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Improving the Odds: Using Mock Trials to Hone Strategies
By: Carolyn S. Koch, J.D.  Published in The Trial Lawyer, Vol. 24, 116-122 (2001)
 
A reliable way to ensure the most informed settlement or the strongest possible trial presentation is to conduct a mock trial. This article presents case studies and other examples showing how mock trials identify key case issues (i.e., those most persuasive to jurors, not lawyers), illustrating juror decision-making processes, help lawyers overcome unhelpful stereotypes, and identify key attitudes and experiences that make a difference in how jurors perceive a case.

It is often said that a case is won or lost during jury selection. That is only partially true. Certainly one's chances of winning are reduced when biased jurors decide a case. However, there are myriad reasons why a case wins big, loses big, or results in a compromise verdict. The only reliable way to separate the winners from the losers is to conduct a mock trial.

This is by far the most effective yet underutilized approach for trial preparation. Only a mock trial can prepare a lawyer psychologically for the upcoming trial. It's a reality check, sometimes forcing the lawyer to anticipate the worst; sometimes giving the lawyer new hope, revealing great strengths of which the lawyer was never aware. It also gives the client a reality-check. Clients often have unrealistic expectations of what lawyers can achieve. Often, they are much more willing to accept criticisms from mock jurors as opposed to their own lawyer. The fact is, not all case problems are solvable and the attorney can best protect his or her client's interests by becoming aware of case limitations before it's too late.

A mock trial defined: When lawyers hear the word, "mock trial," they think of a day-long proceeding or longer, with live witnesses in a courtroom environment, with a sitting judge. If a mock trial's purpose is to educate law students about courtroom experiences, then all the trappings of real court proceedings should be included. But if the mock trial's purpose is to educate lawyers and their clients about a case's strengths and weaknesses, it should be streamlined to its essential components and present jurors with fully-developed case summaries for both sides of the case.

Each side is presented as a hybrid opening/closing argument with references to evidence and witness testimony. Critical witnesses should be presented to the jurors via video clips. No matter how complicated the case, mock jurors should get a clear picture in two to three hours. The rest of the time should be spent getting feedback from the jurors in the form of individual, written questionnaires, as well as jury deliberations.

Scheduling a mock trial in advance of a trial date: Assuming you have sufficient information about the case claims and defenses, an early mock trial can sometimes prompt an early settlement. For example, if you represent the plaintiff and the results are very strong in your favor, you can inform the other side. Perhaps they will settle for a fair amount, especially if they've done research and learned what you've learned. If you represent the defendant, you might find the risk of a high verdict is far greater than what the plaintiff is seeking in settlement negotiations.

Most lawyers and their clients prefer an early and fair settlement to protracted and costly litigation. Some lawyers do a mini-focus group before deciding to take a case. If the result is very negative, you can be saved from "a dog," and possibly save your client the frustration and cost of litigating a weak claim.

Doing it right is worth the investment: Developing the case presentation costs money and takes time. In my experience, plaintiffs do a terrible job of presenting a strong defense case and defendants do a terrible job of presenting the best plaintiff case. Most attorneys greatly benefit from working with an objective outside expert to help them develop the strongest case for both sides. If the presentations aren't balanced, it can seriously skew the result. Mock jurors also need to be professionally recruited and paid for their time.

I once worked with lawyers who had a terribly weak case for the plaintiff. They "focus grouped" their case to people who worked across the hall from them, (non-lawyers) who gave them very positive feedback. We subsequently did a professional mock trial for the lawyers and recruited jurors who had no connection with the lawyers. Jurors were paid for their participation and did not know which side sponsored the project. These mock jurors reacted quite differently from the people across the hall. They HATED the case and felt free to say so. A time and resources needed to conduct a mock trial should not be squandered on half-way measures.

The mock trial should answer all of your questions about the case: It would be a real shame if a mock trial tested out damages but not liability: How could jurors put a fair number on a case if they were not privy to all salient liability issues? It would also be a real shame if the mock trial tested out one main issue but not the other: How else could the attorney decide which issue is easier to prove? The mock trial should also give the attorney some insight into who might be the best or worst jurors to select during the voir dire.

The only way to reap all this important feedback is in the mock trial's set-up. For example, jurors should be questioned throughout the proceeding: Written juror questionnaires should assess juror's pre-existing attitudes and experiences, as well as their specific feelings about the issues and parties. Jurors' individual opinions are as important as the jury deliberations since assessments of case strengths and weaknesses are most reliable when based on juror's individual responses.

For example, a jury verdict in favor of the plaintiff might be caused by one very strong juror for the plaintiff and a dynamic where other mock jurors simply don't feel like fighting this person tooth and nail. But if twenty individual responses indicate that the majority of the jurors gave the plaintiff very low damages, the attorney would certainly have a different view of the case's ability to win in court.

What follows are some examples of mock trials. The case studies illustrate how the variety of ways in which mock trials help lawyers choose the most winning strategies for a particular case.

The product liability mock trial The plaintiff was injured on the job, using a piece of heavy machinery. The plaintiff's claim was that the machinery was defectively designed, causing the accident that left him paralyzed from the waist down. Facts in favor of the plaintiff were that the manufacturer was aware of the kinds of accidents that injured the plaintiff and as a result, created a newer machine with the appropriate safety device. It also issued warnings but they were not placed on the machinery, or sent to all purchasers. But there were also facts that favored the defense: The employer was not a defendant and it was the employer who trained the plaintiff - in a very short period of time - on how to use the machinery. The defendant also claimed that the machine was misused by the employer's practice of carrying equipment heavier than what was recommended by the manufacturer.

The plaintiff's lawyer sponsored the mock trial, primarily because he wanted to get an idea about damages. The plaintiff was a self-motivated, hardworking man who continued to do well despite being paralyzed. However, the plaintiff was continually insulted by every settlement offer made by the defense.

The plaintiff's lawyer was also concerned about liability and wondered whether a jury be willing to blame the manufacturer more than the employer? Prior to the mock trial, the lawyer felt that his client was a "good" plaintiff, (i.e., sympathetic, appealing and deserving) and felt that jurors' sympathy would translate into high money damages. He also felt that liability was strong because the manufacturer had documented the safety hazards and created newer, more safely designed machines.

The mock trial results indicated otherwise. The defective design issue turned out to be weak. The manufacturing of safer machines made jurors blame the employer MORE than the manufacturer because the employer did not seek out the safest machine for its employees. An interesting result was that jurors' feelings were divided by gender (which very rarely occurs in most cases). For example, the only jurors who believed the machinery was defectively designed were female. All of the male jurors rejected the defective design argument. The failure to warn issue also appealed more to women and they were the only jurors who believed that warnings might have made a difference.

A key attitude (one that had nothing to do with gender) concerned jurors' feelings about how employers treat their employees was directly relevant to their analysis of liability. Those who felt employers "used" employees and were callous about safety were deaf to all arguments concerning the manufacturer's liability. This was true even though they believed that the manufacturer could have done things differently.

The lawyer also fared more poorly than he expected when it came to damages. The "day in the life" video was prepared to be used at trial and tested out during the mock trial. Many of the jurors were impressed with the plaintiff, but not in a helpful way. For example, many of them commented that the plaintiff was much better off than they had imagined and they felt that surely, he could be functioning at a higher level than he was. The lawyer didn't realize until that moment that the video focused too much on the plaintiff's abilities rather than his limitations. But more damaging was the fact that damages were substantially reduced by the jurors' desire to blame the employer in addition to (or in lieu of) the manufacturer.

This mock trial enabled the lawyer to refocus the issues so that equal or greater time was spent on the warning issue, as opposed to dwelling almost solely on the design defect issue. The lawyer learned before it was too late to re-do the "day in the life" video so that it would do a better job of subtly portraying the plaintiff's daily defeats and limitations. But most important was that the mock trial gave both the lawyer and client a wake-up call, letting them know that the plaintiff's paralysis in no way guaranteed large damages because of the liability problems. This knowledge enabled them to better assess what a good settlement would be.

The traumatic brain injury mock trial The plaintiff, a seven year old boy, purchased ice cream from a vendor parked on the side of a narrow street. He started to cross the street from behind the truck and walked into the path of an oncoming car. He suffered a traumatic brain injury. The trial did not occur until he was thirteen years old. The plaintiff brought suit against the ice cream vendor.

The facts in favor of the plaintiff were that the ice cream truck's driver had received no training from the defendant and violated many of the company' s safety protocols. The industry had done safety studies determining that a flashing swing arm would reduce these kinds of accidents. The defendant had used the swing arms at one time but discontinued their use.

The facts in favor of the defense were that the boy was driven by an adult neighbor who parked her car near the ice cream vendor, and let her children (ages 8 and 9) and the plaintiff walk over to the truck unsupervised. The neighbor was sitting in her car at the time the plaintiff was hit.

Prior to conducting the mock trial, the plaintiff's lawyer was primarily concerned with damages because the plaintiff was in need of costly, long-term life care, but by the time of trial, he looked like an almost normal teen-age boy. He was also concerned about liability because of the driver of the car who struck the boy had already been sued and jurors would not know the amount of that settlement. The lawyer also had no idea how people would react to the plaintiff. The injury was severe but hard to immediately discern. In any event, he felt confident that the parents would be excellent witnesses and that liability was strong because the defendant had once used, but discontinued the safety swing arm.

The mock trial showed that these jurors had little inclination to award damages for intangible injuries above and beyond the out-of-pocket costs needed for the boy's care. That is, once the jurors were faced with those large numbers, they were not interested in adding more money for the lost ability to enjoy a career, family, etc. But the reason for their reluctance was due to liability problems - jurors felt that the parents, the neighbor, and the driver of the car were as much to blame as was the defendant. However, there was enough concern about the boy's injury, and enough evidence against the defendant to result in a grudging compromise verdict.

The lawyer also learned a few things that came as a total surprise. First, jurors were completely turned off by the parent's request for emotional damages. The claim made jurors feel that the parents were more concerned about their problems than their son's.

Second, jurors' attitudes about ice cream trucks and safety issues were gauged before the mock trial began. One would intuitively think that people who thought ice cream trucks were very dangerous, would be the best plaintiff's jurors. The opposite was true. Those who thought the trucks were dangerous blamed the neighbor and parents for not supervising the boy near the ice cream truck. Those who had no opinion, or thought they were not that dangerous, had an easier time blaming the defendant.

In light of these results, the lawyer realized that the best strategy was to minimize the independent claims of the parents. The parents made a better impression when their only interest was in their son's welfare, and not their own financial or emotional recovery. The mock trial involved two juries, both awarding damages in the range of $2 - 3 million dollars. The case settled during the trial for $2.5 million dollars. The research assured the lawyer and client that the outcome was right.

A "wild card" issue: When lawyers are the litigants When a lawsuit involves a lawyer as a litigant, that fact will almost always affect how people view the case. What follows is a description of a mock trial involving two lawyer-defendants. The case involved an alleged "handshake deal" which resulted in a breach of contract and fraud claim. The dispute arose between the plaintiff, a general contractor, who claimed that he was in real estate business partnership with the defendants, who were both lawyers.

The plaintiff sued the defendants, claiming that because he was a partner, he was entitled to a percentage of profits based on a handshake deal between the parties. The defendants denied that the plaintiff was anything more than a well-paid employee.

The defendants sponsored the mock trial. They were unwilling to settle and felt that they had a strong case because the plaintiff had no written contract. They were concerned, however, because the plaintiff was suing for millions of dollars. They were also worried about the possible prejudice of side issues involving complicated tax shelters and extramarital affairs.

The thrust of the plaintiff's case was that he knew and worked for the defendants for years and trusted them. His entire argument rested on his testimony in support of the oral agreement. The thrust of the defense case was that the plaintiff was a well-treated employee who was trying to feather his nest upon retirement by coming up with this oral contract claim. The defendants claimed they would never enter into a contract involving millions of dollars without committing it to writing.

The mock jurors HATED the defendants. The jurors presumed that they were crooks because of their wealth, knowledge of the law, and experience setting up tax shelters. Because they were so adept at sheltering their wealth, jurors assumed that they must have defrauded the plaintiff. Furthermore, the defense claim that the plaintiff was a well-treated employee backfired. The plaintiff had experience in contracting but no higher education. The defendants had degrees in law, tax, and real estate and thought that this difference in background would help dispel the plaintiff's claim that the three were partners. However, the jurors believed that the plaintiff must have been a partner, otherwise the defendants wouldn't have paid him a $200,000 salary. As far as damages were concerned, it was all or nothing. Jurors awarded either high verdicts or zero, and the majority of jurors awarded more than $5 million dollars.

This mock trial showed how certain issues can produce unanticipated results. Oral contracts are usually a tough sell, but in this case, jurors' reactions against the defendants were so strong that they dictated the outcome. It wasn't just that the defendants were lawyers - it was that they were rich and seemed to know (and take advantage of) every loophole in the book. This caused the information about the tax shelters to be a central and damning part of the case. Jurors assumed that this was part of the defendants' complex scheme to hide assets from the plaintiff.

Unfortunately, the defendants disregarded the mock trial results (eight jury verdicts, the majority of them negative) and an actual jury awarded the plaintiff $14 million dollars at trial!

A mock trial illustrates the issues that are most persuasive to jurors - not lawyers Cases often involve two or more main legal issues and lawyers can't always predict accurately which issue should be highlighted. It is often the case that the lawyer thinks the "sexy" issue will carry the day and the "vanilla" issue should be downplayed. But mock trials illustrate that the opposite is frequently true. For example, one case I worked on had two issues for the plaintiff: A whistleblowing issue and a breach of implied contract based on workplace personnel policies. Surely whistleblowing is the sexier issue and the attorney intended to present it this way until research convinced him otherwise.

The mock trial demonstrated that the whistleblower claim forced the plaintiff to have to prove too much; that is, heroic virtuousness and near perfection. But the breach of contract claim required the plaintiff only to prove that he was entitled to fair treatment according to the employer's own rules. As a result, the attorney restructured the entire case so that it focused on the employer's failure to abide by its own rules.

Just as helpful was that the attorney also restructured his voir dire strategy, learning about juror's expectations on this very issue and playing into their expectations during the case presentation. Had there been no research, the weaker whistleblowing issue could have very easily eclipsed the stronger contract issue - both during voir dire and during trial. Most certainly that approach would have put the plaintiff on the defensive. But by focusing only on the employer's failure to abide by its policies, the plaintiff was able to keep them on the defensive throughout the trial. What was initially seen as a very difficult case turned into a resounding victory for the plaintiff.

Using mock trials to develop voir dire strategies Mock trials illustrate that certain cases are so strong that they can transcend the variety of biases jurors might have. Likewise, certain cases are so weak that even the most favorable jurors would call it a dog. But there are those cases out there that could very easily go either way. For every case but especially these cases, a mock trial should be designed so that it reveals important clues about the kinds of people who might be most and least receptive to the particular facts of that case. The only way to do this is to learn a substantial amount of information about the mock jurors before they hear the case. This is because who jurors are and what they believe is often directly related to their ultimate decision in these close cases.

If enough information about each juror is gathered and documented before the mock trial, their responses can be tracked throughout the project so that at the end of the session, the consultant will know something about each juror's background, personality type, personal experiences, attitudes about relevant issues, as well as each juror's specific opinion about every issue presented in the mock trial. This allows one to look for connections between initial attitudes and experiences and actual decisions about the case.

For example, a mock trial involved issues of contract interpretation. The parties created three separate documents that pertained to their business relationship. The plaintiff claimed that all three governed their relationship while the defendant countered that only the last document was controlling. The plaintiff fared badly in the mock trial and this caused him to ultimately settle. However, mock jurors were asked relevant attitudinal questions before hearing the facts of the case and some interesting patterns emerged:

  • Of twenty jurors, sixteen agreed that high level executives are overpaid. The four jurors who disagreed all favored the plaintiff (a high level executive).
  • Fifteen had no experience signing a written business contract. The five jurors who had such experience all favored the defendant.
  • Sixteen agreed that written contracts should be 100% enforceable. The four jurors who disagreed all favored the defendant (who claimed to only be bound by the third document, not the first two.)
  • Of the twenty jurors, eight were categorized as having the Traditionalist personality type. Overall, only eight jurors voted for the plaintiff and seven of these eight were Traditionalists. (In other words, 40% voted for the plaintiff but 87% of them were Traditionalists).
Lawyers often speak about cases and jurors in a way that has nothing to do with how jurors really decide cases. Who hasn't heard a lawyer say anything along the following lines? "I have my best outcomes when I get a few homemakers on the jury…" Or, "This is a case that will appeal to the common working guy…." Or, "I think we need to have an educated jury to win this case…." Mock trials prove how impossible it really is to make such assumptions without seeing first what people really think about the case.

Every case is idiosyncratic, as is every juror Mock trials reveal that jurors' responses to a case are very individualistic and most closely related to their attitudes (their "world view") and experiences. Take the following case as an example: A criminal defendant was charged with murder for the beating death of a toddler, his girlfriend's child.

Without conducting a mock trial, most would assume that women or women with children would be especially sympathetic to the prosecution's case but in fact, there was no correlation between these demographic factors and jurors' views. Instead, jurors' beliefs about parenting responsibilities (the mother is responsible to care for her child and to choose suitable sitters) and child abuse (as more of a disease rather than a deliberate act) were decisive and transcended whether a juror was male or female, a parent or childless, young or old, educated or uneducated.

In this particular case, because the mother worked long hours, the majority of jurors felt that she was likely to be more stressed out than the defendant and that maybe she snapped. Her willingness to work double shifts and dump her child with an inappropriate sitter also made jurors think that she was an unloving mother. These factors created a reasonable doubt for many of the jurors.

The mock trial illustrated that if juror profiles were to be created for the purpose of jury selection, it would have been a mistake to base them on stereotypes about women and mothers.

Mock trials identify key attitudes that make a juror possibly better or worse Aside from personal experiences, jurors carry with them certain attitudes that can affect their view of a case. For example, in one mock trial, the plaintiff was a long term female employee who excelled at her job but was fired and accused of being insubordinate. She was somewhat of a "rabble-rouser" in that she spoke up frequently and didn't back down in the face of intimidation. However, male jurors who were identified as having the Traditionalist personality type were most skeptical of her claim because her "rabble-rousing" hit a nerve with them.

But compare this to a different gender discrimination case with a different plaintiff. She had a much weaker case, spotty performance and documented personal problems yet male jurors who were identified as Traditionalists strongly favored the plaintiff and defended her fiercely. The reason they identified with her was that her husband had fallen ill, forcing her to change careers and become the primary breadwinner in her family. This comparison shows that the usefulness of mock trial results extend only to the case being tried. That is, the second example proves what a mistake it would be to judge Traditionalist men based on their attitudes from the first case example.

A Consultant's perspective A consultant sees a variety of different cases from a jury's perspective. Just like a lawyer gets a feel for the inherent strengths and weaknesses of a certain kind of case, so to does a consultant. A lawyer's instincts about a case tends to focus on legal strengths. A consultant's instincts tend to focus on the common sense opinions of the average layperson.

After conducting myriad mock trial projects, certain general "truths" emerge. For example:

  • Most jurors don't want to send messages. In watching a variety of different mock jury deliberations, only a small minority of jurors ever argue for the need to send a message to the defendant. A message is only sent in cases where the wrongdoing has the potential to seriously harm of a large segment of society, i.e., pollution, nuclear waste, dangers to children, etc.
  • Most people strongly prefer primary liability over secondary liability: For many jurors, it is easier to blame a smoker for his cancer than the tobacco industry; it is easier to blame a person who spills coffee on herself rather than the corporation who profits from selling coffee to people in cars; it is easier to blame a person for not wearing a seat-belt than a car manufacturer for not installing an airbag.
  • Most jurors want to be convinced "beyond doubt" in most civil cases. Watching a jury's deliberations or discussing a case with an actual jury illustrates that the civil burden of proof is a meaningless phrase. A strong verdict requires jurors to be sure about their decision. "Tipping the scale" in one's favor often isn't enough. Doubt results in compromise verdicts, which results in a reduction in damages.
Too often, critical case variables don't get tested or analyzed until the law suit is actually presented to a jury, many years after the fact. Although most trial lawyers have a keen sense of case strengths and weaknesses, many lawsuits present unique issues and it is impossible to anticipate how jurors might react. A mock trial is the only pre-trial exercise that can prepare the attorney for all aspects of trial presentation and settlement. Only a mock trial can arm an attorney with the kind of information that can make the difference between a ringing victory and a devastating loss.

Article written by: Carolyn S. Koch, J.D., principal of Jury Solutions, LLC. Phone (703) 425-8611; fax (703) 425-8609; email: ckoch@jurysolutions.com


 
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