To Mock or Not to Mock --
When was the last time you were in a Mock Trial? If you’re like most attorneys, your first thought just now ran back to your law school days, hearing about (or even participating in) your school’s mock trial competition.
But I’m talking real world, not school. I’m talking about ADR. A mock trials in ADR is a wonderful tool in the resolution process that is all too often overlooked.
First off, let’s define it. A mock trial is a simulation of a lower-court trial used to test theories, practice presentation skills, and gain feedback. It can be set up as either a bench trial or jury trial. Testimony can be live or read. Witness can be real, counsel or actors. At the conclusion, a thorough analysis, including juror feedback (if applicable), is provided.
Secondly, let’s be clear of the purpose. A mock trial allows the practitioner to test theme acceptance, issue identification, verdict range & rationale, and witness credibility.
Thirdly, let’s be clear how it works. After an initial meeting to discuss exactly what information is being sought to gain from the process, and the goal in engaging in the process, a decision is made as to the number of jurors to be used. Then the format is agreed upon, including::
Live testimony or reading in testimony
Actual witnesses or actors
Which counsel play which roles
Jury instructions and jury interrogatories (if applicable).
Lastly, the “trial” is conducted. It can be as long or as short, and as in-depth or as superficial, as desired. A “decision” (or verdict, if a jury’s involved) is issued. That decision is reviewed and analyzed.
What’s the takeaway? You and your client get to learn about the thoughts, feelings and deliberations of a highly skilled neutral — or, in the case of a jury, gain that insight from each juror and from the entire panel. That feedback, which is not otherwise obtainable unless you’ve gone through the mock trial process, then gives your client incredible information to help guide the client’s decision (and your counseling) regarding settlement or trial. And an informed client is a happy client.
