By
Erich Vieth on June 13th, 2009
I work as a trial lawyer. My work presents me with a substantial challenge every day. I work hard to represent my clients as best I can and my job requires me to constantly think of presenting their cases with their best feet forward. But I’m tormented by the confirmation bias.
Because we work hard for our clients and we want to believe in their cases, we tend to see their cases the way we want to see their cases. It’s too easy to get excited about the evidence in my client’s favor and it’s all too easy to overlook the evidence that can hurt my client’s case. How’s that lawsuit coming? It’s always looking pretty decent, it seems, because my natural inclination is to stay upbeat about the case by assuming that the courtroom jury will see the case the same way I want to see it.
If I really want to represent my clients well, however, I need to do better than that. Even though I might tend to minimize the importance of the evidence that hurts my client’s case, my opponent will not overlook that dangerous evidence. My opponent will zero in on it and jam it down my throat at trial. What I really need is to be able to see my case the same way my opponent sees my case, so that I can be a better lawyer. I somehow need to take off my rose colored glasses.
One simple way to do this is to find a quiet place and pretend that that I am my own opponent, but that is much easier said than done. Once again, the confirmation bias is the culprit. It’s really difficult to turn one’s biases upside down.
Over the years, my firm has discovered that conducting “focus groups” is a much better way to see the weaknesses of our own cases. What is a focus group? It is a random unbiased group of people we hire to tell us what they really think about our cases. Here’s how we do it: we hire a group of about 30 people (from a temporary employment agency) for three or four hours on Saturday morning, and sit them down in a big conference room. We don’t tell them which side of the lawsuit we represent. We read them detailed descriptions about our lawsuit. First of all, we give them the “neutral” facts. Then we give them the facts favoring the plaintiff, and then the facts favoring the defendant. We listen in while they deliberate and they eventually give us their verdict.
We also give the focus group “jurors” multiple sets of questionnaires though0ut the process. We give them the first set of questionnaires even before they hear the neutral facts. After all, we want to know what they think about lawsuits in general. What do you think about people who sue? What do they think about big corporations? What do they think about intellectual property cases or consumer fraud cases? After we give our jurors the neutral facts, we give them another questionnaire:
What do you think about this case so far? As we give them more and more facts, we follow it up with more questionaires so that we can track their thought processes.
What’s really delightful is that these people, who are simply there to give their opinions, tell it to us straight. Sometimes, they tell us that we have a strong case. Equally often they tell us that our case doesn’t impress them, and they tell us why. They tell us that they don’t like the plaintiff, or that they sympathize with the defendant, or that our key piece of evidence is not impressive. What’s important is that they actually tell us what they think, and they don’t hold back at all.
When the jurors tell us that our case is weak, it’s a very good thing (although it doesn’t feel good when we first hear it). When they tell us that our case is weak, we are forced to confront reality. When the “jurors” tell us that a key piece of our client’s evidence is unimpressive, there’s no use trying to kid ourselves about it anymore, and it provokes us to reevaluate the way we present our case. Maybe there’s other evidence that we can use to make that point better. Or maybe we will learn that our client’s case is not impressive to matter how we might present it in a real-life courtroom. If so, we have still learned an incredibly important bit of information. If our case is fatally flawed, it’s time to approach the opponent and talk settlement.
On many occasions, we have intentionally stacked the deck against our own case, enhancing our opponent’s evidence and downplaying (or even omitting) the evidence favoring our own client. That way, we can learn what a group of neutral jurors thinks about our opponent’s best foot forward. The bottom line is that when we spin our client’s case against our own client, we learn some incredibly important things that are otherwise difficult to predict or understand. There is simply nothing like having a truly neutral group of individuals weighing-in on a matter in which you yourself are highly biased. The bottom line is that we gain immensely from the process no matter what the focus group “jurors” conclude.
I’ve been thinking a lot about focus groups because we’ve assembled quite a few focus groups over the past couple of months on a variety of cases. It occurred to me that it would be wonderful for non-lawyers to have access to focus groups too. This isn’t a practical suggestion, since assembling a focus group would take a significant financial outlay. But consider this thought experiment: a married couple gets into a heated argument, the wife suggesting that the husband doesn’t do his fair share of the chores and imagine the husband arguing that the wife spends too much money on non-necessities. This is a classic non-resolvable argument. Without a focus group, this married couple will usually end up resenting each other for even bringing up these emotionally-charged topics. Nothing will get resolved. 
But imagine how different things could be if a focus group were available to help out. Imagine bringing 20 randomly chosen people into the living room, sitting them down. First, the wife could stand up and talk for ten minutes, and then the husband could have his turn. The focus group “jurors” could then deliberate right front of the married couple and reach their “verdict.” “Yes,” they might tell the husband. “You do need to cut the grass more often and your wife is right that you need to engage in more foreplay.”
Just imagine the many applications for focus groups! Consider an employee having a dispute with her supervisor at work. Was she unfairly overlooked for that promotion? Or imagine a young parent getting angry with her own mother for meddling with how she raises her own children. Was Grandma meddling? Bring in the focus group and get some valuable feedback! Do you think that waiter at the restaurant was being rude? Bring in the focus group! Do you think the neighbor should turn down the stereo? Focus group!
Maybe somebody could even set up a service, “Focus groups for every occasion,” where you would dial 1-800-FOCUS and enter your credit card. Then you’d be put into contact with a telephone conference call includes a dozen neutral jurors ready to weigh in on any dispute you like to present to them. $10 per minute to get real guidance on any serious problem you’d like to present? It could be a bargain. This would be much better than ranting to your friends, who will always tend to agree with you. You need people with no loyalties and no bias. You need a group of hired guns who will tell you what they really think, regardless of how much it might hurt your feelings.
Bottom line? You dial 1-800-FOCUS, you present your case honestly and succinctly and then, after the focus jury tells you that you’re full of shit, you gather the composure to thank the jurors. Then you act on their unbiased advice: “Sorry, [Honey, boss, daughter, mother], I consulted the focus jury, I was wrong, and I’m ready to make some changes in my life.”
If only.
