OTLA Trial Lawyer Fall 2020

23 Trial Lawyer • Fall 2020 By Marc Johnston OTLA Guardian I ts 6:00 pm on a Friday. The judge orders pizza for the jury. The jury wants to continue deliberating into the evening, rather than coming back on Monday. That gives me a sense of relief. I am sitting in the basement street level of the Clackamas County Courthouse promising not to judge myself on the result, be it good or bad. The faces of my trial team tell me we did a great job and should expect a similar result. It’s the same affirmation I felt throughout most of the trial, and it matches my own as- sessment. But it’s misguided. If you try cases, you’ve been there. That pit in your stomach when the ver- dict fails to match your expectation. I set out to learn why, for this case and for every other case. In doing so, I made the Marc Johnston discovery that would make the differ- ence. The primary reason for disappointing verdicts is we trust ourselves, other lawyers, mentors and experts when understanding, preparing and delivering our case to the jury. Instead, we should trust focus groups and mock juries to help us understand what an actual jury will think of our case at trial. We rely too much on what got us this far: experience, intuition, mentors, CLEs and books. That works some of the time. But with- out the benefit of genuine juror impres- sions, reactions and decisions about our case prior to trial, we expose ourselves to case killing juror bias, misguided prepa- ration and we are unable to truly and deeply see our case through the jury’s eyes until after the verdict — and usually not then either. It leaves us partially blind. If we never discover, then we never know. I wanted to know, and that led me to focus groups. Focus groups are incredible. When done right, they provide insight into your case that only a jury can provide. They can guide your discovery, show you all the ways your case can be won and lost, hone your strategy and provide an in- comparable practice field all for less than $1,000 for a three to four hour session. Focus groups provide a keen line of sight of what a jury will do with your case and how to modify your strategy, mindset and presentation accordingly for success at trial. You can and should do your own focus groups — by yourself and with other lawyers. Focus groups are not the sole realm of the professional jury con- sultant. This is your realm! You will learn more and improve more rapidly by con- ducting focus groups on your own. It’s also far cheaper than hiring a jury con- sultant. My foray into focus groups began with taking the Keenan Trial Institute’s course on focus groups. Over this two- day course, I conducted several focus groups with live participants from the community. I would highly recommend this course, as there is no better way to jump start your ability to conduct and interpret focus groups. The course takes you from no experience to being able to conduct live focus groups on your own. Since taking the course, I have con- ducted focus groups for 25 different cases, and educated myself further on best methods and practices. Part 1 — the narrative focus group There are dozens of different types of focus groups. The most frequently used and most important is the narrative focus group. It is designed to uncover the jury bias that will kill your case. The narrative focus group seeks to find out what a juror already thinks about the most basic ele- ments of your case and shows you what See Focus Groups: Johnston p 26 G R O U P S DIFFERENT APPROACH