One of the most difficult aspects of trying a major case whether it’s civil or criminal is simply not knowing how a jury will interpret the major aspects of your case. More problematic, the closer an advocate is drawn into building their case the more likely they are to be blinded by their depth of understanding their own arguments. A sort of target fixation occurs.

The use of focus groups can help you understand the jury’s attitudes and prejudices long before you walk up the courthouse steps. We recently worked closely in presenting a mock trial before a focus group on a civil case with Las Vegas attorney Dan Carvalho. The case resulted in a settlement of tens of millions of dollars. In this segment of The Court Of Public Opinion, we interview Mr. Carvalho on the topic of mock trials and focus groups.

Q: After going through the mock trial and focus group, what is the critical advantage you’ve seen?

Dan Carvalho: There is no form of trial preparation, in my opinion, that gets you ready to put on your case better than to actually go through a mock exercise of it.

In other words, your evidence that you think is going to work well, or not work well, it’s just what you think. But once you’ve exercised it — in this recent case we worked on we had 30 human beings and we got to hear what they all had to say about it — when you start to see the trends of 29 of 30 not willing to go above 20 percent comparative negligence, you start to realize that these arguments work on something that’s critically important to them. They get it.

It may look like a large expense initially, but it almost always pays for itself, doesn’t it?

From the plaintiff’s perspective, when you only get paid as an attorney if you recover, what always motivates me is the fear of not recovering.

If you’re really doing a good job for your client, you have to treat it like you can’t lose. What do you have to do to prepare yourself to not lose? You out-prepare, outwork your opponent. Doing what we did is part of just that.

If the stakes are high enough, I think you have to do focus and mock trial research in your case. Not doing so means not doing as good a job as you can do. 

If mock jurors overwhelmingly back you in mock, can confidently make a much stronger demand?

That’s another great thing about it. At first in this case, less money was offered. If that mock research turned out differently, I probably would have taken the lesser amount.
When the stakes are as high as they were, I think you have to get that mock research done, so you can help your client make a good decision, because ultimately the client is the one who decides whether or not to accept an offer. I can recommend for or against, but they ultimately have to do it.

When you have a piece of land, you get an appraisal. Well, we are the appraisers of these cases. And if you want to be able to do a good job for your client, and tell them what it’s “worth,” you have to do the research.

In this case in particular and other cases in general, what are you looking for in mock trials and focus groups?

You always go in, in the back of your mind, hoping to get a great result.

The reality is that we do not want to put on a case that is most favorable to us in a mock, meaning, for example, most of the time, at the time you do the mock, most of the evidentiary issues are not resolved. You hope to get some evidence in, or keep out evidence that’s harmful.

When we did mock in this case, the stuff we wanted left out, we let it in. We wanted to see how a jury was affected by this stuff.

For instance, when I saw that jurors in this case weren’t particularly interested in taking comparative negligence on, it took a lot of concern out of the situation. That helps you focus on how you’re going to prepare for trial.

For somebody who has never done a focus group, it seems like a big task. In reality, how much additional work is it?

It is certainly much less work than preparing for and conducting a significant jury trial, for a multitude of reasons.

We did what we refer to as “clopening,” which is half opening statement, half closing argument. You’re essentially doing a little bit of both all at once.

On a scale of 1 to 10, where 10 is most strongly agree, rate the statement, “Focus and mock trial is critically important to a major case.”

10. You cannot afford not to prepare. I’ve done them and learned that the offer is probably more than I’m likely to get at trial. I’ve spent the money and I’m glad I learned that. Or you could have the inverse occur and realize you should not take less than everything that is available.

When the stakes are that high, you have to do everything you can in order to find that out. 

This is really a road map to success, isn’t it?

Without question, focus research helps you conduct the actual trial at a level that is much higher than you ever could have done just walking into the courtroom for the first time and giving your opening and examining witnesses just based upon what you think is going to be most effective.

When you have the opportunity to conduct that exercise, and learn from a sufficient number of people what moved the needle for them, it allows you to tighten up everything you do from jury selection to closing arguments. It allows you to focus on what is important and what is not, whether it is something that may be helpful or harmful to your case.

Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.

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