By Dr. Ken Broda Bahm:
During the past year or so, when clients have scheduled witness meetings or focus group and mock trial research, we will at some point get to the common question: “So, are we doing this in person or online?” Increasingly, it feels like the answer to that question ought to be “Yes.” Now that fear of the pandemic is becoming less of a motivation for online work, ease and effectiveness is stepping up to be the alternate motivator. In the same way that many of the in-person meetings and phone calls of years past have become Zoom meetings, it is increasingly likely that our processes of trial preparation will also change for good.
And it isn’t just a question of whether we will prepare live and in person or online. It is a question of how we will make the best use of both. Online strategy meetings, for example, are easier to schedule and can effectively involve a nationally distributed team. It is more practical for experts to pop in and out, so they might attend only their segment of a meeting. In addition to general meetings, however, there are two important parts of the preparation process that stand to benefit from the flexible use of both online and in-person resources: witness preparation and pretrial research, including focus groups and mock trials.
Prepare Your Witness Virtually and In Person
Particularly when you have a mission as delicate as that of preparing a witness for deposition or trial, in-person communication will always have some advantages. True eye contact alone is worth a lot in that setting. By being physically present, you are also more likely to pick up on how the witness will come across in person. There are, however, three situations where an online meeting can supplement:
The Set-Up: If you just want to describe the testimony process, outline the do’s and don’ts, and maybe try a little testimony practice to see where the witness is, an online meeting can do that easily.
The Check-In: If you have already done most of your preparation with this witness and you just want to test closer to trial in order to see how much of it has stuck, a Zoom meeting can be a good, quick refresher.
The Special Purpose: If new information has come up, or if you have a particular issue that needs more work, the virtual meeting can be easier to schedule and less taxing for all.
Conduct Focus Groups and Mock Trials Virtually and In Person
When you’re assessing and preparing your case using small groups of mock jurors, the advantage of being in-person also applies: interviews and deliberations can be easier and more natural. But one of the true surprises of the pandemic has been that a very large portion of that benefit is retained online. The other advantages are that it is less expensive when you aren’t renting a physical space, less time-consuming for all involved, and quicker to plan. This is an area that many are still pioneering, but at this point, I see three general ways to integrate the live with the online mock trial
The Mixed Bag: The ingredients can be combined: some parties appear in person while others are online. The lawyers could present remotely to jurors who are there in person, or vice versa. The whole thing could take place in person while clients watch remotely. We have even toyed with the idea of having some mock jurors in person while others watch virtually, though, of course, we need to account for the fact that the mode of viewing ends up being part of what’s being tested.
The Smaller Scope: If you want a simpler project, perhaps focused on a single issue or an early phase of case assessment, then the online option can give you a quick look, which can always be supplemented by a broader and in-person test of the case down the road.
The Add-On: Let’s say you have finished the mock trial and realized there is a good chance of your defendant facing a “Yes” on liability. So now you want to give your less favorable jurors more detailed information on damages to see where the jury is likely to go. The best way of bringing that group back together quickly might be through an online follow-up after your in-person mock trial.
So, we’re living in interesting times. Just as our actual court system is likely to apply 2020/2021’s lessons learned in the form of more hybrid procedures (moving jury selection and some testimony to online formats, for example), our preparation processes are likely to also move toward the more productive combinations.
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Other Posts on Trial Preparation:
- The Virtual Trial: Be Conscious of What Is Lost and What Is Found
- Expect Attorney Resistance to Online Trial Innovations
- Resist the Judge’s Nudges: Sometimes Trial Is Better Than Settlement