Fury Bailey - Personal Injury - Wrongful Death Attorneys

MOCK TRIALS: HOW TO DO THEM AND WHAT THEY CAN TELL YOU

William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

One of the best things that I ever learned from Justice Tom Chambers of the Washington State Supreme Court when he was a practicing trial lawyer was the necessity of doing focus groups and mock trials on all pending cases of importance. I had a mental block before then, thinking that these were too complicated and difficult. Yet, the cost of subcontracting with an outside consultant for this purpose was prohibitive, $10,000 or more. I felt caught between a rock and a hard place, realizing the value of mock trials and focus groups , but concluding that these were a luxury rather than a necessity.

It was during a conversation with Tom about his astonishing victory in Rinks v. Bearss that I finally understood that mock trials were both easy and inexpensive. In the Rinks wrongful death case, Tom had done four of them, coming out with a total verdict of more than $4 million dollars each time. Tom kept thinking, “This can't be right.” And what was the actual result when the case was tried to a real jury? Four million dollars. The way Tom presented how simple the procedure for mock trials really was, I felt a little silly for having thought it was so difficult:

These are really simple to do. You take out a classified ad in the newspaper and tell people that you will pay them $50 for half a day and provide lunch. You'd be surprised how many people call to do it. I have my assistant screen the calls and try to set up a panel that is balanced according to age, gender and occupation. If possible, I try to err on the side of picking more conservative sounding jurors, just because I do not want falsely optimistic results.

You set a time for the jurors to come to your conference room and put on an abbreviated form of the evidence. Afterward, you have them fill out a form with both their opinions and demographic information. Then they deliberate as a group, guided by the verdict form that you give them. You set up a video camera in the corner of the conference room so that you can catch all of their discussion of the issues. When they reach a decision, you then come in to debrief them, asking pointed questions about your concerns in the case.

My practice changed forever after this conversation. I have received so much useful information from mock juries over the last 11 years that I would not think of going to trial without having conducted at least one. While I have never done as many in an individual case as Tom did in Rinks , case, it has always been true that the more of them I do in any particular case, the more I know and the better prepared I am for trial.

RUNNING THE AD AND SCREENING THE CALLS

Our standard newspaper ad reads as follows:

We will be conducting a mock trial in ______, on _______ (date and time). The trial will be interesting and will last approximately four hours. Jurors will be paid $50 for their work and lunch will be provided. If you are interested, please call ________ (name of staff member) at ________ (office phone).

The ad is run in the part-time/temporary section of the classified employment ads in the local newspaper. If we are doing the mock trial in an area outside of Seattle , we try to borrow a conference room from a local lawyer. Lacking that, we look for a local community center or a hotel/motel conference room we can rent.

Typically, we get at least 100 responses or more to an ad in the Seattle newspapers. (When unemployment rates are high, this number has spiked up to over 400 calls.) All potential mock jurors are asked their age and regular occupation or trade during the course of the call. If retired, we ask them to identify what they formerly did. We then try to fill the jury initially by attempting a rough split between genders, age groups, white/blue collar occupations and area codes, if applicable. Once we have enough jurors, we keep taking down this information from all subsequent callers and keep a running list for potential use in other cases. The last time we ran an ad was about two years ago and names generated from this effort have been used for five or six additional mock trials.

QUESTIONNAIRE FORMS

We have a standard form of questionnaire that we end up adapting to the specific needs of each case. (See Exhibit 1 .) The first part of the form asks each juror for their responses on liability:

•  Who should win?;

•  The three main reasons why;

•  The key issue or major point deciding who should win;

•  Do they believe everything the plaintiff is claming?;

•  Do they believe everything the defense is claiming?;

•  Would they like more information to decide the case? If so, what?

•  Assign a percentage of fault to each entity likely to be involved in the case.

The second portion of the form pertains to each juror's vote on money damages, asking to make an award in the event liability is found, stating the key issue or major point on how large the verdict should be. In the event that there is a an allegation of comparative fault, each juror is asked to respond on whether they feel that the plaintiff was negligent and, if so, whether this contributed to the injury.

PROCEDURE DURING THE MOCK TRIAL

When we first started out doing mock trials, my law partner and I were opposing counsel and did a half-day mini trial. We typically used many exhibits and called certain live witnesses, including our client.

After doing several in this fashion, in reviewing the videotapes of the jury deliberations, we found that too much of the discussion focused on the techniques and appearances of the lawyers. In discussing this problem with others who do mock trials regularly, the perceived solution was to simply read a neutral statement of the case, without any semblance of the adversary process. (Though we continue to show the jurors key exhibits, diagrams and excerpts of videotapes.) This method has worked far better, with fewer diversions among the jurors.

Typically, it takes about half hour to forty-five minutes to present the case. If we show videotapes of the depositions of key witnesses, these are severely edited to only the key points. The jurors are permitted to use the exhibits in their group deliberations later on.

At the conclusion of the case presentation, the juror questionnaire forms are passed out. Typically, some complete these within 10 minutes, while others take as long as 45 minutes to do the same thing.

Once the last juror has finished their questionnaire, we then give them a verdict form and ask them to deliberate as a group. The video camcorder has been previously set up on a tripod in the corner of the conference room and is activated as we leave the room. The jurors are told that this will only be for our purposes in reviewing the results of the mock trial. If your office has the technical capability to do a live feed from the camera to an adjacent viewing room, this is even better.

Once the jury has reached their decision, we go through an extended debriefing process, asking them about the key elements of their decision and what they found most persuasive as the discussion went on. Often during these discussions, we will get surprisingly good analogies, themes and arguments to be used in the actual trial.

CONCLUSION

Many trial lawyers appear to not conduct mock trials as a regular part of their practice. If I am right about this, it is long overdue for a change. Doing a mock trial prior to any mediation gives you the potential benefit of being able to respond to liability or damages arguments made by the mediator or the other side. Mock trial results are also very useful in responding to all the jawboning that invariably goes on in a mediation.

The biggest caveat to be applied with mock juries is that while they can be predictive, they are also prone to sampling error. The group you end up with through the newspaper and the group that ultimately sits in the jury box in the courtroom where you are trying the case may be very different. It is important that you take mock trial results with proper perspective – one source of information among many about how a real jury might respond to the facts of your case.

But in the experience of this lawyer, the results of the mock juries in my cases have always been helpful on both liability and damages issues and in many cases, predictive of what the real jury ultimately awards. Beyond this, there has not been a case in which I have done a mock trial where it has not helped both my confidence level and sense of the upside/downside potential as I head into the courtroom. For this reason, they should be done as the rule rather than the exception, helping you to better serve your clients.

While these terms are often used interchangeably, I usually do something closer to the more structured mock trial format, having a group jury deliberation that closely resembles the real thing, with a verdict form to complete.

Copyright © 2005 FuryBailey.com - Sitemap