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.

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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.

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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.”

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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.

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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)