One of the most important, and elusive, things a trial lawyer wants to know is what juries think.   Just by asking the question, we reveal our ignorance because there is no such entity as “juries”, each jury being a world onto itself.  But as much as we try, and often believe, that we have some clue as to who we want on a jury (or more truthfully, who we do not want), we are never able to truly appreciate the dynamic that happens when the jury room door slams shut.

And so, I can appreciate the efforts of Anne Reed at Deliberations in her discussions of focus groups.  If you’ve never had the pleasure of watching a focus group, it is one of the most amazing things you will ever see. 

There is one significant difference between a focus group and a jury.  A focus group has a moderator, who theoretically leads the group.  The moderator should be neutral, however, if the group is to go where it wants to go, and should avoid influencing the group’s decision in order to maintain the integrity of the process.  Even so, the moderator must rein in the group when it goes into some very weird and unanticipated places.  And you cannot believe the places where a focus group can go.  So imagine where a jury, lacking a moderator, can end up. 

Reach back into your fond memories of Sociology 101.  Remember the “risky shift phenomenon?”  This is why juries (and focus groups) run amok.  One person (a dominent personality) says something foolish, and suddenly it becomes reality to the whole group.  Alone, each might be hesitant or cautious about going out on the limb, but with the strength and support of others, it all seems so reasonable.

Litigators spend a lot of time preparing, from strategy to investigation to execution.  But all of this ultimately depends on how it works with the jury, the constant unknown.  While my experience with jury “experts” has been far less than satisfying, any increased understanding of group dynamics helps to “focus” my efforts.  It’s well worth a read.