I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases. They can also be useful in trying to estimate a potential adverse verdict range. I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients. It was only because my firm represented such clients that I was able to get this first-hand experience.
Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets. Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.
The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend. I’m most familiar with the mock trial exercise, so we’ll use that format. This requires, at a minimum, a suitable space and mock jurors. “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes. If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate. Suitable also means private. While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place. Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.
Mock jurors–where to find them? If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury. This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap. I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like. Be prepared, not only to compensate the mock jurors for their time, but also to provide parking. Thought should be given to providing food, assuming the exercise is going to last more than 3 hours. It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.
If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise. However, you still must find jurors from somewhere, which means employees, family and friends. This might mean biases will come into play. While unavoidable, this biases must be “factored into” the results of the research.
If the budget makes it possible, I highly recommend involving a jury consultant. While some research can be done without one, it will be far less focused and productive. The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing. Crucially, a good jury consultant will help synthesize the information gleaned from the exercise. After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.
To provide a concrete example of how this might work, my last mock trial lasted one full day. The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m. They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire. My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement. Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.” Each side then presented about one-half hour of “evidence.” This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence. Some evidence was presented simply as “facts to be assumed.” Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session. Somewhere in there we excused the mock jurors for a brief lunch break.
Most interesting and informative was the post-trial debriefing session. Certain important facts had been purposely withheld from presentation during the mock trial. These were then revealed incrementally. This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations. We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.
There are countless variations on this approach. You can eschew the evidence presentation and simply read facts the jurors should assume. You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received. There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations. The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise. In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.