The Basics—Mock Exercises and Jury Consultants
Mock jury exercises can take many shapes, including full mock trials, limited mock trials, and focus groups. A full mock trial typically occurs after discovery is completed and the trial team has identified the key themes and potential pitfalls of a case. Over the course of one or two days, attorneys present abbreviated versions of both the plaintiff’s and the defendant’s cases to mock jurors who reflect the jury pool that would hear the case if it went to trial. Mock juries evaluate and deliberate just as a real jury would. They weigh the arguments, witnesses, evidence, and exhibits presented, and they complete a jury verdict form as well as periodic questionnaires. Following deliberations, jury consultants will often conduct a post-trial interview (a “postmortem”) with the mock jurors to understand better what did and did not work and what informed their decisions, including their assessments of the demeanor and credibility of both witnesses and attorneys.
Because full-scale mock trials are time-consuming and costly, many trial teams might opt for mock exercises that explore only a few narrow issues, and sometimes only one. For example, a limited mock trial, which is shorter than a full mock, requires fewer resources and can test a particular damages model, claim, or defense. A focus group is an even less expensive and less formal option. A focus group involves more limited and informal presentations conducted in front of a smaller number of individuals from the potential jury pool. Focus groups can test narrower issues such as the credibility of a witness or potential jurors’ perception of certain evidence. Because focus groups are less expensive and faster to plan and execute than mock trials, they can easily be used multiple times throughout a case to test witnesses, evidence, and even new themes and arguments as they arise.
It is important to remember that the goal of a mock exercise is to gain the most accurate understanding possible of how a real jury is likely to view the case at trial. Therefore, in all mock exercises, attorneys must think critically about whether their presentations effectively test the intended issues, themes, and facts. Unnecessary or imprudently omitted details can skew the jury’s perspective of the case and lead to a misleading and potentially unusable result. A key consideration is maintaining a balance between both sides’ presentations. Attorneys must resist the urge to stack the deck in their client’s favor by overplaying good evidence or omitting the bad. This can be challenging, particularly when the client is attending, but it is vital to a successful mock. The information gathered from the substance of the mock jury deliberations and postmortem questioning provides attorneys with invaluable insight they can use to adjust their presentation and themes to present the best case possible for their client at trial.
A critical component of any mock exercise is the jury consultant. Jury consultants systematically study how jurors think and provide recommendations to attorneys about ways to tailor their trial strategies to best suit the jury. Jury consultants are responsible for planning and coordinating the mock exercise, recruiting jurors, providing objective feedback, debriefing jurors during and after deliberations, putting together juror questionnaires that are filled out during different phases of the presentations, and drafting the final report of the mock experience. A well-organized and experienced jury consultant is integral to a successful mock exercise.
How to Be Assigned to Your First Mock Exercise
Much like landing your first opportunity on a trial team, there is no small amount of luck involved in landing your first mock trial experience. Often it is all about being assigned to the right case at the right time. But there are a few things that associates can do to help their luck along.
First, volunteer for the mock trial assignment. Although this advice may seem basic, we polled experienced trial lawyers who reported that one of the best ways to become part of a mock exercise was simply to ask. It never hurts to let the lead attorney know that you are interested. You will never know if you never ask (nicely).
Second, become the master of the facts. One of the best ways to get a plum assignment is to know more about the case than anyone else in the room. Mastery of the facts should come as second nature to most aspiring trial lawyers, who are often responsible for spending long hours reviewing documents and deposition testimony. It can, and should, be leveraged into greater roles.
It is also important to understand how the facts you have mastered fit the strategic narrative that the team is going to present to the mock jury. Litigation, and particularly mass tort litigation, has a long life span, and a strategic narrative can evolve as the litigation matures. As a result, the client may want to test different facts, themes, or theories at different phases of a litigation. For example, early in medical device mass tort litigation, a client may want to test its company case defense strategy, including regulatory defenses to allegations that a device is defective or the company was otherwise negligent. As the litigation progresses, the client’s interests may shift toward testing a particular plaintiff’s medical case.
Third, perfect the art of visual presentation. Many mock jurors are visual learners. Taking the time to create a visual presentation can be crucial in helping jurors understand your arguments and background of the case. You are presenting a lot of information to the mock jurors, and by taking the time to visually present the information in a succinct manner, you increase the chances they will retain and understand your points. Lawyers with technical savvy can be relied on to create a sharp visual presentation quickly and efficiently. If you can prove to the lead attorneys that you can bring their vision to life on short notice, you might open the door to more mock exercise opportunities.
Finally, manage the logistics and be ready and willing to do anything that the team needs. A few of the logistics a young lawyer can take charge of include the following:
- Work collaboratively with the jury consultants to provide them what they need.
- Understand the organization of the space and think strategically about how using the space will affect the conduct of the mock exercise. Will everyone be able to hear? Will you be able to observe the mock jurors? Will the jurors be able to see any visuals?
- Review presentations for typos and inaccuracies. A typo or an inaccuracy in a presentation can easily distract mock (or real) jurors. Such errors can influence the results of even the most carefully planned mock exercise. Get out that fine-tooth comb and go to work.
- Know the schedule. Ensuring that everyone is in the right place at the right time with the right material will make you indispensable.
Making the Most of the Mock Trial Experience
Once you are selected to take part in a mock exercise, it is important to make a good impression. Show that you are trustworthy, reliable, and indispensable and you will see more opportunities to develop trial skills and impress clients. Here are three suggestions to make the most of your early mock exercise experiences:
First, take good notes, particularly during jury deliberations. Great notetakers are indispensable. Expect attorneys leading the mock trial to be consumed with refining the content and strategy of their presentation such that they do not have the time or the capacity to take notes. During jury deliberations—the most important portion of the mock trial—the lead attorneys are often weary from a grueling schedule preparing and executing the mock. Seize this opportunity to shine. Take concise and accurate notes that not only reflect what the jurors are saying but also include your own observations about the jury deliberations. This will help you to become an invaluable member of post-mock deliberations and ensure your role in future case strategy development.
Second, incorporate feedback. A mock jury’s feedback can sometimes be difficult to stomach. Arguments that you saw as slam dunks may fall flat, and it can be easy to dismiss a negative reaction as the jury “simply not getting it.” Don’t. While you should be cautious about the results and feedback, that feedback is the purpose of the exercise. Such feedback can be illuminating and can improve your trial presentation and help you adjust certain points of view. The mock jury’s feedback also may feel much more personal and focused on individual style, attitude, or tone. An attorney’s attitude and tone can have a huge impact on the jury. Sometimes we may try out a tone that we believe puts our client in the best light, only to learn that it was a turnoff for the majority of jurors. If you have a role presenting at the mock, take the feedback as an opportunity to adjust and perfect your presentation. Even if you are not presenting, consider whether you can distill the mock jurors’ reactions to offer positive, constructive feedback to the lead attorneys on ways they can adjust their presentation so that it will be more effective and better received by jurors going forward.
Third, don’t be afraid to fail. Don’t be afraid to meaningfully participate in the mock because you are concerned something you do or suggest might not work. The purpose of mock exercises is for teams to try out skills, presentation strategies, and arguments without the risk of a negative jury verdict. Some failure at a mock trial is inevitable, and sometimes expected. You will never win over every mock juror. In fact, “perfect success” might suggest that your mock was not effectively designed and did not test the themes adequately. Some things will not work out on the first try. Accept opportunities to learn and grow from the experience and to demonstrate to the lead attorneys and the client how you can improve from the experience. Opportunities to be meaningfully involved in a trial will likely follow.
