Focus on settlement: using focus groups before mediation can help resolve a case without trial.

Most trial lawyers agree that focus groups are an essential tool in preparing to present a client's case in court. Yet lawyers have not fully embraced the idea that focus groups can be as important and helpful in preparing for mediation as they are in preparing for trial.

In my experience, the more often I tell my client's story before trial, the better I tell it at trial. Similarly, the more often I either tell or think through the defense case, the better I anticipate it and respond to it at trial. The same applies when I'm preparing to settle a case: What I learn from focus groups about my case helps me decide how to mediate it.

Traditional pretrial focus groups help you identify what information a jury needs to understand the client's story. They test juror reaction to facts and teach you how to shape a story for maximum impact and persuasion.

At most mediations, you present information to persuade the defendant or the defendant's insurer to pay fair compensation. Premediation focus groups teach you the same important lessons about what information to present and how to present it. The critical difference is that you will be able to use that valuable information when you present your case at mediation.

Although conducting focus groups takes time and costs money, there are good reasons to spend those resources before you go to mediation. Doing so will help you take several important steps toward a successful settlement.

Deal with decision-maker bias. Years of research have confirmed that many jurors hold deep-seated biases against plaintiffs. Mediation decision-makers, typically insurance company representatives, self-select for a job where they are rewarded for paying as little as possible to deserving plaintiffs. Necessarily, many of these people are more biased against a plaintiff than the least favorable jurors that would be selected if the plaintiff's case were tried.

For that reason, when recruiting and screening potential focus-group jurors, consider including those whose work or political affiliations suggest they will be heavily biased against plaintiffs and tort litigation, generally.

Alabama lawyer Greg Cusimano, who has been studying jury bias for almost a decade, began a focus group session by saying only that the case involved a woman who was seriously injured when she stopped her car at a railroad crossing and was hit from behind by a truck. He asked the group what else it would need to know to decide who was at fault.

For over an hour, the participants asked questions about the woman's driving: "Was she wearing a seat belt?" "Did she stop suddenly?" "Were her brake lights working properly?" "Did she give any warning to the truck driver that she was going to stop?" "How many wrecks had she been in before this one?" Finally, Cusimano asked them if they wanted to hear anything about the defendant driver and the way he was driving when he failed to stop.

Premediation focus groups force you to address the biases of defendants and insurers who, like jurors, "try the plaintiff" before examining the defendant's conduct. When presenting a case like Cusimano's at mediation, for example, you will say that the plaintiff was wearing a seat belt, did not stop suddenly, had proper functioning brake lights, and had never been in a wreck before. Defending against these and other biases revealed in focus groups can keep decision-makers on track at mediation and impress on them the probable failure of a strategy based on appealing to juror biases.

Select a theme. Often the best case themes come from focus-group jurors when, during deliberations, they attempt to characterize a case to their fellow jurors. One might say to another, "Well, isn't this case about what happens when you don't take enough time to pay attention?" Once you hear this, you can make "not taking enough time" a focal point around which you organize the case.

You may not want to give away your best theme in mediation if you expect to try the case, but if the case is likely to settle, you may choose to use it. Using a theme at mediation means building your presentation around it. So, for example, in a premises liability case, you might have a focus-group-tested theme of "They knew, and did nothing," and the liability information might be organized around the theme.

You might begin the presentation by showing what the defendant knew about the building's dangerous condition (that the plaintiff did not know) and then move on to what the defendant could have done to remedy or warn but did not. Finally, you might end the liability discussion by connecting the theme to the jury instructions. As at trial, the better your theme at mediation, the more likely you are to be successful.

Pick theories. Most cases have several possible theories of liability. Jurors, however, are more receptive to cases with one simple liability theory. Focus-group jurors will show you which option will probably gain the most acceptance.

Similarly, when there are different damages for which you can seek compensation, a focus group will help you decide, for example, whether to emphasize the client's pain and suffering or the loss of use of a body part in an unnecessary amputation case. If the focus group is unsympathetic to a pain-and-suffering claim and more receptive to a loss-of-use claim, at mediation you should emphasize and seek more compensation for loss of use.

Test arguments. Someone once said about arguing to a jury that "there are arguments that go down hard, and arguments that go down easy." When you want to persuade, you look for the latter. Focus groups show you the arguments that jurors will most readily accept. Focus groups can also show you arguments that work best for the most cynical decision-makers: insurance company representatives at mediation.

Assess damages. No single focus group reliably predicts the probability of winning at trial or the likely recovery for the client, but the collective wisdom of many different panels can be helpful. Using several focus groups--if you have selected the jurors and presented the case fairly, and if jurors are consistently deciding in the plaintiff's favor--should give you an accurate range for a likely jury verdict.

What you learn from focus groups about case valuation is more valuable for mediation and settlement than for trial. Regardless of your experience in valuing cases, empirical evidence of what damages would be awarded at trial will help you determine how much to demand at mediation and when a final offer should be accepted. This information is even more valuable for your client, who has to make the ultimate decision to settle or proceed to trial.

To ensure that your client can make informed decisions about what happens in mediation, have him or her attend as many focus groups as possible and watch both the presentations and the deliberations from a monitoring room; if that is not possible, he or she should review videotapes of those events. Your client may have an inflated view of the strength of the case or the compensation a jury is likely to award.

I practice in North Carolina under the draconian law of contributory negligence. In one case, a tractor-trailer truck pulled out from a parking lot at night and turned left on a two-lane rural highway, blocking my client's lane while making the turn. My client, who was driving her teenage daughter home from a high school basketball game, drove under the tractor trailer at 50 mph. The underride tore off the top of the car, leaving the mother with severe and permanent head, face, and upper-body injuries.

I told her that under North Carolina law, if she were even 1 percent at fault for not seeing the truck and failing to brake, she would recover nothing. No matter how often I explained this, she simply refused to accept the law or the possibility that a jury would find her contributorily negligent.

Before trial, I urged the family to accept a settlement offer I thought was fair and reasonable, given the case's problems. They refused. At trial, we proved the defendant's negligence, but the jury found my client negligent as well and awarded no damages. Fortunately, the family had agreed to a high-low arrangement--an agreement that put a floor and a cap on the plaintiffs recovery--so they did recover something, but it was substantially less than the offer they had declined.

If I had conducted a focus group or two and showed the tapes of the jurors seizing on the client's contributory negligence, the client might have made a better decision about the settlement offer. Even if a client will not listen to me, he or she will often hear the focus-group jurors when they find no liability or award small damages. Once a client hears that the case has problems, he or she is usually willing to reevaluate its mediation or settlement value.

Evaluate the other side's case. Most focus groups involve presenting the defendant's case, including any affirmative defenses. Knowing which defense theories have credibility with jurors helps you rebut the contentions the defense is most likely to advance at mediation as a basis for a low settlement offer.

Keep it real. Any lawyer can get "too close to a case" and lose objectivity by establishing an emotional bond with a client. Presenting the real facts (not the facts that you wish you had) to a focus group and watching the group respond to those facts helps you and your client evaluate the case with fresh eyes, clearly and objectively recognizing its strengths as well as its weaknesses.

Leverage at mediation

Defendants often claim in mediation that your demand on behalf of your client is unrealistic, saying, "No jury will ever give that much." You can respond by saying that focus-group research supports your demand, and you may even decide to share with the defense the actual focus-group verdict forms.

If you do, the defendant will undoubtedly question whether the panel was fair, whether your case was overstated, and whether the defense was presented adequately. Nevertheless, a candid discussion of the results can be persuasive, particularly if the most experienced and best-known plaintiff attorney presented the defendant's case to the focus group.

Once you disclose your use of focus groups, ask if the defendants have conducted their own research and, if so, how their focus groups decided liability and damages. Defendants will usually concede that they have not done so--most defendants and insurance companies will not spend money conducting focus groups before mediation. When you are the only one who has done jury research on a case, your credibility and bargaining power increase.

In discussing possible verdicts or any other information you glean from a focus group, always be perfectly honest with the defendant. A less-than-candid lawyer will deservedly lose all credibility if the mediator, the insurance company, or defense counsel later learns that the focus-group results were misrepresented. You never know whether a focus-group juror will speak publicly about the results of the group in which he or she participated.

In a rare case, you may want to share a focus-group tape with the defense, if the group is representative of all the groups you have run and if you believe that seeing it will change the other side's thinking. Showing the defense a focus-group tape probably makes sense only when the tape rebuts an adamant but unsupported defense view--for example, that the jury will not find liability or will not award damages on a certain claim.

Of course, before providing this work-product information to the defense, make sure you know what use, if any, the defense can make of it under the law of your jurisdiction. In most circumstances, the defendant will not be able to use it in any way at trial, and a motion in limine can be made on the point. However, your jurisdiction may take a different view.

Another approach is to discuss with the defense the possibility of using a focus group with a professional moderator, where each side presents its case and several panels deliberate. Selection of the moderator and costs for a joint focus group are typically handled by advance written agreement between the parties. The terms of the agreement depend on the circumstances of the case. All parties can use the results in evaluating the case for mediation.

Lawyers should conduct focus groups before mediation in every significant case. A better understanding of how decision-makers view the facts, theme, theory, and arguments in your client's case improves your mediation presentation. Moreover, if you involve your client in the process, he or she will make better decisions about settlement. After all, mediation is an effort to determine whether a proposed settlement offer is a good alternative to a trial. The better your presentation and the better your client's decision-making "about settlement, the better the result for all concerned.

Howard F. Twiggs practices law with Twiggs, Beskind, Strickland & Rabenau in Raleigh, North Carolina.