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April 23, 2013 Articles

A Mock Trial in a Complex Business Tort Case

With 90 days left before the trial, the thought of a mock trial was daunting. What could we learn that we didn't know already?

By Frederick H. Riesmeyer II, Shannon Cohorst Johnson, Gregory B. Whiston, and Bret Dillingham

The Call from the Mayor’s Office 
With a projected three- to four-week jury trial set to begin in 90 days and after considerable pretrial preparation, trial counsel representing a Midwestern city received a call from the mayor’s office “to talk about the case.” The “call” had the feeling of being called to the principal’s office.

The facts of the case are somewhat complicated, but in sum, over the previous two years we had been trial counsel for this Midwestern city in a complex business tort case. The plaintiff (a U.S. subsidiary of a foreign corporation) had become a tenant of the city at the city’s airport through the purchase of the stock of a fixed-based operator (FBO) at the airport. Following the plaintiff’s purchase of the FBO, the plaintiff claimed the city had made fraudulent misrepresentations to it by virtue of a signed estoppel statement given days before the plaintiff closed on its acquisition of the FBO. The city had a number of defenses, but as in any case, there were also some troubling facts. Although the city adamantly believed that it had made no false representations at the time it provided the estoppel statement, there was a troublesome lease provision, of which the city was admittedly aware, that arguably conflicted with the estoppel statement.

The plaintiff’s claimed damages were initially $29 million. Following the close of discovery, the plaintiff’s claimed damages were down to $16 million. Two separate mediations and two face-to-face settlement meetings had failed to resolve the case, and a final mediation was set in 30 days. The plaintiff appeared to be unwilling to go below $10 million, and the city was adamant that it would pay little or no money up front but would grant lease concessions and otherwise work out a business settlement good for both sides. 

In the "principal's office" that day were trial counsel, the mayor, the mayor’s chief of staff, and the city attorney. We reviewed the plaintiff’s case, the city’s defenses, the significant cost of litigation up to this point, the significant additional cost through trial, and the estimated probability of success. Trial counsel estimated a 50/50 chance of prevailing at trial, given that the city’s best defenses were legal. The city would probably have to endure an adverse jury verdict ($16 million, plus or minus), and then seek relief in the appellate courts.

The meeting concluded with the mayor, who was a successful trial lawyer in his pre-mayoral days, asking, “Have you done a focus group?” Trial counsel responded “no.” With no discussion of the considerable time and cost involved, we were instructed to conduct a mock trial or focus group and to do so prior to the final mediation, scheduled in three weeks’ time. With 90 days left before the trial, including the time needed for witness and exhibit preparation, jury instructions, deposition designations, and preparation of opening and closing statements, the thought of a mock trial—which we thought would only tell us what we already knew—was daunting.

What follows is a description of what we did: what worked, what did not work, and the benefits and detriments of the process.

The Players 
Because of time limitations, the size of the claim, and the complexity of the facts and issues, we decided to retain an independent facilitator to guide us through the process. The chosen facilitator operated a trial consulting firm with experience in civil and criminal litigation, specializing in focus groups, mock trials, witness preparation, and jury selection. The facilitator, after getting to know the case, lead the firm through all phases of the process—deciding on format, recruiting and handling qualified jurors, working with counsel to prepare for the mock trial, running the mock trial, overseeing deliberations, and drafting the post–mock trial report. Perhaps the facilitator’s most important role was the recruiting, handling, and organizing of the jurors, all qualified as jurors in our jurisdiction. Seventeen qualified jurors were selected to participate.

Lead trial counsel for the city would continue in that role, but another attorney from the same firm was chosen to step in and represent the plaintiff for the purpose of presenting the case at the mock trial. The choice of counsel to represent the plaintiff was critical and difficult. The city’s trial counsel had the benefit of two years’ experience with the case, and now we needed to get a new attorney up to speed to present the plaintiff’s case—no small task due to the complexity of the facts, shortness of time, and, of course, everyone's schedules. Without a good and accurate presentation of the plaintiff’s case, the exercise would be a waste of time.

Preparing for the Mock Trial
  An effective mock trial requires a significant amount of preparation. Each side prepared a “clopening”—a combination of an opening statement, evidence, and closing argument—of about 90 minutes in duration. This required the attorneys to immerse themselves in the details of the case and learn the ins and outs of their arguments—excellent preparation for the pending trial.

Part of the preparation consisted of joint sessions with the facilitator and the attorneys for both sides, discussing the facts and the legal issues and, of course, arguing about what facts and arguments should be presented and eliminated. Focusing each parties’ presentation, deciding on key evidence and documents to present and what arguments to make or eliminate, and paring down the presentations took a considerable amount of time. The facilitator was key in this process and sometimes more than a little rough on the experienced trial counsel in getting the attorneys to focus their presentations on what was really important, as opposed to making a “complete record.” Throughout this entire process, the city was sending a number of representatives to observe the mock trial, including the city attorney. In a “darkest before the dawn” moment, 48 hours prior to the mock trial (with “strong encouragement” from the facilitator), a major retooling of both plaintiff’s and the city’s presentations was necessary. This was accomplished, and the trial lawyers’ egos were not permanently damaged in the process.

The Scene 
If you've never participated in or witnessed a mock trial like this before, you are in for a treat. When we arrived at the facility for the mock trial, it felt like something akin to a murder-mystery movie, complete with one-way glass so that viewers (including representatives from the city who were reporting back to the mayor) were hidden from the jury. The jurors, 17 men and women, were seated in a room in which a large glass window and a speaker system allowed for the majority of our team and client representatives to remain hidden while viewing the proceedings.

The jury was pooled from the county in which the trial was set. Because the county is ethnically diverse, a range of ages and ethnicities was chosen to represent the same kind of jury likely to be impaneled at trial. There were a total of nine women and eight men on the jury, and they were later split into two jury panels of eight members and nine members. Panelists were carefully screened in advance to ensure they were jury-eligible and had no connections to the case, the parties, or the core issues. Each juror also agreed in writing to maintain the confidentiality of the study.

The Trial
  Once the facilitator had informed the jurors of the basic rules, we were ready to begin. Unlike a “real” trial, we had only a few hours in which to present both sides of the case. Of course, there were no witnesses or experts to be put on the stand or formalities such as the admission of exhibits. Instead, each side presented their 90-minute, carefully prepared “clopening” to the jurors and used presentation software to show the jurors only a select few documents and other demonstrative exhibits.

The jury did not know that the attorney presenting the plaintiff’s case was not really the plaintiff’s attorney. Nonetheless, you wouldn’t have guessed that by listening to his presentation. Presenting the adversary’s case is a unique challenge but one that is useful in so many ways—not only to ensure that the mock trial results are indicative of possible real results at trial but also in preparing and evaluating your own defenses for use at trial. In the mock trial, the attorney presenting the plaintiff’s case focused on the plaintiff’s best case and best documents—even though that required him to “villainize” the firm’s own clients (representatives of the city) who were watching his presentation behind the glass. Although this might have made for some uncomfortable moments, it made the exercise more valuable and also helped prepare the city for the realities of trial.

The plaintiff’s presentation, including the use of some “choice” emails, focused on the actions of many city employees and, as is the case with all large organizations, left the jurors with the inevitable conclusion that the city had engaged in conduct that was unfair and perhaps fraudulent. The plaintiff’s presentation focused on attempting to prove fraudulent conduct, the misrepresentation, and inconsistent actions through emails and a chronology of events. Damages were presented using an overview of the report and opinion of the plaintiff’s damage expert, who opined that the plaintiff had suffered damages of $16.2 million.

The city’s attorney, feeling that the “pinch hitter” playing the role of the plaintiff’s counsel had just buried the city, decided to spend the first minutes of his presentation telling the jury panel that there were two sides to the story and to keep an open mind for the rest of the story. This tactic was successful, and at one point in the city’s presentation, following the showing of a provision of the lease at issue that was important in explaining why the city did what it did, a juror audibly said, “Wow.” Feeling that perhaps counsel had somewhat evened the score, the city attorney sat down.

Following both parties’ presentations, the facilitator provided each juror with an initial survey, to discover how the jurors were “leaning.” This poll indicated most of the mock jurors were leaning for the city. The facilitator then recommended that the plaintiff’s counsel present a brief rebuttal to address a few key issues. This was suggested because the plaintiff had the burden of proof and also to ensure there would be a more “spirited” debate during deliberations. The city attorney initially objected and then quickly realized this exercise was not about winning but learning about the city’s case.

Following the plaintiff’s short rebuttal, the facilitator presented scaled-down jury instructions to the entire panel and then split the 17-juror panel into two separate panels of nine and eight (Panels A and B), split as evenly as possible based on the earlier “leanings” survey. Dividing the jurors into two groups helps guard against the problem of one passionate or opinionated juror swaying the entire panel and skewing the results.

Rarely do attorneys get the opportunity to really see into the minds of the jurors during deliberations. Perhaps if we did, we’d be scared of what we’d find. Nonetheless, in the mock trial setting, the jurors are an open book. The two panels, now in separate “deliberation rooms,” deliberated and were observed through one-way mirrors and video recorded. Certain trial lawyers’ egos may have been injured during this phase of the process, given the open comments of the panelists.

The jury deliberations were fascinating (and, yes, the jurors knew we were watching behind the windows). Some jurors were very focused on only one or two issues raised in the presentations—and were very set in their opinions based on only those few specific points. Others seemed to focus on undisputed issues that even the parties did not extensively argue. It was interesting to see what caught the jurors’ eyes and ears—and quite telling to see what did not. Ultimately, neither Panel A nor Panel B were able to come to a group verdict. The facilitator then instructed the jurors to come up with individual verdicts. The results from each individual panelist were garnered through the use of a questionnaire at the close of deliberations.

Seven out of the nine panelists on Panel A found for the plaintiff on one or more theories of recovery. The damage awards from the seven ranged from $1 to $10 million, with an average award of $3,277,778 (well below the plaintiff’s requested damages of $16 million). One of the jurors who found in favor of the plaintiff on at least one count awarded no damages.

Even more telling was the outcome of Panel B. Five out of the eight panelists found for the plaintiff on one or more claims. But not a single juror awarded the plaintiff any damages. The award for each of the five jurors finding for the plaintiff was $0.

Recorded comments were also very helpful for the future real trial. The jurors routinely expressed themes such as the following:

• “The City’s conduct did not pass the ‘smell test.’”

• “The Plaintiff was just trying to get a monopoly.”

• “The Plaintiff did not really have damages.”

These results were very telling. Though damages were not extensively addressed in the attorney presentations, there was still no good explanation as to why no damages were awarded by a majority of the panelists (overall, only 5 panelists out of 17 awarded any damages). Thus, it was clear that at trial, the city had work to do when it came to liability, but their best defense might just be concentrating on the damages aspect of the case. Put simply, the jurors just didn’t like the plaintiff and bought into the defense theme that the plaintiff was a “greedy” corporation. As the facilitator noted in his report, “the devil is in the details for the plaintiff.” Jurors who were favorable to the city focused on the specific terms of the contracts and documents at issue in coming to a defense verdict. It was clear that a focus on details would be crucial to a good result at trial.

The Takeaways from the Project

Although the time and cost are certainly the downsides of a mock trial, the lessons learned were valuable. If the size of the case and the issues justify the time and expense, there is great value in bringing in a third party to work with trial counsel to prepare for and conduct the mock trial. The facilitator provides an important reality filter, as does the panel. Second, although we did not learn anything that was completely new or unexpected, the feedback was invaluable in advising the city on settlement strategy, preparing for settlement discussions, and, of course, finalizing trial preparation. Finally, the process brings significant clarity to the question of which facts and issues are important for trial and which ones are not. A word of caution, however: The process of focusing the case for the mock trial should not be taken to the extreme of failing to cover all legal bases and preserving all issues for appeal.

Keywords: litigation, business torts, mock trial, complex business torts, trial practice, trial skills

Frederick H. Riesmeyer II, Shannon Cohorst Johnson, Gregory B. Whiston, and Bret Dillingham – April 23, 2013