Don’t Dismiss Erring Mock Jurors So Quickly
Almost any attorney who has participated in a mock trial can provide an example of a mock juror’s off-the-wall logic or fundamental misunderstanding of the case facts. Unfortunately, a common reaction to such mock jurors can be skepticism of their worth and dismissal of their arguments. But simply dismissing arguments made by mock jurors because they don’t seem reasonable to you is one of the biggest mistakes you can make during trial preparation.
Inevitably, when mock jurors deliberate, attorneys are drawn to the jurors who agree with them and annoyed by the jurors who argue for the opposing side. While this is a natural and unavoidable instinct, it is also an instinct that should be quickly suppressed if you want to learn all that you can from the jury exercise. Commonly, if jurors are confused on a particular issue, they are dismissed as unintelligent or inattentive. And if they adopt the arguments for the other side, it is viewed as a lack of understanding on their part (“if they understood it, they would side with me”). But these biases toward your own case can easily stand in the way of you getting the most value from the mock trial.
The first step in countering those biases is understanding the faulty logic behind them. Once you’ve become familiar with a case, it’s easy to forget how challenging it was to sort out at the beginning, and you can develop tunnel vision. Most legal and case-specific concepts are not notions that jurors encounter in their daily lives. Not only should it not be surprising if jurors don’t immediately understand something, but it should alert us to the things that need to be explained more often or more clearly. Additionally, no matter how strongly you advocate for your side, we should never assume that a reasonable person won’t be persuaded by the opposing side.
In fact, the greatest value of a mock trial comes from understanding the jurors who voted against you. Paying careful attention to the jurors who weren’t persuaded by your case allows you to ask the most important questions for trial preparation: What attracted them to the other side? What made the opposing arguments work? What holes did they see in your arguments? What facts were they legitimately confused by and how can that confusion be cleared up?
So while mock jurors may bring up points that seem illogical or nonsensical to you, be mindful that 1) any points that caused them confusion are likely to confuse real jurors as well, 2) it may not be that they don’t understand your argument; rather, they just don’t buy it, 3) their thought processes may be more widely-held and common that you would like to believe. Taking seriously what opposing jurors have to say allows you to shore up your case’s weaknesses and avoid surprises at trial. And if there is anything we can all agree on, it is that clients hate surprises at trial.
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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.
