Trial Magazine

In recent years, we have had to adapt many aspects of our legal practices, including how we conduct focus groups. The pandemic coupled with changing technology has made videoconferencing the norm for many meetings. Although some attorneys still prefer in-person focus groups, just as some of us prefer live theater to a TV screen, virtual focus groups offer many advantages. But you must know when to use them and how to best organize and run them.¹

One big advantage of virtual focus groups is that you can avoid the logistics of locating a venue that is convenient for all participants.² This is often an issue if you are involved as lead counsel in an out-of-state case or when confidentiality is a concern and you prefer to recruit participants from outside the venue where the case is pending.

Going virtual can also simplify scheduling because participants don’t need to factor in travel time and may have greater availability when videoconferencing from home. You’ll also have access to a larger pool of potential participants—this is particularly helpful in less populated areas where the ability to cast a wider recruitment net can ensure better demographic representation. In addition, you’ll avoid the cost of a venue and food, and you may not need to pay participants quite as much because they will have no travel/driving time and expenses.

Whether a focus group meets in person or virtually, the reasons to conduct focus groups do not change. Focus groups can help you identify the strengths and vulnerabilities of your case, test rebuttals, and identify the set of beliefs and experiences that drive the focus group’s view of the case. They also give you an opportunity to test demonstratives or other exhibits and to determine what vocabulary to use to describe the issues and witnesses. And these days, it’s also important to uncover how the pandemic has impacted prospective jurors’ view of your client’s case.³

Recruiting & Screening Participants

Compared to in-person focus groups, virtual focus groups are generally simpler to organize. The recruitment and screening process is largely the same as in-person focus groups—it is typically done online or by phone. You can use recruitment tools such as Craigslist, online community bulletin boards, and recent jury lists, if available.

Alternatively, hire a recruiter. This frees up staff who otherwise would be involved in the recruiting and screening. The downside is the added expense. In addition, depending on the recruiter’s experience, he or she might not fully appreciate some of the subtleties or nuances of your case. My firm has hired recruiters in the past when our efforts left us short of potential participants or to ensure certain demographics were represented.

When my firm started conducting focus groups, we typically recruited eight to 12 people. As our practice evolved over the years, we found six participants to be the optimal number for robust discussion—whether the focus group is in person or virtual. With a group of six it is easier for the facilitator to keep track of nonverbal cues (already made more difficult by the video format); to manage the discussion (so as to include all participants); and most important, to delve more deeply into each participant’s beliefs and values that impact their view of the issues in the case.

If your recruiting efforts have gone so well that you have enough participants for more than one group, arrange a second group. The feedback is no less valuable from this second group, even if it largely confirms the first.⁴

As you screen prospective participants for a virtual focus group, identify whether they have the requisite technology and technical capability to meaningfully participate. They need adequate internet access and must be familiar with the videoconferencing platform you plan to use. Ask them what size monitor they will be using, and decline any prospects who insist they can participate using their smartphone—there is no way to observe other participants and see exhibits on such a small screen.

Your screening process also should involve a Zoom check. Use this check to your advantage—it allows the screener face-to-face interaction with prospective participants and can provide additional information as to suitability beyond the typical questionnaire and telephone call used to arrange in-person focus groups.

Occasionally we have decided not to include someone based on what we saw during that interaction. For example, their computer setup may be too limited or lacking in privacy from other household members, they may have experiences not previously disclosed that make them unsuitable, or they may simply strike you as someone who will not work well in a group setting.

Having unsupervised deliberation in a virtual setting increases the risk for one or two people to dominate, so facilitators must take a more active role.

Running the Group

If you have never conducted your own focus group, consider hiring someone who has experience. The range of services runs from simply conducting the group session to the entirety of recruiting, screening, identifying facts and issues to be tested, and synthesizing and analyzing the information gained.

Likewise, if you are experienced doing focus groups but have never conducted a virtual focus group, it may make sense to use an outside consultant. AAJ Education runs a virtual focus group program with leading faculty and trial consultants, with recruitment included.⁵

If you act as the facilitator, have another person take notes and help formulate possible follow-up questions.⁶ This person also should monitor whether all participants are hearing and reacting to what others are saying and the level of attention being paid to the discussion.

Apps and equipment. By now, most of us are familiar with Zoom and other similar videoconferencing technologies.⁷ But before running a virtual focus group, you must understand all the features of the videoconferencing tech you’ve selected—the various audio and video settings; screensharing; chat (for collecting participants’ notes and real-time feedback); recording; and Zoom rooms (for presenting to more than one group). Spend time in advance practicing with Zoom or your selected tech. Also practice presenting exhibits to avoid wasting time or frustrating participants as you fumble around trying to make things work.

If you decide to move forward with a virtual focus group but cannot commit the time to learn how videoconferencing tech works, you may choose to have a knowledgeable staff person handle the tech side of things. It is possible to hire this out, but I believe this is an unnecessary expense. Personally, I think it’s a useful expenditure of my time to understand how the tech works so that when—not if—something goes awry, I can quickly fix it on the spot. It is very easy for Zoom participants to be distracted when there is a delay in your presentation—you’ll easily lose their attention and then must work to get it back.

Also, your internet connection must be solid and stable, and your equipment has to be up to the task. A large monitor is crucial since you’ll be looking at six faces arrayed across it—a 13-inch laptop is not a viable option. Similarly, do not scrimp on your webcam—a quality one provides a better viewing experience for the participants. For instance, the Logitech 900 series offers quality options for under $100.

Also check whether you have the appropriate level of Zoom license and storage for recordings. Zoom’s pro level will be sufficient as long as you plan to store the video recordings locally—cloud storage at that level is limited to 1 GB.

The facilitator’s role. A common approach when conducting a focus group is to begin with concept groups—these help you ascertain the group’s reaction to broader issues in the case based on participants’ attitudes and biases. This approach works in the virtual setting too, with one caveat—virtual groups often require a more active facilitator. Virtual participants are more likely to wait to be called on to speak and are less likely to hear what others are saying or conveying nonverbally. They also may be more easily distracted or lose focus.

The facilitator’s task is to keep the discussion on track and to ensure each participant has the opportunity to offer comments and respond to others in an orderly way. Having unsupervised deliberation in a virtual setting increases the risk for one or two people to dominate, while the remaining members of the group stop actively participating. So in a virtual setting, facilitators typically must take on a more active role than they might otherwise in a live setting.

The facilitator may need to politely interrupt more outspoken participants and call on the more reticent ones. When interrupting, it can be helpful to take the point the speaker was making (perhaps while complimenting him or her) and incorporate it into a question posed to a less outspoken member.

Also be vigilant for nonverbal cues that a participant has something to say or is showing signs of frustration at not being able to say his or her piece. Due to the remote aspect of the videoconference, sometimes people are more reluctant to just jump in at the first opening than if everyone were in the same room.

Assume that other people may overhear the virtual focus group discussion. As a safeguard, do not identify plaintiffs by their actual names.

Confidentiality. This is always an issue in any focus group—whether in person or virtual. What is different, however, is the control you have over the setting of the focus group. In a live setting, the organizer controls who is present in the room. In a virtual setting, you cannot ensure that no one else is present in the room or able to hear what is being discussed.

Consequently, assume that other people may overhear some or all of the virtual focus group discussion. As a safeguard, do not identify plaintiffs by their actual names. Do the same for the defendant unless it is a well-known institution in the community—such as a hospital—and attitudes toward it are part of what you want to discern from the focus group.

We also have found that doing away with names and using role titles—for example, the patient, the doctor, the hospital, the trucking company—lends itself to better retention and comprehension by focus group members. The titles are what is relevant to understanding and discussing the issues.

While many of us will always prefer the level of interaction that comes with in-person focus groups, don’t overlook the utility, relative simplicity, and convenience of the virtual version. When going virtual, follow these suggestions to ensure your focus group runs smoothly and provides you with useful information about your case.

John Evers is a partner at Shoup, Evers & Green in Burlington, Vt., and can be reached at jevers@seglawyers.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.

Notes

1. For more, see James B. Lees, Virtual Focus Groups, Trial, Oct. 2020, at 16.
2. We typically use a conference room at a local hotel as the venue rather than our office.
3. To get the most out of planning, conducting, and using information gathered from a focus group, see David Bossart et al., Winning Case Preparation—Understanding Jury Bias (AAJ Press/Trial Guides 2018), https://www.justice.org/resources/publications/aaj-press/winning-case-preparation. For more on the impact of the pandemic on jurors, see David A. Wenner & Gregory S. Cusimano, Communicating With Jurors in an Infected Environment, Trial, April 2022, at 18. AAJ Education also offers on-demand webinars about the pandemic’s long-lasting effects on juror decision-making based on data-driven results from the COVID-19 Jury Research Project funded by AAJ’s Robert L. Habush Endowment. Access recordings at www.justice.org/pandemicproject.
4. Ideally, you would take what you learn from the first group and alter the presentation to test the validity of any conclusions drawn from the first group.
5. Through AAJ Education’s virtual focus group program, “Virtual Case Analysis,” attendees receive three different focus groups from your case jurisdiction led by a faculty member who will help you analyze your focus group results. Learn more at www.justice.org/virtualcaseanalysis.
6. Regardless of whether you choose to facilitate your own group, a very handy resource is Phillip H. Miller & Paul J. Scoptur, Focus Groups—Hitting the Bull’s-Eye (AAJ Press 2016), www.justice.org/focusgroups.
7. Although this discussion will be confined to Zoom, much of this also applies to the other applications that are available.