Expert Article Library

The Mock Jury Graduates From Law School

Real trials revolve around facts. Lawyers help investigate the facts, gather evidence that helps prove their case, marshal the evidence, and present the "facts" at trial through witnesses and documents. The lawyer’s challenge is to package the facts into as a coherent a theme as possible, and make them flow to support the client’s version of "what really happened". That should lead the jury, arbitrator or judge serving as the "trier of the facts" to a favorable outcome.

Lawyers often call on expert witnesses to draw conclusions from complex matters and to explain "what happened" or "how it happened" to a jury. It thus is critical for the expert to be able to "communicate" with a jury comprised of 6 to 12 ordinary men and women who will decide t he case’s outcome. They must be able to understand the expert, regard the expert’s testimony as supporting the lawyer’s theory of the case, and regard t he expert as knowledgeable and truthful. Otherwise all can be lost.

To help make sure experts are speaking to the jury in a simple and easy-to-understand manner and are believable, more and more lawyers are going back to a technique they first used in law school using "make-believe" cases. The Mock Trial in law school allowed the aspiring lawyers to try out their "Perry Mason" skills in a courtroom setting, present witnesses, cross-examine the other side’s witnesses, and present closing arguments before a "Mock Jury". The students would be critiqued on their "courtroom" proficiency by professors and peers, and graded on their performance.

Mock trials are no longer classroom-only exercises. They are increasingly being used, sometimes well in advance of an actual trial, to help parties assess strategy, determine the manner of presentation of the cases, and evaluate settlement as an alternative to litigation. Real attorneys watch the mock jury deliberations through one-way mirrors or on live-feed monitors or videotape. The mock jury’s members often are asked to complete questionnaires about each witness so that the lawyers can gain insight as to how real jurors at an actual trial may react.

How can a mock jury help lawyers and experts? By answering questions such as:

  • Does the jury comprehend what the expert witness is saying?
  • How does the jury perceive the expert witness – knowledgeable? believable? fair? pompous? candid? nice? biased? defensive?
  • Does the expert’s testimony help the jury come to the right conclusion?
  • Should the expert also use some demonstrative evidence? Or would it distract from the expert’s explanation?
  • What else would be helpful to better convey an understanding of the case to the jury?

Attorneys often share the mock jurors’ reactions directly with the experts because they have found that the mock jurors’ comments can have a major impact on how well the expert later presents testimony at trial. What the mock jury says about an expert witness often carries more weight with the witness than all the words and warnings that the attorney can give. For example, if the jurors don’t understand the "big words" the expert is using, the expert can try to "dumb it down" at trial. If the mock jury reads the expert’s ongoing referring to her notes as "reading from a script", the lawyer sometimes can blow the notes up as an exhibit, so the jury sees there is nothing to hide. If the expert takes undue pains to carefully qualify his answers, yet the jurors see that as "evasive", the expert can adjust his trial presentation.

If you are to be an expert, you should welcome the opportunity to participate in a mock trial. The experience provides guidance and suggestions for improving and clarifying your testimony and delivery in order to become a more effective expert witness. Watching your own testimony on videotape, and hearing and seeing how jurors react to your testimony, and how they reach their decisions, can be invaluable to you as a witness. It often helps you to present a clearer, more focused picture during the actual trial, and in the future.

PostScript: Appearing before a mock jury should be considered part of your prep-time. Thus you can generally expert to be paid while you learn. That’s better than it ever was for the lawyer in a mock trial at law school.