By Dr. Ken Broda Bahm:
It can be a common experience during a mock trial. You have a mock juror who ends up being way too focused on what they don’t know. They understand that there are limits to how much detail you can get into within the constraints of a shorter trial simulation, but end up becoming obsessed with the witnesses they didn’t hear from, the documents they didn’t see, or the law they have not completely reviewed. So, despite you having spent a day or more conveying detailed information to them, and despite your goal of getting a reaction to that information, the mock juror is stuck with the feeling that there is so much they don’t know that they simply can’t make a reasonable decision. And once one juror shares that, the feeling can be contagious and can knock the deliberations off track. I’ve coined the name “partial-picture paralysis” for this, because that sense of not knowing everything serves as a barrier to making a decision based on what is known.
It is easy to see how this perception can reduce the value of a small group research exercise, but what the mock jurors often don’t realize is that the real jury isn’t likely to have everything either. In the actual trial, there will still be limits – created by time or admissibility – to what they can know. And even when the actual juror hears much more than a mock juror would, their reactions to the fine-grained version is generally going to be driven by the more general “big picture” reactions that they developed very early in their exposure to the case story. So the fact of deciding based on limited information isn’t just a research necessity, it is also a more basic and inevitable feature of human decision-making. Particularly in the shorter mock trial exercise, but also in trial itself, it is important to address this “partial-picture paralysis,” and this post will share a few ways to do that.
Set Expectations
Particularly in a mock trial, you need to help jurors feel they are getting enough on which to reach a meaningful and useful decision. The message ought to be, “You won’t know everything, but you will know enough.” At the beginning, I will emphasize to mock jurors:
There will always be additional information that is going to be outside your purview. What we want is your best reactions to what we do share.
In trial, the gap will differ in degree, but you will sometimes need to give a heads up in opening that there will be some unknowns, but those should not prevent the jury from reaching a verdict on the information that is known.
Don’t Skimp on Docs in Your Mocks
It can certainly be a hassle to prepare tabbed document binders, or to arrange for iPads with a library of PDFs, but it is important for jurors to feel that they have access to the most important documents in order for them to feel confident in their decisions. I have had clients comment that “These mock jurors can’t possibly read a 300 page binder,” and my response is, “They can’t, and they won’t… but the fact that they could look up this page or that page if they wanted to will make them fell more confident that they have access to the relevant facts.” No, you don’t need to throw everything and the kitchen sink at them, but if there is a document that could or should matter to their decision on the facts, then let them see it.
Wrap Your Detail in Story
It is as much about the feeling as it is about the fact that jurors have access to a sufficient factual background for their decision. So focus not just on the volume of information, but on the tools to make that information manageable. If you have a bunch of documents, group them based on the story, and provide a table of contents with meaningful labels. If you have a bunch of witnesses, provide a “Who is who?” guide with names, roles, and pictures. If you have a bunch of factual details, arrange them on a clear timeline. Ultimately, the facts will make the most sense to jurors, and help create that subjective feeling of “enough knowledge” when they are grouped, sequenced, and framed as a story.
Pilot Test Your Messages
When social scientists are testing some kind of stimuli – a scenario, story, or some other manipulation – before using it in the big study, they will typically test it in a smaller study to assess the basic assumption that scenario makes sense, is interpreted as intended, and generates meaningful responses. Litigators ought to do the same thing before the trial, and quite possibly before any large-scale mock trial. Find a sounding board to hear your message, and it is okay to draw from naïve colleagues or friends and family. See if it makes sense, and see if your case seems complete. Ask whether there are any questions, any confusion, or any gaps. As a bonus, they’ll sometimes have good ideas for strategy as well.
Ultimately, your level of detail might never get to the point of satisfying a perfectionist, or the person who is looking for a convenient way to avoid a tough decision. But you will want as many jurors as possible in your mock jury, and eventually your real jury, to have a sense of completeness – both the fact and the feeling that they are getting enough of the full picture that they can make a good decision.
________________________
Other Posts on Pretrial Research:
- Share the Stakes in Your Mock Trial
- Beware of ‘Participation Deception’ in Your Surveys and Mock Trials
- Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test
________________________