to do the over explaining, you don’t have to worry that you’ve under explained. So that’s one big thing. The other big thing is it isn’t something that people think about all the time and that’s finding the holes in your case, a good experienced trial lawyers are very good at recognizing problems in their cases and knowing what the defense arguments are going to be, but nobody’s so good that they get all of them, right? Jurors always come up with stuff that we don’t anticipate. And focus groups can be a great way to sort of issue spot find warts in your case that you didn’t even know were there and you would have never prepared to address a trial if you hadn’t. And then, of course, the next step is once you’ve, once you’ve identified the warts in your case that you can identify on your own and identified some more through focus groups, is to use a focus group to see if you can address those warts in a persuasive way. Okay, I know these are the problems in my case. I know the defense is going to hammer me here. This is going to be my response. Is that effective? Because then you get in front of your focus group, try the response, see if it’s effective at hitting that hole in your case or if it isn’t, then you got to come up with something different.
Sean: And by the way, we’re talking about what most folks would consider, quote, concept focus groups, right?
Sean: But that’s not the only type.
John: No, I mean, there’s one hundred different ways you try to parse out what type of focus group, as I think most of those distinctions are a kind of fluid. Right? They’re not, we think about focus groups in terms of you can kind of think of it on a spectrum on one end of the spectrum is what you might call a concept focus group or some people call a narrative or conversational focus group. You have a discussion with them. You sit down and you say Sean Harris has sued Dr. Smith for medical malpractice and folks, we need you to figure out whether Dr. Smith committed malpractice or not. What else do you need to know? And you start answering the questions about the case.
Sean: Open ended questions.
John: Open ended as can be. You let them take the lead. Certainly, over the course of the day, they’ll have things that they don’t ask about that you want them to know that you weave in, but you start off by just letting them run it, answering their questions. And you can learn a lot just by what their questions are. Right? And then, of course, how they’re responding to the answer to those questions and so on, so forth. At the other end of the spectrum, you have what people generally refer to as an adversarial focus group. This is something that approaches or maybe even is the equivalent of a mock trial. You have, you know, lawyers in there representing both sides, you do presentations of evidence, you do openings, you do closings, mostly the focus groups just there watching and then you let them deliberate and you can do anything in between, you know, including sort of a presentation of evidence type thing, you know, where you have an opening for one side and then you talk to them about what do you think of the case now? Then you have an opening for the defense. Okay now, what do you think? Then you play some clip from a deposition. Okay now, what do you think? Right. And so you’re kind of doing it in sort of a trialy way, but you’re picking their brain all along and there’s lots of other things we can do. I mean, sometimes we set up focus groups where we’re trying very hard to lose or at least lose at the beginning. Right? We get very conservative jurors. We initiate the presentation, emphasizing the defense strengths so that we hopefully have the entire focus group against us. And then we spend the day trying to bring them to the good side and seeing what, if anything, can get them there. So.
Sean: I’m always amazed when you talk to folks in a focus group setting and you talked about this earlier, the things that they focus in on that they think is important, that A is really not important, but they think it is so it is and B, that you and I and lawyers would go, I had no idea they would think, yeah, whatever it is, some minor detail.
Sean: And there’s value in that.
John: Huge value in that. There’re lawyer facts and there’s jury facts, right? And we lawyers think about lawyer facts because it’s how our messed-up brains are wired to begin with and then to the extent that we thought like normal people got beaten out of us through law school and through the practice of law and dealing with summary judgment motions and dealing with other lawyers and judges and everything else and so that’s part of the value of focus groups is because it gives us some perspective on how other people, lay people think about these things and stuff that matters to them that we would never in a million years anticipate. I’ve done countless focus groups at this point and every single time they surprise me, you know, I’ll give a lot of thought beforehand to what are they going to focus on where they only care about and I’ve yet to do one where they haven’t surprise me with something that matters to them that I would have never in a million years been able to come up with.
Sean: So how do you, in your practice, end up conveying the results of the focus group to the client?
John: Yeah, its client meaning the lawyer that’s retained us to do a focus group.
Sean: Oh, okay.
John: Is that what you mean?
John: Or the client, meaning the plaintiff?
Sean: The plaintiff.
John: Well, okay. So, we almost never let the plaintiff be there for the focus group. They will sometimes, we will sometimes have our client come in for the focus group to actually testify.
Okay, we’ll do a mock direct and a mock cross and usually follow that by or sometimes in lieu of the mock direct, mock cross, we just bring the person in. Here’s Sean, he’s the guy that got injured in his car.
Sean: What do you think of him?
John: What do you want to know? Talk to him. Ask him whatever question you want. Nothing is off base and let the focus group participants ask the plaintiff stuff, then get him out of the room and then say, what did you think? Right? And have a conversation about that.
Sean: And by the way.
Sean: You started off by saying, generally, you don’t have the plaintiff in the room. Tell us why.
John: Well, they usually want to be there, but it’s almost always a bad idea. Everything that, it needs to be filtered through the lawyers, everything that comes out of the focus group that you want your client to know, you can give to them, including a video of the whole damn thing if you want them to actually see everything. But there may be things that come up that trouble them, that worry them, that offend them, that they will take to heart too much, you know, and sometimes even there are focus group participant responses that you know from your experience doing focus groups or whatever that is just off. This is a one-off thing, this is one person, this is not something I actually need to worry about. But your client isn’t gonna understand that and they might worry about it. Say they overreact to these things a ton. They’re worse or just as bad, if not worse than most lawyers at being straight faced in trying to be neutral or whatever. Usually the focus group participants can figure out who they are. There’re all kinds of pitfalls with having your client there.
Sean: And when the focus group figures out who the client is in the room, they start tailoring their answers.
John: It skews everything. You can’t rely on their answers anymore because they’re not being objective anymore for sure.
Sean: So, here’s the a sixty-four-thousand-dollar question, perhaps more on a bigger case, can a lawyer do his or her own focus group for their own case?
John: Okay. Well, I’m fully aware that I’m talking to somebody who just gave a presentation on how lawyers should be doing their own focus groups all the time. And I’ll tell you that I partially agree. For one thing, it matters who the lawyer is quite frankly. I have focus group cases for lawyers and have told them at the end, don’t hire me to do another one, at least in this case. You got it. Do the rest yourself. There are other lawyers who I would never in a million years tell that to. Okay? And some of those lawyers who I think should never be focused grouping their own cases are great trial lawyers, great trial lawyers. But it’s a different skill set and you can be a great trial lawyer and not have the skill set to run a focus group very effectively, quite frankly, or have the experience to do it.
Sean: Because the danger is, if you can’t take off the advocate’s hat…
Sean: And you try and quote win the focus group.
Sean: It’s worthless endeavor.
John: That’s one of the dangers, certainly and a lot of great you know, great trial lawyers are great advocates and a lot of great advocates have trouble not being great advocates. And you’re immersed in your case and you’re passionate about your case. You care about it. So, it can be hard to be objective both on the front end and on the back end and what I mean by that is not only in the way that evidence or the case is presented to the focus group that can be slanted and problematic, but also in interpreting the focus group. When you are that invested in a case, a lot of times there’s a tendency, a very natural tendency to hear what you want to hear, right? There is one focus group participant says something that confirms what you thought coming in. And you’re like, yep, the focus group agreed with me. I knew it all along, right? But no there were seven others saying, no way, that’s crazy and you kind of ignore them. I mean, that’s an exaggerated example but the point is there’s an art to these focus groups and it’s not just how they’re presented, it’s how they’re interpreted. Right? The interpreting of the focus group, what are the takeaways and how do I implement this into my trial strategy or my discovery strategy or whatever it is. That’s what’s really critical. And there’s a certain objectivity that you need to have that’s hard to have when it’s your case. The biggest advantage, of course, of doing your own focus groups is that it’s so much cheaper. You don’t have to pay anybody else to be there and that’s great and for that reason, there’s a huge benefit to it, but I would say a couple of things. One is you can there are specific ways to run a focus group when you’re doing it yourself that restricts your ability for your bias to come in. For instance, you can do an isolated focus group that’s just an hour or two where you practice your opening. Right? Bring in eight people, have them, you know, have them there for an hour and a half. Do a 45-minute opening, a real opening like the one you’re gonna give in your trial, have them all take a survey to see what they think before they start biasing each other and then talk to them and say what you think, what’s missing? What didn’t you understand? What was persuasive to you? And then be done. Right? And your presentation is you still have these problems about are you interpreting their response fairly, but you don’t, you’ve taken, you’ve gotten rid of the problem, potential problem of did I present this in a skewed way because you intended to and there’s value in that focus group. Another way to deal with avoiding high cost of focus groups is to do them yourself, but not really do them yourself in the sense that you just call up a buddy. Right? We’ve all got friends who are trial lawyers and we say, hey, let’s get a focus group together. I’ll take the morning, you take the afternoon, the mornings my case and you talk to them and the afternoons your case and I talk to them. Right? And then you get to be there. You get to witness it. You know, you do it for you know, you’re doing the morning for your buddy as a favor. He’s doing the afternoon for you to return the favor. And then you also get a little bit of the two heads are better than one thing. Right? Because that’s another drawback of doing your own focus groups is you don’t get input from somebody else.
Sean: But what I like about that approach to is so often we kind of go, yep, I did a focus group check that off. Right? But as if you can get only value from doing one, but you start to see patterns.
Sean: Right? And most cases probably aren’t big enough these days to do, you know, multiple focus groups.
Sean: There are bigger cases out there, but on the smaller cases, even if you can get, you know, in your situation back to back on two different cases where you start to see patterns, where you start to see people saying similar things about, you know, whether it’s about plaintiffs or the civil justice system, whatever it is, you start to, that’s more information.
John: Yeah, there’s no question about that. There’s an inherent limitation in focus groups because of the size. Right? You cannot have a focus group of 100 people because you can’t get you can’t talk to them all, you can’t have an interesting conversation, whatever. But when you have, you know, four, six, eight, ten people, you have a small sample size. Right? Now sometimes that doesn’t matter in a sense, I mean, you can get stuff from those small focus groups that’s really powerful. If two out of your seven people are concerned about this, you know there’s a real risk someone on your jury is. And sometimes that focus group participant and in six person focus group comes up with some fantastic theme or some fantastic analogy. You don’t need one hundred people you got that great thing from that one. But there’s a sample size issue. Can you be confident, right? I focused group this to a focus group of seven people. They were six to one in my favor, I feel really good about where the case is going to be. That’s a mistake for a number of reasons, but one of the big ones is sample size, right? So yeah, to the extent that you can run multiple iterations of focus groups, you’re in real good shape and the cheaper you can do them, the more you can be able to do a bunch of times. And doing one with a friend is that way or the or the opening one, I mean I think that one thing that’s really valuable do is as you get close to trial, get your opening all the way prepared. Do one of the focus groups I talked about earlier, you know, for an hour and a half, you pay. Call up a church and say, hey, if I donate two hundred dollars to your church, can you give me a room in your basement or wherever you people can gather and have six to eight people show up. They will say yes every time. Okay, you go there, you have six to eight people from six to seven thirty. Maybe you buy pizza or something. You give your opening and you get their feedback before you get their feedback you have them all take a survey on a scale of one to seven. You know, how confident are you that my side should win essentially. You’re opening is not ready until you get all sevens. And so, if you go and you do it and you’re not getting all seven, you take their feedback, you tweak your opening and you do it again and you do enough in advance of trial that you’re ready to go and you can do that on your own. And if you’d need ten of them, right? Which is a crazy high number it’s going to cost you two grand. Right? So, there’s definitely ways to take advantage of that for sure.
Sean: You mentioned earlier the idea of interpreting the feedback and the results which is critical.
Sean: It’s one thing to have it, it’s another thing to know what to do with.
Sean: And you and I had talked a little bit about this at convention, the idea that all human beings, including jurors, don’t always fully understand the reason that they make decisions.
Sean: That is the idea of cognitive biases, these mental shortcuts that we all employ subconsciously without knowing that they’re being employed and so, you know, the risk in asking a potential juror or a focus group member, why did you think X is important, is that they’ll tell you why they think they thought that was important, but the real reason is more difficult to get to.
John: That’s right.
Sean: So how do you get to the real…
Sean: Decision making?
John: So that’s a great question and the answer is generally, you need to be getting feedback from them all along.
Sean: At multiple points.
John: At multiple points and you rely more on when they change than why they say they do. Okay, so in a typical focus group that we run, of course, you know, there’s not necessarily a typical one, but what we generally try to do, is we try to be fairly discrete in terms of rolling out what we think are important facts, even in a concept focus group or a conversational focus group, hey, this is what the case is about. One sentence. What else do you want to know? If they ask something, that’s going to be what we think is the second big deal in the case, we don’t answer it yet. We say, hey, great question before we answer, let’s take a survey. Okay, everybody’s got binders in front of them and we tweak the surveys depending on what the case calls for, but the surveys generally look something like this. What don’t you understand right now? What’s confusing to you? We ask them, is this a plaintiff’s fault in some way and why? Because they always find reasons to blame the plaintiff.
Sean: It always is.
John: And then we say, you know, on a scale of one to seven, where are you? Where one is strongly for the defense and, you know, three is slightly for the defense, all the way up to seven being strongly for the plaintiff. And then we can go back afterwards and we can look and we can say, okay, when they knew A they were strongly defendant, when they knew B, they were strongly defendant, when they knew C, they were strongly defendant, when they do knew D, now they were pro plaintiff, okay, whatever that D whatever they learn between that third survey and that fourth survey is really important. And then you don’t have to rely on them to tell you afterwards because if you talk to them at the end of the day they’re probably not going to tell you D because they don’t really understand why they thought what they thought. But if you parcel it out finely enough, then you can figure it out based on where the change is. You know, the same thing goes for damages. Focus groups are not great for evaluating damage.
Sean: I was going to ask you about.
John: Yeah, we can talk about it a little more, but the first point I was going to make was just that even though, they can be pretty hard for evaluating damages, they can be very helpful for determining what matters for damages. Right? So, if you’re taking these surveys and you’re saying how much would you award? It doesn’t really matter if they’re saying a hundred thousand dollars…
Sean: Because they’re not getting the full presentation.
John: They’re not at all. And they don’t have any they don’t have anything to relate it to. It’s kind of just pulling number out thin air. But when you ask them once and they tell you a hundred thousand dollars and you ask them again and they still say a hundred thousand dollars, you know what you talked about in between didn’t move them. When you ask them again and they say two hundred thousand dollars, you know that what they heard in between is something that moved your damages up. You should not put much stock in the fact that it was one hundred and then two hundred, but you can put some value in the information that your number went up when they got this further information, right? There are ways to try to hit damages that give you some sense. Lawyers would be mistaken to put too much stock in the numbers that focus groups are giving them, but there are some ways to do it and one of the ways that we’ve been doing recently in a lot of our focus group, and I think it’s helpful, is if you’re going to do this, you can’t talk about damages numbers before you get here, because then they get tied to and anchored by the numbers that they’ve already written down or talked about or whatever. And we never tell them who we are or what side we’re on because it biases the case.
Sean: I’ve been trying to say I’ve been hired by the parties.
Sean: Just leaving it, hoping that they think that both sides want to know that I’m somehow a neutral.
John: Right. Yeah. And I think that’s great. Sometimes we just don’t even say anything. And they don’t ask. Or they asking, we’ll say we’ll talk about that a little bit and just kind of blow it off or whatever, but sometimes yeah by both parties. I prefer to avoid lying if I can.
John: But I will lie about this if I need to, right, because they cannot know which side you’re on.
But then what we do is at say four o’clock. Let’s say it’s a full day focus group. It’s 4:00 and we say either sorry I lied to you earlier or we didn’t tell you this, but we’re here on behalf of the plaintiff. And the reason we are here, even though this is not the only reason you’re here, it’s probably not even true, it’s again, it’s a lie that’s worth doing. The reason why we are here is because the defense has offered 1.25 million dollars to settle this case or four hundred thousand dollars or whatever it is and we need to advise plaintiff Johnson about whether or not to take that number. Okay. And usually that number is not a number that the defense is actually offered. It’s just a number that we throw out there. It’s like what I will tell lawyers who hire us, do focus groups for them and for taking this approach is what’s your B to B+ verdict, not your absolute home run, but a nice solid verdict that you’d feel good about and whatever. Take that number and use that and say 1.2 million dollars with defense’s offer. Should we tell so-and-so to take it? They’re going to listen to our advice and we’re relying on you for this, because what that does is it makes it real money. Right? Because one of the big problems, the thing that you can never quite replicate in a focus group, jurors think they’re awarding real money. Focus group participants know they’re not. Right? They know that they’re not going to say this case worth three million dollars…
Sean: It’s play money.
John: It’s play money. It’s monopoly money. Right? But you put this settlement idea and they said they know it’s a real case. Now you’re kind of putting your cards on the table and saying, look, we’re advising the plaintiff about this. Should she take eight hundred thousand? It’s real to them. Right? And does that mean that, you know, you’re one focus group of six people is going to hit the nail on the head of what the jury is going to do? Of course not. But it does give meaningful insight into damages for a case. So that’s one way we’ve been approaching it.
Sean: I like that technique of making it real.
Sean: Even if it’s fake.
John: Right. It’s got to be real to them. Right, that’s what matters. And there’s ways to kind of get at that.
Sean: I wanted to go back and this may be a minor point, but it caught my attention that you said when you’re taking polls with the jury that you use a scale of one to seven as opposed to one to ten.
Sean: I assume that’s deliberate.
John: Yeah, it’s deliberate because couple things. One to ten gives you nothing in the middle. Five is closer to one and six is closer to ten. We want to give them the opportunity to be right in the middle. So, if you look at the kind of psychology studies have this all the time where it’s called the Likert scale and it’s always one to an odd number. Okay, and we just think one to five is not enough. We want to know, what was basically if we do one to seven, we get strongly for the plaintiff, moderately for the plaintiff, slightly for the plaintiff, neutral, slightly for the defense, moderately for the defense, strongly for the defense. That gives us enough of a sense of where they are one to five wouldn’t. It’d be, you know, strong or weak, but…
Sean: Too much wiggle room?
John: Too much wiggle room. One to nine, one to eleven or stuff now it’s too many options and the distinctions don’t necessarily mean anything. So that’s the way we do it, one to seven every time.
Sean: How about timing?
Sean: When’s the right time in a cases life to do a focus group.
John: Yeah. The answer totally depends on what you’re trying to get out of the focus group. But it’s never too early, never too late. We have focus group cases before we’ve even agree to take them on. And we’ve had lawyers hire us to focus group cases for them to determine whether or not to take it. Think this is a good case, I got one or two real problem, let’s talk to a focus group about it and see if we think there are ways to overcome these. And we focus grouped cases, you know, the week before trial to be getting them ready for trial and everywhere in between. Usually the approach to the focus group and the goals of the focus group are different depending on where you are, right? We talked earlier about jury facts versus lawyer facts, right. One of the things, the earlier your focus grouping a case the more you can know the jury facts that you might not anticipate and do discovery into them. Right. Because sometimes there are things in a case a jury’s gonna care about that you would have never anticipated by time it comes to your attention and a focus group that you’re doing six weeks before trial, it’s too late to go do the discovery that’s going to reveal the answers that the jury wants. Right. Our focus groups tend to this is a generalization it’s not always true, but we tend to be more conversational and concept focused groupie on the early end the earlier we are in the lifecycle of a case and more adversarial and mock trialy the closer we get to trial. I know if you’re a month out from trial, then, you know, you want to know whether your approach, how likely your approach is to work, whether the holes you’ve identified, whether your approach is actually covering them up well or not. It’s not going to do you a whole lot of good do some of that sort of initial stage exploring at that point time so depends on the goal of the focus group and everything else that depends on again, too, if you’re going to do, if you Sean, if you called me up and you were taken on a new case and I got it, I got a new client yesterday, I think the case is good, I’d like to do a focus group, but I can really only afford one focus group on the case. When should we do it? That’s a totally different question than, hey, you know, I’ve got this huge case I’m willing to spend a good amount of money focus grouping it throughout. You know, I think I’m I want to do eight, ten, twelve focus groups in this case, how should we structure them and how should we lay them out? You know, but the answer is there’s never a wrong time to do one. Sometimes there’s an optimal time and that depends on the kind of case and where you are at and what you’re trying to get out of it, but there’s never a wrong time. You can always get benefit from.
Sean: Yeah, I know. And that’s certainly the way I’ve started do it, but I remember when I started out the idea was you did it in that week or two before trial and go okay, now I’m going to tweak, tweak what I’ve got already, but your kind of limited in that regard.
John: That’s right. I don’t want to make it seem like that focus group would not have any value. It would. But yeah…
Sean: It’s just different
John: That’s just different. All right. And there’s other ways to use them, right? Traditionally, a lot of lawyers and plaintiff lawyers, that’s what they thought of, okay, as I’m getting ready for trial, I’m a week two week, three weeks out, let’s do a focus group and see and that’s fine, but there’s lots of other ways to use them and benefit from them by using them earlier in the case, for sure. I would encourage everybody do as many focus groups as I can’t every time I speak at, you know, plaintiff lawyer’s convention and stuff about focus groups, I try to end by saying, you know, I want everybody to get better verdicts. Right. That’s the goal. That’s what we’re in this for at the end of the day and better verdicts drive better settlements in our cases that don’t get tried and everything else. And, you know, we do this, Sean. So, I mean, I’m a trial lawyer. I spend most of my professional time, you know, litigating my cases. I do the trial consulting practice with my wife, who’s a Ph.D. psychologist and we have a couple another lawyer, and another Ph.D. psychologist working with us now. But, you know, I will never hesitate to help out another OAJ member, another plaintiff’s lawyer with one of these things. And we’re happy to do it and be hired and, you know, work with you and charge you a fee and spend our time on the case, but I’m also happy to just the same way anybody on the listserv would do somebody else a favor and say, hey, call me up I know this judge or I’ve dealt with his issue or here’s my brief. You know, if you’ve got a case that you want to focus group and you don’t want to spend a bunch of money on it, you want to do it yourself, but you don’t even know where to get started, call. Right. I’ll take half an hour and walk you through it and talk to you about the logistics of recruiting people or what you need to say when you advertise or how to best get the most value for what your goals are in that two-hour session. Not send a bill or anything the same way I’d share my experience with Judge so-and-so with anybody else. So, for any OAJ member or plaintiff’s lawyer anywhere that is listening to this, I would just encourage you, I couldn’t encourage you more strongly to use focus groups. I think they are really the most underutilized tool in our arsenal and if you don’t know where to start now, even if you don’t have the money spend call and I’m happy to talk somebody through things and you know, at no charge because this is something that once you start doing you’re not going to stop. You’re not going to stop.
Sean: It’s a wealth of information.
Sean: John Camillus, thanks very much for being here today. Appreciate it.
John: Thanks for having me Sean, it was a pleasure.
Sean: And thank you to all our listeners out there. If you like our show and want to learn more, check out civillyspeaking.com and leave us a review on iTunes and we’ll see you here on the next episode of Civilly Speaking.