Most people who sell a product spend their time talking about what it will do. If you sell cars, you get to tell customers which car fits their family's needs. If you sell computers, you get to explain which one is best for a gamer, or a photographer.
Mock trials are different. When your "product" is an appropriately designed mock trial, conducted with insight and (with luck) no glitches, you spend a surprising amount of time explaining what mock trials don't do.
Over and over, lawyers and their clients tell me they want a mock trial for one or both of two reasons. They want to predict how the real jury will decide their case, or they want a demographic profile of the perfect juror. Over and over, I explain that a mock trial won't do either of those things.
Mock trials don't predict the real outcome
It's obvious that mock trials aren't predictive, if you think about it even briefly. The list of variables you can't control in a mock trial includes practically every aspect of the exercise:
- The judge, who often will have a huge influence on the real trial, won't be there.
- One legal team will be entirely different and the other probably won't exactly match the real trial.
- While lawyers are typically so competitive that both sides try hard in a mock trial, the incentive for the "opponent" to win is different from the real thing.
- The mock jury usually won't hear (and thus won't like, dislike, or be confused by) live witnesses in the presentation phase of the mock trial.
- The lawyers will condense their presentation of evidence and documents -- which will almost certainly improve the presentation, but also make it different from a "real" trial.
- The jurors' relationships with each other and group dynamic will be different after a shorter trial.
- The lawyers will learn from the mock trial and alter their "real trial" arguments, and voir dire, accordingly.
Most important, even if you could control for everything else, the real trial will have different jurors. The groups are too small to ever be statistically predictable. In our mock trials we usually have three juries, who by definition have all heard exactly the same presentation. Almost never do all three juries rule for the same party.
Mock trials don't generate demographic profiles
You can certainly gain insight from a mock trial about what aspects of jurors' background might make them react favorably, or unfavorably, to your case. But pure demographics aren't the magic key people think they are, and even to the extent they're helpful, if anybody tells you that a mock trial will reveal your perfect demographic, I submit that person is mistaken. Again, you can judge for yourself, even if you never took statistics:
- The mock trial sample is usually too small. In a Milwaukee mock trial group of 18 or 24 jurors, we'll have only a handful of African-Americans. Even if they all vote the same way, the group isn't large enough for us to sensibly interpret their vote as representative of African-Americans in the city. You need many, many more mock jurors before you can begin to draw demographic conclusions.
- More important, the real jury is always too small. Say you somehow had the budget to hold mock trials including hundreds of jurors, and you decided that 90% of Asian-American women were going to vote your way. Now you're doing the real voir dire, and sure enough there's an Asian-American woman. Is she in the 90%, or the 10%? There's no way a mock trial can tell you.
So why do them?
If it doesn't predict the outcome and it doesn't automate voir dire, why do I believe that a mock trial is one of the most powerful tools a trial lawyer can use? Here are some of the reasons:
- Mock trials bring insight, important insight, every time without fail. You do a mock trial not to see what will happen, but to see what could happen. Lawyers and especially clients are always shocked to watch juries discuss their case -- mispronouncing names, screwing up the math, reacting with deep emotion, and identifying counterarguments, both sensible and wacky, that the legal team never thought of.
- Mock trials fill the gaps. By definition, you don't know what's missing from your case. If you did, it wouldn't be missing. Mock jurors will tell you, very clearly and often with great impatience, what you should have included.
- Nothing else intensifies preparation in the same way a mock trial does. Even before the mock gavel falls, lawyers and clients have to come to grips with their case to present a mock trial in ways they usually haven't before, even if they're really good. More than once I've seen a lawyer understand (or have myself understood) the real impact of a document or a piece of testimony for the first time in the middle of the night before a mock trial.
- Mock trials powerfully sift the evidence. In the months, weeks, and even days before a mock trial, I often see lawyers mired in their exhibit lists, unable to see which of the scores of documents they've listed might perhaps be left out. When you need to give a short presentation to a roomful of strangers in a couple of days, the ten best documents and four best deposition quotes have a way of standing out from the rest.
I believe in mock trials. That's why I keep explaining that mock trials don't do what everybody thinks they're supposed to.
(Photo by Amanda Wray at http://www.flickr.com/photos/livinginmonrovia/92991157/; license details there.)
