By Dr. Ken Broda-Bahm:
There are many reasons to mock try your case before trial or settlement. It helps you assess your overall case, identify your strengths and weaknesses, and test your messages, witnesses, themes, and graphics. It won't necessarily predict your results, but when done well, it will inform you on the reasonability of possible ranges. It also provides a practice benefit, ensuring that your first run-through isn't done in a courtroom. Ultimately, watching the interviews and the deliberations can simply help in providing a new perspective: the refreshing tonic of just getting a read from someone outside of your team. While a mock trial can benefit any case, it matters for some cases more than others. Within some litigation types -- e.g., vehicular accidents, slip and falls, and some medical malpractice cases -- there is a kind of regularity to the themes and stories that allows experienced trial lawyers to have a good idea of what to expect. In those cases, counsel can often get away with relying on general experience rather than a specific test.
Other kinds of cases have a more clear and immediate need for the nuanced feedback provided by a mock trial. Cases that depend on the subtleties of human perception benefit from a test, and cases featuring parties and witnesses who can be understood in very different ways also stand to gain from the feedback of neutral observers. Brain injury cases are probably near the top of this list of cases that see an advantage in a mock trial test. Counsel on both sides are asking jurors to weigh in on an injury they can't see, to understand complex medical data and behavioral information, and to boil that into causal and monetary terms. Ultimately, the jury will need to look at complex and conflicting data and ask themselves, "What is going on in that brain?" Both sides in a brain injury case should test these perceptions in a mock trial. This post will unpack some of the unique benefits of a mock trial in a brain injury case.