OTLA Trial Lawyer Fall 2020

29 Trial Lawyer • Fall 2020 it with the focus group and adjust my approach to the plaintiff ’s testimony ac- cordingly. You are your own jury consul- tant here, watching the focus group unfold the same way the jury will at trial. Stay neutral If you strive to win your focus group (trying to get the focus group on your client’s side) you risk losing at trial. You want a critical focus group that can freely speak its mind without fear of disappointing you. Only then can you learn all the ways you can lose your case. You hold a focus group to discover what you do not know, not to reinforce what you already believe. The purpose of conducting a focus group is to get accurate information about what a jury will think of your case. Anything less than complete neutrality leads to inaccurate information—and inaccurate information is worse than no information because your case is there- after guided by false information. While conducting the focus group, your words, eyes, face, expressions, questions and the time you devote to each side’s points must never give away whether you are for the plaintiff or the defendant. If you do, the focus group will give you the information you want to hear, not what you need to hear. Especially if the par- ticipants like you. Please don’t think this is easy. Most people cannot do this without practice and coaching. It is not in your nature to stay con- sciously and unconsciously neutral with everything you say and do. You are a warrior with a competitive desire to win this case for your client whom you per- sonally care about. It is in your nature to advocate for the plaintiff. But unless you have the discipline to stay incredibly neutral with the presentation of the neutral statement and throughout the focus group, your results will be flawed to the point they become unreliable. You must therefore approach your focus group without a desire to hear anything specific. During the focus group, be more like a scientist who doesn’t need funding, and who is studying for the sake of studying without the desire to accomplish a spe- cific result. Be like the Buddhist monk, who sits calmly in the face of shouting, violence or condemnation. Be like the boulder in the river that has not moved in 30,000 years, and rests without judg- ment or goal. Have no opinion — but facilitate, observe and record. Neutrality is paramount. Neutrality is also accomplished ad- ministratively. I run focus groups through my website oregonfocusgroups.com. That way, jurors do not know me or my firm until the focus group is over. This can also be accomplished by using an employment agency to staff your focus group. The focus group never knows this is my case. If the focus group likes you and knows this is your case, the partici- pants will tell you what you want to hear, not what you need to hear. Summary Learning to do focus groups is com- parable to taking up a new adventure sport — like whitewater rafting. Once you get past the idea that you will be solely responsible for navigating the whitewater, you dive in and take on the process. Once you have committed to conducting your own focus groups, the hardest part is over, and you get better with every focus group you watch, attend or conduct yourself. The journey is fas- cinating, and it will make you a far better trial lawyer. Marc Johnston is the owner of Johnston Law Firm, PC. He specializes in personal injury, insurance and civil litigation cases. Johnston is a member of the OTLA Guard- ians of Civil Justice at the Sustaining Member level.His firm is located at101 SW Main St., Ste. 1905, Portland, OR 97204. He can be reached at 503-546-3167 or [email protected].