by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A mock trial is one of the most sensible things a trial team can do as part of their trial preparation. Not only does a mock trial inform the trial team about how real jurors or a real judge will react to the fundamentals of the case, but it also helps narrow the scope of the evidence and arguments to use. If the research is done before the close of discovery, it can inform the key messages to assert or defend, the type of experts to retain, and the expert testimony that is sought or backfires. It can also inform the trial team if the case is a no-go when all arguments fail or the damages tend to be greatly higher against the defense or lower for the plaintiff(s) than expected. We have seen the results inform clients about dedicating additional resources to support counsel when the client underestimates what is needed to prevail.
In short, there are few pre-trial preparations one can conduct that have a higher return on investment than a mock trial. However, if you fail to avoid some very common mistakes, you are not using your time or your client’s money as effectively as you otherwise could.
Below are 11 problems with mock trials and how to avoid them.
- Winning. You want to win for your side instead of actually testing your side’s strengths and weaknesses.
- Show Me – Don’t Tell Me. It is well established that most jurors prefer visual evidence and all modern trials use it. If you test a case without visuals, it’s a bit like going to the movies with a blindfold on and trying to understand the story. You will understand some of it, but there is a lot you won’t understand. Plus, the extra time invested in creating graphics pays for itself over and over in time efficiency and it is work you’ll use at trial anyway. Often, when it comes to creating a core set of graphics to show and tell your case, it forces you to focus on what is truly most important and what needs you to educate before you advocate. See Testing Graphics in a Mock Trial.
- Stacking the Deck. You provide graphics for your client, but not your adversary, so you tilt the results. Related to the first item and surprisingly common, if anything, you should work to stack the deck against yourself. It is better to mock lose than to mock win so you learn as much as possible to remedy while there’s still time.
- Denial. You omit worrisome evidence. Often, trial counsel will leave out troubling evidence in a mock for a variety of reasons – some quite legitimate. However, you are better off knowing ten ways you might lose rather than one way you might win.
- Verdict on Liability. You use the results to predict the actual outcome on liability and damages. The reason to conduct a mock is not to predict what will happen -- although some analysis of that is inevitable and useful. Instead, use the mock to learn what works and what does not. Use the mock to gain language tools and learn subjects that require graphics tutorials that you can use at trial. If it helps to call someone a serial liar during the mock, you know you can do it at trial and it will help. If it boomerangs, better to know in advance.
- Buck to the Future. You use the results to predict the likely damages. It is unlikely that the economics permit such a large sample size that you can rely on the statistical results for predicting actual damages. Instead, you can learn the facts and arguments that fuel higher damages and ones which tend to mitigate damages and adjust for trial accordingly.
- Goliath vs. Some Other Guy. The best and most experienced person presents for your side and someone unequal to the task presents for the other side. No wonder you won, but what is that worth? Instead, make it an uphill battle. Put your 1st chair on your opponent’s side whenever possible. We understand that clients often want to see their advocate argue for their side, whether as a trial run or to put their best foot forward, but in the end, it can be a huge disservice.
- Chronology vs. Story. You try to cover too many details rather than creating a compelling story to test. Rattling off what happened is not telling a narrative. Use it as a foundation to tell the highlights in your story. It’s the spine, but not the body. See A2L's Storytelling in Litigation Webinar.
- Home is Where the House is. If you don’t do the mock trial in the actual trial venue, it is hard to know how the real jury pool will react and what they might be sensitive to as local issues that can impact their perception of the parties and the case. Clients may be over-sensitive to the risks of local research. If there are local rules against it (e.g., as in the E.D. Texas) or the pool truly is tiny, that’s a valid reason. If not, there are native sensibilities that are important, but will be missed if a matched venue is used.
- Cast of Characters. Without explaining who witnesses are when citing their testimony (e.g., the credentials of expert witnesses or the roles of fact ones), their testimony is flat. Instead, make a visual glossary of key players. If their positions are pertinent, include an organizational chart. If their credentials are important, present their CV visually.
- Set Client Expectations. Mock trials are best if you lose so that you learn challenges to overcome, but if your client loses confidence in the trial team for mock losing, then what? Instead, explain to your client up front that you are going to make it a challenge to win this so we can learn how best to fight this case by testing the worst-case scenario. The more criticism we hear from jurors, the better.
It is better to fix the problems in the case than for the mock to be fixed.
Other articles and resources related to mock trials and jury consulting services from A2L Consulting:
- Things every mock jury has said in 400+ mock trials
- Contact A2L about mock trial and jury consulting services
- Free E-Book Download: How to Get the Most from a Mock Trial and Jury Consultants When You are Headed to Trial
- 5-part series about voir dire and jury selection
- 5 sample questions to always ask in voir dire
- Is it unfair to your opponent to use trial and jury consultants?
- The 14 Most Preventable Trial Preparation Mistakes
- 12 Alternative Fee Arrangements We Use and You Could Too