The method we use in our mock trials is advocacy based. We believe that the best way to obtain an accurate read of how jurors perceive a case is to present a mini-trial. In this format, we generally follow the typical order of a trial, beginning with jury selection1 and concluding with closing arguments2.
Mock jurors fill out a juror questionnaire that is prepared and submitted to the attorney’s office for review and input. As a result of the information we gather from the questionnaire, jurors who would be subject to a challenge for cause can be excused. In most instances, no more than one juror is excused for cause, since many of the jurors who would be subject to a challenge for cause are excluded during the screening process conducted by our screeners in advance of the mock trial.
Each side gives a 10 to 15 minute Opening Statement. We believe that Opening Statements are a critical stage when jurors form initial opinions about a case. The goal in our mock trials is to test theories, demonstrative aids, evidence, and witnesses. With these objectives in mind, we want attorneys to give a brief overview of the case and let the story unfold with the witnesses. Our primary concern is testing our themes and demonstrative aides to see if they are effective. Each side presents 3-5 demonstrative aides during the course of Opening Statements. Items we believe are particularly helpful to jurors during Opening Statements are: 1) Parties’ chart (familiarizing the jurors with the names and relationships of the key players); 2) Time line (a simple chart outlining the relevant dates and critical events); and, 3) the most relevant and probative exhibits or evidence (limited to 3 or 4 exhibits per side).
When Opening Statements are only verbal, jurors retain a mere twenty percent (20%) of the information. When Opening Statements are delivered with helpful demonstrative aides, jurors’ retention levels soar to eighty percent (80%). This is the guide when preparing your Opening Statements.
The Case Presentations are not done in summary form. Our experience shows that this delivery method is not the most effective unless we are conducting a focus group. We suggest the traditional witness approach with direct, cross and re-direct. We prefer this method because it accurately reflects the ebb and flow of a trial. Even the best witness loses points during an effective cross-examination. A summary presentation loses this critical element of trial dynamics. Our approach serves a second (and equally important) goal which is to test our witnesses under the scrutiny of cross-examination. Even if our witnesses are superbly prepared and deliver on direct, if they cannot withstand a thorough or vigorous cross-examination, the impact of their testimony will be diminished. Thus, this exercise is beneficial to the client as a trial preparation tool and gives us valuable insight as to jurors' reactions to our witnesses.
The logical question that arises is, what about the opponent's case? In civil cases, depositions that have been videotaped allow us to use vignettes from those depositions. If we do not have videotaped depositions, we sometimes suggest that actors who match the witnesses by demographics and demeanor familiarize themselves with the anticipated testimony of the witnesses and play these roles. It is critically important that the person(s) playing the role(s) invest time and effort so that he/she knows the facts and can deliver the information in a convincing and persuasive manner. Witnesses must have an excellent grasp of the facts in order to convey their beliefs in a convincing fashion. To assure a balanced presentation, if actors are used for opponent's witnesses, the actors should be compelling and convincing.
The Charge to the jury should be as clear, concise and simple as possible. However, accuracy must not be sacrificed for simplicity. For purposes of the mock trial, jurors should receive generic and general pattern instructions. It is a waste of time, money and energy to include instructions that are speculative or wishful thinking.
Experience has taught us that Closing Arguments are generally the least important aspect of a trial. Most intelligent and powerful jurors have made up their minds by the time the evidence has concluded. Rarely, if ever, will Closing Arguments have a measurable or profound impact on jurors. Therefore at research, we generally encourage lawyers to dispense with Closing Arguments. This gives the mock jurors more time to deliberate. We have an alternative proposal: Videotape a 10-15 minute Closing Argument and at the end of the Case Presentations ask the mock jurors if they feel Closing Arguments would be helpful to them. If a majority of the jurors answer in the affirmative, we then proceed to jury instructions and then Closing Arguments.
As a rule, mock trials consist of 18-22 participants who match the general demographics of a jury pool from the jurisdiction where the case will be tried. The demographics we use are: gender, age, education, race, employment, and income.
We obtain our mock jurors from a variety of sources. We seek jurors who are verbal, intelligent and strong from each of the various demographic groups. Since we never know from which demographic group our jury leaders will come, we attempt to find such leaders from each demographic group.
FORMAT OF PRESENTATION
There are two alternatives for the presentations; those that are made in-person and those that have been pre-recorded (videotape). We have conducted mock trials both ways. Without question, we find the latter (videotape) the most beneficial. We feel this way for several reasons: (1)Presentations made in-person diminish the candor of the jurors during debriefing and deliberation. Jurors know that the lawyers are either watching or, at the very least, are in the vicinity. We want jurors to be as blunt and honest as possible; (2) Presentations made in-person inevitably exceed time limitations, become burdened with objections or extraneous matters, and/or do not allow for the best possible delivery of arguments or testimony; and, (3) Jurors form impressions based on personalities.
Video presentations eliminate these problems and accomplish our goals. Videotaped presentations start each side on a level playing field. The ultimate question of in-person versus videotaped presentations must be decided by the attorneys, but our general recommendation is that video presentations are used.
COST OF RESEARCHBelow is an estimate of costs for some research projects:
Please note that these figures are an ESTIMATE ONLY. Our estimates are generally within fifteen
Some attorneys prefer that we conduct the debriefing of the mock jurors throughout the course of the mock trial. Other attorneys prefer that we wait until after the jury has rendered a verdict to debrief. There are pros and cons to each approach. Our recommendation is that debriefing be conducted after each critical stage of the presentations (written), as well as, after each jury has rendered its verdict (oral). In this way, we learn what has impacted the jury during each phase of the project. If we conduct only a post-verdict debriefing, jurors are tired, ready to go home and normally cannot recall details of the witnesses' testimonies. We conduct our initial debriefing by giving the mock jurors forms to fill out as the case unfolds. The post-verdict debriefing is conducted by Associates of Cathy E. Bennett & Associates, Inc., and can include participation by the attorneys if requested.
DATE AND LOCATION OF RESEARCH
We conduct our research on weekends. The primary reason for this is to assure the greatest possible cross-section of participants. Generally, when research is conducted during the week, the research pool is reduced to homemakers, students, the unemployed/self-employed, and retirees. Obviously, this is not an accurate cross-section of a community. Research can be conducted at night to obtain a better cross-section, but this severely restricts case presentations. Additionally, most participants are tired and restless from a day spent working.
Research must be conducted far in advance of trial to obtain the maximum value from the information learned. It is a serious mistake to wait until the last minute to conduct this research.1 Voir dire is conducted in the form of a juror questionnaire.
2 We believe that closing arguments are not very effective except in close cases. Therefore, we recommend that closing arguments be optional and let the mock jurors decide if they want to hear them.
3 charges $2,000 plus expenses.
4 This is the payment to the participants. We are calculating the incentive at $200.00 per day.
5 This includes the preparation for and running of the research with at least two (2) C.E.B. employees present for the mock trial.
6 This includes the hotel facility and catering.
7 This includes airfare for two CATHY E. BENNETT & ASSOCIATES, INC. consultant, hotel, meals, travel time, long distance, screening expenses and all out-of-pocket expenses.
8 Total cost does not include an in-depth or extensive written report or analysis of the mock trial. An in-depth report or analysis can be done, time permitting, for an additional fee.