Many litigators have developed the excellent practice, while preparing to try a major case, of running all or some their case before a mock jury and then debriefing the jury to see what worked and what didn’t, and to fine-tune their trial presentation accordingly. A mock trial is an excellent investment of money and time when the matter is large and significant enough to permit it. Not only can you test mock jurors’ reactions to alternative arguments and themes but also their reactions to the trial graphics you are considering for trial.
As we found in a now well-known three-year study about the differences in the way litigators and jurors naturally communicate, more than two-thirds of jurors prefer to learn visually, and only a very small percentage prefer to learn by only listening. Until recently however, most mock trials tested only arguments, themes and sometimes some rudimentary demonstrative graphics. Increasingly however, we are setting up mock trials, testing alternative arguments and themes, AND we are creating sophisticated trial-ready litigation graphics for BOTH sides of the case. For the right case, this approach offers a more accurate predication of how the entire trial presentation will be received. It is a mock trial best-practice.
A major purpose of using visual displays is to prompt an emotional response from jurors. Your mock jurors can tell you what emotions they felt at the mock trial. They can tell you whether the graphics aided them in their understanding or decision process. You always want jurors to respond in a positive way to your arguments: if they did not, this is the time to change the strategy. Perhaps the graphics in such a case need to be more fact-based than emotion-invoking.
Daniel Cooper, Esq., President of LitStrat Inc., says, “Given the powerful visual messaging that many of my clients develop for their consumers through a process of design, testing, revision and redesign, it is often surprising that they or their lawyers do not utilize the same process for the design and development of effective visual messages in the trial setting.”
In some cases, this mock trial preparation technique can even help you gauge the strength of the case based on the mock jurors’ responses to the graphics and to decide whether to proceed to trial or not. And you can test the strength of the opponent’s graphics as well, to see if they are credible in a jury’s eyes. If you are using the graphics simply to instruct the jury, the mock trial will help you know whether they understood the key concepts as you hoped they would.
When asked about testing graphics at a mock trial, Rick Fuentes of R&D Strategic Solutions commented, “Hopefully you can learn if the visual did the job it was supposed to do -- if the jurors understood the most important aspects, remembered the more important details later and used them in their decision. You want to know if the jurors were able to tie the important aspects together and get the message you are trying to convey.“
A mock trial setting will also give you the ability to test your arguments with and without graphics to determine what graphics and animations, if any, are needed. In addition, a mock trial can help you decide what type of graphics to use. Were foam core trial boards enough? Did animated graphics work better than still graphics, or vice versa? Is 3-D animation needed?
Sometimes, the question is simply whether a detailed graphic presentation is needed or whether it is a bit much for the client and for the circumstances. Although most jurors expect some sort of technology in a presentation, sometimes less is more, and you may want to keep the technology more low-key. Occasionally, there’s the danger of seeming too slick, too large and corporate, against an opponent who can present a “David and Goliath” scenario.
Don’t forget that one of the purposes of using a mock jury (or mock judge or arbitrator) is to test how well your graphic exhibits, and those of your opponents' will play.