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How to Construct an Effective Mock Trial

Andrew David Tharp

How to Construct an Effective Mock Trial

“It’s hard to see things when you’re too close. Take a step back and look.”
– Bob Ross.

As litigators, we are very close to our cases—often too close to accurately assess the strengths, weaknesses, and appropriate valuation of them. Mock trials provide an excellent opportunity for us to take a step back and see the bigger picture by considering the insights and perspectives of others. Nevertheless, mock trials can be daunting as they require an immense amount of time, money, and coordination. If you find yourself handling a case that may be appropriate to mock, follow this guide to construct the most effective exercise for you and your client. 

  1. Identify the Players. If you are handling a case with more than two parties, identify which parties will present their cases during the mock trial—it may not be necessary for every party involved in the lawsuit to deliver a presentation—then assign counsel. Assignments can be made using a variety of different strategies (i.e., partner represents the opposing party(s), and associate represents the client; partner represents the client, and colleague who has not been involved with the case represents the opposing party(s); law firm handling the case represents the client, and another trusted law firm represents the opposing party(s)). Do not overlook the potential need for paralegal or other administrative support in preparing for and executing the mock trial.
  2. Develop the Plan. A mock trial services vendor can help you develop a roadmap for preparing presentations, convening jurors, and employing your plan on the day of the mock trial. Allow plenty of time in advance of the mock trial to develop each party’s case, including drafting outlines for arguments, preparing exhibits, and creating video clips from depositions. A significant portion of the day of the mock trial will be reserved for jury deliberation and discussion. Therefore, you will be limited in the amount of time you have to present your case. Plan accordingly and prepare a presentation that succinctly highlights the key evidence and information. In coordination with you, the vendor will handle empaneling lay jurors from the jurisdiction in which your case is pending, securing a venue, and managing the logistics throughout the day of the mock trial.
  3. Debrief. You will gain immense insight into your case through preparing, presenting, and watching the jurors deliberate after counsel have argued their case, and the vendor will provide a report containing the key data, takeaways, and observations. Take time to review and analyze the report, set up a time to have a follow-up conversation with those who participated in the mock trial, and then schedule time to discuss your assessments with your client. With a clear view of the big picture, you and your client will inevitably gain invaluable insight and perspective into the strengths, weaknesses, and appropriate valuation of your case.