I keep a list of things clients have said during or after working with us on mock jury research. These tidbits illustrate the eye opening reactions some attorneys have when observing jurors deliberate. One of my favorites was from (now retired) Pete Burkert in Fort Myers, FL. After a series of mock juries, he said, excitedly, “It’s almost like cheating!” He was thrilled to know what resonated with typical jurors so that he could customize his case presentation. Knowing potential outcomes is one thing. Learning how to talk to a jury in their language is, however, critical in achieving optimal outcomes. It’s not cheating at all. But being able to watch, and listen, to “regular people” work through a case is enlightening. Attorneys often bounce cases off of their staff and families, neither of which is a particularly unbiased group. Randomly recruited people are, however, usually willing to call it like they see it. One may not always like the way they see it, but understanding the thoughts that go into decisions of this sort is critical to anticipating and avoiding the pitfalls of a case. Mock juries help “dodge bullets” or “avoid land mines” that are sometimes lurking in a case. Sometimes, these things should be obvious; other times they are not. Money spent on mock jury research sometimes seems like a luxury, and I suppose it is. But, given the lessons learned and problems avoided, clients tell us it is money well spent. In fact, another of my favorite statements was “It was the best money I spent on this case.”
Pete Burkert’s quote is memorable, even after many years have passed. Until his and his partner, Kim Hart’s, retirement, Magnus enjoyed decades of working with these 2 extremely fine attorneys. Mr. Hart had worked with us several times before we worked with his law partner, Mr. Burkert, and Kim called to tell me what Pete said after his first illuminating mock trial experience. I’ll never forget the call. Kim said Pete had quietly entered his office the day after conducting his first mock jury research with Magnus to report that the things he learned were valuable in changing the direction of his case, to the point that he thought the upper hand he now had over his opposition was “almost like cheating.” Conducting research is not cheating, but knowing many things other people do not know, because they have not conducted research, done their homework, etc. does provide a sense of smug satisfaction. I often have that feeling of “I know something you don’t know” when it comes to understanding human nature, particularly when it comes to jury selection strategy. Often, because opposing counsel has not conducted mock trial research prior to selecting the jury, they miss using a peremptory challenge on a terrible juror because they are using stereotypes, biases, and “gut feelings” to excuse potential jurors. When mock jury research results are factored into jury selection decisions, we know which jurors are likely to be favorably and unfavorably predisposed toward a case. It’s more like being prepared than cheating, but however one characterizes it, cases that have the benefits from mock jury research are better prepared than otherwise.
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