By Thomas M. O’Toole, Ph.D.
I had a very interesting experience recently on a case in New York. While we had worked with the client before, we had never worked with this particular group of attorneys. The stakes were significant and there were ongoing discussions about a potential mock trial. These discussions created an interesting dynamic where the client wanted to do a mock trial, but the client’s attorneys did not support the idea and questioned the value of such a project. Notably, the client, who we had worked with several times in the past, had never conducted a mock trial before, so while he was convinced that there was value to a mock trial, he could not necessarily articulate what the specific benefits of conducting one would be.
The end result was that the client made the decision to move forward despite his attorneys’ lack of interest. Afterwards, he was so impressed with the critical insights that we learned that the decision was made to conduct a second mock trial a month later in order to maximize the trial team’s intel for its strategy development and trial presentation decisions.
After a long day on the first mock trial, we joined the clients that evening for some cocktails, where one of the clients offered us an interesting insight about perceptions of mock trials. Specifically, he commented that we should call these projects “mock deliberations” rather than “mock trials.” He explained that part of the hang-up with the attorneys was that they had no prior experience with mock trials and were caught up on the title. In other words, they struggled to understand how we could actually “mock” a trial. They didn’t think such a thing could be done, so they questioned the value of the activity.
The attorneys’ confusion highlights a major and critical point when thinking about mock trials and what they can teach you about your case. The goal is never to try to mimic exactly what will happen at trial and see what the mock jurors decide. Instead, the goal is to provide the jurors with the basic theory, themes, key evidence, and possibly even the key testimony by each side (if deposition video is available) and watch them talk about and deliberate on the key questions in the case. In other words, the goal is to watch a group of potential jurors engage with, make sense of, and reason through everything that was presented to come to a group decision.
I once had another client tell me that she was skeptical of mock trials since she didn’t believe a mock trial could help them “see if we’re going to win or lose.” She saw mock trials as nothing more than a “supposed-to-be” predictive tool. However, the outcome of a mock trial is not the main reason for conducting the project (though many of our clients are also interested in potential settlement value). The primary reason is to see how mock jurors talk about the case and what kind of language they use to describe key issues. What kind of beliefs and values do they apply to the case as they try to make sense of the issues? What kind of personal experiences filter their acceptance or rejection of certain evidence? And finally (and perhaps most important), are the jurors who are motivated to fight for us in deliberations adequately-armed to do so? Do they have the right language and are our arguments simple enough that they can re-articulate them without difficulty in order to persuade others?
The answers to these questions help you understand how to best frame the issues and present the case (verbally, visually, and structurally) at trial. The insights provided by mock deliberations give you the tools to exert greater control over the rhetorical environment of the actual jury deliberations and ensure that the jurors who are motivated to fight for you are adequately equipped to do so.
With the understanding that the primary goal of a “mock trial” is to facilitate some basic deliberations on the issues, here is how we often address some of the common issues raised when clients express concern about our ability to mimic the actual trial.
1. Case presentations: While it varies from project to project, the most common way of presenting the case for each side is through “clopening” statements for each side. A “clopening” statement is essentially an opening statement with some argumentative elements of closing.
2. Evidence and exhibits: Typically, the “clopening” presentations focus on the key evidence and exhibits for each side. We often put together exhibit books for jurors that allow them to look at, for example, any contracts, key emails, etc. The number of exhibits for each party is typically 10-12.
3. Witness testimony: When possible, we try to show deposition video of the key witnesses in the case. We usually show no more than 5-10 minutes and try to ensure there is a good mix of the witness at his or her best and worst. This gives mock jurors enough to generally react to the witnesses and give us a sense of how they might be perceived at trial.
4. Jury Instructions: We typically narrow the jury instructions to very basics, such as the burden of proof and the specific elements of the claims in the case (or at least, our best, objective guess as to what they will look like). There may be a few other general instructions that we throw in there, but we try to keep the number of instructions to 10 or 15.
5. Verdict form: Sometimes, it is easy to just use the actual verdict form if it is short enough. If it is too long to use, we’ll mock up a verdict form that has the core questions in the case. Even though these questions may not actually appear on the verdict form at trial, they give us what we need to spur a good discussion and deliberation period.