Myth #1: We don't need a mock; we don't go to trial that often
At Courtroom Sciences, Inc., we have written blog posts about understanding the litigation consulting industry and what to look for when selecting a jury consultant. Continuing our focus on informing legal departments and teams about the litigation psychology field, we have created a series of posts that identify and debunk many of the common “Myths of Litigation Science.”
“We don’t go to trial that often, so we don’t need to do a mock trial” is something we commonly hear from potential clients. With the trial rate in the United States at less than 3%, there are very few corporations who are going to trial. However, this statistic should not deter organizations from investing in mock trials. When conducted using the scientific method by trained litigation research experts, mock trials provide much more than just ‘trial practice.’ In fact, we have coined the term “settlement science” as a more appropriate way to explain the value of our research services. Since most cases will settle, it is imperative that clients have real data upon which to make settlement decisions. When litigation psychologists are involved prior to the discovery phase, clients have a better idea of the pieces of evidence that jurors find compelling. They can then present this evidence to mock jurors and gauge its effectiveness. In addition, counsel may learn that they should attempt to elicit a piece of information from a witness that they never would have considered.
Although the primary reason for doing a mock trial may not be to prepare for a real trial, the results can be used in a few different ways. First, they can be utilized in settlement negotiations. For example, we once had a mock trial in which the client settled the case during jury deliberations because he was able to identify the potential exposure his client would have had if the case would have gone to trial. In another example, John Duffey of Stuart & Branigin LLP indicated that, “[The litigation consultant] did a great job developing/exposing issues, attitudes, and themes via a focus group…we then used excerpts at a mediation; this proved very effective—the case was resolved on reasonable terms.”