Thank you to Dave Zehner, the partner in charge of the Trial Consulting Group at Clarity Partners in Chicago, for today’s post!
Jury research is a powerful tool. By testing the themes and evidence of a case in front of people like the ones who will be jurors in the actual case, participants in litigation discover valuable insights about the strengths, weaknesses and risks of a case. These insights can be used to make decisions about settlement, trial strategy and witness preparation.
However, the time and expense of properly preparing a case for a mock trial exercise are often prohibitive. Many litigators and their clients often dismiss the possibility of conducting jury research because of these resource restraints, especially the scarcity of time available to a litigation team as it prepares for a trial. Jury research is seen as a luxury only usable in cases where trial is imminent and the potential risk is extremely high.
While these problems may preclude traditional “mock trial” research, they can often be overcome by the use of more flexible focus group methodology.
The Mock Trial as a Jury Research Tool
The traditional method of jury testing cases is the mock trial. In a mock trial, attorneys representing the different parties in a case make argumentative opening presentations to a group of surrogate jurors. Witnesses are presented either live, by video or in summary form and closing arguments are given by the presenters. The surrogate jurors then deliberate to a verdict.
This is the methodology most associated with jury research. When executed properly, the mock trial most closely simulates the actual trial and provides excellent data for risk analysis and evaluation of the themes and evidence of the case. However, a number of factors can prevent a mock trial from being effective, including:
- Properly simulating the presentation for the other side of the case
- Learning information that cannot be acted upon because of the nearness to trial
- The advocacy level of the different presenters
- The desire to “win” the mock trial
- Not enough resources available to properly test the case
Additional Problems with Mock Trials
The major problem with mock trials is that they are generally conducted after discovery has closed, often within weeks or days of the trial date. The mock trial often generates possible themes and evidence that would help at trial if they could be developed.
However, because all of the evidence in the case has already been gathered, it is not possible to act on the ideas generated by the mock trial. Participants are often frustrated to discover that the mock trial tells them of problems in their case that cannot be corrected in the limited time available before trial or suggest beneficial evidence or themes that cannot be implemented because discovery has closed.
While the obvious solution to this problem is to conduct the mock trials earlier in the litigation process, this is usually not feasible. This is because in order to simulate the trial clients generally want to wait until all of the evidence has been gathered before testing the case. Clients also are hesitant to undertake the cost of a mock trial until they are sure that the trial will occur.
Another issue with mock trials is the difficulty in simulating the other side in the trial. When litigators have spent months and years developing their own case, it is often difficult to develop the other side’s best case.
Also, it is often difficult for the presenter to effectively argue the other side’s position. No matter how much they try and be “in character,” it is hard to put aside everything you know and believe about a case.
Another issue is that often the level of advocacy skills of the two sides are not matched properly. Resources rarely allow two experienced partner level attorneys to work together on a case, so an associate or junior partner is often tasked with presenting one of the sides. If the less experienced attorney puts on the other side of the case, it is often not presented as strongly as it will be at trial. If the senior attorney takes on the other side, he loses the opportunity to test out what he is going to do at trial.
Another issue is that the resources necessary to properly prepare for the mock trial, especially time, are not available. The press of preparing for the actual trial must take precedence over preparing the mock trial.
Finally, it is difficult for the attorneys involved not to want to “win” when they are presenting for their clients. While everyone will give lip service to the idea that “we are only here to learn,” it is hard to not be concerned about making a losing presentation to the mock jurors in front of the clients.
Mock trials are an extremely useful tool, but they should only be used when the issues discussed above can be properly handled. When these issues cannot be adequately addressed, some variation of a focus group can give better results than a mock trial exercise.
The Focus Group as a Jury Research Tool
Focus groups are different from mock trials in that they present the information in a non-adversarial manner and do not try and simulate all aspects of an actual trial. Instead, the purpose of the focus group is to present the main themes and evidence of a case in an easily understood manner.
One “neutral” presenter reads prepared summaries of the themes and evidence of the different parties in the case. The style is third person, with language like “the plaintiff will argue…” or “the defense will present an expert witness who will explain…”
The summaries are supplemented with exhibits, documents and other evidence that help explain the main points each side will make at trial. As in a mock trial, witness videos and summaries are presented after each position is read, and short closings focusing on damages are read to the surrogate jurors. The surrogate jurors then deliberate to a verdict.
Focus Groups: An Easier Way to Get Results
Conducting focus groups in this manner addresses many of the problems posed by a mock trial. By having a single “neutral” presenter, the impact of advocacy is removed. There is much less concern about not properly simulating the other side because presentation style is removed from the equation. The surrogate jurors focus on the substance of the presentation instead of the style.
Creating written scripts for the exercise allows all participants, including the clients, the opportunity to have input and “buy in” to the presentations as the best representation of the case. The scripts can be easily altered and changed to test different scenarios that might occur at trial, such as certain disputed evidence being in or out of the case. The pressure of needing to “win” in front of the client is removed from the attorneys, and the litigators can observe and learn from the research instead of having to focus on their performance.
While the emotion of a trial is not replicated in a focus group as well as it is in a mock trial, the use of witness videos or “day in the life” presentations can help simulate some of the emotional content of a trial. Because the focus groups are not trying to recreate the entire trial, they can be conducted much earlier in the process than mock trials.
The results of focus groups can be used to guide discovery, help prepare witnesses and assist in preparing for mediation and settlement discussions. Most importantly, focus groups require many fewer resources to be properly executed. At Clarity Partners, we create the first draft of the scripts and make the presentations, freeing the trial team to focus on other important tasks in the litigation process.
Focus groups require much fewer resources and usually provide equivalent information to a mock trial presentation. The surrogate jurors focus on the themes and evidence of the case more closely and are not distracted by presentation issues that can often distort a mock trial.
Focus groups can also be easily repeated later in the litigation process as new information develops in a case. They can also be used as an early assessment tool and combined with a mock trial conducted closer to trial to provide a baseline used to help evaluate the results of the mock trial. Focus groups are an extremely flexible research tool that usually provides a more cost-effective method of jury testing cases.