Jury testing is a powerful tool in litigation, and attorneys would be well served to think about their cases as studies worthy of experimentation. Cases are not mysteries to be solved; they are a series of testable questions that can be answered by people who, more times than not, follow predictable decision-making thought processes. The likely outcome of a case, as well as what influences its outcome, can and should be measured.
Still, many legal professionals neglect to take full advantage of these strategies. In Phillip Miller and Paul Scoptur’s Advanced Depositions Strategy & Practice1, the authors identify why attorneys may believe jury testing is unnecessary, including some (or all) of the following feelings and assumptions:
- I have all the proof I need.
- Focus groups are too expensive.
- I know how to talk to a jury.
- This case will probably settle.
- I had a professional prepare my exhibits.
- I already have the smoking gun discovery.
- I know my case better than anyone.
- That evidence will never come in.
- I have an expert for that.
Without discrediting any attorneys’ legal aptitudes and personal expertise, you simply cannot put all your stock in a gut feeling, the artistry of trial, or the presumption of exorbitant cost. Instead, we must recognize data as a worthy investment with the power to drive verdicts. After all, it’s data—not belief—that allows attorneys to refine issues by learning what resonates with jurors, how to better coach witnesses, and which case themes need to be tailored.
The best part? You don’t need to hire a PhD jury consultant or spend a lot of money to gather quality data. With recent technological advances, do-it-yourself jury testing has become much easier. Platforms like Zoom allow events to be hosted completely online or as hybrid events with in-person jurors and attorneys and experts watching offsite. Likewise, online data collection is also simple and cost-effective with countless polling and survey platforms available, providing instant voting results by the jurors.
Interested in jury testing? Keep reading to learn how your law practice might employ three different types: focus groups, mock trials, and shadow juries.
Focus Groups
Focus groups involve a collection of individuals brought together to hear facts, evidence, and arguments regarding a lawsuit. Typically, attorneys and/or experts do not actually “present” at a focus group. Instead, members engage in roundtable discussions where a moderator oversees free-flowing discussion. Focus groups are most often conducted in the middle of a case, perhaps in preparation for key depositions or upcoming hearings.
The standard agenda for a successful focus group begins with the moderator providing the group a general case overview. He/she then collects initial feedback and opinions before presenting key facts one-by-one from the Plaintiff’s case, perhaps sharing key documents from evidence. The same is done for the Defendant’s case. Next, the group is shown deposition clips of key witnesses, and the moderator solicits feedback. Is the witness credible? Likable? Is the witness’ story believable? Is there something about the witness that bothers the jury? Finally, the moderator presents the damages of the case and notes reactions.
One of a focus group’s primary goals is to help you understand what to expect in court. Participant feedback aids in ensuring the soundness and clarity of your case, helps eliminate path dependency in your theory, and allows you to identify other problems in your argument with enough time to course correct. Focus groups are also meant to let you explore elements of your case more thoroughly: Which themes or what language is most impactful? What evidence is most convincing? How do people react to your witness or perceive your client?
Focus groups allow you to test theories and other points of emphasis. For example, you are able to find out if a particular video exhibit affects overall recovery or learn which attorney’s delivery the jury prefers and how certain messaging impacts their understanding of liability. Throughout the event, you might also see more clearly in what ways different personalities interact with or influence others during deliberations. How do these types of group members assign weight and credibility or judge liability and damages? Juror profiles provide a useful edge when navigating the path of least resistance to meet a client's goals.
Mock Trials
A mock trial is a simulated trial that gives attorneys, experts, and clients the ability to “test the jury.” Unlike focus groups, it is an attorney-led event that more closely follows the structure of a typical trial. Mock jury members hear opening statements, witness examinations, and evidence before they deliberate. This type of jury testing is often used closer to the actual trial after discovery, depositions, and even rulings on trial procedure.
The structure of a mock trial gives you the opportunity to “fix what’s broken” with your trial strategy. Suppose you want to test drive your opening PowerPoint, try out a new damages theory, or iron out any confusing aspects of the jury form. Under such circumstances, there are endless possibilities to test these in a mock trial.
To ensure that you reap all the possible benefits of your jury testing, there are three key aspects of a successful mock trial. First, it is crucial that your jurors are representative of your potential juror pool. While you may not have the resources of a court to pool jurors, do your best to replicate the potential jury in your trial’s jurisdiction by engaging area staffing companies and recruiters. Second, make sure the presentations by the Plaintiff and Defendant are equally strong. While you are testing the effectiveness of your arguments, if your opponent’s arguments are neglected, the mock trial’s results will offer little more than false confidence in your case. And finally, a successful mock trial must present equally strong or damaging testimony by key witnesses. Failure to be wary of subconscious bias in your mock trials can derail the intention of your jury testing.
Conducting a mock trial begins with hiring your jurors. As previously mentioned, hiring representative jurors is extremely important. Don’t recruit from the area where your trial is pending; instead, pick a coverage area that will mimic potential jurors—i.e., a neighboring parish or county. You can employ a staffing company or recruiter to help with this. Then, review the candidate resumes. Always reject anyone who works for a law firm, a judge, or a court. Depending on the case, you may even exclude those who work in certain industries. Be sure to have mock jurors fill out a voir dire questionnaire, just like a “real” jury member so you can identify any other potential conflicts or biases.
Once your mock jury is set, it’s time for the event. To begin, the moderator should briefly introduce the process, emphasizing the importance of the mock jurors’ role. Review the rules of the day as you would at trial, including stipulations on confidentiality, no Google or other internet searches, no talking or case discussion outside of deliberations, and being courteous to fellow jurors. Lastly, explain the structure of the day’s proceedings.
Mock trials should open with a case summary read by the moderator. This is a brief and neutral introduction to the case, after which jurors should be surveyed for their initial reactions to the case and the parties involved.
Next, the Plaintiff and Defense will make their “clopening arguments.” This key feature of mock trials combines opening and closing statements, allowing the attorney to introduce, explain, and argue their case. Following each side’s clopenings, Plaintiff's counsel will give a rebuttal before presenting their first witness. Witness testimony might include a live examination or footage from deposition videos. After a direct, cross, and re-direct exam of this witness, the Defense will present their witness for examination. Finally, the mock jury breaks for deliberation.
Critical to the mock trial exercise is that the same survey be given to jurors after each presentation, allowing your team to track any movement in opinion. A quality mock jury survey should ask pointed questions designed to reveal the juror’s true feelings about the case, such as:
- At this point in the exercise, which side do you favor?
- How strongly do you hold that opinion?
- Please explain the main reason for that gut reaction.
- Please explain the second main reason for your gut reason.
- How much, if any, would you award Plaintiffs after hearing the presentation?
- Do you have any questions at this point?
Mock trials provide detailed evaluations for your case. They test how jurors view your witnesses, experts, and attorneys, as well as your damages theories and calculations. By mimicking true trial procedure, you can determine if jurors understand the themes and key issues of your case.
Following the mock trial, take an honest look at what worked, what didn’t, and what needs to change. These insights should be used as a guide for your real trial strategy. Based on the results, do you want a jury trial or a judge trial? Can a bad witness be rehabbed with practice or do you need to substitute? Do you want to abandon a part of your damage model if the mock jurors found some calculations particularly inflated or unbelievable? After all, the whole purpose of the mock trial is to then use the data to increase your chase for success as the real trial.
Shadow Juries
The final type of jury testing is the use of a shadow jury. Aptly named, these juries “shadow” a real jury at trial. Each day shadow jurors attend the trial, answering surveys at lunch and at the conclusion of the day's proceedings.
Shadow juries allow attorneys to receive daily feedback from “outsiders” on how the case is going. Attorneys can learn what the shadow jury does (or doesn’t) understand, which aids in planning for the next day as well as guides settlement decisions. You can have the shadow jury “reach a verdict” before closing arguments to give a good idea of the case’s potential outcome.
Conclusion
Whether you are surprised or vindicated by the results of the data you collect with your event, jury testing allows you to pivot, tweak, or further enhance your argument before you enter the courtroom, limiting guesswork and providing a clearer roadmap to success.
1 Miller, P. H., & Scoptur, P. J. (2013). Advanced depositions strategy and practice. Trial Guides.
