Enhancing Your Argument Through Jury Testing | Method #2: Mock Trials

Fishman Haygood special counsel Lara Richards recently published an article for JDSupra on three different jury testing methods—focus groups, mock trials, and shadow juries—and how they can help litigation teams before entering the courtroom. Click here to read part one of her series on jury testing, focus groups.

Jury testing is a powerful tool in litigation, and attorneys would be well served to think about their cases as studies worthy of experimentation. Cases are not mysteries to be solved; they are a series of testable questions that can be answered by people who, more times than not, follow predictable decision-making thought processes. The likely outcome of a case, as well as what influences its outcome, can and should be measured.

Last time, we discussed using focus groups to bolster your case. Read on for an explanation of the second method of jury testing examined in this series, mock trials.

Method #2: Mock Trials

A mock trial is a simulated trial that gives attorneys, experts, and clients the ability to “test the jury.” Unlike focus groups, it is an attorney-led event that more closely follows the structure of a typical trial. Mock jury members hear opening statements, witness examinations, and evidence before they deliberate. This type of jury testing is often used closer to the actual trial after discovery, depositions, and even rulings on trial procedure.

The structure of a mock trial gives you the opportunity to “fix what’s broken” with your trial strategy. Suppose you want to test drive your opening PowerPoint, try out a new damages theory, or iron out any confusing aspects of the jury form. Under such circumstances, there are endless possibilities to test these in a mock trial.

To ensure that you reap all the possible benefits of your jury testing, there are three key aspects of a successful mock trial. First, it is crucial that your jurors are representative of your potential juror pool. While you may not have the resources of a court to pool jurors, do your best to replicate the potential jury in your trial’s jurisdiction by engaging area staffing companies and recruiters. Second, make sure the presentations by the Plaintiff and Defendant are equally strong. While you are testing the effectiveness of your arguments, if your opponent’s arguments are neglected, the mock trial’s results will offer little more than false confidence in your case. And finally, a successful mock trial must present equally strong or damaging testimony by key witnesses. Failure to be wary of subconscious bias in your mock trials can derail the intention of your jury testing.

Conducting a mock trial begins with hiring your jurors. As previously mentioned, hiring representative jurors is extremely important. Don’t recruit from the area where your trial is pending; instead, pick a coverage area that will mimic potential jurors—i.e., a neighboring parish or county. You can employ a staffing company or recruiter to help with this. Then, review the candidate resumes. Always reject anyone who works for a law firm, a judge, or a court. Depending on the case, you may even exclude those who work in certain industries. Be sure to have mock jurors fill out a voir dire questionnaire, just like a “real” jury member so you can identify any other potential conflicts or biases.

Once your mock jury is set, it’s time for the event. To begin, the moderator should briefly introduce the process, emphasizing the importance of the mock jurors’ role. Review the rules of the day as you would at trial, including stipulations on confidentiality, no Google or other internet searches, no talking or case discussion outside of deliberations, and being courteous to fellow jurors. Lastly, explain the structure of the day’s proceedings.

Mock trials should open with a case summary read by the moderator. This is a brief and neutral introduction to the case, after which jurors should be surveyed for their initial reactions to the case and the parties involved.

Next, the Plaintiff and Defense will make their “clopening arguments.” This key feature of mock trials combines opening and closing statements, allowing the attorney to introduce, explain, and argue their case. Following each side’s clopenings, Plaintiff’s counsel will give a rebuttal before presenting their first witness. Witness testimony might include a live examination or footage from deposition videos. After a direct, cross, and re-direct exam of this witness, the Defense will present their witness for examination. Finally, the mock jury breaks for deliberation.

Critical to the mock trial exercise is that the same survey be given to jurors after each presentation, allowing your team to track any movement in opinion. A quality mock jury survey should ask pointed questions designed to reveal the juror’s true feelings about the case, such as:

• At this point in the exercise, which side do you favor?
• How strongly do you hold that opinion?
• Please explain the main reason for that gut reaction.
• Please explain the second main reason for your gut reason.
• How much, if any, would you award Plaintiffs after hearing the presentation?
• Do you have any questions at this point?

Mock trials provide detailed evaluations for your case. They test how jurors view your witnesses, experts, and attorneys, as well as your damages theories and calculations. By mimicking true trial procedure, you can determine if jurors understand the themes and key issues of your case.

Following the mock trial, take an honest look at what worked, what didn’t, and what needs to change. These insights should be used as a guide for your real trial strategy. Based on the results, do you want a jury trial or a judge trial? Can a bad witness be rehabbed with practice or do you need to substitute? Do you want to abandon a part of your damage model if the mock jurors found some calculations particularly inflated or unbelievable? After all, the whole purpose of the mock trial is to then use the data to increase your chase for success as the real trial.

Tune in for Lara’s final installment in this jury testing series: shadow juries.