A friend/client sent me an article recently about a mock trial conducted in a high profile murder case in Texas which was featured on the television show 48 Hours. The article, by one of Magnus’ competitors, thoroughly discussed many of the reasons why the mock trial and real trial results were different. As it turned out, the lawyers “won” the mock trial and lost the real one – and they were surprised about this outcome. This is not how lawyers should want things to happen – it is better to get the reverse result. But, if shortcuts are taken in doing mock jury research, this is a very foreseeable outcome. Among the mistakes made by the lawyer involved were conducting a single mock trial session – something which is never a good idea (see our prior post, “How NOT to do mock jury research!”). He conducted the mock jury on his own – also not a good idea, in my opinion. The reasons why this is a bad idea are numerous and include the introduction of bias, unintentionally I’m sure. But nonetheless, by not having a neutral party control the situation and the mock jurors, the jurors can easily determine which side hired them and may attempt to say things they believe the attorney will want to hear. As the story of this single mock trial unfolded, more problems emerged. Apparently the session was held at the lawyer’s office and, the defendant was “put on the stand” during the mock trial – something only the defense team could make happen. Again, these are details which go back to the bias issue. While I’m unclear how these mock jurors were selected, based on other factors, it sounds like it was probably a convenience sample. “Real” mock jury research should be conducted using randomly recruited participants. This factor reminds me of another case which involved a “made for television” mock trial. Many years ago, there was one in a Miami murder case. I’ll skip the inside information, but suffice it to say that the mock jury for that case was a very convenient sample as the panel included the consultant’s cousin, neighbors, employee, and insurance agent! Later I heard the consultant say, “these people wanted to be on TV” – I think that was also for 48 Hours. So, what’s the point of this post? The first point is that getting a television show involved in your client’s case for a mock trial, or as part of any trial strategy, may not be in the client’s best interest. Second, “do it yourself” mock trials are not the same as professionally conducted mock trials and, as a result, they may be misleading. While there are books and training on doing a mock trial “in house,” based on the stories I hear, these often involve shortcuts that may not provide results that are up to par. I understand that not every case can financially support a mock trial conducted by a reputable trial consultant. But, the stories I hear indicate that these do it yourself projects may be doing the client a disservice more often than the attorney realizes. Doing it right includes testing worst case scenarios, avoiding bias (in many dimensions), using a proper sample of mock jurors, using adequate numbers of mock jurors, and using multiple mock juries. As trial consultants, we do many things “behind the scenes,” through our time tested practices, to ensure that the outcomes are as solid as possible; many of the things we do in this regard are never known to our clients. Relying on one mock jury, comprised of friends, family, and staff sounds more like malpractice than mock jury research to me. It should be no surprise that the trial result in this case was different than expected. The attorney’s client deserved better.
There are so many things wrong with the way in which these Texas attorneys performed their mock trial that it would take more than this post to comment on them. It is a travesty of justice for clients of attorneys who think they know more than anyone else about almost everything, including jury behavior. I have always wondered if attorneys who conduct their own jury research engage in any of the equally ill advised actions, such as: (1) performing their own teeth extractions (after all, who needs a dentist, not to mention an oral surgeon?); (2) performing their own surgery (after all, who needs a cardiovascular surgeon, or a neurosurgeon, or, for that matter, any surgeon at all when any sharp knife will do the job?); and (3) designing their own skyscraper, then building it, including performing all of the highly specialized work that is required to build a building (after all, who needs an architect, a general contractor, an electrician, etc.?). Although, arguably, there are many of Magnus’ competitors who lack education, expertise, and experience required to be an excellent trial/jury consultant, there are many others who are highly educated professionals who certainly know more than any attorney (absent one who has a Ph.D.) about the proper way to conduct scientific research on jury behavior, then apply the results of their research to the actual trial. The 48 Hours program that was the subject of the article David referenced is now a well known example of what can, and will, go wrong when attorneys conduct “do it yourself” jury research. Don’t let this happen to your client; do things the right way!