EPISODE 229 TRANSCRIPTION
Well, hello, my little chickens and no, I'm not calling you a name. I call everything chickens like dogs or chickens. Like what a cute little chicken. I'm not calling you dog. And this is not starting. Well, let me just say that we are open. The crew is open for the last time this year, sariswears.com/play. My dudes, my dudettes, which I think dudes is a gender-neutral term. If you want to up your game, if you want to completely change your entire fucking life, I'm not kidding. Get in the H2H Playground. We're only open for seven days. I think it's seven days. Yes, seven days. And that's it for this year. So get in there now, sariswears.com/play. All right.
Today we're talking about the danger of focus groups. I've been wanting to talk about this for a while, but then a client of mine called the other day or messaged me the other day and was freaking out about something that happened at a focus group, and I thought, "Okay. Enough is enough. I'm going to talk about focus groups and how y'all are using them wrong."
And I don't mean using them wrong, but I mean in terms of your mindset and what you think you're doing. And I want to give you some mindset tricks today, but I also want to talk about how they can be dangerous and what they're actually for. So in this particular case, I can't give details because it's an active case, but the gist was I thought that what we're trying to do is give the jury a principle, and a principle is something that 99% people agree with. So why did my people not agree with this, and why did they fight me on it? It was basically the gist. And so let's talk about that first before we talk about what focus groups are actually for. I see three things that can go wrong with principles/focus groups of meaning, why a jury or a focus group jury may not embrace your principle.
Number one, if it's a convoluted principle, which this one was somewhat, so most principles, not all, but an easy way to come up with a principle is to start it with if. So, if A, then B. So if it's raining outside, you may get wet, right? No one is going to disagree with that, right? If there's a tripping hazard, someone may trip and fall, right? Very simple. What a principle cannot be is if A, then B, because of C, and then did I mention D? It's too long. There's too many things to think about. It has to be such a no-brainer. Now, when I'm talking about the principle, what she was actually talking about in this case was a hook and an opening, which she was using a principle to put a hook together. A hook again, is something that you are trying to hook the audience's attention.
It's oftentimes a rule and it's not always a principle. In fact, remember there's a difference between principles and rules. So principles are a fundamental truth where a rule prescribes an action, doctors must, companies must not, so on and so forth. So the first thing that tends to go wrong when a principal isn't working with a focus group or a real jury, hopefully it would happen in a focus group and not with the real jury, is because it's too convoluted, all right? It's too long, too trying to do something besides just being a bald ass truth. All right.
Number two, the reason why a principle may not be embraced by your focus group or others is it may be the wrong principle, right? So it might be trying to have a jury agree to something that yes is fundamentally true, but it's not particularly true for jurors, if that makes sense.
So if you think back to the podcast that I did, I should have looked this up, I should always look things up, but I never do before a podcast. Where I talked about the smart principle versus the safe principle. Again, I don't remember the name of it, but if I think about it, I'll have it in the show notes. But basically it was, what kind of a case do you have? When you have something that makes people feel unsafe it's a pretty big no-brainer that they're going to embrace it. But if it's something they need to embrace by embracing it, it would make them feel stupid, then they won't embrace it. So for example, people should read contracts, or if you don't read a contract, you could get taken advantage of. Let's say that is a principle. Now, on it's face, that's true. I think 99% of people would agree with that, that if you don't read the contract, you could get taken advantage of.
But what then comes in is the defensive attribution of, "But I would always read a contract. That would never happen to me," right? So it's a principle, but it's not quite the right principle, and I unfortunately can't go into details about this particular case, but she had the wrong principle. The third thing that tends to go wrong when we're talking about why your focus group does not embrace your principles or other things that you were trying to attempt to do, is that in most focus groups that I hear about, there's no voir dire. Now, if you don't have any voir dire, then what the hell are you even doing? Because voir dire, as you know from me, is the thing that solves all your problems. I mean, first off, it starts the trial dialogue. And if you remember, the trial dialogue is in voir dire, we ask questions, in opening we answer in voir dire. We listen, in opening we talk in voir dire. We form the group opening and beyond. We lead the group.
In voir dire, what we're doing is we're having them, this is the really big part of this, give us the principle instead of us giving it to them and asking if they agree. So if you delete that part and you just go into an opening and you throw a principle on the jurors, there's no ownership. They have no ownership over this principle. It's something that you've told them is true. And because they already see this as an adversarial process, they don't know you, they don't know what's going on, especially focus group jurors, they're there to try to pick apart things. Of course, they're going to throw out the principle. They haven't come up with it. So this is what leads us to the danger. Here's the danger of using focus groups. It's dangerous to treat a focus group as a real jury, and then when you do that and they don't give you what you want or what you're expecting, freak the fuck out. That's the danger.
Because what ends up happening, which is what ends up happening in this case, is co-counsel who's not an H2H member freaked out and went back to some old training of his from different trial consultants that my client didn't want to use. And I'm not going to get into who's better or worse, but regardless, it was a fear response. It was, "You know what? Nevermind. Principles don't work. Let's freak the fuck out and scream and run around with a hair on fire. Because oh my God, they didn't like our principle." And if you are the person listening to this, and this is you and I talking, I hope you're laughing right now because we had a lovely conversation about this and you gave me permission to talk about this. So that's the danger is that when you use a focus group and you're treating it like this is the real jury, and they hate this and they hate that.
I have another podcast, I think it's called The Jury Doesn't Have to Like Everything You Do, you could even piss off an actual jury if it's for their benefits. There's lots of ways we do that, Devil's Advocate is one of them. But there are things that we have the jury do that they might not particularly love. That's fine. This is where y'all get in trouble is you start using focus group people and you're like, "Oh my God, they didn't like this one thing, so we throw it out." No, that is not the point of a focus group. So what is the point of a focus group? All right. I see two main functions of focus group. In my mind, I don't run focus groups, there may be other reasons why you have them. But if someone is working with me and they're like, "I'm going to do a focus group, what should the function be?"
I would answer with these two things. It's one of these two things that I would like for you to bring back to me so we can work up our voir dire opening and closing. The first function of a focus group is to learn not what a real jury's going to think because they are not a real jury and they are not going through the process, and in most cases you don't have the voir dire. So it's not learning as in, "Okay. I'm going to throw this information on them, and then we're going to learn about how this really going to work in trial." You have not set up a situation in where that is actually happening. You could never set up a situation. We try as much as we possibly can here when we are setting up our mock juries, but we can't even get totally close to it. We give food, we pay them, right? They volunteer to come. It's not forced. So unless you're sitting in front of an actual jury, an actual jury selection, we can't completely do that.
So when I talk about learning, what are we learning? Blind spots. I want to hear what are the things that we haven't even considered or we didn't think was a big deal and they made it a big deal. Or wow, they really tied into that word or that phrase or that thing, that's what we're looking for. What are our blind spots? Because honestly, when you go into a focus group, again, this depends where you are. So I'm excluding right at the beginning of a trial or beginning of when you get a case. Most of you wait until you're somewhat in the case to do a focus group. You should pretty much know what they're going to say, right? If you know your case, you know what most people are going to say and think.
So we're really on the lookout for blind spots. Now, if you happen to do focus groups right at the beginning, even better. There we're just really learning. It's informing us as much as it is everything else. We're like, "Whoa. Okay. That's one thing, that too," great. It's a learning exercise. What are we not seeing? Now, the mindset that's going to go along with that is it's a learning exercise. What are we not seeing? You have to go in with tons and tons and tons of curiosity. Your mindset has to be one of major curiosity. Just really you're trying figure out what the hot button issues are. You're trying to push them. You're trying to underplay your case, right? You want all the bad stuff to come out. The second function of a focus group is to test. We do not test until we've had a focus group or many.
Testing is the second function of a focus group. This is where we now try out things that we've created once we've learned what our blind spots are, we're going to test and see if sequencing matters. We're going to test and see voir dire versus no voir dire. I can tell you right now is me better voir dire. We're going to test word choice. We're going to test phrases, and guess what? The mindset is the same. We're going to get super-duper curious and we're going to be like, "Ooh, it's like cooking," Not that I know a fuck anything about cooking but, "That's too much pepper. Let's put more salt in. We need some lemon juice. Sugar." Who knew sugar goes in most of the things? But that's what it's for, you're testing. What you are never doing, if I can be clear, is going, this is what an actual jury thinks, because you will never know what an actual jury thinks until you get in front of an actual jury.
So you are either learning and in terms of learning, I mean blind spots, hot button issues, or you're testing, learning or testing, or you can think about is gathering information or testing. There really is a third reason to have focus groups and that is to practice. If you aren't doing voir dire with focus groups, why the fuck not? Unless again, you're doing the learning phase where you just want to throw some facts on them and see what they say and what they think, that's different. You don't want to do a voir dire necessarily, in that case you might. But definitely when you're in the testing phase, why wouldn't you be doing voir dire? Because that's going to be a huge part of what you're going to be doing that's going to give you more accurate data and it's going to give you practice.
So the learning today, ladies and gentlemen, is that the danger of focus groups is that you're going to pretend they're a real jury, and then fuck the freak-out when they don't give you what you want. Instead of going in with curiosity and understanding what your function is, I'm either gathering information or I'm testing and my mindset is going to be curiosity. That my friends is going to help you so much when you do your next focus group. Talk soon.
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