Archive for May 12th, 2008

The first time I ever used a mock trial as an evaluation tool for a class action, my expectation was that it would provide a great way to gauge potential exposure if the case went to trial.  I soon found that mock trials are a great tool for evaluating exposure in a class action only if you’re interested in narrowing down the range of possible verdicts from a defense verdict to a zillion dollars. That was about the range we got in our five or so different mock jury panels, except the zillion might have been a hundred million–still a fairly made-up number in a case where the actual amount of compensatory damages sought was a few hundred thousand dollars.  In truth, the best jury consultants can’t provide, and don’t even promise to provide, a narrow range of possible verdicts.  So what are they good for?  Quite a bit, actually, if you don’t treat them like something they’re not.  Here are a couple of areas in which mock trials can be useful:

Setting or adjusting client’s expectations.  If you have a client who won’t accept the risk that any group of six or twelve citizens could ever buy the plaintiffs’ crazy theories, a mock trial can be a very effective way to convince him or her otherwise.  A good jury consultant can put together a mock jury pool that matches very closely matches that of the forum and can provide statistics on initial written questionnaires as well as the ability to view multiple jury panels deliberate over the issues in the case.  Just seeing that more than half the prospective jurors in the jury pool are willing to award the plaintiffs money even if your client didn’t do anything wrong may be enough to change any expectation that there is no risk of losing.

Testing theories.  Mock trials can be a great way to test theories before having to face a real jury.  A jury consultant can provide a variety of methods of varying levels of sophistication for testing and evaluating the effectiveness of factual theories and themes.  On one end of the spectrum, simply providing a forum for the lawyers to talk to focus groups can provide a simple way to test out how regular people will react to the lawyer’s theories of the case.  On the more expensive end of the spectrum are technologies allowing mock jurors to provide feedback on the effectiveness and appeal of an argument as it is being made.   Lawyers and their clients can watch focus groups talk about their reactions to the arguments or even watch mock jury panels deliberate on a remote video feed.

Understanding bias and planning for jury selection.  A mock trial can help a lawyer get a rough idea of what juror profiles are likely to be favorable or unfavorable to his or her side of the case.  Not only can likely jurors’ attitudes be probed as a group, but jury consultants can provide detailed reports on the attitudes and reactions to facts of individual prospective jurors, both before and after the case information is presented.

The benefits of a mock trial will vary significantly depending on the particular issues and facts in the case, the forum involved, and the lawyers’ and client’s familiarity with the forum.  However, in the right case, a mock trial can be a useful tool in helping both counsel and client evaluate a case and prepare for trial.  Just don’t expect a precise monetary valuation of your case.

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