False Positives

False positives are research or test results that are inaccurate and make one think the result is positive, when in fact, it is negative. With a medical test, for example, it could mean a blood test result indicates a problem when there isn’t one. There are, of course, false negatives, but I think in the context of trial consulting, our concern is more often about false positive. That is, we are concerned about getting mock jury results that make our client’s case look better than it is. We strive to ensure that our results are objective and we fear giving clients false hope for the outcome of their case. Therefore, it is better to test worst case scenarios and for the client to lose the mock trial, than to have them win in the mock courtroom, only to lose at the real trial. We have discussed one of the primary culprits of this issue in another post, but it bears repeating. The most frequent factor that leads to a “false reading” is when the person role playing the opposing side of a case is not up to the task. Or, they ignore critical issues when making the argument. Or, they don’t want to make their real client look bad. There is no good reason to want to win the mock trial at the expense of facing reality. The second most frequent factor is when our clients do not tell us the whole story, that is, the worst case story, in advance of the mock trial, intentionally or not. We have had clients who failed to reveal details that are critical to the jurors’ decisions. In one of these situations which I remember 20+ years later, the attorneys on the case had not been thorough in their review of medical records and simply, but grossly, missed something that was there to be seen. Luckily, someone on our research team read the records more carefully and when they asked the client about the point, there was a moment of pause, of silence, while they contemplated the point, and then realized how much it changed their position. (The case settled very soon thereafter.) A mock jury project is an opportunity to “fix” or smooth out a problem. It is not an opportunity to gloss over that problem and pat oneself on the back!

In my world of science and statistics, a false positive result is called a Type I error, leading to a rejection of the null hypothesis.  For example, if the null hypothesis is that, absent changing one’s theory of a case, the case will be won, then improper research is conducted, leading the case to be “won” during the mock trial, the improper conclusion will be that the case should be tried without modification.  However, this conclusion is erroneous if the research (mock trial, focus group, etc.) has been improperly conducted, yielding to an outcome different to the correct one.  For example, as David mentioned, if the person who is role playing the opposing counsel for the mock trial fails to do a proper job, including not putting on the best case in an effort to “win,” we often have clients who are thrilled with the result because it confirms what they had hoped, that is, that the other side has a weak case.  Often, this is the exact opposite of reality in that the opposing case is stronger than our client’s case, however, the role playing attorney was not “up to the task” of presenting the other side’s case.  This happens when: (1) an inexperienced attorney presents the opposition’s case; (2) the attorney presenting the opposition’s case is actually the attorney for “our side,” and thus, unable or unwilling to see that the other side’s case has merit; (3) for political reasons, the person role playing the opposition does not want to present a strong case that might offend the client; and (4) defense attorneys lack the “heart” to make an effective presentation on behalf of an injured plaintiff, instead, merely reciting what happened in a matter of fact way (something no plaintiff’s lawyer would do!).  Many times, our clients are competitive to the point they want to “win” the mock trial at all costs, but doing so in ways that undermine the research process can, and will, backfire with a loss in the only place where a victory counts, the courtroom.


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