Be willing to lose the mock to win the trial.
Mock trials are often a key part of preparation for trial. Although mocks can never exactly replicate a trial, they do provide valuable information about themes, arguments, and key pieces of evidence and witness testimony. The goal of any mock trial should be to learn as much as possible – both about your case and about the opposing case. And the stronger the opposingcase presentation, the more you will learn.
Carpenter Trial Consulting: Expert Consultants, Expert Advice
But we’ve found that trial attorneys, accustomed to a “if you win, I lose” context, are better able to embrace this concept in theory than in practice. Over time, they become invested in their position and their arguments. And knowing their client is going to be watching and judging their performance produces, understandably, a desire to win. We’ve seen that desire manifest itself in many ways, both subtle and obvious.
Whether it’s assigning the opposing case to more junior, inexperienced attorneys, stacking the deck by excluding inflammatory evidence, or presenting evidence or arguments that would not be allowed at trial (or in some cases, aren’t even true), shifting the balance of the mock in their favor may boost an attorney’s confidence and performance in the mock trial, but it will reduce the amount of valuable information gleaned from participants. Even more concerning, it can give the client false expectations about the hurdles awaiting them at trial.
Ideally, the mock trial is approached like an experiment where we test the worst-case scenario, give the other side the strongest, best-case representation, and see how jurors evaluate the case. And the results will be gleaned not just from how jurors vote, but from what they say: What arguments did they adopt/reject? What arguments did they generate on their own? What arguments stirred emotions? Which points did jurors really dig in on? What were they confused by? This information is what guides changes to themes and strategies, and ultimately, influences trial outcomes.
When approached correctly, mock trials can add enormous value. But realizing that value requires the following:
-Attorneys must be able to adopt an experimental, not a performative, mindset. They have to be willing to face losing the mock.
-Attorneys must trust the trial consultant designing and assisting with the mock trial to educate and remind the client that a trial team that loses a balanced mock is providing more value than a trial team that stacks the deck and wins the mock.
In short, learning to fail in a mock always beats failing to learn in a mock.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
