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The use of mock jury exercises in preparation for major commercial trials has increased dramatically in the past decade. The increase reflects a realization that mock juries offer the first meaningful source of data upon which to evaluate case themes, issues and key witnesses and to calculate settlement value. Properly used and understood, mock jury exercises can enable parties to make the right critical choices. Improperly used or understood, they can lead to disastrous results. SELECTING THE RIGHT JURORS REQUIRES A JUROR CONSULTANT A general counsel for a corporate client once informed me that it was unnecessary to engage the services of a jury consultant to manage a mock jury exercise because his legal department would handle everything in-house. I managed to persuade him that it was a bad idea. Consultants perform a number of important roles in the conduct of such an exercise, but foremost among them is selection of the mock jurors. The selection process is not a place to skimp on funding. The usefulness of a mock jury exercise is closely correlated to the extent to which the mock jury replicates the actual jury. Neither trial nor in-house counsel is equipped to accomplish that correlation. Rather than trying to select mock jurors, counsel should devote their energies toward selecting an experienced jury consultant with the resources to select the mock jurors effectively. Potential jurors are offered several hundred dollars per day. They are required to complete a questionnaire and submit to an interview. Some consultants also conduct short issue-oriented focus groups to further refine the filtering process. In the course of mock jury preparations, the question is frequently raised whether the exercise should be conducted in a city other than the one in which the case is pending. The question is generally motivated by a concern about security. I believe the mock exercise should be in the trial city in all but a very small number of cases. Demographic comparisons can be deceiving. Communities that appear to be statistically identical can be vastly different culturally and politically. The populace in the trial community might recently have been sensitized by a widely publicized event that would have an impact upon the jury’s perspective, but that would be impossible to duplicate in another similar community. The problem is not simply that a mock jury in another city may not be truly reflective, but that there is no way to know whether it would be. It is better to do no mock jury exercise than to do one that produces unreliable data. Generally, concerns about security can be mitigated by measures discussed below. There is, however, one exception. Sometimes very big cases are tried in very small towns. In such a case, the risk of unreliable data that results from conducting the exercise elsewhere is outweighed by the greater risk that the results of the exercise will become widely known in a small community. While there are multiple variations, most mock jury exercises fall into two general categories — one adversarial and one nonadversarial. In the adversarial approach, each side presents the essence of its case in the form of a combination of argument and evidence. The evidence, often selected documents and video clips of testimony, usually is introduced by simple reference as though it had been entered into evidence, but occasionally live witnesses are presented. The exercise is not a contest of skill between the opposing lawyers. In fact, care should be taken to be sure that the opposing lawyers are evenly matched in terms of skill and experience, and that none of the lawyers possesses personality traits that would tend to so dominate the proceeding as to overshadow the issues. The idea is for the jurors to see the strongest presentations for both sides by lawyers fairly evenly matched in their trial skills and experience. In my experience, the adversarial approach works best when the presentations are not scripted or rehearsed and the presenting lawyers are given a fairly wide latitude for creativity. Creativity does not mean surprise. A mock jury exercise is no place for stealth tactics. Cooperation between the opposing presenters is essential. The exercise is necessarily a highly truncated version of the actual trial. The jury will see only selected issues and evidence that counsel have determined should be tested. In order to make the exercise productive, both sides must be prepared to address the same issues and items of evidence. If one side emphasizes a key document, segment of testimony or issue, and the opposing side is unprepared to refute it, nothing will be learned about the true impact of the particular issue or item of evidence, and the proceeding might be so influenced by it that the entire exercise is compromised. All jurors hear the same evidence at the same time. At the close of the presentations, the jurors will be randomly split into separate juries (usually two or four) for purposes of deliberations. The nonadversarial approach is designed to test discrete issues or arguments. The jurors are immediately divided into two or four juries and hear the presentations separately. The same lawyer usually presents the argument for each side with care to avoid giving undue emphasis to either side. The jurors discuss each issue in the presence of the presenting lawyer, who will ask questions and may add facts or additional arguments from time to time. The jurors may, or may not, be asked to reach decisions on particular issues. The nonadversarial presentation is scripted or presented according to a detailed outline. In both the adversarial and nonadversarial approaches, the proceedings are taped and available for evaluation. It is essential that both counsel and client understand the purposes and limitations of a mock jury exercise. Often the most difficult concept to accept is that mock juries are not predictors of results of actual trials. There are too many variables. A single answer by a witness, comment by a juror during deliberations, ruling by the trial judge or any of countless other circumstances can have a significant impact on the outcome. A mock jury serves four purposes. First and foremost, it tests the persuasiveness of the party’s story. Will it resonate with the average likely juror? Second, it tests the relative impact of various issues, arguments and approaches. Subtle differences in the perspective from which a position is presented can make the difference between acceptance and rejection by jurors. Third, it provides information on which to develop profiles of the types of jurors to look for and avoid on voir dire. Finally, it spotlights for trial counsel matters unnoticed by the lawyers but important to jurors. Jury questions submitted to judges during deliberations and post-trial interviews with jurors indicate that jurors often focus on issues and items of evidence to which neither side devoted attention during trial. In evaluating a mock jury exercise, counsel and client should adhere to these principles: More attention should be paid to the deliberations than to the verdict. If the verdicts are consistently for one side, it says that there is something wrong with the other side’s story or approach, but it is the deliberations that tell why. Division of the mock jurors into separate juries is simply for the purpose of having small enough groups to facilitate active deliberations and create multiple opportunities for group dynamics to play out. It is the reaction of the jurors as a whole that provides revealing information. Do not be overly influenced in calculating settlement value by anomalous mock verdicts (e.g., three juries return verdicts for the defense and one returns a plaintiff’s verdict for a substantial amount of money, or vice versa). The possibility of an anomalous verdict is ever present. If that alone were determinative of settlement value, the case would always be settled at the opponent’s highest number. The significant question is how readily the client’s story was accepted and by what percentage of jurors. STEPS TO TAKE TO PRESERVE CONFIDENTIALITY Security is a major concern in any mock jury exercise. The problem lies in the fact that a party’s trial strategies and the case’s basic strengths and weaknesses are being revealed to a group of non-expert strangers to the case. Is the information “relevant” within the meaning of discovery rules? Are privileges waived? Can the mock jurors be compelled to submit to deposition and reveal details of the exercise? Can the opposition compel production of the jury consultant’s report? There is not yet a reliable body of case law that answers these questions. The likelihood of these questions being answered “yes” is probably remote. Nonetheless, it is wise to take precautions to reduce the chance of disclosure and mitigate any damage that would result from disclosure. The following measures would be wise: Require all mock jurors to sign confidentiality agreements. Issue name tags to all participants and station people at the doors to be sure that no unauthorized people enter. Do not conduct the exercise in a location frequented by opposing counsel. Use a fictional name for the exercise (“Greenwood Seminar”) to be posted on doors and directional signs. Never reveal to the mock jurors privileged information or information that would not otherwise be produced to the opposition in the course of the litigation. Do not reveal to the mock jurors which side is conducting the exercise. Do not reveal to members of one jury the verdicts rendered by other juries in the same exercise or other exercises in the same case. Barry Richard, based in Tallahassee, Fla., is a partner and co-chairman of the national litigation group at Greenberg Traurig. He was lead litigation counsel in Florida for George W. Bush during the Bush-Gore election dispute.

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