- Tsongas Litigation Consulting
Optimizing Mock Trials for Competitive Advantage: Five Tips
Updated: Nov 25, 2022
By Chris Dominic, President & Senior Consultant
I was talking to a civil litigation attorney (client) regarding her observations on the rise in mock jury research. Knowing that her opponents are just as likely to be doing their own research, she wanted to know, “How do we get an edge? What can we do that gives us the most benefit for the work we do?”
I thought back to 1997 when I was working on my first civil litigation mock trial. Back then, actual trials happened more often, and mock trials tended to happen when settlement talks failed. Getting a competitive advantage from a mock trial over your adversary could often be obtained by conducting this kind of jury research simply because it was less likely the other side had the power of a mock trial guiding their settlement or trial strategy.
Mock Trials have now become an essential tool in litigation. Corporate counsel tends to expect jury research in major cases, and outside counsel presumes they will need a mock trial to work up a case effectively. One of the reasons for this is the presumption that the other side will also conduct jury research, leaving some to feel that not conducting research is operating at a competitive disadvantage. My lunch conversation wasn’t the only time I’ve discussed this. I recently had a conversation with a large group of trial consultants at the American Society of Trial Consultants Conference and I was struck by how similar our perspectives were on this subject.
So, if mock trials are becoming more and more common, how can you get the most out of them and still gain a competitive advantage?
Qualify Your Jury Consulting Partner
We'll start with be proactive. It sounds easy enough, but things like unexpected summary judgement rulings or spoiled hopes of settlement often put a trial team in reactive mode. Suddenly you find yourself scrambling to engage a jury consultant not long before trial. If the case is sizeable enough to merit research, planning should occur as early as possible.
The earliest a mock trial should be conducted is typically 75%-80% of the way through discovery (If you are thinking, “but what if we want to learn as much as we can early to help guide discovery?” good thinking, but the more appropriate tool is probably focus groups). Ideally, a mock trial would be conducted after crucial rulings from the court. Unfortunately, these rulings often come inconveniently late. Making informed estimations of those rulings can be uncomfortable, but necessary. It’s more common now for clients to contact us with the specific goal of conducting the research before settlement talks or mediation so decisions made during these meetings can be as informed as possible.
Once you’ve done some planning, you can proceed to qualifying your jury consulting partner.
Qualify Your Jury Consulting Partner
There are two variables to consider when qualifying your jury consultant: performance and style.
When considering performance, it’s helpful to know a few of the indicators of quality in jury research. The fundamentals are participant representativeness, confidential screening of participants, consultant experience level, and technological capability.
The goal is to get mock jurors who are most like who would show up to trial in the venue. Therefore, asking your jury consulting partner, “how do you recruit your mock jurors?” is essential. Quality recruiting today involves blends of recruitment methods, including various social media, online platforms, and Random Digit Dialing (RDD), to reach the broad spectrum of participants required. Considering these methods, quality recruiting typically takes a few weeks.
Confidential Screening of Participants
Mock jurors should be screened to ensure confidentiality. Anyone who knows any of the parties or witnesses in the case should be excluded, along with anyone else who may be a risk to confidentiality. Jurors who would be a likely cause challenge at trial should also be excluded. Foils should be used to prevent these individuals from knowing why they were excluded from jury research. Foils are irrelevant questions that seem relevant to the prospective mock jurors asked by recruiters after the disqualifying answer is made.
Consultant Experience Level
As with any consultant or consulting firm, experience doing jury work in a particular type of litigation or venue can make a difference.
Do you want to see aggregated data you can interact with on the day of the research? If so, you’ll want your consulting partner to have the technology to collect questionnaire data from participants and display it in a format where you and others on your team can quickly and visually interpret it and interact with it.
It’s important not to confuse performance with style, but fit matters. Some work styles go well together, and others do not. Collaborative teams have an advantage over dysfunctional teams. Getting the synergies of a good collaboration with a bad fit is challenging.
The next tip is to define your research project actively.
Another way to obtain a competitive advantage is by defining your research objectives before designing or executing the project. Mock trials exist to help a trial team learn. So, what do you want to learn? Brainstorming a list of research objectives as a team and then culling the list down to the essentials can be a very powerful process.
Design involves setting the action plan and getting the project in motion. Ideally, the trial team and the jury consultants meet and discuss how to best balance the presentations, who will present for which side or which component of each side, etc. This is also when we would determine which stages of the day, or days we will be applying questionnaires, where we will conduct the research, etc.
Once you’ve designed the project, the final step is to execute the project deliberately.
The effective execution of the mock trial involves significant logistical work on the part of the jury consulting team. The trial team, during this phase, develops presentations and practices their speeches leading up to the day before the fielding (i.e., the day when the mock jurors show up). The day before the fielding is the day the project is set up, and the speakers do a run-through. Depending on the need, the run-through can be anything from a tech check to a walk-through to a full dress rehearsal. This run-through is in front of some segment of the jury consulting team to balance, refine, and measure the presentations.
Consultant feedback on the balance of the presentations can be extremely helpful if they are experienced in the relevant type of litigation. Much of the effort here is on inquiring with the trial team if the evidence supports the other side being able to argue something at trial that may be more persuasive than the current presentation. This increases the integrity of the research. If we obtain favorable results, we want to have confidence in them.
Consultant feedback on the speech performance can also increase the integrity of the research. Executing a speech effectively involves good structure, content, and delivery. All too often, not enough time is spent on delivery (e.g., eye contact, tone changes, volume changes, pauses, upper body gestures, lower body movement). The expectations of jurors and mock jurors alike are often high, and disappointing them can affect persuasion.
Much can be done to design the questionnaire effectively in the design phase. However, sometimes a thorough review of the presentations will lead to small but essential changes in those questions as well as entirely new questions.
By being proactive, qualifying your jury consulting partner, defining actively, designing appropriately, and executing deliberately, you optimize your mock trial and increase the chance of obtaining a competitive advantage.