Mock trials have surged in recent years as attorneys struggle to comprehend rapidly changing jury pools around the country. Political polarization, the pandemic, inflation, and the emergence of the millennial juror are just a few of the things leading to the rising uncertainties that drive jury research. The reasons for conducting mock trials vary from client to client. Some do it to see if they will “win or lose.” Others want to gauge damage exposure ahead of mediation. Still others use them to manage client expectations or help insurers see the painful reality of the case. Regardless of the reason, mock trials provide an incredible strategy development tool that can fundamentally change how the case is tried.
In this month’s column, we want to arm attorneys and their clients with some simple tools for maximizing the impact of mock trials on case strategy development and trial preparation. Our hope is to go beyond the obvious and give attorneys and their clients a new way of watching mock trials and deriving insights from them.
The key to using jury economics effectively to decipher mock trial results is to focus on mock trials as shining light on a process, not just a result. While it is certainly helpful to know the final decision of each mock jury, it is much more valuable to see the process that led to that result. Attorneys should essentially adopt a game theory perspective for jury research, which means they should start with the final verdicts and work backward from those verdicts to understand each of the steps that produced that verdict outcome. Think of each deliberating mock jury as a map for how an outcome is achieved. If enough maps are collected (i.e., having multiple mock jury groups rather than just one or two), attorneys can start to see the common paths to victory or defeat for each side.
Once the perspective is shifted from the result to the process that ended in that result, a new level of strategic insights can be gained. Here are a few of the common questions we like to consider as we evaluate the processes the mock jurors used to reach their verdicts.
1. What do jurors want to talk about most (and how does that impact the overall discussion)? The old saying in our field is that a verdict is a product of what jurors choose to talk about most in deliberations. Focus is zero sum. If jurors are focused on and talking about one thing, they are not focused on and talking about something else. Different focal points create different levels of momentum for each side. So, the first thing to identify is what jurors wanted to talk about most and if it proved favorable to the client, how to reinforce that as the key focal point of the discussion in deliberations. If not, it’s time to find something else jurors will want to talk about and build up a case presentation that makes that issue more interesting to talk about.
2. What is stickiest? We have all heard variations of the statistics about how much jurors remember by the time they reach deliberation, with some suggesting retention is as low as 10%. We can debate which stat is accurate, but they all demonstrate jurors will not remember the majority of what they heard over the course of trial by the time they reach deliberations. Consequently, trial strategy in many respects is a battle for saliency and stickiness. If the stickiest (or most memorable) facts favor the other side, that is not a good sign. Fortunately, jury research can shed light on how to make your arguments and key facts more memorable, but this brings to mind a critical warning related to this exercise: if everything is important, nothing is important. Making arguments sticky involves difficult choices about what you want jurors to remember most. The battle is for the 10% and should not become a battle to try to defy the odds on juror retention.
3. What is difficult for them to re-articulate? This is probably the most overlooked question in jury research. It is not enough to be persuasive because jurors are rarely in perfect agreement at the start of deliberations, even though they may eventually reach a unanimous verdict. This means that they will have to argue in deliberations, and you will need your motivated advocates on the jury to be able to re-articulate your key arguments. Consequently, considerable attention should be given to this component. Do the mock jurors who favor your client seem comfortable and confident when making arguments on your client’s behalf in deliberations? Are they highlighting the right evidence for each argument? Are they able to defend these arguments when there is pushback from mock jurors who favor the other side? Unfortunately, in complex cases, the verdict is often influenced heavily by those most willing to speak up and offer an opinion about all the complex issues and sometimes it matters very little whether the person most motivated to speak up in these instances is correct in their understanding of the issues, evidence, and law in the case. In a previous column, we referred to this as complexity randomness.
4. How do their personal experiences intersect with the case? One of the tenets of jury economics is that jury decision-making is egocentric. Every juror is the center of their own universe and the most common way they make sense of unfamiliar information is to relate it to their own lives by drawing on what they see as relevant personal experiences. Mock trials allow clients to see what the most common experiences are that lead to egocentric views that favor one side or the other, which can provide critical insights for jury selection. It is shocking how much deliberation time is filled with mock jurors talking about their own personal experiences, but these data points create opportunities. We have had plenty of instances where a mock jurors’ personal anecdote proved particularly compelling and we adopted it for our trial presentation.
5. What is completely lost on them? There are numerous examples of mock jurors completely ignoring evidence or arguments the attorneys or clients thought were game changers in the case. It is demoralizing when it happens but is an important learning opportunity. It is not something you can ignore. The key is always to have time set aside after deliberations for a consultant or facilitator-led group interview so you can dive into why the mock jurors did not seem to care about the evidence or issue. It may be that they did not understand it or its connection to the central issues in the case. Often, we learn that we just need to talk about it a little differently so they better understand why it should be at the center of their discussion.
These are just five simple questions attorneys and their clients can ask themselves as they watch mock jury deliberations and develop trial strategy. Collect the deliberation maps, identify the most common routes to victory, and develop a trial strategy which reinforces these paths while avoiding the side roads that lead to different outcomes.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Litigation Consultant at Perkins Coie in Denver, CO.
