Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
We know that once jurors make it through the gauntlet of jury selection and find themselves seated in the courtroom’s jury box, they’ll often be ennobled by their task and take it quite seriously. But consider the mindset of the mock juror. They’ve come in for a one-day project in a hotel or a one-way mirror research facility, and they know that it is an exercise, not a trial. That knowledge might make them casual. Knowing that their verdicts won’t actually take effect, they could treat the freedom at issue in a criminal trial as frivolous, and the damages in a civil trial as just so much Monopoly money.
If mock jurors have the mindset that it doesn’t really matter, that certainly could influence the reliability of the results. And there is some support for that intuition. In a recent compilation on jury psychology (Kovera, 2017), Northwestern law professor Jonathan Koehler and U.S. District Court law clerk John Meixner write about the problems in simulating a jury:
“Several aspects of the jury’s role are likely almost impossible to simulate in the lab. First, real trials are typically high-stakes affairs. The decisions juries make can implicate large amounts of money in civil cases and determine the freedom of defendants in criminal trials. Mock jurors in simulations know that no real consequences will result from the choices they make. Whereas jurors in real cases may agonize for hours or even days over their decisions, mock jurors contemplating their hypothetical decisions will likely not do the same.”
Of course, there is a distinction between the academic setting of a research experiment and the more practical setting of an exercise conducted for case assessment and/or trial preparation. But the mindset of “This isn’t real” could still apply, and could still limit the validity of a mock trial exercise.
The problem is that, in a mock trial scenario, the perception that it isn’t real and lacks consequences just is not true. For the party sponsoring the research, it is very real, and the consequences that it has on the case’s disposition and preparation are tangible. A mock trial is a significant investment, and is usually a key milestone in the preparation process. Parties take a mock trial very seriously and closely attend to the comments and the results. The conclusions that come from the research will often drive changes in the case’s settlement posture. When cases settle as a result, and they often do, then the mock trial was the only trial that case will see — the mock trial is the real trial. Even when a mock trial doesn’t help promote a pretrial resolution, it still will play key role in preparation, and can be decisive in determining the strategy that helps to guide the result in the courtroom.
So mock jurors, even as they understand the “mock” part, need to also understand that there are high stakes even at this stage. In my experience, there’s a bad way and a good way to communicate these stakes.
The Bad Way to Raise the Stakes for Mock Jurors: Lie to Them
Sometimes in their zeal to make the mock trial exercise as “real” as possible to the participants, a client or a consultant will hit on a simple solution: Just tell them it is real! They’ll instruct the research participants, for example, that both parties are represented and they have agreed to be bound by whatever results the mock jurors come up with.
The basic problem with this is that it involves lying to research participants, and that runs counter to the professional ethical guidelines that most of us adhere to. And even if participants are debriefed after the fact in order to satisfy ethical requirements, there are still practical problems that interfere with the ruse. For example, as they hear what are inevitably truncated presentations, the mock jurors will be frustrated and will wonder why they aren’t seeing some of the evidence or hearing from every one of the witnesses. Anecdotally, I have even heard of a situation where a mock juror ended up so distressed about the result that the person contacted the actual judge in the case to complain about what they had been told was a binding verdict.
The Better Way to Raise the Stakes for Mock Jurors: Tell Them the Truth
In truth, there are actual stakes attached to a mock trial, so there is really no reason to lie. Instead, the facilitators for the project should communicate those stakes in a way that does not threaten the research design. For example, it is important for the participants to still be blind to the identity of the research sponsor, because that avoids jurors’ tendency to tell you what they think you want to hear. But you can still let them know there are consequences to their views, deliberations, and verdict.
In my opinion, there are three key messages about the stakes to convey during the morning orientation for a mock trial:
One, this is a real case that is currently headed to trial in a real courtroom.
Two, our purpose is to understand juror reactions and to prepare for trial.
Three, the feedback from mock jurors like you can, and often does, influence the case going forward. Often it will play a role in giving parties the information they need in deciding whether to resolve the case prior to trial.
The bottom line message: Your views matter and will have a real effect, so take it seriously.
Other Posts on Conducting Mock Trials:
- Be Design Conscious: Top Seven Posts on Mock Trial Design
- Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test
- Give Your Client Seven Key Messages About the Mock Trial
Kovera, M. B. E. (2017). The psychology of juries. American Psychological Association.
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