Focus Groups Becoming Vital Tool For N.C. Lawyers

The News & Observer Raleigh, NC

Copyright 1997

Saturday, January 18, 1997

News

Focus groups becoming vital tool for N.C. lawyers

ANNE SAKER
STAFF WRITER

The liability case that ended this week with a $25 million verdict
for Valerie Lakey was more than a courtroom struggle between
plaintiff and defendant. It was a Battle of the Focus Groups.

Long before a real jury awarded that record-setting sum to the
Raleigh third-grader, the lawyers in the case employed a technique
more commonly used to test the appeal of consumer products. Although
relatively new to North Carolina, the use of focus groups for court
cases is growing.

"They're invaluable," said Fay-etteville lawyer Wade Byrd,
president of the N.C. Academy of Trial Lawyers. "As the words 'focus
group' imply, [they cause] us to focus our case in a better way."

"If you have this tool available, it would be irresponsible not to
use it," said psychologist Neil Vidmar, a Duke University law
professor who occasionally runs focus groups for lawyers.

The lawyers in Lakey vs. Sta-Rite Industries together addressed
10 small groups of selected Wake County residents and gauged their
reactions to the arguments and the evidence. The lawyers also
figured out what kind of juror they needed for victory.

"We had six focus groups," said John Edwards, Valerie's lawyer.
"They told us what we needed to pay attention to. They were
unbelievably valuable."

From the results of its four focus groups, the defense lawyers for
Sta-Rite Industries believed they could win.

"We spent quite a bit of time using focus groups and analyzing the
liability evidence in the case," said Raleigh lawyer Gary Parsons.

Madison Avenue, Hollywood and Washington, have used focus groups
for decades to figure out which products will sell and how to sell
them - beer, movies, microwave ovens, theme restaurants, presidential
candidates, you name it.

A focus group is made up of people picked to represent a segment
of a community. The group is paid to listen to a presentation, then
opine for an hour or two while professional observers take notes or
run videotape, often behind a two-way mirror.

Perhaps inevitably, lawyers in New York and California quickly
grasped the possibilities that focus groups held for their work.

The technique is a recent import to North Carolina, but many
lawyers now consider focus groups a must for big cases. The
eye-popping award in Lakey vs. Sta-Rite is expected to accelerate
the pre-trial use of focus groups.

###

A legal tool worth its expense:

Byrd used a focus group to prepare for a wrongful-death trial in
Macon County, where the record for a jury award was $50,000. The man
who died left a wife and nine grown children.

In presenting his case to the focus group, Byrd learned that while
the group was willing to provide a judgment for the wife, it was
reluctant to do so for the children.

"We knew we had to address that at trial," Byrd said, so he put
all nine children on the witness stand during the trial. "That way,
the jury got to know the children a little."

The jury awarded the whole family more than $800,000.

Focus groups aren't used just in cases where money is at stake. They have been used in criminal trials as well - most notably, a
certain murder case in Los Angeles.

Jury consultants using focus groups helped O.J. Simpson's defense
pick a favorable jury, and the first person lead lawyer Johnny
Cochran thanked after the October 1995 acquittal was the consultant.

Prosecutor Marcia Clark also presented her case before a focus
group, and the consultant advised keeping black women off the jury,
because they were protective of Simpson. Clark disregarded the
advice, and African-American women were in the majority of Simpson's
jury.

"One of the unfortunate facts of life is that sometimes, the
resources make a difference," Vidmar said. "The fact is, if O.J. had
not been rich, his criminal trial would have turned out a lot
differently."

Money determines whether a lawyer uses a focus group. If a
plaintiff does not have the money before trial, a well-off law firm
may conduct the focus group on the hope that it will recoup the cost
from its part of a settlement or jury award.

Edwards, the Lakeys' lawyer, and his partner David Kirby are
repeat winners in court, so their firm can afford focus groups.
Sta-Rite is a subsidiary of Wisconsin Gas Co., so Parsons and his
partner Patricia Kerner had access to the corporation's deep pockets.

###

Plaintiff's focus groups focus on warnings:

Focus groups can be simple or elaborate. Usually, expenses
include rent for a room and video equipment, the cost of refreshments
and the small stipend for the participants. Byrd said he's paid
focus group members $35 each for two hours.

The lawyer then puts on a brief version of the case, and another
lawyer stands in for the opponent.

"You have to give the other side as much honest, objective
attention as you can, because if you're not going to do that, you're
not learning anything," Byrd said. "You're trying to avoid
surprises."

Said Vidmar: "Often, focus groups have perspectives on a case that
the lawyers really don't anticipate. The focus groups provide the
feedback on how to present your case."

In Lakey vs. Sta-Rite, the stakes were so high that both sides
needed to know going into trial what arguments would be effective.

Valerie Lakey was 5 when she disemboweled June 24, 1993, on an
open drain in the wading pool of Medfield Area Recreation Club in
Cary. She survived the accident, but the 9-year-old will have
serious health problems for the rest of her life.

Just before Valerie sat on the drain, someone removed the drain's
cover - a plastic disc that only snapped into its frame, rather than
being affixed with screws. Valerie's lawyers argued that Sta-Rite
knew the cover was a danger without screws but failed to warn users
that screws were necessary to prevent injuries or death.

The two-month trial ended Tuesday. Sta-Rite agreed to pay the
Lakeys $25 million in cash - the amount a jury awarded the family a
day before and the largest judgment in North Carolina history. In
return, the family did not ask the jury to assess punitive damages
against Sta-Rite.

Later, Edwards and Kirby said they ran their case by six focus
groups before going to trial. They said they found that juries
picked up on the obvious emotional appeal of a horribly injured
little girl - but they didn't reach verdicts solely on Valerie's
condition.

"We had to get over to the focus groups the concept that the
screws were necessary," Kirby said. "No one in the general public
knows the cover is a danger without screws. It takes time for people
to understand that."

"We knew after the focus groups that we had to have a smart jury,"
Edwards said. "I think we had 10 college graduates, and four with
master's degrees."

###

Defense's focus groups take different view:

Parsons said he and Kerner feared the Valerie factor would be
overwhelming. Instead, their four focus groups understood defense
arguments, and all four voted for the defense.

"That background research going into the trial gave us the
confidence to believe we had a fairly high chance of winning,"
Parsons said. "In a case this substantial, you've got to go to these
kinds of tools. You can't do it on experience and intuition alone."

Of course, no matter how much lawyers prepare, surprises lurk in
every trial. What tipped the case, Parsons said, were decisions on
evidence and the law that went against Sta-Rite.

For example, Parsons and Kerner wanted Superior Court Judge Robert
Farmer to tell the jury that Sta-Rite used reasonable judgment in
deciding whether to warn about using screws on its drain covers.
Farmer told the jury that Sta-Rite had an absolute duty to warn
people about possible dangers when a drain cover is used without
screws.

After the trial, a number of jurors said they could have gone
either way until Farmer instructed them on the law.

###

State's top judgments:

Here are the 15 largest judgments or settlements to a person or a
family in injury or wrongful death cases in North Carolina in the
1990s.

- $25 million: In 1997, to a Wake family whose daughter was
disemboweled when she sat on an open swimming pool drain. (Family
also received $5.9 million in 1996 settlements from three other
parties.)

- $15 million: In 1990, to the family of a man who was given the
wrong drug at a nursing home and later died. Case tried in Hertford
County.

- $9 million: In 1990, to the Fayetteville family of a girl whose
arms and legs were amputated because of misdiagnosed complications
from meningitis.

- $7 million: In 1992, to the parents of a 16-year-old who killed
himself after being dismissed from a private psychiatric hospital.
Case tried in Guilford County.

- $6.295 million: In 1991, to the wife of a man whose car was hit
by a truck involved in a chase. Case tried in Haywood County.

- $6 million: In 1992, to a family whose car was hit by a truck in
Raleigh. Their son, who had once scored in the genius range, was
left severely brain damaged.

- $5.7 million: In 1996, to the parents of a Wake woman who was
brain damaged and partially paralyzed after a drunken driver hit her
car.

- $5.5 million: In 1994, to a woman who suffered a head injury and
multiple leg fractures when she was hit by a drunken driver in
Cumberland County.

- $5.26 million: In 1995, to a man who was hit on a Durham County
road by a tractor-trailer and left with a head injury so severe that
he could not recognize his wife and sons.

- $5.21 million: In 1994, to the family of a Cumberland County
baby whose nurses did not notice that he inhaled some of his vomit
until his brain became oxygen-starved.

- $5 million: In 1995, to the estate of a woman who died at a
Scotland County hospital when non-staff physicians performed
angioplasty on her heart without her consent.

- $5 million: In 1995, to the parents of a baby whose delivery at
a Mecklenburg County hospital was so botched that the boy now is
brain damaged and wheelchair-bound for life.

- $4.947 million: In 1996, to the driver of a car who hit a truck
that ran a stop sign in Union County.

- $4.25 million: In 1994, to a woman whose child was brain damaged
when an obstetrician delayed in attending to the mother's high-risk
delivery in Wake.

- $3.67 million: In 1992, to the parents of a baby whose Halifax
County nurses badly administered a labor-inducing drug and delayed in
resuscitating the baby. (SRCE:North Carolina Lawyers Weekly)