“Trial Events” can be anything from a deposition to a motions hearing to a trial. It includes mediations, arbitrations, focus groups and mock trials. It’s a broadly inclusive term because while each of them requires a different kind of preparation they share a common goal. They are all steps in reaching a satisfactory conclusion for your client.
Several years ago I was on a team developing logistics for a conference involving several thousand people. The international COO listened to our initial plan and said, “Over here you’re sending a monkey to hunt for truffles, over there you’re sending a pig to climb a tree.” In some areas we were using the right resources for the wrong purposes.
The decision to use either a focus group or a mock trial depends on where you are in case preparation, what you want to gain from the process and how you will use what you learn. Don’t send a pig to climb a tree.
Focus groups are most useful early in the case presentation to test specific questions such as how your case theme or storyline plays to community attitudes, what unknown biases you may want to uncover in voir dire, or to discover the questions you may have overlooked, but jurors will want answered.
The mock trial is more valuable after your theme and storyline is developed. It will give you the opportunity to test that theme and storyline, and get the jurors perspective on key evidence, witnesses, and demonstratives. Watching the (mock) jury panels deliberate can provide insight into how the jury will weigh the evidence and can point out your vulnerabilities.
THE FOCUS GROUP
Pleadings have been filed. You know the position of the opposition and of your client. You’ve both written pretty good stories. The only things missing are the rest of the facts. Well, those facts and what anyone without a dog in the fight might think of those pretty good stories. A focus group is a resource that can help you understand how potential jurors may view them.
Even with the best of preparation you still only know what you believe to be true. You know what your own biases may be and correct for them. What you can’t always discern is how a juror’s experiences and opinions may affect their view of your case.
In a multi-million dollar case in a small town it was pretty clear to the defense trial team that the plaintiff had violated the terms of his agreement. It seemed the clear contrast between the agreement and the actions of the plaintiff would be difficult to challenge. After the case was explained to the focus group several participants agreed “It looks like the plaintiff brought a lot of jobs and money into the community, and your client is taking it out.” The original theme of the “4 corners of the agreement” was altered to additionally point out how the community itself was damaged by the plaintiff’s actions.
An external focus group session will typically include several people from within the venue, or one closely approximating it, in a moderated dialogue with one or two of the attorneys. Instead of trying to convince the group of your position, the dialogue format allows feedback, while the moderator maintains an attitude of collaboration. A typical cost for a single external focus group with a moderator and 6 participants is around $5000.
Haynes and Boone Trial Consultants can function as the moderators or contact external consultants for that purpose. They can also contact recruiters for the appropriate venue who will recruit the participants and arrange the meeting space.
An internal focus group consisting of firm staff and/or attorneys lacks the advantage of being able to match juror demographics but could still provide much of the valuable insight of an external focus group, with less expense to the client.
THE MOCK TRIAL
Discovery is almost complete. You have a pretty good idea of your case and a pretty good feel for the direction the opposition is taking. Potential damages are in the millions. This is a good time to determine if a mock trial is appropriate.
Conflict resolution could be a primary reason for consideration. A mock trial should be designed to give you a clear picture of your vulnerabilities. Viewing the mock jury in deliberations could point out areas you need to strengthen, or the things that you can’t. You will also get feedback on how jurors see the real value of the case.
Trial graphics should be designed to enhance the understanding of the jury. Two thirds of the population learns visually, and graphics are seldom tested prior to trial. The credibility of witnesses, your arguments, and those you may face, can be tested, allowing you to see how a jury might view the opposing positions. A mock trial also makes you aware of those things a jury may not understand or accept.
An ABA paper on “The Benefits of Jury Research” said “The savvy trial lawyer wants to know every way she can lose her case.” A properly conducted mock trial gives you that advantage.
Mock trials are primarily used in cases where the value is substantial, either in terms of money or precedent. Mock trials can cost in the tens of thousands of dollars. They can also be done less expensively, but with limitations on what can be accomplished.
Keep in mind when preparing for a mock trial that the goal is not to “win”. It is not to tell you how your jury will decide the case. It is not to try your entire case before you put in front of a true jury. It is not to demonstrate your inestimable talent to your client.
The goal of the mock trial is:
- to test the most salient elements of your case,
- to uncover the weaknesses in your case,
- to discover the type of juror you want, and the type you don’t want and,
- to provide a presentation that is balanced, if not slightly tilted away from you.
There are many ways to conduct a Mock trial. Here is one. I will present other options in future digests.
“Red Team – Blue Team” The Blue Team prepares your client’s case. The Red Team puts together the case for the opposition. Red Team should be led by your lead trial counsel. This allows lead counsel to better understand the adversary’s view of the case, and therefore is better prepared to counter his arguments.
“What do you want to know?” Start with a list of the themes, witnesses, and concepts you want to test. Your mock trial is going to be an incomplete and summarized version of the trial. This list allows the teams to work separately but focused on the same questions.
“Look for the worst-case” You can never really know what opposing counsel will ultimately argue, but always assume she knows, and will use, your worst possible facts against you. In the mock trials the where the HaynesBoone Trial Services team have assisted, we have invariably developed better cases than the opposition has used in court.
“Share” After the teams have put together their respective cases, exchange outlines. In doing so you can assure that each side has fully presented a balanced and realistic case on each point you want tested.
“Teach” Begin the presentation with a neutral party presenting a tutorial on the case using the undisputed facts. This tutorial will orient the mock jurors and allow you to focus each team’s presentation the disputed issues. The tutorial and the Blue team presentation will give you the opportunity to test many of the graphics you intend to use in trial.
“Carnegie Hall” Practice, Practice, Practice. A less than convincing presentation by either team can skew the feedback from your panels.