We’ve all seen them on TV: the bumbling, nervous, inarticulate spokespeople who make you not only question the content of their statements, but also the competence of the outfit that hired them. We’ve also observed their polar opposites: polished, well-spoken representatives who also exude warmth and sincerity. Either way, the messenger that an entity chooses oftentimes is the person by which that entire entity is judged.
Focus groups and online surveys are a great way to get juror feedback on central themes, language and arguments of your case and uncover the most effective messages for mediation and trial. However, focus groups also provide an opportunity to gauge opinions on key witnesses and some of the messengers who will actually be delivering those messages at trial.
The most effective way to do this is by presenting focus group jurors with short clips of witness depositions and asking jurors to rate their credibility and likeability, and articulate what stood out to them and what questions and feedback they have. Knowing up front whether people in your trial venue view a certain witness as an effective and credible educator, or a shifty, shady question dodger, can help immensely in case evaluation and determining whether crucial fact witnesses will support or sink the defense narrative. For example, a doctor with a thick foreign accent can play quite differently depending on the jurisdiction, and it is extremely helpful to gauge juror reactions before trial to determine whether underlying perceptions will negatively affect juror opinions about that doctor and his or her ability to communicate with patients.
Not only does this deposition footage come in handy when testing juror perceptions of witnesses prior to trial, it is also more effective in the courtroom (if admissible) than reading transcripts aloud if that witness can’t make it to trial. Therefore, we always recommend videotaping depositions whenever possible – especially the plaintiff’s, since her credibility is obviously central to their case, and therefore important to put in front of focus group jurors for evaluation.
However, we also understand that videotaping depositions is not always feasible, and in these cases we have recommended counsel meet with witnesses and record a “mock deposition” using nothing more than a few pseudonyms and an iPhone. This footage, although not a formal deposition, still allows you to get important juror feedback on your witnesses and their strengths and weaknesses before ever setting foot in a courtroom.
Whether a videotaped deposition is already in the record, or the case is early and there is only an impromptu mock depo to play for jurors, we have found the feedback gleaned during focus groups can also assist in witness preparation sessions as trial approaches. By understanding juror perceptions of overall demeanor and credibility, as well as reactions to how witnesses respond to tough questioning, prep sessions can focus on polishing strengths and trying to mitigate weaknesses.
For example, during recent focus groups jurors articulated that although a particular surgeon came across as “arrogant” and “prickly” with a bad bedside manner, they conceded confidence and knowledge is what they would ultimately want in a surgeon performing open-heart surgery. As a result, during pre-trial prep sessions we and the trial team focused on softening some of the harder (and somewhat distracting and negative) edges, and playing to this witness’ strengths and prompting him to talk about his experience and expertise as a surgeon – which became a major thematic element of his trial testimony.
If you have an upcoming case that could benefit from witness evaluation, we are happy to discuss the various options and the benefits of this aspect of jury research. Contact Senior Vice President Claire Luna at email@example.com or 714.754.1010 for more information.