By Dr. Ken Broda Bahm:
“What’s the “credibility fish,” you ask? It is the shape in the image above: The graph that is made when measuring the credibility of each of two parties over the course of a simple mock trial. We ask the mock jurors to rate each party’s credibility on a scale that ranges from 7 (highest) to 1 (lowest) at each of three phases. After they’ve heard only from the plaintiff, a few will have reservations or give the defendant the benefit of the doubt. But most should give strong credibility to the plaintiff and weaker credibility to the defense. Then, after hearing from the defense, that relationship should reverse itself. Hearing the rest of the story, most should see some problems in the plaintiff’s case and some merit in the defense. Finally, after hearing the plaintiff’s rebuttal, those ratings converge toward a midpoint. As the mock jurors head into deliberations, understanding of the two sides should even out, setting the stage for robust disagreement.
Graphing those shifting ratings, what you get is the shape of a rightward facing fish, just like the Christian car decal (but not the “Darwin” version with the feet on it). The party with the higher credibility should alternate with presentations, and then end up near the middle. Instead of trying to ‘win’ the mock trial by the end of presentations, the sponsoring party’s aim should be to provide a realistic but very balanced presentation of each side in order to maximize the possibility for reasonable disagreement during the deliberation stage. Of course, every mock trial is going to be different, and sometimes the fish isn’t there, or it might be fatter or thinner. But at the end of the day, the more it looks like a fish, the better you did at keeping the presentations balanced. In this post, I will share seven principles for maintaining this balance in order to make your mock trial as productive a ‘fishing expedition’ as possible.
1. Put the Most Experienced and Involved Attorney on the Other Side
One of the best ways to ensure balance is to assign your lead trial counsel to play “plaintiff” if you are defense, or to play “defense” if you are plaintiff. There can be a strong desire to practice or to demonstrate your prowess to your clients on your own side. But putting on the other side’s hat not only enlists that competitive drive in the service of the best opposition presentation, but it also sharpens your own thinking by helping you to get inside your adversary’s frame of mind.
2. Create a List of Research Questions First
Generally speaking, your mock trial is going to be far more compressed than your actual trial. While the ability to summarize testimony and to bypass many of the formalities saves a great deal of time, it is still likely that the case you’re testing is an incomplete version of your actual case. For that reason, it helps to start by asking, “What are we most wanting to test?” By building that list in advance, you make it easier for both sides to frame their mock trial summary arguments around those issues, making for more balanced and parallel presentations.
3. Aim for Parity in Content
Acknowledge the reality that you are going to be far more focused on your case than on theirs. If you’ve collected exhibits, designated witness testimony, and drafted demonstratives, then you’ve done that on your own ground. For the mock trial, however, you need to do the same for the other side. For example, it might seem like a waste of resources to pay a designer to create a timeline for the other side to use, but it is worth it for the mock trial. Not only will you have a more balanced presentation, but you’ll also have some insight into what your adversary needs to do and why.
4. Exchange Outlines in Advance
Sometimes when the “game on” mentality of a mock trial infects a trial team, each side will be reluctant to tip their hand to the other side. I think this is a mistake. Again, the point isn’t for either side to ‘win’ the mock trial, it is to get the best test possible. For that reason, it helps for each side to know, at least in general terms, what the other side is planning to do. That guards against one side bringing up points that the other side isn’t expecting to address.
5. Respond to the Other Side, but in a Realistic Fashion
One reason, other than competitiveness, that mock trial parties are sometimes reluctant to exchange outlines in advance is because that could lead to the presenters being unrealistically specific in preempting and in responding to the arguments brought up by the other side. The solution to this is not to work in the dark, but to hold yourselves to a standard of what level of prediction would be realistic in court. Saying, “They’ll come up here and say they did nothing wrong” is okay; but saying, “They’ll come up here and use an analogy about fishing…” is not okay.
6. Do a Dry Run
At some point before the mock jurors arrive — the evening before works well — the presenters should meet on-site along with the consultants, the AV team, and the “hot seat” operator who will be displaying documents. Informal run-throughs of the presentations at that point can not only help you feel practiced and prepared, but they also give anyone observing the opportunity to say, “Wait a minute, should we really include that? And if so, what does the other side say?” Having that sounding board can be an important step in keeping the presentations balanced and realistic.
7. Test Your Realistic Worst-Case Scenario
In estimating what your opposing counsel will say, you need to be realistic. At the same time, if you err, then you should err on the side of including arguments and approaches that are better than those you expect from the other side. Sometimes parties, used to valorizing themselves and demonizing the other side, will do the opposite. Defense attorneys in particular are at risk of presenting the mock-plaintiff side in a style that is kind of a caricature on what plaintiff attorneys do: a heavy sympathy-laden approach that focuses on the plaintiff as victim. These days, plaintiffs’ attorneys are more likely to adopt a Reptile approach that plays up personal relevance to jurors and plays down sympathy for victims.
Taking all of these principles into account helps you aim for balanced presentations at your mock trial. But of course the proof is in the pudding, and the key is that the mock jurors perceive that balance. That perception is something that can be measured and graphed….and when measured and graphed, it takes the shape of a fish.
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Other Posts on Mock Trial Methods:
- Know Your Constraints: A Conversation on Mock Trial Design
- Don’t Be Entranced By Statistical Claims From Mock Trial Research
- Don’t Ride with ‘Frequent Flyers’ in Your Mock Trial Research
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Image Credit: Created by the author