The best trial attorneys know that focus groups and mock juries can offer invaluable insight into case valuation and client performance. They use trial simulations to test trial graphics and case themes. They know that the feedback from real-life jurors may sometimes be the only means to control unrealistic client expectations.They incorporate trial simulations into virtually all of their cases.
With so much to gain from focus groups and mock juries the temptation is to get started… on your own. While the impulse to start doing trial simulations is the correct one you should pause to consider the downside of trying to do this yourself. Consider these DIY risks…
- DIY trial simulations risk alienating the client: the focus groups I conduct invariably incorporate a video of the client – a direct, cross and re-direct examination. How else can mock jurors assess a client’s performance as a witness? Realism mandates that the mock cross examination be as harsh as the one expected at trial. And therein is the problem: should you be the one to level the hard cross examination questions in a mock trial exercise? I submit that an attorney risks undermining his client’s long term confidence in him by pounding the client with questions about malingering, criminal convictions, evasiveness etc. A lawyer conducting a DIY mock cross examination may do so good a job that his client comes away from the exercise questioning whether his attorney really believes in his case. Isn’t the cross examination job better left to a trial consultant with the legal training to do it?
- You and the client are living inside a bubble: unrealistic trial simulations are a waste of time and money. Realism demands that someone play the worthy opposition. Hopefully, you believe in your client. You may well believe that your opposition’s case is completely frivolous. Have you stopped to consider that six people chosen at random from the voter or driver’s license rolls just might see things differently? All trial attorneys wear blinders to some extent. We all have blind spots. Real life jurors will draw upon life experiences and yes, biases, to decide the case. A trial consultant not living inside the case bubble is often better equipped to spot and examine case weaknesses and juror biases in a trial simulation. A trial consultant with legal training, ideally a lawyer, can play the opposition more effectively than you can or should.
- You are not the best equipped person to find mock jurors: the DIY approach means populating your focus groups with friends, family and co-workers. The problem with that is several-fold. The goal of a trial simulation is to gain a realistic insight into your case from the eyes of those most likely to sit on an actual jury. That means finding a diverse panel: diverse attitudes, diverse demographics. Your circle of acquaintances is probably not as diverse. Most of us gravitate to those with like minds and attitudes. Your acquaintances might also hold back on the brutal honesty you need. Additionally, you are probably not the best equipped to recruit a more diverse panel. Mock juror recruitment is hard logistic work. Your staff is already busy. A great trial consultant should have a database of demographically and attitudinally specific mock jurors to call upon.
And so… the sooner you get started using trial simulations to evaluate your cases and to prepare for trial, the better. But don’t make the mistake of doing it yourself. A legally trained trial consultant can save you from trying a loser or find the hidden gold in your case inventory.