For a time, COVID-19 stopped civil trial practice in its tracks. After several disorienting months, the beginning of a “new normal” is appearing on the scene. One with Zoom depositions and hearings and, in some cases, even Zoom jury trials.
Lawyers may be naturally reluctant to embrace a fully virtual litigation practice, but at least part of it is here to stay, and with good reason. In a pandemic world, lawyers and judges are beginning to work remotely en masse thanks, in part, to online resources available to reliably connect and present cases effectively.
Focus groups and mock trials are now integral to modern litigation practice. These sessions can help attorneys evaluate the strengths and weaknesses of a case “outside the bubble” created when an attorney buys into his client’s inflated expectations about recovery. In the later stages of pretrial preparation, a mock jury can help lawyers warm up for and scrimmage their trial presentation. If Zoom depositions and hearings are becoming the new normal, why can’t the same be true for Zoom focus groups and mock trials?
The truth is that it is indeed possible to conduct case and trial simulations via Zoom or a similar platform. In our trial consulting practice, we have conducted multiple online focus groups over the years, thus we were not caught off guard when the pandemic hit. From our perspective, this is the time to be looking hard at intake and working up cases for trial, and focus groups are an ideal tool to evaluate the strengths and weaknesses of a potential case.
Zoom-based focus groups can replicate every aspect of an in-person session. Doing it online eliminates on-site costs such as facility charges and juror meals. Most online tools allow the host to record the session “in app” for later review. Exhibits can be displayed on-screen.
In our consulting practice we make a fundamental distinction between “focus groups” and “mock trials”. Focus groups are earlier case sessions that are less formal and designed to get a handle on case strengths and weaknesses in enough time to make course corrections. These exercises should take place before mediation. Mock trials serve a different purpose: getting ready to try the case. Both can be done online. To give you a better idea what it can look like, consider this sequence of phases taking place in either a less formal focus group or a more formal mock trial:
1. Informal Dialogue with Group Members or Formal Voir Dire of Mock Jurors: In an earlier stage exercise, we typically begin with a dialogue with each member and touch upon attitudes common to any civil case and then hone in on case-specific issues. In a voir dire simulation, our attorney clients question jurors much like they would do at trial. We use opposition role play and we would therefore question mock jurors from an opposition perspective.
2. Initial Case Summary or Formal Opening Statement: In less formal sessions, we provide group members with an overview and summary of the case. This may involve presenting demonstrative exhibits. Zoom makes this easy through the “shared screen” function. In a more formal mock jury session, opening statements can be presented together with trial graphics. We would present the opposing viewpoint as aggressively as possible in our own opening statement.
3. Video Presentation of Client: Regardless of whether the session is early or late stage, we like to present a videotaped questioning session of the real client. Regardless of formality, we use opposition role play to try to ensure that the group members or mock jurors hear both sides of the story. Frankly, we try to be as aggressive as possible in mock cross-examination and feel we have the leverage to do so unlike our attorney clients who may endanger the trust of their client if they go “too hard”.
4. General Evidentiary Presentation: The rest of the case presentation will depend upon and scale to the type of exercise and complexity of the case. Whether formal or informal, we have presented additional videos, documents such as medical records and contracts, as well as demonstrative evidence of all types.
5. Case Summary or Closing Arguments: As you probably can guess by now, in a less formal session we can present a case summary with any additional comments necessary given by our client attorney while in a more formal session full-blown closing arguments would be presented. The full range of presentation tools can be used to make sure session members understand each side of the case. Regardless of formality, we will typically go over the jury instructions and will provide the group a mock verdict form to complete.
6. Deliberations and Debriefing: In less formal sessions, we ask group members to fill out a comprehensive questionnaire in conjunction with an individual verdict. In more formal mock trials, we have jurors deliberate to an attempted unanimous verdict. This is one place where Zoom shines with a breakout room feature. Regardless of the session type, we debrief participants afterwards for feedback. Even late in the game course corrections can be made.
In a time when so many businesses are shuttering, trial lawyers need to decide whether to throw in the towel or to adapt using the technology at hand. I’ve hopefully demonstrated that Zoom focus groups and mock trials can be incorporated into your civil litigation and trial practice. If you are willing to think outside the box and experiment with these tools you can take your practice to the next level rather than make excuses for falling short.