“We don’t see things as they are, we see them as we are.”  This wise quote has been attributed to Anaïs Nin, H. M. Tomlinson, Steven Covey, and others.

Jurors will not see and hear your case as it is, or as you think it is.  Jurors will see and hear your case as they are — just as you perceive your case as you are.

Consequently, your jurors probably won’t think about your case like you think.  (They also won’t think as the court instructs.  For example, a Texas Pattern Jury Instruction admonishes, “ … do not form opinions about the case before you have heard everything.”  Yeah, right.)

A well-executed, interactive focus group session is a window into the minds of your jurors — who they are, how they think, and consequently what they think of your case.  Who they are and how they think are directed by their life experiences, from which emerge their beliefs, values, and attitudes.  Their beliefs, values, and attitudes will direct what they think of your case.  This “how” direction is “other-than-conscious” — a term coined by Daniel Kahneman in his excellent book Thinking Fast and Slow.  It happens automatically and outside conscious awareness.

The other-than-conscious “how” manifests through confirmation bias — perhaps the strongest of all biases.  Confirmation bias is defined as “seeking out and interpreting information in a way that strengthens our preestablished opinions.”  When we have a strong motivation to believe that something is true, even the strongest contrary proof will fall on deaf ears or meet resistance.  Because conscious analysis is directed automatically by reactive, other-than-conscious thinking, we unwittingly will twist or dismiss the counterevidence.  The old saying is true:  “He who is convinced against his will is of the same opinion still.”

A well-executed focus group can reveal and demonstrate how confirmation bias may work for the case, or against it.  A focus group can generate viewpoints, arguments, and metaphors for the case, or against it, that the lawyer has not thought of (perhaps because of his or her own confirmation bias).  A focus group can show whether the lawyer’s trial story will align with, or conflict with, jurors’ life experiences, beliefs, attitudes, and values.

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