Using Mock Trials to Hone Strategies

Using Mock Trials to Hone Strategies

By Carolyn Koch

This article presents case studies and other examples showing how mock trials identify key case issues (i.e., those most persuasive to jurors, not lawyers), illustrating juror decision-making processes, help lawyers overcome unhelpful stereotypes, and identify key attitudes and experiences that make a difference in how jurors perceive a case. Certainly one's chances of winning are reduced when biased jurors decide a case. Only a mock trial can prepare a lawyer psychologically for the upcoming trial.

A mock trial defined:

No matter how complicated the case, mock jurors should get a clear picture in two to three hours.

Scheduling a mock trial in advance of a trial date:

Assuming you have sufficient information about the case claims and defenses, an early mock trial can sometimes prompt an early settlement. Some lawyers do a mini-focus group before deciding to take a case.

Doing it right is worth the investment:

In my experience, plaintiffs do a terrible job of presenting a strong defense case and defendants do a terrible job of presenting the best plaintiff case. Mock jurors also need to be professionally recruited and paid for their time.

I once worked with lawyers who had a terribly weak case for the plaintiff. We subsequently did a professional mock trial for the lawyers and recruited jurors who had no connection with the lawyers.

What follows are some examples of mock trials. The case studies illustrate how the variety of ways in which mock trials help lawyers choose the most winning strategies for a particular case.

The product liability mock trial

The plaintiff's lawyer sponsored the mock trial, primarily because he wanted to get an idea about damages. The mock trial results indicated otherwise.

The traumatic brain injury mock trial

The plaintiff brought suit against the ice cream vendor. The lawyer also had no idea how people would react to the plaintiff.

Second, jurors' attitudes about ice cream trucks and safety issues were gauged before the mock trial began. The mock trial involved two juries, both awarding damages in the range of $2 - 3 million dollars. The case settled during the trial for $2.5 million dollars.

A "wild card" issue: When lawyers are the litigants

What follows is a description of a mock trial involving two lawyer-defendants. The defendants sponsored the mock trial.

The mock jurors HATED the defendants. Furthermore, the defenses claim that the plaintiff was a well-treated employee backfired. The plaintiff had experience in contracting but no higher education. Jurors awarded either high verdicts or zero, and the majority of jurors awarded more than $5 million dollars.

This mock trial showed how certain issues can produce unanticipated results. Jurors assumed that this was part of the defendants' complex scheme to hide assets from the plaintiff.

Unfortunately, the defendants disregarded the mock trial results (eight jury verdicts, the majority of them negative) and an actual jury awarded the plaintiff $14 million dollars at trial!

A mock trial illustrates the issues that are most persuasive to jurors - not lawyers

Cases often involve two or more main legal issues and lawyers can't always predict accurately which issue should be highlighted.

Using mock trials to develop voir dire strategies

Mock trials illustrate that certain cases are so strong that they can transcend the variety of biases jurors might have. For example, a mock trial involved issues of contract interpretation. The plaintiff fared badly in the mock trial and this caused him to ultimately settle. However, mock jurors were asked relevant attitudinal questions before hearing the facts of the case and some interesting patterns emerged:

• The four jurors who disagreed all favored the plaintiff (a high level executive).
• The five jurors who had such experience all favored the defendant.
• The four jurors who disagreed all favored the defendant (who claimed to only be bound by the third document, not the first two.)
• Overall, only eight jurors voted for the plaintiff and seven of these eight were Traditionalists.

Lawyers often speak about cases and jurors in a way that has nothing to do with how jurors really decide cases. Every case is idiosyncratic, as is every juror Mock trials reveal that jurors' responses to a case are very individualistic and most closely related to their attitudes (their "world view") and experiences.

Mock trials identify key attitudes that make a juror possibly better or worse

This comparison shows that the usefulness of mock trial results extend only to the case being tried.

A Consultant's perspective

A consultant sees a variety of different cases from a jury's perspective. A lawyer's instinct about a case tends to focus on legal strengths. After conducting myriad mock trial projects, certain general "truths" emerge. For example:

• Most jurors don't want to send messages. In watching a variety of different mock jury deliberations, only a small minority of jurors ever argues for the need to send a message to the defendant.
• Most people strongly prefer primary liability over secondary liability: For many jurors, it is easier to blame a smoker for his cancer than the tobacco industry; it is easier to blame a person who spills coffee on herself rather than the corporation who profits from selling coffee to people in cars; it is easier to blame a person for not wearing a seat-belt than a car manufacturer for not installing an airbag.
• Most jurors want to be convinced "beyond doubt" in most civil cases. Watching a jury's deliberations or discussing a case with an actual jury illustrates that the civil burden of proof is a meaningless phrase. A strong verdict requires jurors to be sure about their decision.

Although most trial lawyers have a keen sense of case strengths and weaknesses, many lawsuits present unique issues and it is impossible to anticipate how jurors might react. A mock trial is the only pre-trial exercise that can prepare the attorney for all aspects of trial presentation and settlement.