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3 Critical Mock Trial "Clopening" Litigation Graphics Best Practices

Ken Lopez
By: Ken Lopez

Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Jury Consultants, Opening, Closing Argument

As both a leading jury consulting firm and a leading litigation graphics consulting firm, we can offer a unique perspective about the intersection of these two fields.

A mock trial is frequently a part of A2L's jury consulting work. One aspect of designing and executing a valuable mock trial that I take particular interest in is the development of litigation graphics for both sides of the case. This litigation graphics presentation is typically created in PowerPoint and is designed to support the "clopening" argument for each side's case.

If it is not apparent, the industry term "clopening" is a portmanteau of the words opening and closing. During an actual trial, argument is prohibited during an opening statement and reserved only for the closing statement. During a mock trial, the opening and closing statements are combined into a single event where a case is introduced, explained, and argued. A typical clopening argument is 1-2 hours long, and an average of 30-60 real and demonstrative evidence slides will be used to support the clopening argument.

Just a few years ago, many jury consulting firms neglected to use and test visual presentations during a mock trial. For decades, we have explained the obvious importance of this testing and made a case for it in articles like:

In my experience, the visual presentation is as important as the oral presentation during a mock trial. It aides in juror understanding, it speeds up the case considerably, it provides lessons to the litigation graphics team, and it makes for a more realistic simulation of the actual trial. See, Insist Your Litigation Graphics Consultant Attend Your Mock Trial.

As is often the case for a trial, preparation for a mock trial is typically focused on the development of the initial presentation for the mock jurors. It's a sensible place to concentrate trial prep efforts as designing this presentation forces timely preparation of the legal arguments, the development of a well-honed narrative, and often the discovery of the best way to visually explain a case.

Preparing these presentations for a mock trial is quite different from preparing for a courtroom trial, however. Whether you are a veteran trial lawyer or you are considering your first mock trial. These three tips below are useful for anyone planning a mock trial and have proven to be critical in the very best mock trials I have observed:

1. Separate the teams: The most effective mock trials I have observed have the first-chair trial lawyer representing the opposing side during the mock. This set-up has several obvious trial preparation benefits.

By forcing oneself to get into the mindset of one’s opponent necessarily results in better trial preparation. This high level of preparation is incredibly valuable for the first-chair litigator. Typically, they are also in the best position to take on this role. This is true since they usually have the best relationship with the client, who is often in attendance at a mock trial. First chair is most often in the best position to manage the awkwardness for the client who must listen to their opponent's story well-argued in front of them. In my experience, when done correctly, this effort actually strengthens the relationship with the client.

When second chair argues for the client, this further deepens the bond between client and law firm. Furthermore, when second chair prepares the clopening argument, he or she enhances the team's ability to beat the other side. New arguments are discovered, fresh thinking is encouraged, and both lawyers improve one another's performance in this friendly battle.

When first chair and second chair operate independently of one another while preparing their clopenings, they improve the team's chances of winning. It's logical that would be true, and it has also proven true in the hundreds of mock trials observed by the A2L team. See also, 7 Reasons In-House Counsel Should Want a Mock Trial.

2. Separate the presentation development: I often see trial teams attempting to put their finger on the scale in one direction or another when preparing for a mock trial. Some want to win their mock trial, which is a bad idea (see, 11 Problems with Mock Trials and How to Avoid Them). Some try to lose their mock trial which is a less bad idea but is still not a good one (see, 5 Ways to Win Your Trial by Losing Your Mock Trial).

As mentioned above, the very best teams attempt to artfully simulate the actual trial by preparing separately. This certainly includes the visual presentation that is designed for each side's clopening. When these two teams prepare their presentations separately, they create a more realistic trial environment for the mock trial. Like trial, these presentations can be exchanged 24 hours before use, which is typical in many large trials for an opening presentation. In my experience, just by preparing separately, better ideas for the eventual opening statement are identified. See, 6 Ways to Use a Mock Trial to Develop Your Opening Statement).

3. Rely on litigation graphics professionals: Left on their own, most trial teams will develop PowerPoint presentations that are very text heavy and filled with bullet points. We’ve written about this issue many times before in articles like:

The best trial teams engage professional litigation graphics firms because they understand the real power of a thoughtfully created demonstrative and the proper presentation of real evidence. As we have said in the past in articles like 12 Reasons Litigation Graphics are More Complicated Than You Think, this effort is seemingly simple but much more complicated than most people understand. Hiring a professional litigation graphics consultancy ensures the highest possible persuasion effort and helps your client see that you have done everything possible to win a case.

In our firm, we will often assign different lead artists to each side of the case when preparing for a mock trial. Just like the work of the trial lawyers described above, this separation helps encourage creative thinking and leads to the very best possible preparation for the eventual trial.

The linked-to articles herein and below offer many additional insights about how to best design and execute a mock trial. I encourage readers interested in this work to review these and also download our book related to mock trials and jury consulting: A Trial Lawyer's Guide to Jury Consulting & Mock Trials. We are always available to discuss these concepts and the best way to start a discussion with A2L is either by running a conflict check for an existing case or setting up a phone dialog by reaching out to contact@a2lc.com.

Jury Consulting Mock Trial

Other A2L articles and resources related to mock trials, jury consulting, and the preparation of litigation graphics for a mock trial clopening include:

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