Searching for Rocks in the Channel: Pretesting Your Case Before Trial

Reprinted with permission from Defense Practice Notebook (1996), 1, 65-68.

To be successful in jury trials, defense attorneys must develop evidence and arguments which are persuasive to the jurors who will hear the case. This requires that the case be evaluated accurately in terms of how jurors see its strengths and weaknesses. Sometimes an argument or theme may appear more persuasive to the attorney than it does to the trial jurors, or a witness may produce an unexpectedly negative reaction among jurors. Failure to anticipate these problems can have disastrous consequences at trial.

This article discusses two pre-trial techniques that help attorneys to evaluate their cases, warts and all, at a time when meaningful corrective measures can be taken. These techniques are focus groups and trial simulations.

Focus Groups
A focus group is a gathering of individuals who will discuss and consider a pending lawsuit. Because it is important that those who participate should have similar characteristics as jurors who will decide the actual case, group members must be jury-qualified individuals from the trial community. However, they must be screened to ensure that they are not part of the trial jury venire.

The individuals participating in the focus group report to a central testing cite to participate in the study, and are paid for their time at the conclusion of their task. Several separate focus groups should be used to ensure that an accurate picture of the opinions of jurors in the trial jurisdiction is developed.

At the beginning of each session, the group leader gives a brief introduction and describes the task. Voir dire questionnaires, which address the jurors' backgrounds and opinions, are administered. Under the guidance and stimulus of the leader, focus group members discuss the general situation involved in the litigation and various potential issues that might arise. Ideally, all sessions are recorded on videotape for later content analysis.

Focus groups usually take one of two approaches: general discussion or case-specific discussion.

General discussion.  The general discussion approach centers on a broad consideration of the type of litigation being considered and potential issues involved. In a wrongful discharge or medical malpractice case, for example, the session might begin with a general description of the typical meeting between an employer and an about-to-be-fired employee, or the circumstances generally appearing in medical negligence cases. A series of discussion questions on the topic follow. The leader will outline some of the issues that usually arise in such litigation. The focus group members then give their opinions on these issues and other issues that they feel are important.

The general discussion approach is often used as a first step in the evaluation of litigation in its early stages. The comments from the group members are evaluated, and form the basis for the implementation of more specific projects such as juror profile surveys, trial simulations, or more refined focus groups.

Case-specific discussion.   Information limited to the instant lawsuit is considered by a case-specific focus group. Such information can be in the form of sample opening statements, videotaped summary presentations, or physical evidence which may be used at trial. For example, if the litigation concerns an allegedly defective lawnmower, the focus group can be presented with opening statements addressing both sides of the dispute, along with an opportunity to view the lawnmower in issue. Based on this information, the group discusses general issues in products liability, as well as their opinions and perceptions of the product itself. This feedback can be crucial in understanding how jurors view certain products cases.

Another case-specific approach is to test different versions of the opening statements, legal arguments, or evidence that might be used in the actual trial on focus groups to determine their probable impact on jurors. In this approach, two or more versions of the opening statements, arguments, or evidence are developed. Each of several focus groups is exposed to only one of the versions. The reactions to these different presentations are then compared to determine their relative impact. For example, the defense may want to know which of three proposed opening statements would be most effective in communicating its theme to jurors. Presenting each opening statement to different focus groups, followed by an evaluated discussion, enables the attorney to predict which approach would be most persuasive.

The case-specific approach can also be used to evaluate different methods of presenting physical evidence, such as charts, models, and graphs. By presenting various visual aids to the focus group members and receiving their reaction to each visual aid, a clear picture of which presentation was most effective is developed.

The relative credibility of various expert witnesses can also be measured through focus groups. Showing excerpts of witnesses' videotaped depositions and discussing the reactions of focus group members to these witnesses can reveal which expert is most believable or persuasive.

The information gained from focus group research can be valuable guidance in predicting the reaction of a jury to your lawsuit. What do these individuals think are the important issues in the case? How did they react to specific issues, arguments, or evidence? These results can be used by the defense attorney in deciding on the most effective overall approach to his or her case.

As valuable as the information from focus groups is, they cannot be expected to mirror the experience of jurors in the actual trial. Trial simulations, on the other hand, specifically address jurors' reactions in a trial setting.

Trial Simulations

A simulated trial is a presentation of a mock, abbreviated trial to a group of individuals acting as jurors, to determine how jurors would react in the actual trial. There are four major goals of trial simulations: (a) to assess the strengths and weaknesses of the case; (b) to evaluate the impact of testimonial and nontestimonial evidence; (c) to evaluate the trial strategy and tactics expected to be employed; and (d) to estimate the range of verdicts that a jury might return.

Trial simulations achieve these goals by presenting to sample juries a multi-hour mock trial, followed by juror feedback. Like the members of the focus groups, the mock jurors who participate in the simulated trial should be screened to ensure that they are representative of the types of jurors the defense attorney would face in the real trial. A number of mock juries should view the trial presentation, to increase the probability that the overall results are accurate.

Simulated trials are generally recorded on videotape. A live presentation to a mock jury is possible, but it has several disadvantages as compared to a videotape presentation. For instance, the trial should be presented to several mock juries; there is a good chance that a live presentation will change each time it is repeated. Inconsistencies in presentation, often caused by mistakes made by the participants, may result in differing reactions by different juries. Also, there may be a temptation to modify the first live presentation to "improve" it; this results in inconsistencies from one performance to the next.
Trial presentations recorded on videotape solve these problems. They ensure that all juries receive identical information. In addition, if "improvements" seem to be desirable, the tape can simply be edited before it is shown to the mock jury.

Preparing the trial simulation.  The video recording should be planned with some care. The end result will be an abbreviated trial that reflects the essential facts and issues of the lawsuit. Make it as realistic as possible. The defense presentation should reflect a cautious estimate of the amount of evidence and witnesses the attorney expects to be able to use at trial. The opponent's case, on the other hand, should receive the benefit of the doubt concerning the admissibility of evidence and expert testimony. That is, the tape should be structured so as to not unduly favor the defense, thus serving as a strong and realistic test of the case.

The content of the tape follows a typical trial format. It begins with the judge's introduction, in which he or she sets the parameters of the task that the jurors face. Both parties make their opening statements. The plaintiff then presents his or her case-in-chief, including direct and cross-examination of witnesses and the introduction of physical evidence. This is followed by a similar treatment of the defense case. Both parties then present their closing arguments. At the conclusion of closing arguments, the judge presents abbreviated jury instructions.

The length of the simulated trial tape varies with the complexity of the case: it can range from one or two hours to six or more hours. Bear in mind the attention span of the mock jurors who will be viewing the tape. They should not be so overwhelmed with material that they cannot organize their thoughts and offer a thorough evaluation of the trial.

Appearing in the videotape should be attorneys, witnesses, and actors. Using real attorneys gives a higher level of authenticity to the tape. Actors might be used in place of expert witnesses, if the real witnesses are unavailable. An alternative to actors or the actual witnesses in the simulated trial is videotaped depositions of such witnesses. This latter approach resolves the possible problems associated with the discovery of a witness's statements made for the trial simulations.

Conducting the trial simulation.  Once the trial videotape is completed, and the mock juries have been selected, proceed with the heart of the trial simulation study. The mock jurors report to a central testing site--a meeting room or possibly a courtroom setting--to participate in the trial simulation. The study is briefly introduced and the jurors complete a voir dire questionnaire. They then view the videotape. At the completion of the tape, each juror renders a preliminary verdict and answers any special questions posed by the defense--e.g., the credibility of witnesses or the impact of certain demonstrative evidence.

The mock jurors then deliberate amongst themselves. These important discussions should be observed closely by the defense team, and recorded on videotape. These deliberations, in which each juror describes his or her honest reactions to the various witnesses, evidence, and theories of recovery, should tell the defense attorney just what was done right and what was done wrong in the mock trial. This "peek into the jury room" will yield information that will be extremely helpful for the real trial.
At the close of deliberations, each juror will complete a final verdict form.

Before the mock jurors are dismissed, they participate in an in-depth group post-trial interview which examines what they think about the case. What were the strengths and weaknesses on both sides? What was important to the jurors in arriving at their verdicts? How could each side improve their respective cases? As suggested above, all deliberations and post-trial interviews should be recorded on videotape for subsequent analysis.

Through the analysis of all the information gathered in these simulations a clearer picture develops as to how trial jurors view the case. What are the defense's risks (in terms of potential verdicts which could be rendered in this case) should it go to trial? What are the strengths and weaknesses of the case? How could the defense's chances for success at trial be improved? What voir dire questions are related to pro-plaintiff or pro-defendant opinions?

The answers to these questions are used to improve the defense's trial strategy. In some instances, the results of the simulated trial may be so devastating that the best advice to the defense is to settle the litigation before trial.

Trial Simulation Examples

Trial simulations have been employed in almost every type of litigation before juries, including wrongful discharge actions, products liability, medical negligence, and vehicular accidents. While trial simulations can be used to investigate a variety of questions, examples of two of their uses will be illustrated here--avoiding the "argument in the alternative" and evaluating witness credibility.

Arguing in the alternative. A question frequently confronting defense attorneys is how to argue the issues of liability and damages to the jury. This question stems from the defense attorney's fear that should the jury decide that the defendant is liable, failure to argue damages would lead the jury to uncritically accept the figures for damages sought by the plaintiff. In those cases where the defense desired to argue both liability and damages to the jury, there are arguments which tend to defeat the defense attorney's goal of credibly arguing liability while still defusing the plaintiff's damages claim.

One particularly risky approach is "arguing in the alternative." In this type of argument, the defense attorney addresses the liability issue first and then follows it with a discussion of damages. Its most common, yet dangerous, form is: "We don't think we are liable, but if we are, be reasonable in any award you render." Arguing in the alternative refers to the fact that the defense is making two inconsistent claims. First, the defendant is not liable. Second, if he or she is liable, the jury should be reasonable in the money awarded.

Experience with trial simulations indicates that when this argument is made to jurors, they feel that they are being given mixed messages. If the defendant is serious in the claim of no liability, why is he or she raising the issue of "being reasonable" in any damages awarded? Comments from jurors in trial simulations indicate that many jurors view the defendant as having compromised his or her liability argument. "I felt that even the defendant thought that the plaintiff deserved something," or "when he [the defense attorney] said 'be reasonable,' I said, 'sock it to 'em,' and I proceeded to increase the damages award." These comments have come from trial simulations conducted in support of litigation ranging from personal injury to contract disputes. The results of these simulations indicate that arguing in the alternative, while perhaps not fatal to one's case, is a very risky approach.

Evaluating witness credibility.  Trial simulations can be used to evaluate the credibility--in the eyes of the jury--of witnesses who might testify at trial. A realistic evaluation of the jury's probable reaction to expert and nonexpert witnesses for the defense and for the plaintiff is crucial to the trial attorney's effectiveness. An innovative approach to trial simulations is to employ testimony from the actual witnesses, typically recorded on videotape during earlier depositions.

Segments of recorded depositions can be an important inclusion in the simulated trial tape. When shown to the mock jury, these excerpts will probably elicit varying reactions to expert and lay witnesses in the case.

It is of tremendous value to know how jurors view both your and the plaintiff's key witnesses. A mock juror may report during deliberations that, "Dr. Jones had a very sincere and believable aura, so I'm sure that what he said was true." On the other hand, jurors exposed to a particular witness have reported, "He wasn't credible at all." Fortunately, these problems were discovered prior to trial, when corrective measures could be taken.

Conclusion

The ability of defense attorneys to anticipate how their case will be received by jurors at trial is crucial to success. There are many techniques available to assist attorneys in the evaluation of their case.
Two such techniques have been described here. Focus groups allow for a general examination of the issues and problems in the lawsuit. Trial simulations provide a more in-depth examination of the legal issues, evidence, and techniques in a setting analogous to jurors' experiences at trial. By employing one or both of these techniques, attorneys can pretest their case before trial, gaining an opportunity to see the "rocks in the channel" at a time when effective course corrections can be made. 

About the Author:
Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group in Charlottesville, Virginia.  He has assisted attorneys since 1975 in the areas of jury research and trial advocacy.  A frequent speaker at continuing legal education programs, his publications include The Psychology of the American Jury and Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury, and a number of articles on the topics of voir dire, jury selection, and persuasion.