By Thomas M. O’Toole, Ph.D.
Mock trials are a popular tool for attorneys who want to learn how jurors will react to their cases. Mock trials have become so commonplace that some argue it is malpractice not to conduct one in a high-exposure matter. With the increased use of mock trials, there has been a corresponding increase in the number of misconceptions about the design and value of this type of jury research. Let’s take a look at four common misconceptions about mock trials.
1. The final outcome matters. I recently had a large corporate client tell me they wanted to conduct a mock trial in order to find out if they were going to win or lose the case. It’s not unusual for me to hear something along these lines. The problem is that winning or losing the mock juries is one of the least important findings of a mock trial. Mock trials should not be about the potential outcome. They are about understanding how those potential outcomes occur. Specifically, mock trials show you how advocates for each side on the jury gain and lose control over the course of deliberations. They show you how momentum is won and lost. They show you where those who are motivated to advocate for your client hit barriers that they struggle to overcome. This is the real value of mock trials. They teach you how to exert control over what happens in deliberations by showing you how your advocates on the jury can succeed or fail on each issue in the case. In essence, they provide a clear roadmap to success, when correctly interpreted.
2. Losing is bad. Losing is painful. No one likes it. It scares the client. It scares their carrier. The natural reaction is to want to avoid it at all costs, but when it comes to mock trials, losing is important. It can be much more important than winning. More often than not, good strategy starts with failure. In argument and persuasion, you cannot understand how to win until you understand how you lose. Losing shows you how your opponent wins. When you understand your opponent’s path to success, it is easier to know where to put the roadblocks. Doing whatever you can to make sure you win a mock trial teaches you nothing – nothing about strategy, key case documents, key testimony, how jurors will react to and use your opposition’s best arguments and evidence, etc. You might leave feeling good about a “win,” but you really leave with no knowledge about what to change or how to change it. This is not meant to suggest you should ever purposely lose a mock trial. Instead, make sure that you have presented the strongest case possible for the other side so that you have a good test and can see where potential weaknesses in your case may exist.
3. They are only useful right before trial. Many attorneys wait until trial is near to conduct a mock trial. Some wait until the last few weeks before the actual trial, which can result in the mock trial being more of a nuisance than a value. However, the most frustrating part of conducting a mock trial is getting feedback that you cannot do anything about. If you’ve waited until after discovery has closed and trial is near to conduct your mock trial, then there is not only little time, but often no avenues for supplementing and using additional information. In these situations, it is not uncommon to discover that there is an expert witness or some series of witnesses that were needed, but it is too late to go out and get them. Mock trials are a tool for completing discovery, not just a tool for testing the case after discovery has closed.
4. They are expensive and best for high-dollar matters.Mock trials come in many shapes and sizes. Some can be very expensive, but that does not have to be the case. Many jury consultants can design a cost efficient alternative that still provides the client useful mock trial data. This can be very useful and informative as long as the client is aware of the limitations that come with streamlining the process and design based upon budgetary constraints. I will never pass up an opportunity to watch a mock jury deliberate. Even with limitations, an inexpensive mock trial can provide insights into how jurors make sense of the case and fight for or against you in the deliberation. One just needs to be aware of the impact of the budget cuts on the reliability and validity of the mock trial data and results.