One goal of every advocate in arguing a case should be to learn the decision-making process used by the judge or jury. Gauging the judge is relatively easy. You can read prior opinions, observe the judge in court, and ask colleagues about how the judge operates. Learning about the jury, though, is more complicated.
How do you practically learn about a jury or how individual jurors will respond to your case? The challenge becomes particularly vexing in Maryland state courts where the jury selection process is far more limited than needs require. Most judges will restrict voir dire to asking prepared questions submitted by counsel. With such limited opportunity to query potential jurors, jury selection deteriorates into “unpicking” the jury, i.e. eliminating a few of the prospective jurors who strike you as the worst of the group for your case.
Here is where the mock trial focus group comes into play. There is no better way to explore how your overall case and all its parts will play with a jury. The mock trial, if done correctly, should reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to and think about the evidence and arguments you present.
To get the most out of the process you have to prepare for it, of course, and hiring an experienced jury consultant is the first step. You should provide him or her with a summary of the case from both sides, jury instructions, and a verdict sheet. It is helpful to also offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.
The consultant will engage a research studio where you will eventually present a mock trial of your case to a group of strangers. These strangers, selected by the studio, should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t but you can make an effort to come close. Within the month of trial or two, contact the jury commissioner for the court and obtain a copy of the current jury list. (Most lists are available.) Your jury consultant will pass the list on to the studio or research center, which will recruit from its database people who match the profile of the actual jurors. The participants are usually compensated from $50 to $100 per day.
Before you come face to face with the group, you want to consider which aspects of your case you should present. It isn’t often that you can or would even desire to present the entire case if the upcoming trial is complex and lengthy. So be selective. Focus on the key aspects of your case, perhaps the opening statement and closing argument, crucial witnesses, and any area you feel uncertain about.
The consultant can work with you to identify your goals for the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You way want to learn if the theory or theme of your case plays well in “Peoria”, as the saying goes, or how you are received as counsel. You might also need to know what further information the jury believes should be presented on behalf of your client.
Once you know where you’re going, the consultant can help you get there by developing questions for a focus group meeting following the mock trial and jury deliberation. You might want to ask the group which among several witnesses was more credible and why. Or you may want comments on a particular defense and whether that point was stronger or weaker than you had imagined.
Your preparations for the mock trial, of course, should not be limited to your case alone. To make the exercise worthwhile, you have to give the opponent a fair shake by including opposing witnesses and opposing counsel. How can this be pulled off? Not authentically, of course, but you may have video depositions that would suffice. Alternatively, you could ask a colleague to portray the witness. A different colleague could play the opposing counsel.
In a sense, these preparations can be valuable in and of themselves. Assembling the other side’s case may teach you valuable information about your own strategy. And the requisite analysis of your side will force you to consider its essential strengths and weaknesses. The next stage, of course, is flying your flag up the pole to see if the mock jury salutes. Next week, we’ll take a look at getting the most out of the mock trial, deliberations, and focus group.