When losing is winning. Part 1.

Everyone wants to win, right? This post is being written to say winning isn’t everything. At least not in a mock trial. Regardless of whether it is a mock jury, mock arbitration, mock bench trial, or whatever, the process is not about winning. It is about debugging the case. It is about finding the problems (and looking for solutions to them). This means testing the worst case scenario. So, the judge hasn’t ruled if this or that is in the case. Fine, test whatever would be worse for the case. I had a conversation with a potential client this week on just this point. He was asking if he should wait until he knew what all of the experts would say and what the judge would rule on some issues. Well, given that sometimes, those decisions are not made, or testimony/information is not known until the trial day or shortly before, no one can afford to wait that long. By testing the worst case, the opportunity to assess of the important variables can keep the trial from being an expensive learning experience. Better to go a few rounds in the boxing ring in a gym before the prize fight than to get beat up in the courtroom for not having tested the case. And, another thing that is hard for some attorneys to understand is that losing in the mock trial is an opportunity. It is the opportunity to fix things and should not usually be seen as the death knell of the case. Better to lose the mock trial and win the real trial than the other way around!

The purpose of mock trials is not to “win,” rather, the purpose of conducting any type of litigation research is to assess the strengths and weaknesses of a case. In the decades I have been conducting pre-trial, pre-mediation, and pre-arbitration research for attorneys, I have worked with numerous clients who “get it,” and who truly want to learn from their research experience. These savvy attorneys understand that, in order to improve their chances of prevailing when it counts, in the courtroom, they need to present their worst case scenario when testing their case in mock jury, mock bench trial, mock mediation, or mock arbitration research. These attorneys know it is to their advantage to assist their co-counsel or other person who is role playing the opposition, to ensure he/she knows all of the important details of the other side’s case. In addition, the person who is role playing the opposing counsel must be committed to giving it his/her best shot in an attempt to “win” the mock trial. One of the worst things that happens to us on research days is when the person who is role playing for the side opposing our client lacks the experience and/or motivation to make an effective presentation for the other side. When this happens, our client wins the mock trial, but often loses the real trial. Patting oneself on the back for winning a mock trial is meaningless. It is far better to present one’s worst case scenario to the mock jurors, lose, follow my (or another qualified consultant’s) advice to modify the presentation of the case, then win when it counts, in the courtroom. Real victory at trial is much better than a mock victory.

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