In 1822, Alexis St. Martin was accidentally shot clean through the belly during his work as a fur trapper. Luckily, doctor William Beaumont was on hand, and saved St. Martin’s life with clever surgery (devoid of antiseptic or anesthesia). But curiously, St. Martin’s wound never healed over, remaining a permanent peek-a-boo ‘window’ in the man’s stomach.
Beaumont hired his patient on as a handyman, but later discovered the man’s odd wound was far more useful than any grunt work his domestic servant could do, offering unprecedented access to physiological mysteries. Through a series of slightly-harrowing experiments (mostly involving dangling foods inside the stomach by a string, and pulling them out regularly to examine what the stomach acid did to them), this doctor and his hole-riddled patient revolutionized scientific understanding of the digestive system.
Why am I talking about grisly gut-research in a legal blog? Because lawyers likewise crave open and unfettered access to the inner-workings of the average person. Even with all our discovery and document research, we go into a trial more-or-less blind, closed off from what’s going inside the minds of jurors when they deliberate. Like doctors before the belly-hole experiments, we can only extrapolate based on the — um — stuff that comes out at the end with the verdict.
Once the jury has spoken, you might be able to muster up a few conjectures about what went right or wrong which you can use in your future cases. But at that point it’s too late for your client.
This is why, when a lot is on the line, more attorneys are turning to mock trials. These abbreviated little ‘trial-ettes’ and their associated questionnaires are some of the best tools we have to peek into the effect our arguments, witnesses, and evidence have on lay-people, in real time.
And what’s more: nobody needs to get gunned down to do it!
Why You May Want to Mock
What can a good mock trial do for you? A whole bunch:
- Get into the lay-person’s mind.
Lawyers are a special breed of human. Their unique way of thinking and reasoning is crucial for their work — but can present a translation-barrier when it comes to interfacing with the Great Unwashed (and Unshephardized). Put plainly: the things that interest and convince you as an attorney are often quite different from the points and manners that persuade ordinary juror.
The mock trial process offers up some of the most authentic ‘consulting’ possible, with greater objectivity than other attorneys or staff can muster. A mock panel will likely find the confusing or unpersuasive holes in your argument and in the end help you translate that heady legal argument into the clear and forceful language that will move jurors.
- Plan ahead
Mock jurors’ responses aren’t accurate ‘predictions’ of the real trial, but they can be a guiding tool, either giving you courage to forge on or acting as a reality check on liability and damages that juries might award, helping you know when you ought to settle quickly rather than holding out for more.
This planning tool is also crucial for clients, bringing the over-optimistic ones back to earth, and giving a boost of patience to those who might be too eager to accept a bad settlement.
- Shape your voir dire strategy
We can often have facile ideas of who our best jurors would be, largely based on stereotypes we hold about race, gender, and class. Mock trial research has shown that often these assumptions fail, and personal experiences and value-sets are far more likely to govern how a juror will see a situation. Once again, your specific results aren’t statistical information, but they can begin to highlight the kind of personal life experiences and worldviews that are most likely to align with sympathy for your client.
- Force preparation
Mock trials force you to review discovery early on, catching gaps in your arguments while you still have time to remedy them. And when you have to present your case early on in front of real people, you’re pushed to develop your case’s ‘theme’ — the strong, values-based message which is the scaffolding for your entire rhetorical strategy.
- Mental and emotional practice
It’s not just for students: even seasoned attorneys can use a little practice delivering their arguments.
- Evaluate the effectiveness of your witnesses
Even if you find a witness compelling, after watching video testimony from them, your panel of jurors might hate them. The mock trial process can also be a time to decipher if there are issues with the witnesses or attorneys that go beyond the arguments they make, to communication style, appearance, or mannerisms — some of which can be remedied before needing to go in front of a real jury.
But all these benefits don’t come cheap. So if you’re going to spend the time and money to have a mock trial, you want to be sure you do it right.
15 Habits of Highly Successful Mockers
- Make a budgetary decision
A full mock trial can be expensive, costing around $40,000-$50,000 (with some really big cases seeing upwards of $400,000 thrown into mock trials). This means it should only be used with bigger cases. Financially, you should consider the mock trial if the potential value of the case is more than $300,000.
There may be other considerations besides the immediate monetary pay-off, of course — such as when the case is one that would establish an important precedent, or highlight the firm’s work on a certain issue that could be important to other valuable clients.
Another consideration with these high expense numbers: much of this stems from paying yourself and your legal team in preparing the mock trial. The good news here is that a lot of the work preparing for the mock trial is already necessary for the real trial, so it’s not exactly an ‘additional expensive.’
That being said, due to the expense of a mock trial, it’s worth considering whether other formats would fit your needs better or just as well. There are examples of severely truncated mock trials, which forego much of the drama of the trial and hone in on a specific argument or issue. Or for those interested in shaping their strategy and rhetoric in the long-term but willing to lose this specific case, there’s the option of paying lay-person spectators to sit in on the trial and answer questions afterwards.
There is also the question of mock trials vs. focus groups. Focus groups, which can also be quite costly, bring psychologists or marketing professionals into the arena to use psychological analysis and data collection to answer questions. Attorneys often find focus groups can be most helpful early in discovery, before most depositions have been taken. At this stage in the game, the group can help you understand what themes are the most persuasive, where jurors might get confused, and what additional evidence you need to gather.
The mock trial, on the other hand, helps you hone your case strategy. Instead of asking about explicit attitudes, you get to watch what jurors might actually do.
- Time it right
If you decide the mock trial fits your budget, you need to schedule it in. Your most cost-effective bet is to plan the mock trial toward the end of discovery, when you have all your key facts in a row. But doing it earlier can also be instructive, to help you figure out if you should settle quickly or not, before you bog yourself down in additional costs.
- Consider consultants:
If your firm is already overworked it could be overwhelming to take on the additional logistical and analytical work of a mock trial. In these cases, consultants can help. Using one could increase your costs, but also free you up to prepare your arguments for the trial.
- Choose the jury:
Select neutral mock jurors with demographics similar to those who would be at the real trial. By all means avoid recruiting from people you know, as that will render the findings almost meaningless. Tactics like Random Digit Dialing are the most likely to create a jury panel that can provide you with objective information.
Once you have a random pool, consider factors that would disqualify members for your potential trial — weed out people with disqualifying knowledge or personal hardship that would make them unlikely to be selected for an actual trial. If your potential future trial is likely to be a very long one, question your potential members accordingly, even though the actual mock trial will only be a day or two.
Those hired are often paid $100-$200 a day for their participation, and should be expected to arrive on time and understand the seriousness of the event. In areas with small jury pools, review local court rules and ethical practices, to avoid the charge of tainting the jury pool.
- Choose the venue:
Professional mock trial consultants sometimes have their own venues, ready-made for most research needs. Other common venues are universities or mid-range hotels. Wherever you choose to have your event, ensure you also provide your mock jurors with breakfast and lunch, as well as notebooks and pens for their observations.
- Have a neutral facilitator:
Jurors should be greeted by a neutral guide who facilitates their experiences throughout the day. Having one of the attorneys do this instead could taint their relationship with the trial. Instructions provided by the guide need to include:
-keep everything you hear here confidential;
-try not to formulate an opinion until after the final arguments;
-remember your verdict is important for shaping the actual trial, and should be given the respect and seriousness you’d give to a real trial.
-any other relevant jury instructions.
This facilitator should especially highlight the importance of confidentiality, in order to protect the legal process and avoid tainting the jury pool. They should have panel members sign contracts vowing confidentiality. They should never reveal to the jurors which side of the case has hired them for this work.
- Begin with written questionnaires:
Begin with assessing each juror’s history, relevant experiences, and pre-existing attitudes about the subjects on hand. You have the chance to learn a huge amount about the mock jurors before they hear your case: their relevant experiences, their values, their personality types. This information, tracked with their later responses, can reveal clues about what kind of people will feel favorably or unfavorably toward your client.
As in the voir dire process, be smart about the questions you ask. Everyone wants to seem fair and reasonable, and are often careful not to reveal their deeper — perhaps unconscious — biases. In order to tease out some of these issues, it might be valuable to give them questions that take the form of a paragraph about a situation, and seeing how they respond to the particulars, instead of asking broader questions about their beliefs.
- Divide the panel in two (at least):
Two groups of six will give you more information than one full jury panel of twelve. You may want to consider having three or more separate groups, depending on your budget. Try to divide your groups evenly based on demographics and personal views, so each panel has the greatest possible chance for disagreement. It’s this debating of views that will be most fruitful for your research
If you have additional questions you’d like to workshop, you’ll want even more juries — two who hear, say, a certain witness or piece of evidence and two more who don’t. If budgets are low but these questions are important, consider a series of mini mock-trials, stripped down to their essentials.
Select the foreperson for each jury panel up front.
- Hone down the presentation:
Ideally, you can get your whole mock trial done in under four hours. Doing this will require you to streamline your arguments and the presentation of evidence to the most relevant points. While an actual trial will afford jurors adequate time to digest details, within a sped-up mock trial participants will get overwhelmed and bogged down with too many points. Each side should be able to get their opening statement and final argument down to half an hour, and evidence presentation should be less than two hours. Jury instructions should be basic and minimal.
One useful opportunity in the mock trial is the chance to workshop graphics you’re creating for the trial. Good graphics can speed up the presentation of facts and evidence, allowing mock jurors to more quickly grasp your points. But remember: if you’ve got a high-quality graphic for your side, you’ll need to develop some for the opposing side as well.
And of course, the need to be brief shouldn’t outweigh everything. Some particularly sophisticated arguments may require more time.
- Present arguments and evidence compellingly:
One way attorneys try to cut costs for mock trials is through giving their ‘jurors’ written statements of the facts of the case, documents, and other evidence, so they only have to do a presentation of final arguments. But this form erodes effectiveness, since many jurors will cement in their opinions on what happened and who’s responsible before hearing any arguments.
More accurate results come from an oral presentation, opening statements with a presentation of evidence, that then moving toward closing arguments. Other attorneys try to summarize this down even more, with one ‘clopening’ statement.
These can either be done in live presentations or through video. Some legal professionals think mock jurors are more likely to listen carefully when a living person is in front of them, but others prefer video testimony, finding it gives them more control. Using live witnesses or actors adds additional variables and chances for mistakes in your case, fogging the clarity of the mock jurors’ responses.
In either case, you can either use filmed testimony and depositions from actual witnesses or from actors. If using the later, they don’t need to be professional actors, but should be able to present testimony in a way that isn’t distracting.
Regarding the argument for your opposing counsel: as you are the most familiar with the case, you should prepare the toughest argument you can summon, using the experience as an exercise of entering the head of your opponent, to foresee their possible strategies. However, once you’ve prepared the documents, you should find someone else to present this argument to the mock jurors. Attorneys often are a little clumsy at crossing sides — a good plaintiff’s attorney often makes a lousy defense attorney, and vice versa, and participants might sense the subterfuge.
Constantly remind yourself that your goal isn’t to ‘win’ the mock trial — in fact, a loss is likely to be more instructive. Though this fact is obvious, the subconscious competitive habit can cause even very rational attorneys to bias their own research and undermine its usefulness.
- Videotape deliberations
Some attorneys or staff members sit in silently during deliberations, but their very presence can have a powerful effect on what the jurors say and conclude. For the most authentic results, be as unobtrusive as possible and watch a videostream or through a one-way mirror.
What are you watching for? More important than the panel’s decision is the way those decisions are made. What are their internal reasoning processes? What arguments do they use with each other, and what seems to change the minds of their fellow-participants? These will show the themes and language that will likely be more powerful than your sophisticated legal reasoning.
Give your participants verdict forms similar to ones used in actual trials. Deliberations end when the foreperson gives you the completed forms or when the panel has reached an impassable deadlock.
- Track confusions:
As in real jury deliberations, jurors can get confused and off-track. This is always a marker for places you can increase the clarity of your argument.
If you find the jury is deviating distressingly far afield, missing important facts or legal aspects, the neutral moderator may need to step in and correct the mistake. But note the problem, to ensure it doesn’t happen again when the real verdict is on the line.
- Debrief deliberators:
After the verdict is returned, take at least a half hour with each panel to run through the experience and establish their reasons for their findings. Also provide jurors with written questions to record their thoughts and findings. Remember that there could be a quirk in this panel which led one vocal member to steamroll the thoughts of the rest, which means that in the end, individual responses are actually more valuable than the group response.
Don’t just ask about substance — ask about style as well. Did the dress or demeanor of a witness detract from what they were saying? Did the attorney seem pompous or too ‘slick’?
- Listen listen listen:
Here’s a difficult truth: mock trials are moments for egos to get bruised. Listening to what jurors say about you in their deliberations might give you a new sense for why it’s called a ‘mock’ trial. But understanding your weaknesses is even more important than knowing your strengths, and remaining open to the criticism lobbed your way in a mock trial will make you a more powerful and compelling attorney.
The quickest way to invalidate all of your research is to refuse to listen to what jurors say, or refuse to allow it to change your approach.
- Take your results as a guide, not a ‘prediction.’
A mock trial isn’t science. It isn’t some statistically significant poll of the population. It can’t predict what will happen in an actual trial. Nothing can predict that, as a judge and jury aren’t, themselves, statistics, and law isn’t a natural science. If questions of the law could be arrived at through science, we wouldn’t need jury trials to begin with — we’d just feed the data into an algorithm.
But understand results rightly as a guiding tool, and you’ll likely appreciate their capacity to open up the dark inner-workings of the layperson’s mind.