Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
In the lead-up to a mock trial, the clients often and understandably hope for a win. After all, a win might help to steady their resolve and buttress their hopes heading into the courtroom. But you know what is even more useful than that? Actually learning something to help make your message better in trial is more useful. That doesn’t just boost your confidence, it boosts your actual chances for winning. That’s the reason I like to say that attorneys, clients, and consultants will learn more by losing their mock trials. In losing, you are going to see where your perceived strengths falter. You are going to hear from the kinds of jurors you need to overcome. You’re going to learn where your case is weak and where it needs to be improved.
For that reason, when designing the mock trial, we generally want a test that will give every benefit of the doubt to the other side. That doesn’t mean setting yourself up for an artificial loss. It is never a matter of weakening your own case, but is instead a matter of strengthening theirs. What’s important is to make sure that the part where you’re pretending — the adversary’s case — isn’t just a tacked on part of the test, but is prepared and designed to be rhetorically strong, and perhaps a little better than you expect it to be in the real world. In this post, I share eight reminders on how to do that.
1. Have a Dedicated Adversary
Conducting the research using adversarial presentations (one speaker for each side) is much better than the ‘neutral-presenter’ mode, both at a mock trial and a focus group. So someone on the trial team should be tasked with the job of ‘being’ the other side. Their job at the moment isn’t to help the case, but to help the test. That means not just standing up to deliver a committee-prepared outline, it means spending a week or so getting into the adversary’s head, living it, and trying to win it.
2. Consider Making Lead Counsel that Dedicated Adversary
The step of creating the other side’s presentation is enormously beneficial, and not just because it leads to a more useful research exercise. It is also useful because the time spent thinking like the other side ends up being time spent understanding and improving your own case. For that reason, it is a great opportunity for lead counsel. So go ahead and let the second chair take the helm on your own case for the mock trial. The lead counsel is probably the person who best understands the other side and benefits the most from portraying them.
3. Estimate in Your Adversary’s Favor
When you’re running the mock trial, you don’t always know exactly what the trial conditions will be. Some claims, witnesses, and evidence might be in limbo. The court’s summary judgment ruling and other motions might substantially alter the playing field. When that is the case, don’t delay the research past the point of utility. Instead, make reasonable estimates of what will happen, erring on the side of including what helps the other side and excluding what helps you. You can also save some information until the end of the research project in order to get mock jurors’ reactions.
4. Consider Making it a ‘Quasi-Blind’ Test
There is a practical question of how much you want the two sides in the mock trial to work together in preparing it. Obviously, you want some knowledge on the parameters of issues being tested, at least. If one side brings up a point, you want to make sure the other side is prepared to respond. But it is a good practice to not extend that coordination to the point of exchanging scripts or outlines, because that could lead to your side becoming artificially precise in its response; e.g., “I know they’re going to use this metaphor, so let me answer it in advance.” Keeping the coordination general helps the individual mocking the other side stay in character.
5. Give the Other Side Equal or Greater Time
In designing a schedule, make sure the two sides have roughly equal preparation, roughly equal number of exhibits, and equal time on the clock. When the other side is a plaintiff, make sure they have sufficient time for a rebuttal, and sometimes giving them a little more overall time for that helps in making for a worst-case test. And make sure you don’t fudge the “official” time limits by going over on your own presentation based on a momentary feeling that “This information is important.” Plan it in advance, practice it, then stick to a schedule that gives the other side as much time, or a little more.
6. Make Their Case at Least as Thematic as Yours
Specific language and theme selection is very individual. Even if you know opposing counsel well, you won’t often know exactly what their theme is going to be. But don’t default to making theirs a generic and flat presentation, because that isn’t realistic. You probably won’t guess their theme exactly, but you might get close. Even if you don’t, thinking of what their most powerful theme would be helps you understand their case and makes for a better test.
7. Make Their Case at Least as Visual as Yours
There is an expense to designing graphics, but for the kinds of cases opting for comprehensive mock trials, that expense is minor in the context of your overall exposure in the case. It is not fair and balanced if your own side is using the impressive designed graphics that you intend to use for trial, while the other side is stuck with Excel default charts or just a marker and a flip chart. Spend a little to make sure your adversary looks sharp as well.
8. Give More Weight to the Worst-Case Jurors
The jurors who matter most are generally going to be those who are rejecting your arguments. So look for those jurors. In your recruiting for the mock trial, make sure who would fit your higher-risk profile are represented, or maybe a little overrepresented in your sample. When you’re in the observation room, pay particular attention to those jurors whose attitudes lean against you from the start. And when crafting your strategy, think about what would work in weakening or turning those higher-risk jurors.
Other Posts on Mock Trial Design:
- Be Design Conscious: Top Seven Posts on Mock Trial Design
- Check Your Mock Trial Against This List of Thirteen Best Practices
- Give Your Client Seven Key Messages About the Mock Trial
Image credit: Created by the author.