The jury system adds a degree of uncertainty in evaluating a case; therefore, Klein & Wilson believes that conducting mock trials can give attorneys and clients a better understanding of likely trial results. Klein & Wilson has conducted mock trials in many cases involving potential damages of $750,000 or more. Because Klein & Wilson conducts mock trials in-house, these mock trials are more effective and less expensive than mock trials conducted by outside companies. In fact, Klein & Wilson has developed such a reputation in conducting mock trials, other law firms hire Klein & Wilson to conduct mock trials for them.
Mock trials are an excellent indicator of how jurors might evaluate a case. For many years, the advertising industry has used focus groups to determine how consumers will receive a specific marketing program before launching expensive sales campaigns. Surprisingly, few lawyers "test the market" before taking a case to trial. For the overwhelming majority of trial lawyers, the first time they have substantial insight into how a jury will view the case is when the verdict is read. At that point, it is too late to "fix what is broken."
WHAT ARE FOCUS GROUPS AND MOCK TRIALS?
Although people use the terms "focus groups" and "mock trials" interchangeably, focus groups and mock trials are very different. Focus groups are usually conducted by psychology and marketing professionals who claim to have sophisticated methodologies to identify the most and least ideal jurors for a particular case. Focus group costs can easily exceed $100,000 and include detailed psychological analysis and data collection. Techniques include requiring prospective jurors to use special keyboards to indicate positive and negative reactions to specific arguments. The responses are then correlated to determine the most and least effective arguments.
Mock trials are less formal and less expensive than focus groups. Mock trials are an abbreviated form of an actual trial, with opening statements, testimony, presentation of documentary evidence, closing arguments, and jury deliberations. The most effective mock trials cost approximately $40,000-$50,000.
REASONS TO USE MOCK TRIALS RATHER THAN FOCUS GROUPS
In those few cases involving many millions of dollars where legal costs are no object, focus groups are a reasonable alternative to mock trials. However, focus groups are better at accumulating data for large demographics rather than identifying whether a particular juror will favor one side or the other in a given case. Thus, while focus groups may predict that young African American females are more likely to provide a favorable verdict than Latinos in any gender or group, this generality may not apply to Jane Jones, the 21-year-old African American sitting on your panel. For this reason, many trial attorneys are skeptical about the benefit of focus groups. In any event, few cases justify the expense of sophisticated focus groups.
On the other hand, mock trials provide most of the valuable information generated by focus groups at a fraction of the cost. Mock jurors hear actual testimony and struggle with real jury instructions in an atmosphere similar to the courtroom. Videotaped deliberations have shown that mock jurors understand the primary issues of the cases, even though they see an abbreviated presentation. Mock trials show attorneys how prospective jurors view a case and which arguments jurors find most persuasive.
INFORMATION LEARNED THROUGH MOCK TRIALS
A. Mock Trials Provide an Unbiased Evaluation of a Case.
One reason clients hire attorneys to represent them is that clients are too emotionally involved to look at a case objectively. Unfortunately, as attorneys spend years working on a case, they, too, become emotionally attached to particular arguments. It is sometimes difficult for trial attorneys to view facts and arguments on an objective basis. Mock trials are a "reality check" as to both liability and damages. If an attorney conducts an objective mock trial before different jury panels and has been unable to convince a single juror of the merits of the case, the attorney should reevaluate the case. Conversely, a favorable reaction by mock juries may cause an attorney to reevaluate a settlement proposal.
B. Mock Juries Help Attorneys Evaluate Whether Juries Understand Their Case Themes and Accept the Attorneys' Arguments.
Every competent trial attorney recognizes the importance of establishing a clear case theme. Mock trials help attorneys refocus or even identify compelling case themes. In a 1997 bad faith case where mock trials were conducted, the plaintiff's attorney had to deal with an issue involving his client's misrepresentation on an application form. The attorney selected a theme which emphasized that, while his client admitted making a mistake in judgment, the insurance company had made several serious misrepresentations but refused to acknowledge any of them. To the attorney's surprise, many members of the mock trial panel could not award damages to the plaintiff who lied on an insurance application, even when the insurer's conduct was far worse. The attorney decided to change the entire case theme to show that all of the misrepresentations in the application hinged upon the insurance company's misconduct and, as a result of this change, subsequent mock trial panels looked much more favorably upon the case and even awarded punitive damages. The attorney took the case to trial using the new theme, and the trial results were consistent with the mock trial results. Accordingly, this was a case where mock trials were critical in turning what could have been a bad result into a good one.
In another case involving a brokerage house's liquidation of a customer's securities account, the plaintiff's attorney argued at the mock trial that the treatment of his client was akin to rape in that the plaintiff was financially abused without his consent and was powerless to prevent his broker from liquidating his account over his objections. Many mock jurors were offended by an analogy comparing the loss of money to being raped. Several jurors held a negative impression of the attorney as a result of this insensitive argument and, therefore, it was not used at trial. Accordingly, mock trials can provide counsel with important insight as to which case themes and arguments have the most positive impact upon juries and which themes or arguments should be rejected.
C. Case and Witness Evaluation
Mock trials are an important tool in evaluating liability, damages, and juror impressions of witnesses. While it is possible for two jury panels seeing identical facts to reach opposite verdicts, where several panels consistently reach the same result there is little likelihood a new panel will reach an opposite result. Likewise, if panels repeatedly seem confused about the meaning of certain evidence, something must be done to clarify the message.
In a case involving a complicated contract dispute, the defense conducted several mock trials using different case themes for each panel. Every panel found for plaintiff and awarded large damages regardless of which theme defendant used. As a result, defendant learned no matter which arguments the defense used, jurors always awarded plaintiff substantial damages. Once defendant recognized the case was unwinnable, the company settled with plaintiff at a fraction of what a jury would likely have awarded.
In a product liability case involving the death of plaintiffs' child, a defendant manufacturer held mock trials to determine whether there was any way to avoid liability, given the tragedy of the accident and the sympathy any jury would have for the two parents. To the surprise of the defendant, the jurors found that even though the accident was tragic, the parents were at fault and awarded a defense verdict. While the defendant expected some jurors might have this reaction, the defendant was amazed to learn that every mock juror believed the parents were the exclusive cause of the accident. Accordingly, what defendant perceived to be a multimillion dollar liability case became a case the defendant was ready to take to trial.
USE OF MOCK TRIALS AS A SETTLEMENT TOOL
Although infrequent, parties occasionally run joint mock trials to see how a prospective jury would rule on a given case. The advantage of this strategy is settlements can be reached with some degree of certainty as to the probable case outcome at a fraction of the cost of taking a case to trial. Unfortunately, opposing attorneys usually cannot agree upon the format of the mock trial and, therefore, such mock trials are rarely conducted. Moreover, even in an age of open discovery, attorneys are often reluctant to "show all their cards" in a non-binding mock trial.
Nevertheless, mock trials can be used as a settlement tool even when the other side does not participate. In a well-publicized California case, three workmen were severely burned in an acetylene tank explosion. It was generally agreed the party facing the greatest liability was the contractor that allegedly created the dangerous condition. However, the acetylene tank manufacturer was also brought into the case and was concerned about economic damages which could easily have exceeded $10 million, in addition to non-economic damages which were expected to exceed $20 million. The manufacturer, therefore, held mock trials to determine the range of damages jurors would find and the amount of fault jurors would attribute to the manufacturer, the other defendants, and the plaintiffs.
The manufacturer was pleased when the mock jury panels found no liability on the part of the manufacturer. However, the manufacturer was shocked to see jurors attribute almost no comparative fault to the plaintiffs, even though in deliberations the jurors made sarcastic remarks about how foolish the plaintiffs' conduct was. After the verdicts, the manufacturer's attorney questioned the mock jurors about why they did not attribute more fault to the plaintiffs. The mock jurors told him that despite the fact the plaintiffs were objectively at fault, they felt the plaintiffs were so seriously injured that "they suffered enough." At that point, the manufacturer recognized if a jury found the manufacturer even one percent liable, it could suffer millions of dollars of damages with almost no set-off for comparative fault.
What the manufacturer did next is interesting and important for attorneys using mock trials. The manufacturer asked plaintiffs' counsel for permission to show the mock trial tapes to an independent mediator, who then reviewed the tapes, determined the mock trials were fairly conducted, and told plaintiffs the manufacturer was found to have no liability. This dynamic helped the manufacturer reach a fair settlement with the plaintiffs, which ironically required the manufacturer to turn over the mock trial videotapes to the plaintiffs so they could use them in preparing their case against the remaining defendants. As a result of this mock trial, the manufacturer escaped liability for less money than it would have cost to defend the case at trial.
CONDUCT OF MOCK TRIALS
Attorneys can conduct mock trials for a wide range of costs and benefits. On the theory that any mock trial is better than none at all, some attorneys conduct them without outside help. Depending upon how well they put together the mock trial, the experience could be counterproductive in that a bad mock trial can lead to invalid lessons which, in turn, result in a poor formulation of trial or settlement strategy. Good mock trials will generally include many of the following features.
A. Selection of An Unbiased Panel From Similar Venire.
An appropriate panel should be selected from a venire similar to where the trial will take place. Prospective mock jurors should be sent questionnaires to identify neutral mock jurors and ensure ethnic diversity. Jurors are generally paid anywhere from $100 to $150 per day to assure they will appear on time on the date scheduled.
B. Creation of the Presentation.
In some mock trials, jurors are given written factual backgrounds, relevant documents, and other evidence followed by live final arguments. This approach generally is misleading because by the time jurors hear final arguments, they have already made up their minds about the case. Studies show that once people formulate opinions it is difficult to change them, so it is unlikely final arguments will affect their impressions. For this reason, opening statements should precede presentation of evidence so closing arguments will be more effective. This presentation most accurately reflects what happens at trial, therefore generally leading to more valid results.
Although many people use live witnesses and live presentations in their mock trials, there are a number of reasons to reject this approach. First, the logistics of a mock trial usually require a case to be put on in four hours or less. "Live presentation" schedules almost always fall apart and witness or attorney mistakes made in such presentations can severely damage mock trial validity. Moreover, since generally one side puts on the mock trial and not the other, only one side's witnesses can appear live. This again leads to invalid results.
The best way to hold mock trials is to use video. Everything from opening statements to witness testimony should be on video. Where videotaped depositions are available, they should be used to maximize authenticity. When videotaped depositions are not available, actors should be used. Actors need not be professional, but should be talented enough to appear natural and not overact. Obviously, in cases where witnesses' demeanors are the critical factor at trial, videotaped depositions are essential. However, most cases are won and lost on the facts, and credibility is often determined by extrinsic facts as much as by witness demeanor.
The attorneys who are trying the case should present the opening statement and final argument. Some suggest that if the plaintiff's counsel is organizing the mock trial, he should argue the defense side, but this is usually a bad idea. Many trial attorneys are either "plaintiff" or "defense" oriented. A good plaintiff's attorney may not do a good job arguing the defense, especially if the attorney's heart is not in it. Moreover, if an attorney wants to see how jurors view an argument, the best time to do it is at the mock trial. Accordingly, to the greatest extent possible, everyone should play their actual trial role. If plaintiff's attorney is organizing the mock trial, he should find a defense attorney to play the role of the adversary. However, because of his familiarity with the case, plaintiff's counsel must assist in preparing the defense argument, since the "mock" defense lawyer is not likely to be familiar with the case. Equally important, both attorneys must ensure their arguments oppose each other, so "different" cases are not presented. Remember, the goal is to create a fair representation of the case, not "win" the mock trial.
C. Synthesis of Facts.
Bad mock trials are usually the result of bringing in too many case details. Keep in mind, most cases are decided by a handful of facts and witnesses. Mock trials are no different. Unfortunately, overanxious lawyers often insist on incorporating minute details of the case, which distract jurors from the critical issues. Jurors sitting on the real trial may have several weeks to digest information; jurors sitting on mock trial panels must reach a verdict after just a few hours. Accordingly, it is important to synthesize the case to include only the most critical facts. Opening statement and final argument should be approximately one-half hour per side and the presentation of evidence should be two hours or less.
It is generally best to hold mock trials in a medium-priced hotel. Some companies actually hold mock trials in their own facilities but, depending upon the facilities, the presentations can be awkward. It is preferable not to disclose which side is conducting the mock trial. In many cases, jurors will be almost equally divided in whom they believe is running the show. Steps should be taken to make sure jurors arrive on time, keep matters confidential, and are properly instructed. Breakfast and lunch should be provided. A neutral facilitator should indicate the nature of the presentation and guide jurors through the day. They should be cautioned not to formulate an opinion until after the conclusion of final argument and the beginning of deliberations.
While some mock trials are done in front of a single panel, it is more valid and cost effective to break panels into two separate deliberation groups. The jury panels should be equally divided before they arrive, based upon age, sex, racial makeup, etc. The forepersons should be selected prior to breaking the groups in two, so no time is wasted selecting a foreman.
At the conclusion of final argument, the panels should be placed in different rooms. Jurors should be provided with only the substantive jury instructions relevant to their decision. Providing fewer instructions expedites deliberations. Jurors should also be given verdict forms which closely match what the attorney expects will be given at trial. Attorneys should consider the mock trial as an opportunity to see if jurors understand the instructions and verdict forms. In one mock trial, attorneys were astonished to find that despite the fact the instructions specifically stated an oral contract could be as binding as a written contract, the jurors rejected this point out of hand. Accordingly, in the trial much more time was spent in final argument explaining this particular instruction.
While attorneys often choose to sit in on deliberations, this interference (although seemingly passive) can have an impact upon deliberations. Some people are reluctant to take a position contrary to an attorney who is sitting in on the deliberations. While having "neutral" observers take notes minimizes this problem, it deprives the attorney of the opportunity to see jury deliberations firsthand. Accordingly, most mock trials are monitored using videotapes in each panel's room. This way, attorneys can monitor the deliberations and, since an attorney can listen to only one room at a time, the videotapes can be reviewed later to see what was missed.
Often, attorneys reviewing the videotapes will learn valuable information from comments jurors made. Some juror comments can inspire counsel to select a new case theme. In one case, an attorney heard several jurors comment that "this case seems to be about a lot of bad decisions." The attorney decided to focus his case theme on plaintiff's "bad decisions."
Wherever possible, there should be minimal interference with jury deliberations. Like real juries, mock juries sometimes get confused. Also, like real juries, usually one or more members of the jury panel will steer discussions back in the right direction. However, if something truly goes amiss, ( e.g., the jurors get confused as to what the law requires or miss a substantive fact due to an oversight in the mock trial itself), the moderators should correct the misperception. Nevertheless, careful attention should be paid to the cause of the misunderstanding, since it is equally possible something similar could happen with the real jury.
Deliberations should end when the foreman indicates the jurors have finished filling out their jury verdict form or it becomes clear the jurors are hopelessly deadlocked. The attorneys should be given at least one-half hour with each panel to debrief jurors.
While mock trials are no guarantee attorneys will be able to predict with 100% accuracy how a real jury will view a case, there is no doubt a mock trial can provide attorneys with a valuable tool in formulating trial strategy, as well as evaluating case settlement. Any attorney trying a case with a potential value of over $300,000 should seriously consider conducting a mock trial.