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5 Ways to Win Your Trial by Losing Your Mock Trial

Ken Lopez
By: Ken Lopez

Jury Questionnaire, Trial Consultants, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Jury Consultants, Voir Dire, Jury Selection, Focus Groups

At A2L, we are either conducting or actively planning a mock trial 365 days a year. As you probably know, mock trials are a tool that is very often used by serious trial teams involved in large trials to help uncover the ideal strategy to win a case.

In a typical mock trial that we conduct, over 40 jurors will be recruited in the trial venue through a rigorous screening process. We even incorporate expected voir dire questions into the process. Based on individual verdicts and backgrounds, mock jurors are carefully evaluated to create three or four panels of 10 to 12 mock jurors.

“Clopenings,” combined argumentative opening/closing statements, are presented for both sides of the case, litigation graphics are used to support these statements, and videotaped witness testimony may be included as part of the presentation. Typically, real-time data collection methods using an Audience Response System (“ARS”) will be used, similar to the approve vs. disapprove line graphs shown on the news during election seasons.

Deliberations are conducted. A focus discussion following deliberations is facilitated by our jury consulting and litigation consulting team members. All proceedings are typically observed through one-way mirrors or via closed-circuit TV, as shown in the included image. Watching the deliberations is shocking for most trial lawyers. Without the constraints of the law or internal consistency, jurors’ responses can seem inconsistent, irrational, inexplicable and thus, frightening and random. They are not. Jurors rarely understand the cases as much as hoped, and they follow predictable behavior patterns (see 10 Things Every Mock Jury Ever Has Said). While their rationale may not match the lawyers’, there is a rationale to those willing to understand it from the jurors’ perspective.

Finally, data are collected from the jurors, the results from the deliberations are tallied, and an oral and written report is presented to the trial team. This report includes specific tactics, both rhetorical and visual, that should be used at trial.

We have written and taught about best practices for mock trials extensively. Some of those articles and webinars include:

  1. The 5 Very Best Reasons to Conduct a Mock Trial
  2. 6 Good Reasons to Conduct a Mock Trial
  3. 6 Ways to Use a Mock Trial to Develop Your Opening Statement
  4. 5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions
  5. 12 Astute Tips for Meaningful Mock Trials
  6. 11 Problems with Mock Trials and How to Avoid Them
  7. 7 Questions You Must Ask Your Mock Jury About Litigation Graphics
  8. 10 Things Every Mock Jury Ever Has Said
  9. How Early-Stage Focus Groups Can Help Your Trial Preparation
  10. Webinar: 12 Things Every Mock Juror Ever Has Said - Watch Anytime

Together, these resources provide an excellent manual for conducting a mock trial for an upcoming case. However, they don’t deeply address a trial team behavior I’ve seen show up in just about every mock trial our firm has conducted: The lawyers try to win – and I don’t mean fairly.

Trying to win the mock by stacking the deck in your favor is one of the worst ways to conduct a mock -- yet it happens all the time. It’s understandable: The litigation industry attracts people who like to compete and win. But in mock trials, winning isn’t the desired result. Far from it. It is often a disservice and robs counsel and the client of the chance to reveal weaknesses and remedy them in time for trial, when it really matters. A mock victory is not valuable beyond the very short term.

Instead, here are five best practices for a mock trial that might well lead to “defeat” in the mock, but will immeasurably aid in your trial preparation and increase your chances of a real win at the actual trial: 

  1. Have your first chair lawyer handle the opponent’s case. It’s good for them to get in the opposition’s shoes and gives your case a more rigorous test.

  2. Make sure that the litigation graphics in the mock trial are equal or better on your opponent’s side.

  3. Leave in those unfavorable statements and facts that you will try to exclude via motions in limine on the eve of trial if there is a decent chance they will come in at trial and give your opponent the benefit of doubt wherever possible (give them the last word, include their likely preferences in the jury instructions and wording of verdict questions).

  4. Include video deposition clips that are harmful to your case and don’t be afraid to play up the credentials of their experts or likability of their fact witnesses.

  5. Show the mock jury the worst document in the case.

As we have said in other articles, “Mock trials are best if you lose so that you learn challenges to overcome, but if your client loses confidence in the trial team for mock losing, then what? Instead, explain to your client up front that you are going to make it a challenge to win this so we can learn how best to fight this case by testing the worst-case scenario. The more criticism we hear from jurors, the better.”

Jury Consulting Mock Trial

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