CYA: Another Reason for a Mock Trial

CYA, 3 little letters about something important – self protection. Cover your ass – there, I’ve said it. I don’t know when I first realized that attorneys sometimes use a mock trial to protect themselves from their client. There are many reasons for a mock trial but it was perhaps the attorney who once told me “My client thinks the case is worth $200,000; I think it’s worth more than the $1,000,000 policy. One of us is wrong and we need to find out now, not in the courtroom.” This was a defense attorney and, over the years, both defense attorneys and plaintiff’s attorneys have made similar references. In one plaintiff’s case, the defendant driver was covered by a $5 million policy. The plaintiff wanted the full $5 million yet his attorney, our client, knew that it would be unlikely for a jury to award him the full $5 million, thus, he hired us to find out. The attorney was correct, based on our research results, and he used that information as leverage with his client to get him to accept a lower settlement. This “reality check” aspect is a common use of mock jury research. But the CYA aspect goes a step further. Attorneys rarely admit this is the main reason for a mock trial, but some have. They are documenting the file to demonstrate that they did their job, even if they were unable to get cooperation from their client (plaintiff, defendant, or even insurance carrier). If a client “won’t allow” the attorney to use all of the resources available, such as experts, or perhaps the plaintiff doesn’t want the attorney to venture into uncomfortable, personal, territory, or the defendant won’t comply with court orders to disclose information, the attorney needs to ensure that the client understands the consequences of his/her/their actions. All of these things have happened in our cases – and they will continue to do so. Therefore, it is important for attorneys to consider the ways to protect themselves – and one way is to conduct mock trials.

I am a detail oriented, meticulous person who does not like to leave anything to chance. I strongly prefer to have more, not less, data with which to make a decision. I always practice my bass lines as much as time will allow before performing a gig (and I bring an extra battery in case the battery in my active pick up on my bass guitar dies while I am on stage). I practice my speeches, including presentations I have made numerous times, before delivering a speech to every new audience. In general, I prepare, then prepare some more, then prepare some more after that, regardless of the activity I am planning. “CYA” is, for me, the mantra by which I live my life. Therefore, I can’t fathom any attorney making a decision to just “wing it,” “ hope for the best,” or “roll the dice” when it comes to representing a client in litigation, particularly the high stakes litigation in which Magnus becomes involved. Being unprepared, given all of the available people, services, and technological tools available to attorneys, is, in my opinion, unconscionable. When an attorney is having a disagreement with a client over the value of the case, it is relatively easy to settle this dispute by conducting focus groups, mock trials, or surveys and finding out, with scientific certainty, the likely value. Absent conducting research, anyone and everyone can speculate about why their opinion is superior to others’ opinions, why they know exactly what a jury will do before they do it, and the precise amount of money the case is worth. We are writing this within the context of civil litigation, however, the stakes for criminal cases are much higher for the attorney’s client, thus, the need for “CYA” is imperative. Absent conducting some type of pre-trial research, how can one be certain about the outcome of the trial?

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