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Litigation: Using Mock Trials Effectively

Tips to help you get the best results

By Gerald A. Klein, P.C.

Mock trials provide a useful reality check on both liability and damages.  They can help you evaluate how prospective jurors will view your case, which arguments jurors will find most persuasive, and what impression your witnesses make.

Although mock trials can be conducted for as little as a few hundred dollars, the most useful mock trials cost somewhere between $10,000 and $25,000, and thus should be seriously considered for any case with a potential verdict of more than $300,000.  The best mock trials include the following features:

1. An Unbiased Jury Panel. The jury panel should be selected from a venue similar to that where the trial will take place.  Prospective mock jurors should be sent questionnaires to identify and ensure neutrality and ethnic diversity.

2. An Effective Order of Presentation. Studies show that once people form opinions, it is difficult to move them.  For this reason opening statements should precede the presentation of evidence.  Closing statements will then be more effective.  Moreover, attempting to mimic trial as closely as possible leads to more valid results.  You should find another attorney to play the role of the adversary, and assist this "mock" attorney with case preparation so that the arguments oppose each other rather than present different cases.

3. The Use of Video. There are a number of reasons not to use live witnesses at mock trials.  First, the logistics require a case to be put on in three hours or less.  "Live presentation" schedules almost always fall apart, and witness or attorney mistakes can severely damage mock trial validity.  Also, if only one side is putting on the mock trial, only one side's witnesses can appear live, which can lead to invalid results.  Thus, it is best to use videotapes of everything from opening statements to the testimony of witnesses.  Where witness demeanor is a critical factor in determining credibility, videotaped depositions are essential.  If videotaped depositions are not available, use actors talented enough to appear natural and not overact.

4. Inclusion of Only Critical Facts. Keep in mind that most cases are decided by a handful of facts and witnesses, and mock trials are no different.  Incorporating minute details may distract jurors from the main issues.  In a mock trial, where the opening statement and final argument are approximately one-half hour per side, the evidence must be presented in two hours or less.  The jurors have only a few hours to digest information and reach a verdict.

5. Effective Presentation Format. Generally, a mock trial should be held in a place such as a medium-priced hotel rather than in your own offices, in order not to disclose which side is running the show.  Jurors are generally paid anywhere from $50 to $100 per day and are provided with breakfast and lunch.

Breaking the jury panel into two separate deliberation groups is more valid and cost-effective than using a single panel.  The jurors should be divided before they arrive, and the groups should exhibit equal distribution by age, sex, and ethnicity.  Jury forepersons should also be preselected to save time.  Neutral facilitators should indicate the nature of the presentation and guide jurors through the day, explaining that they must keep matters confidential and not form an opinion until they begin deliberations.

After final argument the panels should be placed in separate rooms and provided only with the relevant jury instructions.  (This enables you to see if they understand the instructions.)  Rather than sitting in on the deliberations, which can have an adverse affect, or having a "neutral" observer take notes, you should monitor the deliberations through video cameras placed in each room, watching one room while deliberations are in progress and reviewing the other by videotape later.  Often you will learn valuable information from the comments jurors make.

Interference with the jurors should be minimal.  If they become confused, usually one or more members will steer discussion back in the right direction.  However, if the jurors are uncertain as to what the law requires or miss a substantive fact, the neutral facilitator can correct the misconception.  Deliberations should end when the jury finishes filling out the jury verdict form or becomes hopelessly deadlocked.  You should take at least one-half hour per panel to debrief jurors.

This article first appeared in California Lawyer, May 1998.

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