On the trial consulting side of my professional life attorneys sometimes tell me that they have shied away from focus groups or mock trials because they don’t trust the feedback. Honestly, that feeling is justified. Many trial simulation exercises are doomed to produce unreliable feedback or outcomes. Here are some thoughts about that together with a possible solution…
You and your client live inside a bubble:
Let’s first get clear that you and your client are too close to the case. You need someone outside your bubble to provide honest commentary after viewing the condensed essentials. There is a real danger your team will discount the other side’s arguments and proof if you do it yourself.
The perils of doing it yourself:
Doing it yourself may be your only option in a small case but if there are real numbers in play consider the risks. Do you have the expertise and resources to recruit mock jurors with diverse demographics, backgrounds and attitudes? If you recruit your friends and family, they may end up telling you what you want to hear. If the feedback you get from a focus group or mock trial is unreliable it may embolden an already unrealistic client to dig in when he or she should settle.
The importance of opposition role play:
If you want more realistic feedback at a focus group or mock trial, you must vigorously role play the opposition. The problem with that is you risk alienating your client if you ask the tough questions your opposition will ask on cross-examination and trial. A solution is to bring in someone from the outside who knows how to recruit a mock jury and has the legal training and acumen to realistically role play the opposition.
Focus groups and mock trials are a “garbage in, garbage out proposition”. Opposition role play is the model I use in my trial consulting work, and I think it has benefited our clients. There is no crystal ball in trial work but there is sometimes a better way of doing things.
