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.
A Brain Injury Mock Trial Will Help You Understand How Jurors Will…
Understand the Intangible
This is a well-known challenge when it comes to trying or defending these cases: How will jurors react to an injury that they cannot see. In contrast to damages that are obvious (e.g., paralysis, loss of life), brain injuries run a full spectrum from profound to subtle. The degree of damage often has to be pieced together or inferred from the evidence. Steeped in their work on the case, counsel and experts will often have a perception that differs from the average person’s. And when you need a good read on what the average person thinks, there is no better way to get it than by asking them. For example, one of our recent cases involved a child that had been brain injured as an infant, with claimed behavioral problems emerging only years later in her early adolescence. After conducting two days of mock trials, defense attorneys took some consolation from the single most-common word that both days’ mock jurors used to describe the child: “normal.”
Simplify the Complex
A mock trial of your brain injury case can help you understand jurors’ struggles to comprehend the evidence. You learn from how they learn and process. The evidence itself can be incredibly difficult, as jurors need to understand brain scans, EKGs and other tests, and also interpret more subjective behavioral and functional assessments. Watching the interviews and deliberations will not just answer the basic question, “Do they get it?” but will also answer more specific questions like: How do they get it? What parts do they get? and What tools make it easier or harder? Often the way mock jurors approach the problem is quite different from what attorneys and experts expect. In the infant injury case I mentioned above, for example, mock jurors didn’t rely on the complex testimony on brain blood flow and electrical activity, but were quite impressed with the fact that the child had quickly learned to play the violin. In that case, common sense told them that if she could learn to play a notoriously difficult musical instrument, then she could not be too brain damaged.
Quantify the Qualitative
By design, most mock trials are going to serve a heuristic function, but won’t be predictive of your results at trial (beware of anyone who tells you otherwise). Still, even without that fortune-telling function, a mock trial can still be helpful in showing you what factors will motivate damages, as well as the reasonability of the range in damages numbers. In the notoriously elusive noneconomic categories, for example, a mock trial will tell you how mock jurors react to various anchors, how they connect any doubts about liability or causation into damages, and how they move through the observed process of getting from a story, to a “gist” of damages (as low, medium, or high), to a specific number. In the childhood brain injury case, for example, despite strong doubts about liability, causation, and the degree of brain damage, mock jurors still had a strong desire to help the child by providing some counseling for her behavioral problems which they saw as unrelated to her injury.
Untangle the Causation
Causation can be complex in brain injury cases. In addition to the question of the the cause or causes of the injury itself, there can also be critical questions over what is contributing to the plaintiff’s behavioral problems. Brain injured patients can lead pretty messy lives, so there are often other factors — substance issues, other injuries, difficult family relationships — that can contribute to behavioral issues that are associated with the brain injury. In the recent case, mock jurors believed that there were a number of factors other than the brain injury contributing to the child’s behavioral problems, including natural growing pains as well as a strained family dynamic. That mock trial also revealed a complex interplay between liability, causation, and damages: When the Defendant admitted liability (a scenario tested on the second of two mock trials), that seemed to drain much of the anger, and mock jurors were substantially less motivated to believe the Plaintiff was significantly injured, and less likely to believe that the Defendant’s conduct had anything to do with it.
Factor in the Social Dynamic
In any setting that involves caregiving as part of the damages picture, the jury can be expected to scrutinize not just the plaintiffs, but the family too, whether they are named parties or not. In the childhood injury case, there was a large — dominant even — focus on the family at all levels: liability (Should the family have been watching the child better and prevented the injury?), causation (Are the child’s problems caused by a brain injury or by family dysfunction?), and damages (Can the family be trusted to put damages money to good use or not?). In all three of those categories, the mock jurors translated a lack of sympathy for the family into a reduced likelihood of agreeing with any aspect of the Plaintiff’s case, including those that had to do with the Defendant’s wrongdoing.
In all these ways, a mock trial in a brain injury case is going to tell you some things you don’t know. It will highlight both problems as well as opportunities. Most of all, it will provide a window into the ways typical jurors will understand and react to a complex injury and the events surrounding it.
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Other Posts on Mock Trial Method:
- Be Design Conscious: Top Seven Posts on Mock Trial Design
- Beware of TMI: More Information Doesn’t Lead to Better Decisions
- Tune in to the Signal and Not the Noise in Pretrial Research
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Image Credit: John M, Flickr Creative Commons