Posted On: July 17, 2011 by Paul Mark Sandler

Mock trials are serious business

I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.

While the media and the public have responded with shock and outrage at the verdict, jury consultants – including those who worked on the case – say they weren’t surprised. As reported in the Palm Beach Post, two mock juries, one conducted for television and one for the defense, both resulted in not-guilty verdicts.

Hiring a jury consultant certainly doesn't guarantee a win for your side, but it definitely helps you build a stronger case when you present before a jury. Jury consultants not only help in voir dire to “unseat” potential jurors who are most likely to be unsympathetic to your client. They are also the most qualified people to help your team conduct a mock trial – and there is no better way than a mock trial to explore how your overall case and all its parts will play with a jury. If done correctly, a mock trial will reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to – and think about – the evidence and arguments you intend to present.

To get the most out of the process, you have to provide the jury consultant with a summary of the case from both sides, jury instructions and a verdict sheet. It is also helpful to offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.

The jury consultant will engage a research studio where you will eventually present the mock trial of your case to a group of strangers. These strangers – selected by the studio – should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t – but you can make an effort to come close. Within a month or two of the trial, contact the jury commissioner for the court and, if possible, obtain a copy of the current jury list. The list is often available, though not always. Your jury consultant will pass the list on to the studio or research center, which will recruit people from its database who match the profile of the actual jurors. The participants are usually compensated about $100 per day, though that can vary by jurisdiction.

Before you come face to face with the group, you may need to consider which aspects of your case you should present. Be selective. It isn’t often that you can – or would even desire – to present your entire case at mock trial, particularly if the upcoming trial is complex and lengthy. Focus on the key aspects of your case: perhaps the opening statement and closing argument, crucial witnesses and any area about which you feel uncertain.

A good jury consultant can work with you to identify your goals of the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You may want to learn how you are received as counsel. You may also need to know what further information the jury believes should be presented on behalf of your client.

Once you’ve sorted this out, the consultant can help you develop questions for a focus-group meeting following the mock trial and mock-jury deliberations. From this you can glean which witnesses were perceived as more credible than others – and why. You can also learn whether particular strategies you devised were stronger or weaker than you imagined.

To make the mock trial worthwhile, you have to give the opponent a fair shake by presenting the opposing side, including opposing witnesses and opposing counsel. Given that you obviously won’t have your real opponents to assist, you can ask colleagues to portray the other side’s counsel and witnesses. You may also have video depositions at your disposal.

Jury consultants and mock trials don’t come cheap. They can range from less than $10,000 to well more than $100,000. If money is a big issue, consider working with a jury consultant to create a mock trial that only deals with opening statements and perhaps one or two witnesses. Worse comes to worst, assemble your office staff in the conference room for a few hours and use them as mock jurors.

The bottom line is that preparation for a trial is key to its success. And there is no better way to prepare than with a good jury consultant and a well-run mock trial.

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