December 21, 2017

Give Your Client Seven Key Messages About the Mock Trial

By Dr. Ken Broda-Bahm:

Mock trials, and other forms of pretrial juror research, like focus groups, are increasingly common. Particularly in complex or high-stakes litigation, it makes sense to road-test your case in a safe setting. What you learn can help you arrive at a reasonable resolution pretrial, or can help you prepare for the trial if you don’t. Despite the mock trial’s frequency, however, there is still a relative novelty to it that makes it a bright spot in the march up to trial, settlement, or other resolution. In the excitement of what’s often the first real test, clients can sometimes have the wrong ideas about the goals of the research, and what is ultimately most important at this stage. I have written about mock trial best practices before, but for this post, let’s look at it as key goals that the client needs to understand. To set expectations and keep things clear, there are seven key messages that the attorney or the consultant needs to convey to their clients during the research stage.

One, We Aren’t Trying to Win

Yes, absolutely, we are trying to win the trial or the negotiation but, no, we aren’t trying to win the mock trial. We aren’t leaning the test in favor of a good result for our side. But even in a completely fair test, we still kind of hope we lose. Seeing the mock jurors agree with us on everything can be reassuring, but that reassurance comes at a cost. And the cost is that you learn less. Ideally, you probably want a mock trial where you lose, but lose in a way that highlights the ways that you could win.

Two, We Aren’t Trying the Whole Case

Often clients or their attorneys will want to put far too much into the mock trials: too many exhibits, too much testimony, or too many instructions. Sometimes the goal of “making it realistic” will result in an expansion of the attorneys’ presentation time at the expense of jurors’ deliberation time — as if the most important part is the evidence and not how jurors react to it. Ultimately, what we should be doing is trying the core story, and not trying the details. But that is okay, because even in the real trial, jurors will react to the story first, and then react in a consistent manner to all of the details.

Three, We Are Going to Err on the Side of Helping the Other Side

We want a realistic test of the core story of the case, from each side’s perspective. But still, in the run up to trial, there are many unknowns when it comes to admissibility, claims, experts, and instructions. Where there is a reasonable unknown, we want to err in the direction that helps the other side. The reason comes back to not trying to win, but trying instead for a reasonable worst-case test. Occasionally, a factor will be so up in the air and so critical that it makes sense to test the case both ways: with that factor for some jurors, and without it for others. But short of that, we will learn more about how to win under adversity when we test the case in a way that gives the other side the benefit of the doubt.

Four, the Focus is on the Process, not the Product

I have known clients who really just want the results sent to them: the final tally, the group verdict forms, the data. However, the real value comes from looking at the process rather than the product. How do they talk about the case and make sense of it? How do they argue for and against particular positions? When someone flips positions, in our favor or theirs, what arguments motivate them? What levers do they use to raise or lower the damages? The key is watching all of that, and it is a reason why Seattle consultant, Tom O’Toole has suggested that, if we focus on what is most important, it is best to refer to it as “mock deliberations” rather than “mock trial.”

Five, the Focus Is on Trends, Not on Idiosyncrasies

Much of the focus during a project, and much of the talk at dinner at the end of the day, can often focus on the loudest or the most unusual juror. This is inevitable, and there is some entertainment value to that. However, when it comes to what we take away from the project and put to use, our attention needs to be not on the individual or idiosyncratic reactions, but on the trends that are common across the individuals and the groups. This is why we generally have three deliberating groups of mock jurors and why the person who takes the lead on the findings report has watched all of them.

Six, It is Ultimately About Respecting the Mock Jurors

It can be funny to watch jurors deliberate: They’ll misremember, they’ll get things wrong, they’ll sometimes approach it in an odd or oversimplified way. But here’s what the mock trial should not become: A group of highly-educated people (in the closed-circuit room) laughing at a group of generally less-educated people (in the deliberation rooms). That elitism ought to be consciously held in check. No, they’re not going to approach it as lawyers would…and that is precisely why they’re valuable. Ultimately, they will end up getting a lot of the finer points, particularly when they draw on the power of the group. And ultimately, they will have a process for arriving at a decision, even if it isn’t always the process that the law or the attorneys would prefer. The process of getting the most from the exercise requires respecting the participants, and not condescending to or downgrading them in a way that will influence the ways you think about and address the actual jurors.

Seven, the Project Is Only as Good as Our Use of It

For all the energy that goes into that day, the onsite research isn’t the main event. Rather, the key emphasis is on what we do with the information. That usually starts with a strategy session or a written report: What are the main findings, and especially, what are the recommendations that allow us to address the weaknesses and leverage the strengths? When that report is done, usually a couple of weeks after the project, that ought to mark a beginning and not an ending of activity. The question for the team is, how are we going to put these messages, themes, and demonstrative exhibits into practice? How are we going to make the research as valuable as it can be?

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Other Posts on Pretrial Jury Research:

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Image credit: 123rf.com, used under license
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