Shain Khoshbin and David Weinberg, Corporate Counsel
“Victorious warriors win first and then go to war,
while defeated warriors go to war first and then seek to win.”
― Sun Tzu, The Art of War
Corporate counsel know that mock trials are useful tools in litigation. Nonetheless, they cost money. So the trick is to figure out when it’s worth doing one, when it isn’t and how to save money when you do.
When Does It Makes Sense?
Besides cases involving substantial monetary damages, other cases that warrant mock trials include:
• Cases that have the potential to create important precedents or “copy-cat” litigation (e.g.,an adverse decision will vitiate a key provision in contracts regularly used by the company or encourage additional/other litigation).
• Cases that involve critical intellectual property (e.g., claims to validate/invalidate a key patent or trademark, or to enjoin the use of an essential trade secret).
• Cases that feature business-threatening claims (e.g., claims inviting negative publicity, risking loss of substantial revenues, seeking to enjoin crucial corporate decisions/activities, or threatening receivership or plummeting stock value).
• Cases that threaten punitive damages or findings of fraud or criminal conduct (especially cases involving director/officer liability, which risk the personal reputations and livelihoods of executives).
Practice Point: Business disputes often require resolution by arbitration or a judge. To foretell their decisions, conduct a mock proceeding with arbitrators or retired judges who reflect the temperaments and predispositions of the decision-maker(s) at the arbitration or the bench trial.
When Is It Cost-Effective?
It is most cost-effective to conduct a mock trial after important discovery has been completed and crucial motions have been decided. Why then? The change of a key fact used in the mock trial could undermine its efficacy. Moreover, by conducting a mock trial after dispositive motions, counsel can limit the number of issues being addressed. This is especially applicable to contract cases (where the judge may grant summary judgment on a key provision) and patent cases (where the judge will decide the meanings of relevant key words at the Markman hearing).
Practice Point: It is also valuable to conduct mock trials earlier in the litigation. This allows corporate counsel to gauge the strength of the case, based upon reasonable assumptions, to consider settlement opportunities before incurring additional legal costs, to reconfigure trial themes/strategies and to focus discovery and preparation on issues most likely to be unresolved in the minds of decision-makers (thereby helping to control litigation costs). Alternatively, clients may consider using lower-priced types of pretrial audience research tools (despite their inherent limitations), such as focus groups, online research or surveys.
How Can You Cut Costs?
Because they have many moving parts, mock trials present clients with an opportunity to cut costs at multiple levels. For example, a full-fledged mock trial generally consists of:
1. Jury research/selection: Consultants design and implement a recruitment process to assemble panels that accurately reflect the demographics and attitudes of the actual jury.
Possible Cuts: Consider having in-house personnel place a blind ad for jurors and pick jurors according to a general guide provided by counsel. (Caveat: This will be a less scientific method and less likely to provide accurate results.)
Practice Point: Be careful of local court rules and ethical practices, especially in jurisdictions with smaller jury pools, to avoid allegations of tainting the jury pool.
2. Mock jurors: Mock trials generally involve two to three panels of twelve jurors. Juror fees generally range from $200 to $350 per juror per day, plus costs.
Possible Cuts: Consider using two panels of six jurors. Having at least two panels will: lessen the impact of one “rogue” juror with a strong personality and provide an opportunity to: (a) compare deliberations by two panels and identify consistencies in reasoning; and (b) identify the types of favorable/unfavorable jurors (which will assist with voir dire).
3. Location and facility costs: It is advantageous to conduct a mock trial near the location of the actual trial because the mock jurors will better reflect the attitudes present in that community. Facility choices are courtrooms, market research facilities, conference facilities, law schools/universities and law firms. Costs vary based upon the locale, the length of the mock trial, appearance/technology preferences and travel/lodging costs.
Possible Cuts: Consider conducting the mock trial closer to where the lawyers and live witnesses are located. Although the mock jurors will not as closely resemble those at trial, this will lessen travel/lodging costs. Also consider using a facility, such as a courtroom, with lower rental rates than specially equipped market research facilities. Certain trial consulting firms have mock courtrooms and jury deliberation rooms with hidden cameras, and observation rooms with screens showing deliberations “real time” (which may be included in the firm’s total project cost). At a minimum, choose a facility that appears neutral and formal, thereby impressing on all participants the seriousness of the proceedings.
Practice Point: Given the relatively low costs of recording and even wireless hidden cameras, it makes sense to videotape the mock trial and jury deliberations. The videotape will catch details that observers may miss during the proceedings, and make it possible to subsequently review and evaluate key segments of the proceedings. Moreover, using hidden cameras in the jury deliberation rooms allow the consultants, counsel and their clients to observe the deliberations “real time.” They can also take notes and discuss strategies as they watch the jury’s discussion of the facts and the credibility of the evidence, witnesses and counsel.
4. Trial consultant/jury psychologist: Although not a requirement, consultants can be valuable players in the mock trial process. Given their specialized training and experience, consultants may provide unparalleled insights into trial and jury deliberations, and generate a report that describes: (a) the attitudes and reasoning that led to the decision, (b) advantageous/disadvantageous juror types; (c) the exhibits, witnesses and arguments that were most persuasive; (d) effective/ineffective thematics; and (e) the presentations and witness examinations that can be improved to maximize the chances of success at trial.
Consultants also may assist with preparing demonstrative exhibits, recruiting mock jurors, arranging for the facility/technology and managing and recording the proceedings. Moreover, by involving a consultant during mock trial, that consultant’s advice during the trial may become even more valuable (including, for example, the organization of witnesses, use of exhibits, voir dire and/or even supervising a “shadow jury”).
Possible Cuts: A good consultant’s hourly rate is generally no more than that of an experienced attorney—probably less. Nonetheless, most consulting firms will provide a budget and even flat fees for various aspects of the mock trial, such as:
♦ Preparing the juror demographic profile;
♦ Recruiting and paying jurors;
♦ Furnishing a judge, bailiff, jury room facilitators, and audiovisual services; and
♦ Analyzing videotapes and mock trial results, and preparing a written report.
5. Attorneys: If the attorneys are charging on an hourly basis, attorney fees and expenses will usually cost substantially more than the mock trial expenses. Nevertheless, mock trials may save money in the long run. For example, every activity performed by the lawyers for mock trial should be performed anyway to prepare for the actual proceedings. A mock trial simply compels the attorneys to do it sooner, measures their effectiveness and highlights the legal pursuits most/least likely to be productive. Moreover, a mock trial allows corporate counsel to gauge the strength of the case and, ultimately, to maximize the chances of success at trial (which should be the biggest cost savings).
Possible Cost Cuts: Consider a truncated mock trial that only focuses on key issues and evidence, without live witnesses, and that is limited to one day or less. For example, have someone read aloud to the jurors stipulated facts, have the attorneys present closing-type arguments with limited exhibits, videotaped deposition testimony and demonstrative exhibits, and then have the jurors deliberate on only the key issues in the case. The mock trial schedule could be limited to a one-day exercise with:
1. Greeting/introduction: 20/min
2. Stipulated facts: 30/min
3. Plaintiff closing: 90/min
4. Break: 15/min
5. Defense closing: 60/min
6. Plaintiff rebuttal: 10/min
7. Lunch: 45/min
8. Jury deliberations: 15/min
9. Break: 15/min
10. Jury debriefing/questioning: 60/min
Practice Point: To avoid skewing the results of the mock trial, make sure the attorneys present each side of the case with the same degree of advocacy and thoroughness.
The Bottom Line
By following the teachings of Sun Tzu with mock trials managed cost-effectively, corporate counsel are likely to find themselves winning disputes before ever setting foot in the courtroom.
This article does not constitute legal advice and is not intended to be used as a substitute for legal advice or opinions.
Shain Khoshbin, a partner at Munck Wilson Mandala, is an advocate who focuses his practice on business/commercial litigation. His representation of clients has led to substantial recoveries, successful defenses and appeals before various courts of appeals. He is admitted to practice in Texas and Illinois, as well as various federal courts. David Weinberg is a lawyer and a litigation consultant. He is the CEO of JURYGROUP, which helps law firms and businesses define their audiences, design their images and deliver their messages. He is also the editor of Computer Animation in the Courtroom: A Primer, a multimedia publication of the American Bar Association.