By Mark B. Wilson, P.C.
The part of the trial many attorneys dislike the most is waiting for a verdict. We wonder if the jurors liked our client. Did we pick the right jurors? Did they understand the closing argument? Do they know how to complete the jury verdict form? Did we ask for too much money? Are we going to win? When attorneys have the luxury of conducting a mock trial, most of these questions (and more) get answered before the real trial ever starts. This article explores the modern approach to mock trials and how many law firms are using them to great advantage, not only to assist with case evaluation and trial preparation, but sometimes even to settle cases.
Why Conduct a Mock Trial?
For many years, the advertising industry has used focus groups to determine how a marketing program would be received before launching an expensive sales campaign. Mock trials provide attorneys an opportunity to "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." Mock trials provide trial attorneys with critical information about how potential jurors view their case.
Several years ago, a law firm conducted four mock trials in an insurance bad faith case where the insurance company refused to pay benefits on the ground the doctor made misrepresentations on his application. The insurance company's broker advised the doctor how to complete the application and knew the information the doctor provided was not accurate. The broker explained that if the doctor did not misrepresent certain facts, the insurance company would reject the application; the insurance company knew applicants were not always accurate and this was acceptable. At the mock trials, the attorneys opted to "come clean" and told the mock jurors that, in fact, the doctor had misrepresented certain facts on the application, but this did not matter because, under the terms of the policy, he was still entitled to benefits. This strategy backfired, and the doctor lost all four mock trials.
The attorneys completely revised their trial strategy and mock tried the case four more times. During the second round of mock trials, they argued the doctor needed disability coverage badly and simply followed the direction of the insurance company's broker in completing the application. They argued the doctor did not lie; he actually told the broker the true facts. It was the broker who instructed the doctor what to write on the application. This strategy was successful, and all four mock juries awarded $1.5 million. At the real trial, the attorneys used the same strategy and the jury awarded $1.5 million. Had the attorneys not mock tried this case and used their initial strategy, they probably would have lost the trial.
How Are Mock Trials Different From Focus Groups?
Although people use the terms interchangeably, mock trials and focus groups 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 groups often are very costly and can 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 at the end of the focus group to determine the most and least effective arguments.
Mock trials are usually less expensive than focus groups and are conducted more like a real trial. Mock trials are an abbreviated form of an actual trial, with opening statements, testimony, presentation of documentary evidence, closing arguments, and jury deliberations. As a result, the mock jurors get a real "trial experience," which hopefully makes the results more meaningful. The mock trial presentation is discussed further below.
Reasons to Use Mock Trials Rather Than Focus Groups
In those few cases involving millions of dollars, where legal costs are no object, focus groups are a valid alternative to mock trials. However, focus groups are better for accumulating data for large demographics than for determining whether a particular juror will favor one side or the other in a given case. Thus, while focus groups may predict, for example, that as a general rule young African-American females are more likely to provide a favorable verdict than whites in any gender or group, this generality may not apply to Jane Jones, the 21-year-old African-American woman sitting on your panel. For this reason, many trial attorneys are skeptical about the cost-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 show that mock jurors understand the primary issues in 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
1. Mock Trials Provide an Unbiased Evaluation of the Case.
As lawyers spend months and sometimes years working on a case, they can become emotionally involved and myopic in their view of the case. 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 two different panels and has been unable to convince a single juror regarding the merits of the case, the attorney should reevaluate the case very carefully. Conversely, a favorable reaction by mock juries may cause an attorney to reevaluate a settlement proposal.
2. Mock Trials Help Attorneys Evaluate Whether Juries Understand The Case Themes and Accept the Attorneys' Arguments.
Every competent trial attorney recognizes the importance of establishing a clear case theme. Mock trials help lawyers refocus, or even identify, compelling case themes. The referenced case of the doctor versus the insurance company is a prime example of how a mock trial can reveal that a selected case theme will not succeed. 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, as a result, 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 should be rejected.
3. Mock Trials Help Attorneys Evaluate Their Cases and Their Witnesses.
Mock trials are an important tool to evaluate 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 that a new panel will reach a different result. Likewise, if panels repeatedly seem confused about the meaning of certain evidence, something must be done to clarify the message.
In one case where a woman sued the apartment complex where she was raped, the attorneys conducted a mock trial and learned the panels were willing to award significant compensatory damages, but no punitive damages. At the real trial, the injured plaintiff was awarded damages in line with what the mock jury panels awarded. Then, in a move which shocked the defendant, plaintiff waived her right to a jury trial on the issue of punitive damages, recognizing that the jury had already awarded everything she was going to receive. The judge then awarded plaintiff punitive damages equal to ten percent of defendant's net worth, an award plaintiff never would have received from the jury.
In another 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 that 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 sympathies 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.
In another product liability case where a young, attractive, single woman suffered an amputation of her dominant arm, the product manufacturer conducted a mock trial to determine its liability exposure. While all the attorneys in the case were confident the damages would exceed $1 million, they were shocked when four independent mock jury panels each awarded $5 million. Even the plaintiff's attorney had not evaluated damages that high. Recognizing its tremendous exposure, the product manufacturer was thrilled to settle the case in a range plaintiff demanded which was far less that the mock jurors awarded.
4. Mock Trials Can Be Used as a Settlement Tool.
If a mock trial result is successful, it can be used to assist in settling a case. In a well-publicized California case, three workmen were severely burned in an acetylene tank explosion. It was generally agreed that the party facing the greatest liability was the contractor that allegedly created a dangerous condition. However, plaintiffs also named the acetylene tank manufacturer as a defendant, exposing it to 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 to 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. When the manufacturer's attorney questioned the mock jurors after the verdicts about why they did not attribute more fault to the plaintiffs, they told him that despite the fact that the plaintiffs were objectively at fault, plaintiffs were so seriously injured "they suffered enough." At that point, the manufacturer recognized that 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.
5. Miscellaneous Benefits.
Some attorneys prepare for trial weeks before it starts, leaving them little or no time to do what is necessary to fill in the gaps in their case. Mock trials force attorneys to prepare their case long before they might otherwise do so. As a result, attorneys give themselves a chance to take steps necessary to strengthen weaknesses discovered while conducting the mock trial. Attorneys who conduct mock trials should be involved in every strategic decision and execution of the mock trial to ensure it accurately portrays what is expected at the real trial.
As a side benefit to preparing the other side's case, attorneys often discover both weaknesses and strengths of the opponent which might never be learned until the actual trial. Attorneys who mock tried the case described above where a woman sued an apartment complex for negligent security after she was raped learned their initial strategy would actually increase comparative fault of the plaintiff. At the mock trial, plaintiff's counsel placed great emphasis on how dangerous the apartment complex was and how it was inevitable a rape would occur. Although the mock jurors awarded substantial damages, the mock jury also expressed concern as to why the plaintiff continued renting an apartment in such an obviously dangerous complex. They apportioned approximately 25 percent fault to the plaintiff. To address this issue at the real trial, the attorneys explained the criminal activity occurred during the evening, not during the day when plaintiff interviewed for an apartment. The attorneys showed photographs of the apartment complex taken during the daytime, showing that it looked clean and safe. The attorneys then explained plaintiff did not learn about the criminal activity until after she moved into the complex and then took immediate steps to vacate. As a result, the real trial apportioned only 10 percent fault to plaintiff.
How to Conduct Mock Trials to Make Them as Realistic as Possible
There are many ways to conduct mock trials. Attorneys can conduct mock trials with 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 on 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, may result in poor formulation of a trial or settlement strategy. Good mock trials will generally include many of the following features.
1. Selection of an Unbiased Panel from Similar Veneer.
An appropriate panel should be selected from a veneer similar to where the trial takes place. Prospective mock jurors should be sent questionnaires to identify neutral mock jurors and ensure ethnic diversity. Jurors are generally paid anywhere from $75 to $100 per day to assure they will appear on time on the date scheduled.
2. 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 can be misleading because it does not allow jurors to evaluate real witnesses. Moreover, 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 move them, so it is unlikely final arguments will change their impressions. Therefore, opening statements should precede presentation of evidence so closing arguments will be more effective. This presentation most accurately reflects what happens at trial and generally leads 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. The logistics of a mock trial generally require a case to be put on in four hours or less. "Live presentation" schedules almost always fall apart and witnesses or attorneys' mistakes made in such presentations can severely damage mock trial validity. Moreover, since one side usually 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 present mock trials is by video. Everything from opening statements to the testimony of witnesses should be on video. Where videotaped depositions are available, they should be used to maximize authenticity. When videotaped depositions are not available, actors or the real witnesses should be used. Actors need not be professional, but should be talented enough to appear natural and not overact. When the client or another cooperative witness has not had their deposition videotaped (or when the attorney must use an actor), the attorney should conduct a "mock" videotaped deposition with both direct and cross-examination. 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 statements and final arguments. Some suggest that if the plaintiff's counsel is organizing the mock trial, he should argue the defense side, but this is often a bad idea. Many trial lawyers 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 should ensure their arguments oppose each other so that "different" cases are not presented. Remember, the goal is to create a fair representation of the case, not to "win" the mock trial.
3. 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 critical issues. Jurors sitting on the real trial may have several weeks to digest information; jurors sitting on mock trial panels reach a verdict after a few hours. Accordingly, it is important to synthesize the case to include only the most critical facts. Opening statements and final arguments should be approximately one-half hour per side and the presentation of evidence should take two hours or less.
4. Presentation Format.
It is 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 about 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. The jurors should be cautioned not to formulate an opinion until after the conclusion of final arguments and when they begin deliberation.
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 on age, sex, race, etc. The forepersons should be selected prior to breaking the groups into two, so that no time is wasted selecting a foreperson.
At the conclusion of final arguments, the panels should be placed in different rooms. Jurors should be provided with only the substantive jury instructions relevant to their decision. By providing fewer instructions, deliberations are expedited. Jurors should also be given verdict forms which closely match what the attorney expects will be given at trial. Counsel should consider a 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 that the instructions specifically stated an oral contract could be as binding as a written contract, the jurors rejected this point out of hand. Accordingly, at 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 the attorney 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 first hand. Accordingly, most mock trials are monitored using video cameras 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." In another case pending in a primarily African American community, almost all the mock jurors described the plaintiff as a "rich white guy who we can't trust." This helped the defense focus on facts relating to defendant's wealth and other facts indicating plaintiff was not trustworthy.
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 that attorneys will be able to predict with 100 percent accuracy how a real jury will view a case, there is no doubt mock trials can provide attorneys with a valuable tool to formulate trial strategies as well as evaluate case settlement. Any attorney trying a case with a potential value of over $500,000 should seriously consider conducting mock trials.
This article first appeared in the ABTL Report, Summer 2004.