MOCK TRIALS REVEAL JURORS’ UNCOMMON WISDOMS

Mock trials have many benefits. Attorneys hire jury consultants to conduct mock trials to learn (or confirm), among other things, the strengths and weaknesses of a case, the story jurors will adopt when deciding the case, and what questions jurors have about the issues. But mock trials also provide a certain level of entertainment – for me at least. I’ve learned to love the uncommon wisdoms spouted out of the mouths of mock jurors. While my clients are busy wondering how they are going to replace the hair they just pulled out of their head, I am taking note of the sorts of things our fellow citizens believe to be true. I’m not sure I realized just how many of these uncommon wisdoms I had stored away in my brain until I saw the trending news story in early October about the alarming number of people who believe Ridley Scott’s The Martian is based on a true story. Don’t believe me? Just do a simple Google search for “What? We’ve never been to Mars?” Apparently, Twitter was aflutter with tweets from people poking fun at their friends and family members who were surprised (and hopefully embarrassed) to learn that Mark Watney is just as fictional as Jason Bourne.

To double check just how far off this belief was, I asked my seventh grader if he thought The Martian was real. I let out a sigh of relief when he laughed and said, “Uh, no! But that would be so cool!” Phew, one more checkmark on the “I’ve done my job as a parent” list. But how can so many people hold this thought? It’s not an opinion. It’s simply wrong. While misinformed people can be entertaining in and of themselves, what really makes this interesting is the adamancy with which people insist that their misinformation is right. This is when I start thinking about the last 15 years I’ve watched mock jurors engage in the deliberation process. While the evidence and facts presented in the case are a central focus of the deliberation, sometimes something from left field enters the discussion: “No really, it’s true. It’s been proven that drinking water from the Snake River makes you go blind,” said a juror in a toxic tort mock trial. These types of comments usually come from a highly motivated juror who will not let the rational persuasion from fellow jurors budge them from their position.

Rational Juror: “But you heard the doctor explain that he tied a second stitch to the cannula.” Unwavering Juror: “But he looked up and to left when he said that and it’s a scientifically proven fact that you look up and to the left when you lie.”

Thankfully we have a jury of 12, so that misinformation doesn’t play an influential role in deliberation. The adamant juror may not change their mind, but he or she is not likely to convince others that Coca-Cola still has cocaine in it, Apple stole the iPhone idea from a girl in Guatemala, Police officers have perfect aim and never miss, or that the brown seed inside a sunflower shell is a tiny worm. Most of the time such claims are quickly discredited and remain only in the mind of the unwavering juror.

Generally I don’t do much more than chortle at preposterous claims, but every once in a while, misinformation will infiltrate the decision-making process. This one is most common: “Everyone knows the attorneys will take half.” I’ve also seen more than one jury base an award on the idea that it’s insurance company standard to pay $5,000 for a lost arm and $25,000 for a lost leg. Similarly, I’ve seen more than a handful of juries not bat an eye at an award of $10M or higher against the Catholic Church because, “The Vatican has an unlimited amount of money to cover the cost.” This misinformation is not as easily dismissed as the idea that NASA accidently left a man on Mars for two years. Stumbling across this kind of misunderstanding merits more than a chortle. It’s time to strategize about how and when to educate the jurors about the truth.

Conducting a mock trial early in the case can reveal the risk that an outlandish seeming yet pervasive claim might actually change the jury’s decision. Learning this early could prompt the decision to find a fact or expert witness to “correct” misinformation. For example, we learned long ago in patent mock trials that most jurors come to the table with the assumption that the PTO could not possibly make a mistake and issue an invalid patent. As a result, we always recommend including a heavy “patent application process” tutorial as part of the opening statement. In this tutorial we dispel the myth that the PTO has the burden to research the prior patents. We teach the jurors that it is the patent applicant who must submit the prior art. This not only makes the defense of invalidity much easier to present, but also quells jurors’ concerns about telling the PTO that it got it wrong.

Most of the time, clearing up misinformation is as simple as adding a short chapter to your opening, or asking one or two questions of a particular witness. In the case of The Martian, the simple disclaimer, “Not based on a true story” would have freed up social media space for things other than laughing at Grandma’s insistence that we really have grown potatoes on Mars.