by Jerry W. Thomas
Historically, mock juries were almost always conducted in-person. But in-person mock juries are verboten in the age of COVID-19. Fortunately, the research industry has been developing virtual and online methods over the past couple of decades. Zoom and similar virtual platforms can be used to successfully conduct mock juries—but a little background first.
The term “mock jury” refers to a discussion-group type of research that allows lawyers to evaluate the potential reactions of “jurors” to the evidence and arguments before a case goes to trial. Typically, a mock jury consists of eight to 12 “mock jurors” who are assembled in-person to hear a summary presentation of both sides of a case. Once the case is presented, the mock jurors discuss the evidence and the arguments. Generally, lawyers observe the group discussion from behind a one-way mirror or via remote video transmission. A typical in-person mock jury lasts about 4 hours, including the legal presentations, breaks, and discussion of the case.
In the era of COVID, all of the in-person actions and activities must move online. Zoom and similar web-based platforms can be used to conduct mock juries. Visual materials, including videos, can be shown to mock jurors. The session can be easily and accurately recorded. Here are some general guidelines to help ensure that virtual mock juries are as valuable and reliable as possible.
Selecting the “Jurors”
The mock jurors should be representative of the types of jurors likely to be on the actual jury if the case goes to trial. The mock jury should be conducted in the city that the case will be tried in, or at least nearby in a similar city. The mock jurors should be registered voters, or have a valid driver’s license, or meet other state requirements that allow them to serve on actual juries. Be sure to screen out anyone associated with the judicial system, law enforcement, the legal profession, or news media. Set quotas for men, women, and minorities so that the mock jurors are representative of the people likely to appear on the actual jury.
The mock jurors will almost certainly be recruited from online consumer research panels. These panelists are ordinary people who have agreed to take online surveys and participate in online research projects in return for some type of incentive. The mock jurors are selected from these online panels through what is called an online survey screener (a short questionnaire to make sure the selected mock jurors meet the criteria to serve on juries and meet the requirements for the specific project (demographic requirements, industry exclusions, etc.).
The attorney should resist the temptation to “preselect” the jurors, based upon his or her assumptions about who will be most favorable, or least favorable, to the case, or who is likely to be “struck” by the opposing counsel. A mock jury chosen without any bias or pre-selection criteria (other than those noted to ensure representativeness) is ideal, because part of the learning is to find out how different types of people respond to the case, in order to help in the final jury selection process.
Sizing the Mock Jury
The purists would argue that 12 is the only acceptable size for a mock jury, and most in-person mock juries have at least 8 to 10 jurors. For online mock juries, however, we recommend only 4 to 6 “jurors” per session. These smaller online groups are easier to control and give each juror more time to speak, compared to larger groups. While in-person group discussions might go for 90 minutes to 2 hours (after both sides of a case are presented), it’s best to limit online discussions to 60 to 90 minutes—to avoid "juror" fatigue.
Recruiting the Mock Jurors
The recruiting of participants is very important and should be conducted by a marketing research company with experience in mock jury recruiting. Depending upon the geographic area, you will want to over-recruit by about 20% to 30%. That is, you will want to recruit 8 or 9 mock jurors to ensure that 4 to 6 jurors actually show up for the online "jury." Mock jurors are typically paid from $150 to $300 each.
Number of Juries
A minimum of 4 web-based mock jury sessions is recommended. If the same pattern of response is observed across all 4 mock juries, or across 3 of the 4 mock juries, you can be reasonably confident in the validity and reliability of the findings. Never do just one mock jury. It’s too risky.
Some would argue that the jurors should debate the case by themselves without a facilitator or moderator in the virtual room. In our experience, a mock jury led by a professional moderator yields the greatest amount of useful information and learning. Without a professional moderator, the jurors tend to waste a lot of time choosing a leader, and that leader may or may not know how to lead a group discussion. True, these uncontrollable variables are at work in real juries (and tend to inject greater variability in the possible outcomes), but we don’t need to “mess up” our mock juries for the sake of simulating reality. What is important is for the mock jurors to get into the case quickly, to have full opportunity to interact with other mock jurors, and to feel free to express their feelings and opinions openly and fully.
A professional moderator can help achieve balanced interaction, keep more aggressive "jurors" from dominating the discussion, and keep the discussion focused upon the key questions posed by the case. The moderator should be a low-key facilitator, not a “lawyer” or “judge” or legal expert. The moderator should not use “legalese” or legal terminology, if possible. The mock jurors should never know which side of the case the moderator is representing. The moderator should appear as a neutral and unimportant figure to the mock jurors.
Observing the Mock Jury Debate
Watching mock jurors react to the facts and issues in a case can be a fascinating learning experience for the attorney and/or his client. It also can be an ego-threatening nightmare. Mock juries can turn negative at times and castigate the client, the attorney, and the cherished beliefs and assertions of client and attorney. If the lawyer tends to be thin-skinned or very rigid in his thinking, he should perhaps avoid the use of mock juries, because they may be so threatening to him that he won’t learn much from the mock juries anyway.
Likewise, it is sometimes very dangerous to allow the client to observe a “live” mock jury. The mock jurors might denigrate the client or the client’s case, and sometimes clients cannot handle the cold, hard truth mock jurors can dish out. A safer strategy is to videotape the mock juries and then decide if, how much, when, and where to share with the client. It is critically important for the attorney, however, to view the mock juries “live.” The attorney can provide additional input and direction to the moderator as the sessions unfold, using chat functions built into the web-based software.
The fruits of mock juries are probably protectable as attorney work-product. To help ensure this, the research firm must be retained by and act as the agent of the attorney (not as an agent of the client). Also, anyone not directly involved in the case should not observe the mock juries or have access to the results, to help protect the attorney’s work-product.
Analyzing the Results
It’s really important that the attorney be involved in the analysis of the results, since only he knows all the issues, the situation, the client, and the legal context. However, the professional moderator is equally important in analyzing the results. The moderator will see, sense, and understand things the lawyer might overlook. And, in most cases, the moderator will be a marketing expert, and can advise the attorney on the best facts and arguments to win the case.
Value of Mock Juries
The mock jury is a rough predictor of the likely outcome should a case go to trial. If the attorney finds his case is weak and hopeless, he can settle the case out of court. On the other hand, if the attorney’s case is solid and strong, he can confidently move forward (and move his client forward) toward trial. The mock jury can also be an effective tool to help the attorney manage his client. If the client is overconfident, in a state of denial, or refusing to face up to the risks of the case, sometimes the video recordings of mock jury deliberations can be a powerful influence upon the client’s attitudes and behavior. We have also seen the results from mock juries be effectively employed to negotiate settlement of a case. Mock juries are especially valuable in answering seven kinds of questions:
- What is the relative value of the different facts and evidence? What evidence or facts do the mock jurors place the most importance upon?
- What evidence do mock jurors accept easily or accept at face value, and what evidence is inherently weak (i.e., must be fully substantiated or proved)?
- What is the relative value of different witnesses or testimony, and what determines the credibility of the witness or his/her testimony?
- What is the web of logic that jurors weave? How do these mock jurors fit the evidence and arguments together? If the attorney really understands the jurors’ web of logic, then he has a much better chance of preparing a winning set of arguments.
- What words, terms, and phrases do mock jurors understand, and what words, terms, and phrases should be avoided? In essence, what language should the attorney use to best communicate with the real jury?
- What emotions, feelings, and possibly hidden motives are influencing the mock jurors? How do these emotions and motives shape the issues and the debate within the mock jury?
- What types of real jurors are most likely to be favorable to your client’s case? What opinions are correlated with a favorable attitude towards your client’s case? This information can help in questioning and selecting the final jury.
Improving the Lawyer
The final and perhaps most important benefit from using mock juries may be the self-improvement of the lawyer. An attorney who understands how ordinary people behave in a jury setting, and who understands how ordinary people react to him personally and his style of presentation, will almost always outperform an attorney who is lacking this “jury” sense. No lawyer ever gets to observe firsthand what actually goes on behind the closed doors in the jury room when real cases are debated, no matter how many years he has been practicing law. The only way this “jury” sense can be gained is through mock juries.
Even after COVID-19 disappears into the sunset (hopefully soon), web-based mock juries will persist. Doing mock juries online gives the attorney and the moderator a detailed record of exactly how each mock juror reacted and spoke at critical points in the debate. Mock jurors can be recruited from any geographic area in the U.S., and online mock juries can cost hundreds of dollars less than in-person mock juries. The online mock jury is here to stay.
About the Author
Jerry W. Thomas (firstname.lastname@example.org) is President/CEO of Dallas-Fort Worth based Decision Analyst. He may be reached at 1-800-262-5974 or 1-817-640-6166.
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