By Dr. Ken Broda-Bahm:
A mock trial is not a crystal ball with access to the ultimate result you’re going to see in a real trial. There are too many differences between the research situation and the full trial setting for those results to be considered reliable, including the individual make-up of the panel, the spectrum of evidence presented, as well as the different amounts of time that can be taken in presenting a case. But even with those limitations, there is no reason to go to the other extreme and declare a mock trial to be uselessly artificial. As a research tool, a mock trial can be a trusted resource up to a point, and quite useful as long as you keep that point in mind.
In one of the only studies of its kind, a relatively recent article (Manzo, 2019) reports on a comparison between real and mock deliberations in terms of their content and process. Previous studies have shown that the mock juries used as a research tool in many academic projects are generally comparable to real juries in terms of their outcomes on similar cases. However, as the author points out, “Most critiques of mock juries demonstrate an ‘input-output’ emphasis…” however, deliberation should be primarily studied as a process. And at a process level, even when they’re not demographically diverse (many research panels are composed of the undergraduate students in Psych 101) they are still typically comparable to real juries in the ways they organize conversational turn-taking, use jurors’ own practical experiences, and construct their own understanding of the legal rules. Practically, I believe that there are things you can and can’t rely on from a mock jury, and it helps to be clear about the distinctions.
What You Can’t Rely on from a Mock Jury:
A Specific Result
A mock jury can’t predict your ultimate result, not only because the scope of information given to mock jurors is much less, but also because group dynamics will be idiosyncratic. There is a reason why we typically don’t do one panel projects (we are reluctant to use fewer than three panels) because having multiple groups allows you to see what is common across groups and what is unique to a given group. But even if all three juries reach the same result, there are still some differences that prevent the mock trial from being generalizable. Even the mock jurors will tell you they would like to know more before feeling confident in their verdict. The ways they talk about the case and the routes they take toward a resolution are going to matter more than the discrete result.
A Trait-Based Connection
If you notice that one or a couple of younger males are not keen on your case, that is not enough to tell you that you’ll want to strike younger males at trial. Unless you have a sufficiently large number of mock jurors to permit a statistical association, that finding is likely to be noise rather than data. Focusing on the attitudes that the mock jurors bring with them, and the ways they apply those attitudes during deliberations is likely to be much more meaningful. Another factor to consider over the simple demographic traits of your jurors is their experiences. When there is something about an experience that would logically inform their view of the case (e.g., when those with management backgrounds are more skeptical of plaintiff’s employment claims), then it becomes a more reliable finding, even if it is observed from just a handful of people.
What You Can Rely on from a Mock Jury:
A General Understanding of the Process
The true value of a mock trial comes not from being handed the results but from being able to watch the process. The very factors that the researcher found to be parallel between mock trials and actual trials — the conversational process, the constructed understanding of law, and the use of personal experience — are the most meaningful things to watch from a mock jury. Particularly with a shortened understanding of the case, they’re not always going to get everything correct, on either the facts or the law, but they almost always will make a good faith effort to get at the “what happened?” part of the story, and along the way, they will show you how a fresh and non-specialized audience will react to your legal scenarios, your evidence, and your story.
Overarching Themes and Questions
In relying on the process more than the outcome, a key focus should be on how the mock jurors talk to each other. Ultimately, the deliberations often boil down to the mock jurors telling the story back to each other. In the process of these re-tellings, you will be able to see the terms they use, the metaphors they create, the messages they leverage to influence others, the main questions they raise, and the points where they are wrong or need more information. These conversational elements can’t be expected to exactly match what the real jury will do, but these features do form the palate that the ultimate jury will draw from in trial. In any case, adapting to that feedback will provide the trial team with a way of improving the comprehensibility and the influence of the case that eventually goes to the jury.
The mock trial isn’t meant to be a crystal ball, but studying the reactions of those who are freshly exposed to your case will give you a valuable sense of possible reactions as well as a way of working toward a better result.
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Other Posts on Mock Trials:
- Appreciate the Advantages of Online Mock Trials
- Share the Stakes in Your Mock Trial
- Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test
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