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Continued... Page 3 > Mock Trials

In the event that there is a an allegation of comparative fault, each juror is asked to respond on whether they feel that the plaintiff was negligent and, if so, whether this contributed to the injury.

PROCEDURE DURING THE MOCK TRIAL

When we first started out doing mock trials, my law partner and I were opposing counsel and did a half-day mini trial. We typically used many exhibits and called certain live witnesses, including our client.

After doing several in this fashion, in reviewing the videotapes of the jury deliberations, we found that too much of the discussion focused on the techniques and appearances of the lawyers. In discussing this problem with others who do mock trials regularly, the perceived solution was to simply read a neutral statement of the case, without any semblance of the adversary process. (Though we continue to show the jurors key exhibits, diagrams and excerpts of videotapes.) This method has worked far better, with fewer diversions among the jurors.

Typically, it takes about half hour to forty-five minutes to present the case. If we show videotapes of the depositions of key witnesses, these are severely edited to only the key points. The jurors are permitted to use the exhibits in their group deliberations later on.

At the conclusion of the case presentation, the juror questionnaire forms are passed out. Typically, some complete these within 10 minutes, while others take as long as 45 minutes to do the same thing.

Once the last juror has finished their questionnaire, we then give them a verdict form and ask them to deliberate as a group. The video camcorder has been previously set up on a tripod in the corner of the conference room and is activated as we leave the room. The jurors are told that this will only be for our purposes in reviewing the results of the mock trial. If your office has the technical capability to do a live feed from the camera to an adjacent viewing room, this is even better.

Once the jury has reached their decision, we go through an extended debriefing process, asking them about the key elements of their decision and what they found most persuasive as the discussion went on. Often during these discussions, we will get surprisingly good analogies, themes and arguments to be used in the actual trial.

CONCLUSION

Many trial lawyers appear to not conduct mock trials as a regular part of their practice. If I am right about this, it is long overdue for a change. Doing a mock trial prior to any mediation gives you the potential benefit of being able to respond to liability or damages arguments made by the mediator or the other side. Mock trial results are also very useful in responding to all the jawboning that invariably goes on in a mediation. >>NEXT