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5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions

Laurie Kuslansky
By: Laurie Kuslansky

Jury Questionnaire, Jury Consulting, Mock Trial, Juries, Jury Consultants, Voir Dire, Jury Selection

By Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

As we have discussed a few times, mock trials are one of the best tools that trial lawyers have at their disposal. Mock trials can have innumerable benefits in trial preparation. One benefit is that mock trials can help you to design and shape the questions you ask during voir dire in the real trial. Here are five ways in which mock trials can help you in this way.

  1. If you have a large enough sample size (minimum of 36; preferably more), you can do a statistical analysis of your supporters and your detractors to identify statistically significant differences between those two camps, if any exist. For example, an analysis of this type may show that people with related experience in your client’s industry are going to be bad jurors for your client. This can easily help you frame a voir dire question. For example, in a case involving a well-known sports entity, a mock trial showed that fans were likely to be less favorable jurors than strangers because fans had higher expectations for the sports entity than strangers.
  1. Mock trials show what resonates with mock jurors. Deliberations show which mock jurors identify with which party, evidence, witnesses and themes. These gems of knowledge should guide you to find out which types of personal experience are adverse to you and thus can form a basis for voir dire questions.
  1. Mock trials reveal trends of what turns off mock jurors. For instance, if the mock trial shows that jurors who are most like the plaintiff in taking risks are actually worst for the plaintiff because they want to distance themselves from the resulting injury (due to “defensive attribution”), questions can be asked along those lines during voir dire. For example, a young pilot was buzzing treetops by flying too low, resulting in a fatal crash.  Similarly, two young men rode “double” on an ATV – against warnings – and were seriously hurt when it stalled and flipped over on them.  The best defense jurors in both instances turned out to be daredevils, so voir dire sought to reveal pro-plaintiffs’ jurors who were especially risk-averse, even though this was counter-intuitive. As one defense juror said, "It's not the [manufacturer's] fault. We know we're not supposed to do it, but we do it any way!"
  1. ­­The goal is to try and win by shaping your best story for your worst jury. A mock trial lets you see and understand your worst issues and weaknesses.  During mock deliberations, you also learn the reasons – if any -- that cause mock jurors to stand by each side, abandon you, or move from being against you to finding for you. Voir dire can shape questions that identify people who may be unwilling to even consider facts that could cause them to change their views in your favor. 
  1. Mock trials not only show which outcomes are most appealing to mock jurors, but also the rationale that leads to them and the expected consequences from those verdicts, whether real or imagined. Knowing what these are in advance offers counsel an opportunity to disabuse prospective and actual jurors during voir dire and trial.  For example, in a case involving a dispute over an environmental cleanup, jurors may mistakenly believe that -- unless they find for the plaintiff(s) -- the cleanup won’t occur, or if they find for an insurer, premiums for everyone will be increased.

These are a few of the reasons that mock trials are crucial in setting the stage for voir dire and why it makes good sense to use a sample size large enough to enjoy this benefit when conducting mock trials.

Other articles and downloadable resources from A2L Consulting related to voir dire, voir dire questions, jury selection and mock trials:

A2L Consulting Voir Dire Consultants Handbook

 

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