Face it, some trials are bad, there is liability, there are real damages. Evaluating those honestly and without bias is what we, as trial consultants, help our clients accomplish. And, that said, the other issue in mock jury research when we work for the defense is that the plaintiff’s argument, when presented during the mock jury exercise, is roleplayed by someone on the trial team and often falls flat. It is critical in mock jury research that “the other side’s” arguments are as strong as, or stronger than, what the actual opponent will say and do. Over the years, this has been an issue a number of times. It is most concerning when the opposition’s case is the plaintiff’s case and the attorney role playing that side just doesn’t have the drive, the empathy, the “love” in his or her voice, or the presentation skills to sway the jurors. While there are reasons for this, this is a recipe for a false read, that is, a verdict that doesn’t reflect reality. It is an issue that could cause a surprise, a runaway, or a nuclear verdict. So, to the question, why are attorneys and parties surprised – they may not have been honest with themselves about the real risks or they may have chosen to try to win the mock trial at the cost of the real trial. As trial consultants, we strive to get clients to understand that they have to reveal their cases to us, warts and all, so that we can work with them to debug the problems. Can a surprise verdict still happen? Sure. But, the ticking time bombs should be detectible most of the time if everyone is honest about the issues at hand and proactive with the strategies to defuse them.
Over the years, I have heard some interesting remarks from defense attorneys and insurance adjusters following their observations of mock juries deliberating on their case. One client, who is a defense attorney but who was, for reasons unknown to me, hired to represent numerous plaintiffs in a billion dollar class action case, told me that the mock jurors’ views about the case were wrong because, as a defense attorney, he had never lost a case. I must admit I enjoyed “gently reminding” him that, as a defense lawyer, winning his cases meant that the juries had awarded zero dollars in damages but that, if he wanted to win, and win big, in his present case, perhaps he should listen to what the mock jurors had to say about its weaknesses and then follow my sage advice about how to make the case more appealing. Although he bristled upon hearing this, he reluctantly changed his approach to the case and, you guessed it, obtained a multi billion dollar verdict for his clients. There is nothing wrong with doing research; there is nothing sinister about pre-testing one’s trial strategies; and there is nothing scary about finding out one’s opinions are unlikely to be shared by others. My advice: conduct mock jury, mock arbitration, or mock mediation research to find out what the people who are going to have your client’s fate in their hands think about the case. And do it sooner, rather than later, to avoid becoming stuck in incorrect ways of thinking about the case.