7 Essentials for a Successful Mock Trial

Part 6 in a series on jury decision-making and bias.

Estimated read time: 5 1/2 minutes

By Joani Benoit

When you test-drive a case with a mock trial, you’ve chosen to invest time, effort and money. How do you ensure that this investment will pay off with information you can truly use, information that will drive a verdict and/or award in your direction, or will strengthen your hand at settlement?

As a specialist in this area, my livelihood depends on making sure my clients’ mock trials are as valid and helpful as possible. Here are my thoughts on seven essential elements that can help maximize the value of a “soft” science.

1. The foundation: mock trials are qualitative research. Understand the difference between qualitative and quantitative research. When polling firms conduct surveys to project the winner of an election, when consumer packaged-good companies test advertising, when medical researchers conduct double-blind, prospective studies on vaccines, they are conducting quantitative research.

Quantitative research requires careful sampling­—the construction of a sample that is representative and of sufficient size to allow statistical projections to a general population. Statistical models are used to develop this projection, e.g., the algorithms used to translate voter enthusiasm to the likelihood that a specific voter will actually turn out on election day.

Jury research is fundamentally different from such statistics-based research. In jury research, we use a small sample of 20-30 people to stand in for an even smaller and more idiosyncratic group of people: your ultimate jury.

You are not using this group of people to project an outcome; that is not possible regardless of methodology. You are using this group to help you see your case objectively; to flush the issues out of the weeds and into the open where you can prepare for them at trial; to find out how jurors interpret and argue for and against your case in deliberations and how you can best arm them to argue for your client; and to understand the dynamics of decisions regarding awards.

This fundamental understanding should help you minimize your focus on superficial mock trial results, including broad-stroke demographic observations–“women seem to like my case.” After all, the women in your study may not be representative of all women, and any women on your jury may be different still.

Your focus instead should be on the gestalt of your case. What are the fundamental beliefs your case taps into that drive jurors in one direction or another? What System 1 thinking is driving decisions? (Go to my blog page and scroll down to “How Gut Reactions Drive Case Outcomes” to remind yourself of the nature and importance of System 1 thinking.)

Understanding of the qualitative nature of your study also allows you to adjust mid-course. I’ve had clients make adjustments to the presentation given to the second or third group of mock jurors based on what happened with the first mock jury. While this needs to be implemented carefully with the advice of your research consultant, it is something that can be done without the fear of invalidating a study that is not statistically valid in any event.

Now, for some nuts and bolts advice.

2. Allow adequate time for serious preparation. Do not wait until the last minute to run your mock trial. Yes, you have important briefing to do, your case may be shapeshifting, and you still might settle the thing. But if you fail to allow enough lead-time, your preparation and therefore the value of the study will suffer. What’s more, you may not have time to fully implement that which you learn. And while it is tempting to hope that you can settle the case and avoid a mock trial altogether, it is much less risky to plan and run a study you end up not needing for a case you settle than to go to trial with an inadequate understanding of how your case will play to an unbiased audience.

3. Get the right story to the mock jurors. Some of my clients feel uncomfortable with the a time constraint of about 45 minutes for each the of the parties’ presentations. But it can be done. I’ve mock tried cases that ultimately lasted months, some involving highly complex scientific testimony, and gotten highly useful results. The key is drilling down to the DNA of the case and being selective in the evidence used to convey it.

Finding that DNA, the right framing for your and your opponent’s cases, requires great thought and planning. I recommend and lead or participate in work sessions prior to the mock to strategize framing. This is work you will do regardless of whether or not you have a mock. You will revisit this framing work based on the results of the mock trial. It’s the most important thing you can do in preparing to go before the trier-of-fact (jury or judge).

4. Present your case in-person to the mock trial panel. It helps you and the jury. You, because not until you are in front of a group of, say, 20 people—who don’t know you or care what you think of them—presenting your case and watching their reactions, will you realize how this case is likely to play. The experience of communication and feedback with live human beings is one of the most valuable parts of the exercise. Don’t miss it.

From the jury’s standpoint, watching the presentation on a video monitor distances them from the story, and frankly, is boring. There is no comparison to the experience of receiving such information in person. You want them to be engaged. Engage them.

5. Don’t try to win. Well, try to win, but challenge yourself by making the opponent’s case as strong as possible. If there is something yet to be ruled on that the jury may or may not hear, give the benefit of the doubt to the opposition.

The goal is not to win the mock but rather, as I’ve pointed out above, to flush issues out into the open where the jurors can debate them. You want a rich discussion that reveals the way the jurors interact with the case facts and issues.

(This is why in the past two years I have taken over the task of personally recruiting my study respondents rather than handing it off to someone else. I recruit a panel that reflects a wide diversity of attitudes and experiences with the added requirement that the panelists must be capable of articulating the arguments that drive their decisions.)

Please read my article on Getting Jurors to Fight for Your Case for deeper background about why this type of discussion is the aspect of your research that will have the greatest impact on your success at trial.

6. Test meaningful alternatives with separate panels. It is tempting to try to squeeze an alternative or two into the post-deliberation de-briefing of the mock jury. These things tend to be put before the jury with a statement such as, “If you knew that [insert significant fact here] would it have affected your decision?”  The problem is that the jurors cannot unravel the entire case they’ve just spent 5 ½ hours learning about and deciding, to insert that fact into their calculus. Remember that our rational, System 2 thinking is, as Kahneman says, “more of an apologist for the emotions of System 1 …an endorser rather than an enforcer.”Few of us (if any) are capable of this type of cold cognition.

7. Don’t fall prey to self-confirmation bias. Unless there is an obvious problem with the mock or the respondents, don’t assume that this was an aberrant group because you are surprised by the outcome.  When people tell you what they think of your case, listen to them.

Intelligent people are as likely to make errors driven by confirmation bias as are less intelligent ones. In fact, if you have a great deal of confidence in yourself and your judgment (likely, as you are handling a huge case for a sophisticated client), you may be more susceptible to such bias. Be cautious about putting more faith in your own beliefs about the case than in what an unbiased group of jury-eligible people just told you.

The mock trial is extremely valuable to your efforts to obtain a favorable outcome for your client. I hope that the above advice is helpful to you in planning your next study.

As always, call on me for input on any matter, at any time. I hope to have the opportunity to work with you and help you achieve the benefits of a solidly planned and executed study.

And now for something completely different…

Classic Python: Argument Clinic. 2.5 minutes long. (I recently introduced my 5th grader to this skit. Sometimes you have to take your children’s education into your own hands.)

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Getting Jurors to Fight for Your Case

Getting Jurors to Fight for Your Case

Part 5 in a series on jury decision-making and bias.

Estimated read time: 3 1/2 minutes

By Joani Benoit

The collective seeking of truth is the purpose of jury deliberations. A trial is merely the means of preparing a jury to do that work.

A paper published in Behavioral and Brain Sciences (Cambridge University Press), “Why do humans reason? Arguments for an argumentative theory”, presents compelling evidence that the evolutionary purpose of reasoning is primarily social. This runs counter to the standing belief that we reason because it results in better decisions and outcomes on the individual level.

We often reason poorly on the individual level, regularly committing significant errors in logic that lead to sub-optimal outcomes. Cognitive research is replete with data that confirm this; we are biased and error prone, and as Keith Stanovich asserts, these errors are not caused by lack of intelligence. (See Stanovich’s book: What Intelligence Tests Miss: The Psychology of Rational Thought.)

The authors, Hugo Mercier and Dan Sperber, painstakingly build the case that the function of reasoning is not to yield better decisions, at least not on the individual level. Rather, they say, reasoning is a means “to devise and evaluate arguments intended to persuade”. In a peer commentary to the M&S paper Baumeister, Masicampo and DeWall embrace this theory and extend it: “To be sure, to say that reasoning is for arguing does not mean reasoning is irrelevant to seeking the truth, but people seek the truth collectively and not individually.”

The collective seeking of truth is the function of the jury. The M&S paper posits that “reasoning proper” is the “output of an intuitive inferential mechanism”. The horse before the cart of reasoning is intuitive decision-making, which takes place in the subconscious; arguments that support that intuitive conclusion are evaluated and used by jurors to persuade others.

How do evidence, testimony and attorney arguments come into play in this process? These are not stand-alone inputs to the decision-making process; they interact with intuitive and reflective beliefs. The ability to understand this interaction and the relevant underlying beliefs gives us our best chance at addressing them in a way that is productive for our clients.

M&S claim that when no strong underlying belief drives an internal pull toward a decision, individuals evaluate arguments and choose the most compelling. Note that this is not the same as choosing the arguments with the best internal logic or best evidence; rather the goal is to choose the argument that will be the most persuasive when used in the group process.

This explains, according to the authors, why so much of human decision-making does not result in “best” outcomes. (“Best” in cases of objectively measurable outcomes.) We simply make mistakes in the interpretation of data, in the application of logic, and thus in reaching conclusions. M&S argue that this inefficiency in our decision-making is not a flaw in the development of the human ability to reason, but a misunderstanding of the purpose of reasoning. Human reasoning did not evolve to allow humans to reach the best individual decisions, rather to make compelling arguments in a collective setting. To follow their logic, the ability to persuade a group was more adaptive than was perfect decision-making.

It is critical to understand the concept of “motivated reasoning”. When we have a preferred outcome, we are motivated to reason in favor of that outcome. Mercier and Sperber cite a slew of studies that demonstrate this: studies in which people are motivated—to discount a medical finding, to justify a decision, to explain why they should have won a bet they lost, to look for flaws in papers when they disagree with the conclusion, etc. Studies show, they say, that “people use information flexibly so as to be able to justify their preferred conclusions or arrive at the decision they favor”.

To circle back to our work: we need to understand the biases and motivations that the case at hand triggers in jurors. These biases will define the set of arguments that jurors favorable to our side will “use flexibly” in deliberations. We must come up with the most complete and usable set of arguments and package them for “our” jurors’ use.

We must also understand the other side of the battlefield, and arm our jury with counterarguments.

The take away: the best evidence is the evidence that jurors find most useful in persuading others. And the best way to evaluate this is in a mock trial setting, with a methodology geared to argument generation and use. While I have always evaluated the arguments the attorneys make in this setting, I now use methods to allow motivated reasoning to do its job: find the motivation, then get the jurors to construct effective arguments prior to deliberation. Deliberations allow us to evaluate the persuasive strength of the arguments in the social setting for which they are intended.

The Mercier and Sperber paper goes miles deeper than this. They cover issues of trust calibration, belief perseverance, and working with bias. To keep my articles readable in a normal workday, I provide an overview. But I strongly recommend reading the paper linked above in its entirety. And if you would like a CLE customized to your office’s needs, I will provide a CLE of the length you desire and you can learn more about this important work and while earning credits toward your annual requirement.

And now for something completely different…

Gorgeous time-lapse film of Yosemite.

Yosemite Range of Light

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How Gut Reactions Drive Case Outcomes

Part 2 in a series on jury decision-making and bias.

By Joani Benoit

“OK, we all know corporations are evil. So let’s get that out of the way.”

So stated a juror in a recent mock trial, a brief preamble before getting down to the business of deciding the case. Such biases are universal, though rarely stated so directly. They are a manifestation of a cognitive framework that guides human thinking and drives decision-making––at trial and in everyday life.

This article gives an overview of the two-part thinking system model widely accepted by current cognitive scientists. Nobel Winner Daniel Kahneman dubs System 1 thinking as “fast” and System 2 as “slow”–– hence the title of his current bestseller: Thinking, Fast and Slow.

System 1 is autonomous, instinctive, and requires no effort to employ. System 1 is the product of a lifetime of experiences and impressions. The generator of intuition, it applies your values and beliefs to the world. Examples of System 1 beliefs: most lawsuits are frivolous; people are inherently good and honest; employers take advantage of their workers; bare-knuckles competition among companies is a good thing for consumers; people should treat their business partners the way they would treat a friend. System 1 beliefs allow humans to organize and interpret our experiences. Without such an organizing structure, life would seem chaotic and frightening.

System 2 requires intention and effort. It processes information sequentially: you cannot add a string of numbers and write a memo at the same time. Weighing information and making decisions happens in this slower domain.

Our default setting is System 1, or fast thinking; it is always operating. When you begin your opening statement, jurors’ System 1 kicks into action: generating an inclination to like you or not, trust you or not, want you to win or not. Jurors (and judges) develop the same kinds of gut reactions to your opponent, to your witnesses, and to your client.

Of course, evidence helps to shape these inclinations. Behavior considered “bad” on the part of either party could bolster an initial gut reaction or cause a revision. A trustworthy witness can turn around a pre-existing bias about a company. Or perhaps more realistically, such a witness can cause a juror to put the bias aside: “Big companies are evil, but in this case they acted fairly.”

But don’t overestimate the power of objective evidence. Again, from Kahneman; “System 2 is more of an apologist for the emotions of System 1 than a critic of those emotions—an endorser rather than an enforcer. Its search for information and arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”
 Daniel KahnemanThinking Fast and Slow, p 103-4

So what do you do about it? How do you understand what relevant System 1 beliefs are driving factors in a juror’s decision process, and how these vary among jurors with different world views? And with that understanding, how does one then build a strategy to deal with those beliefs? Is it possible to commandeer the more analytical mind, wresting it from the control of the biases of System 1?

If, as Hugo Mercier and Daniel Sperber assert, “most decisions are made intuitively”, the first goal must be to understand what those intuitions are and what or who is triggering them. The goal of jury research is to peel the onion: the outer layer is the verdict; we want to know what lies beneath. Given Kahneman’s warning that System 2 is an apologist for System 1 biases, it doesn’t make much sense to focus on System 2 issues (e.g., Did the contract anticipate a change in market conditions?) to the exclusion of System 1 (e.g., Was the company trying to get something for nothing?).

As a jury consultant, the implication for me is to ensure the quality of the stimulus used in the research, and to increase the opportunity for jurors to give feedback that reveals their intuitions.

First, let’s think about the quality of stimulus. In a jury study, participants can only respond to what they see and hear. The story you give the jurors must be complete even though it is abbreviated. If there is damaging evidence that may or may not be admitted, include it in the research. The goal is not to win the mock trial, but to learn which aspects of the case are the most potent drivers of decisions.

It’s also very important to give mock jurors plenty of exposure to the main “actors” in the dispute. Plan for this during depositions and get video of witnesses from both sides.  Jurors’ feelings about the key players will have a significant impact on their desire to reward or punish the parties. For example, you would not want to miss an opportunity to understand how “Seattle-nice” jurors will react to an aggressive sales manager from another part of the country in a case where unfair competition is alleged, even if that claim is, from a legal point of view, a minor part of the overall claim. An entire case might hinge on such a factor.

A final recommendation on stimulus quality: when you make your presentation to the mock jury, make it live. While it is infinitely easier on your trial consultant to have you pre-record the presentation, particularly for multiple panel studies, you lose too much. I want you to be in the room with the jurors; this allows the emotional and physical proximity that is required for them to develop strong intuitions about you and your case. You will develop intuition as well, getting a feel for the parts of your presentation that are working and those that are not.

In addition to stimulus quality, good research cultivates revealing responses from participants as individuals, not just as part of the deliberating jury. I’ve increased my mock trial research emphasis on open-ended answers at all three stages of research: before the jurors know about the case, during the case delivery, and after hearing plaintiff and defense presentations. What people write, their word choices, their level of commitment to their points-of-view, and the analogies they draw are all quite revealing of their intuitions. When given permission to have such intuitions by artfully worded questions, jurors will tell you what you need to know.

(The emphasis on open-ended responses should be carried through tovoir dire. If you are able to have prospective jurors fill out questionnaires, ask a few good questions based on what you learned in the research, and give them lots of blank space to fill. Knowing whether they have a bumper sticker on their car or what magazines they read is much less helpful than knowing, for example, whether they’ve ever been involved in a dispute over a financial agreement and how they resolved it, or other questions relevant to the issues of your case.)

The results from good quality research can be used to develop your trial strategy– one that drives jurors toward your position and minimizes damaging aspects of your case. It is critical to develop a unified case story and choose wisely the witnesses who will tell the story to the jury.

In the next article, I will discuss framing the case story and some of the mental shortcuts that can affect how jurors interpret the evidence and testimony. See you then!

And now for something completely different:

If you’ve ever wanted to fly,  you must see this.

What amazes me is that these guys have lived long enough to get this good! Four-minute video; flying starts at about 1:10. Very cool.

 

When Bad Things Happen to Good Trial Lawyers: How jury (human) irrationality leads to unexpected verdicts.

When Bad Things Happen to Good Trial Lawyers:
How jury (human) irrationality leads to unexpected verdicts.

Part 1 in a series on jury decision-making and bias.

By Joani Benoit

Trial lawyers tend to be intensely logical, and in preparing for trial make battle plans driven by logic. But logic and evidence are at best indirect drivers of human decision-making. Beyond your own experience of surprising outcomes, a full body of scientific data supports the idea that people are not always, perhaps even not usually, rational deciders.

Before we get to the problems of juror rationality, test your own logical bent with the following question:

“Jack is looking at Anne but Anne is looking at George. Jack is married but George is not. Is a married person looking at an unmarried person?

A) Yes  B) No  C) Cannot be determined”

Take a moment to answer before reading on.

80% of people, regardless of intelligence, fail to give the correct answer, that a married person is looking at an unmarried person. The answer is “yes”.

A quick review of the facts tells us that because we don’t know Anne’s marital status, we cannot determine the answer for either pair of people: Jack and Anne or Anne and George. Satisfied that we have found the answer, we move on, unaware that with more effort (testing what happens when we assume a marital status for Anne) we will get a different, and correct answer. If Anne is married, the fact that she is looking at George meets the criterion of the puzzle, and if she is not married, the fact that Jack is looking at her meets it.

Why do so many fail to solve the puzzle? For the same reason smart people make major investment mistakes, and juries come to verdicts not supported by the evidence.

Through decades of research documenting thinking errors and biases that plague human cognition, scientists have developed a rich understanding of the way people think, manage complex information, and the shortcuts we reliably employ as we attempt to manage the overwhelming amounts of information we face each day.

These shortcuts, seen in Nobel prizewinner Daniel Kahneman’s categorization of common cognitive heuristics, are predictable and certainly operative in jury decision-making, perhaps having a greater impact on the outcome of a trial than the evidence itself.

I’ve been mining the work of Kahneman, Keith Stanovich and Dan Sperber and Hugo Mercier, among others, for a better understanding of jury decision-making. All of it is very relevant to our work as persuaders of juries, (and judges, panels, clients, spouses, children, etc.). I’ll be summarizing in a series of newsletters what I believe is the most interesting and relevant work and applying it to jury trials.

My next newsletter will describe what cognitive scientists refer to as System 1 and System 2 thinking. Human cognition comprises two types or systems of thinking: one is quick and intuitive; the other is intentional and requires much more effort. Kahneman says:

“… System 2 will endorse many intuitive beliefs, which closely reflect the impressions generated by System 1. …System 1 is radically insensitive to both the quality and the quantity of the information that gives rise to impressions and intuitions.”

This is why I stated earlier that logic and evidence have only an indirect impact on jury decisions. System 1 is highly influential, it makes snap judgments about trustworthiness and it is, in a word, sloppy.

I’ll give a System 1 and 2 primer and the implications it has for my mock trial methodology and my advice to you for cases that will go to trial.

Once I’ve given a background on the two types of thinking, I’ll explore issues of trust calibration and coherence checking and what it takes to get a jury to accept a witness’s testimony, biases that distort the decision maker’s interpretation of testimony and evidence, Mercier and Sperber’s theory of argumentation and how you can get the jury to work for you throughout deliberations, anchoring and the impact on damage awards, and decision fatigue that results in a strong bias for “no decision” verdicts.

The research makes sense of much of what I have observed in mock and real juries over the past 20 years, and has impacted my mock trial design and recommendations to clients. I hope you find it valuable and that you share it with anyone else who might. Each article links to a blog on my website that enables conversation on topics.

This is an area that may feel uncomfortable to you. Because they are hard to understand, measure and control, there is a tendency to discount the entire issue of juror biases and thus obviate the need to understand and manage them. But because of the degree to which such biases impact outcomes, there is huge leverage to be gained. I look forward to working with you to actively manage the non-rational components of your success.

And now for something completely different…

One minute time lapse of a camping trip in the Everglades. A nice mental breather.