Let Them Mock You – Mock Trials
*This page is intended for review only by Attorneys. The information contained is incomplete. The training, experience and skills of an attorney are needed to apply the facts of any situation within the law.
Everyone does it. After working on a case for months or years, you wonder if you have the right approach, or if your missing something. We call it the “Arkansas” factor. Although not politically correct, it brings to my mind an “inbreeding” of ideas which occurs when team members talk about a case over 
and over again. A mock trial may be the answer – it brings in new ideas in a cost effective and relatively simple way.
At a seminar some years ago the presenter encouraged participants to use family and friends as sounding boards for discussing facts related to their cases. Doing so brings in fresh points of view to challenge assumptions. Although a jury represents a broader slice of society then my friends and family, the underlying advice is based on sound theory that by projecting facts to neutral persons, you are able to sharpen the effectiveness of legal theories.
Many large firms embrace mock trials as a necessary component for trial preparation. Smaller firms may be concerned about constraints such as space, manpower or simply time. Although these barriers exist, they are easily surmounted and should not be a deterrent.
One advantage is achieved by setting the date for a mock trial. Doing so forces a deadline some months before the actual trial, requiring preparedness for many aspects of the trial which are otherwise may be left to the last minute. Even if we did not present to a mock jury, the first advantage is achieved because it forces a higher level of presentation earlier than would otherwise be necessary.
The real advantage of the mock trial is the feedback received from jurors. Through the mock trial process, we present the case to as many as 18 jurors who are broken into independent deliberation groups. This enables us to compare results between groups such as the internal dynamics, perceptions on the case theme, or juror beliefs. We sometimes introduce a variant of the facts to only one group to determine if it would alter the results.
More than once we’ve changed our approach to the case. Recalling a medical malpractice case, I was sure we had a wonderful argument that the hospital staff’s failed to ensure informed consent by not making use of translators readily available to explain risks to a patient who did not speak fluent English. However, each deliberating group found it was entirely the patient’s responsibility to be sure they understood. As a result, we realized we were walking into the “personal responsibility” trap that so many juries consider these days.
We find the jurors through temporary employment agency, others gather them from the street. We are able to gather a more diverse group of participants than could otherwise be achieved with using family or friends and whether we need five or twenty participants, the agency always comes through. Participants receive $100.00 for working from 10:00 a.m. to 4:00 p.m. The agency is paid a similar sum per juror and we use a weekend day so not to conflict with other employment commitments thereby allowing for a larger pool of diverse jurors.
As for space, we rent a local private school. Plan on one large room to present the case, with tables sufficient for note-taking. You will need breakout rooms so you can divide jurors into smaller groups for deliberation. You also need an eating area. We provide lunch and snacks because doing so helps us better manage time with a shorter lunch and break periods.
As for the day itself, it begins with jurors signing a confidentiality agreement acknowledging the nature of the exercise and their agreement not to discuss the case. We ask that they individually approach a staff member if they have close relationships with a lawyer or the type of professional involved in the case (most of our cases have been professional negligence). The names of the parties are not disclosed. This process is our opportunity to see if close relationships exist to players in our case and to excuse them with pay to avoid any tensions.
The next item is for the mock jurors to fill out a questionnaire with personal preferences and attitudes towards issues relating to our case (voir-dire). Next are opening arguments by plaintiff and defense with additional questionnaires as to each. For each witness, the lawyer for the party calling the witness describes evidence they would elicit followed by opposing counsel describing what would likely come out in cross-examination. Once completed, closing arguments are done followed by another questionnaire. One of our staff acts as judge giving a brief recitation of law, followed by another questionnaire. We then break the mock jurors into several groups of five to seven, and separate into deliberation rooms.
The first portion of the deliberation is left entirely to the participants with the latter guided by a facilitator who solicits answers to questions prepared in advance. If there are specific fact twists deemed important, we introduce that information to only one group. I recall an example of a deliberation was particularly insightful. One group insisted on applying medical malpractice caps of $250,000 for non-economic damages. While the group was clear that caps where not passed by the legislature, they decided this particular case was one for which caps should apply. Interestingly enough, the other two mock juries ultimately awarded the plaintiff millions of dollars in non economic damages. It was valuable to understand and analyze the differences between each group and the logic they followed.
We end the day with sufficient time for each group to separately explain their reactions to the attorney presentations for both form and substance. This is an opportunity to get specific feedback on your advocacy skills and the case.
I encourage you to let them mock you, trust me they will and you will learn something, even if it is to simply confirm what you thought you knew all along.
By Bruce H. Stanger of StangerLaw LLC. He can be reached at 860-561-0651.
