By Dr. Ken Broda Bahm:
It is a common step on the road to trial or pretrial resolution: Have a mock trial! But as routine as that research step is, it is still never a small matter. The scope and scale of a mock trial varies widely, but it is not a small expense in either money or time. For that reason, it is important to get the most out of your investment. After a mock trial, it is typical for the follow-up report and discussions to focus on a breakdown of responses from the mock jurors, an analysis of what works and what doesn’t, and some recommendations on ways to fine-tune the strategy. That is the most common form of post-research work product, but it represents only a slice of what can be provided after a mock trial.
There are a number of directions that the trial lawyers and the consultants can go with the mock trial results. Depending on the situation, you will sometimes want to focus most on particular goals and sometimes on other goals. But, for this post, I wanted to create as complete a list as possible, focusing on all of the ways that a mock trial might be used. It could be a handy checklist when you are thinking of how to apply your own mock trial findings, and how to wring the greatest possible value from it. The following is my list of the questions that can often be answered, at least in part, via your mock trial.
Am I Prepared?
The mock trial is a great road test for your advocacy. Not only do you get the experience of delivering and testing your own summarized version of your case, but you or someone on your team also gets to try out the other side. Asking yourself, “Do I know what the other side will say?” is often as important as asking, “Do I know what I am going to say?”
What Are Our Chances?
Your mock trial will not predict your ultimate trial results with any degree of reliability, since there are many factors — rulings, witnesses, and the actual jury to name a few — that will be different once you get to court. But a mock trial can still serve to supplement other sources in building the kind of overarching case assessment that helps you think rationally about settlement versus trial.
What Is It Worth?
Part of that assessment, of course, comes down to dollars and cents: What is the possible opportunity for the plaintiff, and what is the potential exposure for the defendant? Given the specificity of the information often introduced on damages, mock trials are not always able to replicate the level of detail. But the project can be designed to focus more specifically, or even exclusively, on damages if that is the kind of feedback you need.
Who Should I Strike or Challenge?
It is possible to read too much into a mock trial: Just because the worst mock juror for you was a blue-collar worker does not mean that you ought to strike all blue-collar workers. But it is still possible to observe patterns. Particularly when you have a good-sized pool, you can often see correlations between the attitudes you measure at the beginning of the project and the leanings you see at the end of the day. Those are the attitudes to assess in your voir dire.
How Do I Frame This Case for Mediation?
In a mediation, you often find yourself making arguments to the mediator, and sometimes even to the other side, about your chances should the case actually go to trial. You’re trying to frame the case in the best possible light, while also showing that you are realistic. The mock trial should provide a variety of ways to frame your case for mediation.
What Are My Weaknesses (and How Do I Minimize Them)?
One of the most basic functions of a mock trial is identifying the case weaknesses that you may have missed or underestimated. But beyond just identifying them, the mock trial should also help you learn about how those weaknesses are minimized or even leveraged. When a given weakness comes up, how do your supporters respond? When someone decides to change their mind and set that weakness aside, what fact or argument convinces them to do so? Does it work to embrace the weakness?
What Are My Strengths (and How Do I Leverage Them)?
Attorneys pride themselves on knowing their strengths, but a mock trial can put them in sharper relief, and sometimes reveal some new ones you did not expect to see. More importantly, a mock trial will help you get the most out of those strengths. For example, sometimes the advantage is simply in beating already low expectations, and at other times, the strength lies in connecting the advantages of your story to a set of moral principles your audience already holds.
What Perceptions Will My Witnesses Need to Overcome?
A typical mock trial doesn’t include time for the extensive testimony expected in trial, but does usually include time for a quick snippet of testimony from the key witnesses. And a quick snippet is often all it takes. The first impressions formed by the mock jurors are likely to be strong and lasting. Knowing that a key witness comes across as “arrogant,” or “defensive,” or “confused,” for example, helps to focus the pretrial preparation sessions on minimizing those perceptions. More substantively, the research can also help reveal the main questions that jurors expect that witness to answer.
What is My One-Line Theme?
Can you distill the case from your perspective down to one line that, as I’ve written before, “rolls off the tongue and sticks in the mind?” You may have that idea already and want to test it, or you may want to listen to the mock jurors and see how they boil it down. What you are looking for is a phrase that is memorable, aimed at the jurors who will be tougher to persuade, and taps into your juror’s moral vocabulary. Most of all, you are looking for language that the jurors actually use in persuading each other and persuading themselves.
How Do I Tell the Story?
You know the timeline of your case, but the story is likely to require more work and will benefit from some neutral feedback. More than just sequence, the story includes some essential ingredients that we are taught from childhood to recognize: a scene, an obstacle or conflict, a resolution or triumph, and a moral. The story shouldn’t just lay out the answer to “What happened,” it should create engagement and empathy. In the mock trial, you will see what works and what doesn’t.
What Analogies and Metaphors Do I Need to Promote (or Watch Out For)?
One thing that is almost guaranteed is that your mock jurors are going to think a little differently about your case than you are. One likely difference is the analogies or metaphors they will use in order to make the case understandable. Listening to the metaphors the mock jurors use and respond to helps you to design your metaphors more effectively.
How Do I Teach?
Some of your toughest challenges can require teaching and not just persuasion. The mock trial will tell you where you are likely to face your greatest comprehension challenges, and will also allow you to test various approaches to teaching the jurors what they’ll need to know in order to grasp your side of the case.
How Do I Visualize the Case?
Chances are, you will need your jurors to see and not just hear your case. Visual demonstrative exhibits provide comprehension and continuity with the verbal message. You won’t always have your trial demonstratives prepared by the time of the mock trial, but if you have at least a good start on your most important trial graphics, the mock trial will allow you to track the response.
That probably isn’t a complete list of all the ways to use your mock trial, but it is a good start.
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Other Posts on Mock Trial Research:
- 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: 123rf.com, used under license