Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

In the past couple of months, I have heard of just a couple of in-person mock trials that have gone forward. They’ve done so with temperature checks, massive social distancing, sometimes masked mock jurors, and generally recorded attorney presentations. So far, at least, it seems some adjustments can be made to adapt to the ongoing coronavirus pandemic. But, for the most part, attorneys are not comfortable yet with the idea of in-person research. With infection and death rates continuing to increase, and to accelerate in some areas, and with a substantial portion of transmission appearing to be asymptomatic, the idea of gathering a large group for a mock trial is still not attractive, and in some spots, not permitted by law or by hotel policies.

That context has put some renewed attention on online research, or the idea that the “virtual mock trial” with jurors seeing presentations on their computer screens and using keyboards and webcams in order to give feedback. Needless to say, there are some sacrifices. For example, I believe that one of the biggest benefits of a mock trial is found in the presenters’ being able to look mock jurors in the eye while trying a practice version of your case to them. While an online mock trial cannot fully replicate the in-person experience of courtroom persuasion, it does carry a number of other advantages. In this time of reduced physical interaction, but also at other times, it helps for attorneys to see the online mock trial as more than just an incomplete or diminished version of an in-person mock trial. There are some things that the online mock trial can do better. In this post, I will share five of those advantages.

1. Self-Paced Research May Get You More Feedback

This was somewhat of a surprise for me, but I have found in recent online research that the participants provide a much higher level of feedback — they take the time to offer more detailed and more complete feedback. In a live mock trial, everyone is expected to finish their questionnaires within a set amount of time. But in a self-paced online project, they can take as long as they want. Given the opportunity to move at their own pace, I expected some variation in how long people would take, but in an online mock trial completed last week, I was surprised to find that completion times varied by a factor of ten. In other words, some people easily and quickly gave that feedback, while others really needed to take their time to think about it and compose a reaction. By following a self-paced approach, we made sure we were getting reactions from both groups, and I was surprised at the level and the depth of the responses.

2. The Medium Forces a Slimmer and More Disciplined Message

Speaking to many people who have run online research projects for many years, there is a threshold of attention that I keep hearing: about 20 minutes. So, if you are using live or recorded attorney presentations, each presentation should be kept to that length. Feedback steps like questionnaires can be longer because the changing focus of the questions should keep them engaged. But if they’re passively listening to a presentation on their screen, it is hard to stay focused for too long, and they will drift away sooner than they would have drifted in a live communication setting. That need to streamline the message can actually be an asset: It ensures that you will be testing the broad outline of your message and not getting too far into the weeds.

3. Recorded Presentations Online Allow Better Mid-Message Measurement

In addition to keeping the message short and focused, you can also account for attention differences by breaking the message up. So, if you want to see what they think about the counterclaim, why not stop the presentation right after it has been presented and ask them what they think. This kind of immediate feedback is sometimes provided during live presentations through the use of handheld “dialers,” but as I have written before, that technology can increase distraction while providing questionable data. In an online research setting, it is possible to put questions on the screen while the presentation plays or pause the presentation briefly to obtain feedback before continuing.

4. The Setup Allows Greater Numbers at Lower Costs

One of the biggest advantages of online research may be the cost per person. It takes a lot in the way of personnel and technology to recreate a courtroom in a hotel ballroom and participants are generally committed for a whole day. In online research, in contrast, a lot can be accomplished in a few hours with participants never leaving their homes. As a result, you don’t need to pay them as much. Some clients respond to the economics of that by having a larger group complete the project. After all, you are not limited by the size of the room. Having a greater number of participants not only gets you more feedback, it also helps in making your analyses more robust. For example, you are more likely to have the statistical power to discover what baseline experiences and attitudes are important in predicting who the higher risk jurors will be for you.

5. Online Research Lets You Transcend Physical Limits

These days, online research also has the practical benefit of allowing you to see jurors without masks and without distancing. But even in normal times, there are some advantages to freeing the research from physical presence. For example, in larger jurisdictions, including many federal courts, jurors are drawn from a fairly wide geographic area. In actual trials, the judge will accommodate those who have to travel far, for example, by putting them up in a hotel. Because it is a lot less practical to do that for a mock trial, most of us will recruit more locally and sacrifice some representativeness in the process. Online research, however, is not geographically bound, so you can recruit from the full geography following the same selection patterns used by the court. A similar advantage applies to people with a disability who might be accommodated in an actual trial, but who would not show up in person for a mock trial.

Ultimately, there is room for a wide variety of research forms, and I, too, am looking forward to a return to live mock trials. But in the meantime, it is important to remember that in opting to assess or prepare your case using online resources, you are not making a huge sacrifice in quality. In some ways, you could even be gaining some advantages as well.

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A Quick Request: I am a member of a working group called the Online Courtroom Project, looking into best practices for moving jury trials online — either some aspects or the whole shebang. We would love it if you would take this 3-minute survey. Thanks!

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.


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Other Posts on Mock Trial Research: 

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