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.”
Myth #1:
“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.”
Mock trial results can also provide clients with a clearer
picture of what the case is worth. We have found that many case valuations are
calculated using gut instinct, experience with “these types of cases,” and jury
verdicts and settlements obtained from online databases, such as LexisNexis and
Westlaw. However, these methods (individually or combined) are inferior to a
science-based method that removes “gut instinct” from the equation and replaces
it with empirical data. Mock trials can improve the likelihood that clients
settle cases for what they are actually worth, versus what the historical data
suggests they are worth, especially when calculating value based on each
specific case. Thirty years of data has proven that the price of a mock trial
significantly outweighs the cost of settling a case for an unreasonable
amount.
If the case does make it to trial, the mock trial results
can be used to inform trial strategy. As indicated by one attorney after one of
his recent trials, “Drawing upon the fantastic work of the mock, we were able
to identify and plan around various issues that required attention and
re-prioritizing our trial themes…Candidly another fantastic piece of the mock
trial experience is that it forced us to learn our case early and so by the
time we began trial preparation in late August, we were way out in front of the
power curve. So, the mock and the work you all did was critical.” It should be
noted that this case was taken all the way to a jury verdict and the amount
awarded to the plaintiff was “settled for a number plaintiffs would never have
negotiated with us on at any point during the course of the case.”
In conclusion, the involvement of litigation psychologists should not be predicated on whether the client is going to trial. It is more about the client entering into settlement negotiations with a clear picture of how much that specific case is worth and whether it makes sense to proceed to trial. The reputation of the company and the safety of key stakeholders’ jobs could be relying on whether the decision was fully informed by empirical data or “gut instinct.”