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

Article Excerpt
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...

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