September 29, 2014

Check Your Mock Trial Against This List of Thirteen Best Practices

By Dr. Ken Broda-Bahm: 

10930800_mI have learned from talking with clients that the phrase “mock trial” can refer to many different things. There is a common core — mock jurors hearing parts of a case and deliberating while you watch — but beyond that, the way that it is executed can vary quite a lot. So for this post, I thought I would share my own list of 13 “best practices.”  

1. Randomly Recruit Your Mock Jurors

The quality of your results will only be as good as the quality of your participants going in. As I have written before, mock jurors who are randomly recruited will be more like your actual jurors than any pool gathered from a database or, worse, from a “Friends and Family” panel. Results from those poorly recruited projects can be worse than nothing, because they can be misleading. The best practice is still to rely on a mechanism, like Random Digit Dialing (or RDD), to ensure that every member of your target population has an equal chance of being contacted for the project.

2. Conduct Your Mock Trial In Your Venue

It is not just a matter of replicating the demographics of your trial venue; it is a matter of capturing a specific local knowledge that cannot be replicated anywhere else. Your consultant might have a fancy mock courtroom in their home office (as we do), but you should only use it when your trial is venued in that city. Occasionally, when the town is simply too small to trust in confidentiality (see #4 below), there will be a good reason to conduct the research in a matched venue nearby, but that is the rare exception, not the rule. 

3. Screen For Your Likely Trial Conditions

You want your jury to not just represent the population in your venue, but to represent the pool most likely to be seated for your trial. That means considering factors like disqualifying knowledge and personal hardships, and to not recruit individuals who would be unlikely to survive those challenges in the actual trial. For very long trials, for example, we have often questioned potential recruits as though we were recruiting them for the duration and not for a one day trial, asking whether their employer compensates for jury duty, for example. 

4. Commit Your Mock Jurors to Confidentiality

Naturally, you want the mock jurors to understand that the project is like Las Vegas: what happens here, stays here. Two additional steps are necessary. One, have participants sign a contract to that effect. And two, and more importantly, make sure they understand why projects like these have to be confidential. The best reason we give is that confidentiality is necessary to respect the actual process and to avoid tainting the jury pool for the real trial. 

5. Tell Your Mock Jurors Why the Project Matters

That rationale brings up another point: We have found that it helps if jurors know that there is a real trial. They should know that their participation matters to the actual parties. Don’t lie and tell participants, for example, that the two sides have come together and agree to follow this mock jury’s verdict. But do truthfully let them know that their feedback will play an important role in assessment, settlement, and if necessary, trial preparation. 

6. Have Attorneys Present Live Where Possible

Some consultants rely on video-recorded presentations, seeing them as more controllable. But we have found that jurors pay attention differently when they are watching the screen instead of watching a person. It can be a subtle difference, but the attitude can shift a little, as if the jurors are watching in their own living room. Some consultants also like to present the information themselves instead of using attorney presentations. We occasionally do that too, but find that jurors appreciate the clear adversary component in hearing from both sides.  

7. Present Summary Arguments Rather than Strict Openings

Attorney presenters should banish the phrase, “the evidence will show,” and summarize the evidence as they tell the story. That approach of combining opening and closing (or “clopening”) allows you to test more information in less time. Of course, mock jurors need to understand that attorneys have that permission. We will tell them that they can trust that the attorneys are summarizing accurately, but the importance and weight they have given that summarized evidence is their decision. 

8. Make Sure Attorney Presentations are Balanced

In a mock trial, one side of the case controls all of the content. The goal is not to “win,” but to present a balanced view of both sides. When in doubt, err on the side of a worst-case test for yourself. It is nearly always the case that the attorneys and consultants alike will learn more from a mock trial loss than a mock trial win. To make sure the opposing side gets the very best shot, it is a good idea to have the lead counsel present the other side. That can also be an invaluable way of getting inside the other side’s head. 

9. Review and Critique Attorney Outlines in Advance

Attorneys should present live whenever possible, but the outlines for those live presentations should be reviewed and critiqued by the consultant in advance. That review serves three functions. One, it makes sure the presentations are balanced and fair to the other side. Two, it makes sure that the presentations are parallel, each focused on the same issues. And three, it allows the trial team to get some strategic advice in advance — theme, structure, arguments to emphasize — and that informs the test and makes it more valuable. 

10. Use Three or More Juries

Some consultants will use just one mock jury, and some clients prefer that, either because it is cheaper, or because it is simpler. But it is a dangerous practice in my view. Looking at just one panel, you don’t have a good sense of which reactions are reliable and which are idiosyncratic to the group you’re watching, due to that group’s composition and leadership. Watching at least two, you can see which reactions are more reliable because they cut across both groups. And adding that third group is very good insurance for breaking a tie in the event that the first two juries strongly differ. 

11. Set the Juries Up for Maximum Disagreement

Ultimately, the goal is to have fruitful dispute during the deliberations phase. To accomplish that, we do two things. First, we look at jurors’ leanings expressed in the final questionnaire prior to deliberations, and then make sure that the three groups are each balanced based on the pro-plaintiff and pro-defense jurors. Then, whether the venue requires it or not, we tell the jury to work toward a unanimous verdict. That maximizes the chances that they’ll hear dissenting views, and that they will have to grapple with those views instead of just dismissing them and moving on. 

12. Look for Patterns, Not Necessarily for Statistical Significance

As you review the questionnaire data and observe the deliberations and interviews, useful patterns and tendencies will emerge. Some of those patterns, especially on the questionnaire side, may manifest as statistically significant relationships. But, for many reasons, statistical significance is not the sin qua non for this kind of research. Mock trials generally lack the verisimilitude, as well as the sample size for that kind of analysis. Instead, reliability is going to be more subject to judgment. But that is okay, due to this last best practice. 

13. Use Your Results for Preparation, Not Prediction

Sometimes clients, or their claims adjusters, enter the mock trial with a single question in mind: What will happen in trial? There is a very short answer to that: no, it won’t. A short mock trial simply cannot replicate the conditions at trial, and even a representatively-selected panel cannot identically match the ultimate jury. So the mock trial result does not tell you what your trial result will be. But that is okay, because a mock trial is not supposed to do that. Instead, the mock trial should serve a heuristic function: telling you what to explore and what to improve. It is a way of working rather than a way of knowing. That work can payoff in either a better message at trial, or in a more grounded case assessment for settlement. But either way, having gone through the exercise, you will be better prepared. 

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Other Posts on Mock Trials: 

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Image Credit: 123rf.com, used under license

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