Getting the Most Out of Your Mock Trials

by Art Raedeke

While your litigation consultant's experience and methodology have an important impact on the quality of your jury research, there are a number of things you can do to ensure that you are getting the greatest return from the money and effort you put into pre-trial research. Following are some suggested ways to improve your mock trial research results. Don't worry about "winning": The goal of jury research usually is to evaluate how jurors react to the issues in your case and to identify ways to overcome weaknesses in your positions. Losing a mock trial can sometimes provide more valuable information about problem areas than does winning. Unless the object of the research is strictly to assess risk or to inform settlement decisions, it is advantageous to do a better job of presenting the opposition's case than your own. That means airing all your dirty laundry (unless there is a good chance of keeping the dirt out at trial) and often means having the senior trial counsel switch roles for purposes of the mock trial. Seeing how jurors react to a strong opposing case allows you to develop trial strategies and themes that respond to jurors' concerns and answer their questions about the weakest parts of your case.

Follow the script: Mock trials are most effective when the content of the case presentations has been agreed upon in advance. While the presentation should seem as unrehearsed as possible and witnesses should not read from a script, the issues to be tested and the evidence to be presented should be pre-determined and known to the participants. There is little reason to keep case presentations secret from the "other side" in a mock trial. In a recent research exercise where case statements were not coordinated in advance, the defense raised issues which the plaintiff had not addressed, and jurors saw the failure to respond as admissions. As a result, the opportunity to test the plaintiff's positions was missed. Likewise, it is not a good idea to surprise witnesses in a mock trial. While there is some value in subjecting actual witnesses to realistic cross examination, catching a witness off-guard or having a witness "fumble" can seriously damage the overall results of the research.

Keep the case presentations short: Mock trials can be challenging for the "jurors." In a real trial jurors assimilate case information over time and through repetition, but in a typical mock trial they hear the information quickly and generally only once. For that reason, it is imperative to simplify and condense presentations into short, relatively global case stories. If you need to assess specific case elements in more detail, it is best to do so through witness testimony or by conducting one or more additional exercises focused on different case issues.

Test reactions to your key witnesses: Because jurors' personal reactions to the people involved in the litigation often have a significant impact on verdicts, it is important to evaluate how jurors respond to key witnesses. In a mock trial format that incorporates witness testimony it is easy to test how your own witnesses come across, but more difficult to evaluate opposing witnesses. Unless videotaped depositions are available, the best that can be done is to have appropriate people play the roles of opposing witnesses. In research formats that do not include witness testimony as part of the case presentation it is still possible and beneficial, at the end of the process, to present short videotaped segments of key witnesses and obtain juror reactions to them.

Test the effectiveness of trial exhibits: Pre-trial research offers an excellent opportunity to make sure your demonstrative exhibits have the intended impact. Especially with costly exhibits, it is helpful to test "roughs" so that necessary modifications can be made when it is less expensive to do so. More generally, it is vital to make sure that jurors draw the right inferences from the exhibits you present. Exhibits tested in mock trials have sometimes generated unexpected and detrimental reactions, but were then modified for greater effectiveness in the real trial.

Provide mock jurors with a few key instructions: Deliberations in a mock trial can be enhanced substantially by giving jurors basic instructions on the law governing their decision. Time constraints make it necessary to be very selective with the instructions given, but providing a few key instructions indicates how well jurors understand and how they apply the law to your particular case. It is also possible to test the impact of alternative instructions by giving different versions to each jury in the mock trial.

Use an interrogatory verdict form: In order to make sure jurors talk about the issues of importance to you, it is helpful to give the jury specific verdict questions to answer. Again, it is generally necessary to condense the verdict form into the four or five key questions that are most critical to the outcome. As with jury instructions, alternative verdict forms can be tested with different juries. Since verdict forms can sometimes narrow or curtail general discussion of the case, it is often useful to have the jury discuss the case on its own initially and then introduce the verdict form once jurors have voiced their general reactions to the parties and issues.

Allow time to use the results: Despite the seeming financial incentives to delay jury research until close to trial, doing so can hamper your ability to utilize the valuable information you get. Ideally, the research should be timed so there is adequate opportunity to modify trial strategies, witnesses and demonstrative evidence based on the research results. This usually means doing your research at least a few weeks or, preferably, a few months ahead of trial.

Don't skimp on facilities: Conducting jury research can be expensive and there is pressure to keep costs as low as possible. It is worth the extra cost, however, to conduct your research in a comfortable facility, one that provides enough room for the case presentation and promotes juror attentiveness. Research facilities with one-way mirrors are great for viewing the presentations and deliberations, but are often too small for anything more than making case statements from a podium. When more space is needed for witness examination or presentation of exhibits, it is best to arrange for space in a hotel or other meeting facility. Although getting the right space can be difficult because of advance bookings, choosing a service-oriented hotel or facility can greatly facilitate the process. Tightly scheduled mock trials can be thrown off track very easily when facility personnel are not prompt and responsive.