Many years ago an attorney shared with me why he liked conducting mock trials on his cases. He said that litigation without jury research is like driving in the dark without headlights. I’m not willing to say that trial lawyers are always driving in the dark, but I agree with his premise: mock jury research (or mock mediation/arbitration research) illuminates the problems in a case. Seeing, or being aware of, the problem provides an opportunity to diffuse that problem or remediate the impact of a problem in the case. Few cases are without “warts.” Sometimes it is an imperfect human who is a party to the case. Sometimes someone had a “bad day” and a tragic outcome occurred. Sometimes, well, “Maybe we did that, but we didn’t intend to…” Sometimes it is “We don’t know what happened…” None of these things “fly” when interpreted by the ever perfect jurors. Jurors, for reasons that Melissa can explain better than I can, often fail to accept that they could have been in the same boat as the plaintiff, or defendant. The cases where everything is perfect for one side or the other tend to settle quickly – we rarely work on things which are cut and dried. Back to the headlights. Evaluating the problems so that the clients can appreciate them is an important part of jury research. As another client told me, when asked what he likes about mock trials, “There is nothing the other side can throw at you that you haven’t already heard in the mock. You can anticipate and plan.” When in doubt, light it up!
I frequently observe people driving in the dark with no headlights. It is a dangerous thing to do because not only can the driver not see where he/she is going, but other drivers can’t easily see the “ghost vehicle” either. On the few occasions when David and I went boating after dark, we saw boats without their required illumination, including a large sailboat that was completely invisible, almost to the point we ran into it! Although it is not dangerous for attorneys who “fail to see the light” regarding their cases, going to trial on a substantial case without conducting pre-trial jury research is never a good idea. People are unpredictable and because there is no such thing as a perfect case, with perfect clients, it is better to know the strengths and weaknesses of the case well before the first day of trial. Knowing the types of jurors who are likely to have unfavorable opinions about the case, fine tuning arguments to have the widest latitude of acceptance, ensuring witnesses make a good impression, and rehearsing one’s presentation go a long way toward increasing the odds of obtaining the best possible outcome for one’s client. Wrongly believing that one knows it all, when it comes to anything, is a surefire way to have things go wrong. Just as most people cannot see in the dark, absent illumination (or night vision goggles), attorneys cannot see, with certainty, where their case is going without taking the time and devoting some resources toward the enlightenment made possible by scientific assessment of one’s case.