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Use of focus group simulations or “mock trials”
“Focus group” simulations, or “mock trials” offer attorneys an opportunity to test their ideas about the way arguments and facts, both favorable and unfavorable, will be understood by jurors. It is essential to understand that simulations do not predict case outcomes. Moreover, reactions to specific facts and arguments may be different for reasonably well paid recruits participating in half-day or full-day simulation than for poorly paid jurors, sitting through days of testimony and legal jousting, who would rather not have been summoned to such duty. Nevertheless such simulations can be an indispensable part of trial preparation. They offer attorneys a precious opportunity to discover errors in their assumptions about jurors’ concerns, emotional reactions, and interpretations; similarly, they uncover potential weaknesses in their own arguments or in their planned rebuttals to the facts and arguments likely to be presented by the other side. Sometimes exposing clients and attorneys to the reactions of disinterested average citizens of the sort likely to be on a jury can even deflate unrealistic hopes and expectations, and serve as a prelude to settlement conferences. When an attorney believes strongly that a certain jury composition will greatly enhance (or preclude) chances of a favorable outcome, that belief can also be tested in the simulation process.
Jury simulations are useful in direct proportion to the degree to which they are veridical. Composing a mock jury from the staff of your law office, or with a group of undergraduates at a neighboring college in a handy classroom, is better than nothing. But in significant cases, more is required—that is, participants who are paid, jury-eligible, strangers, who owe you and your client no allegiance (and, for as long as possible, don’t even know which side you represent). Veridicality can be increased by using a setting that resembles a court-room and even by using a robed “judge” to press upon the mock jurors the importance of their task.
It is particularly important to make sure you present the strongest, most persuasive version possible of the other side’s case. (Trial Analysis Group takes particular pride in formulating the interpretative framework and rhetoric of the other side in a way that challenges the case one intends to present). If you can make significant inroads against that version, you are likely to fare well in the face of a less challenging version. Moreover, if a strong version of the other side’s case impresses the participants, you learn something about the shortcomings of your own case in time to do something to remedy the situation.
Worry, we tell our clients, when you win handily in a jury simulation: you may be lulled into a false sense of security and have failed to anticipate an important strategy available to the other side. (If they didn’t think they could win with the facts and arguments on hand, they would be pleading for a settlement instead of girding themselves for trial).
Well-designed questionnaires administered to participants before and after they hear the opposing contentions of the two sides in the case can be invaluable—both in giving one a sense of reactions “uncontaminated” by exposure to the reactions of other jurors, and in allowing one to create small groups with particular “splits” of favorable and unfavorable jurors for subsequent deliberation. That deliberation should not be rushed. You can gain useful insights by observing (through one-way mirrors and/or video equipment) which arguments and facts are presented spontaneously during the deliberation and how they are received, as well as which arguments and facts seem to be ignored.
Trial analysis Group has extensive experience in conducting mock trials and less formal, but often equally effective, focus groups. Indeed, we bring to the task many years of experience as researchers wise in the ways of experimental design and methodology and skilled in avoiding potential artifacts and sources of invalidity. We are particularly skilled in conducting post deliberation interviews with our mock juries (and knowing when it would be useful to interrupt a deliberation to find out exactly why it has veered off in one direction rather than another). In such interactions we make good use of “counterfactuals” and “hypotheticals”, along with direct questions about the bases for judgments –“how might your opinion change if you knew or became convinced that such and such was true”…”what would you think if the defendant had told you this or that”…”why weren’t you convinced by argument, X,Y, or Z.” In short, while simulations are quite expensive and demand a lot of hard work to do properly, we make sure that our clients get their money’s worth.