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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