When something goes poorly with a case, the first question often posed is, ‘Whose fault is it?’ Blaming others is natural, and individuals often want to place the blame on someone or something else. However, failing to accept any personal responsibility and externalizing that responsibility will not help avoid making the same or similar mistakes in the future. Instead, defense attorneys can learn to avoid or mitigate bad litigation outcomes by avoiding these common mock trial mistakes. 

How can defense attorneys avoid bad litigation outcomes?

Defense attorneys can help avoid or mitigate bad litigation outcomes by learning to avoid these three mistakes: waiting too long to begin litigation research, delivering a weak opposition presentation, and not wanting to pay mock jurors. 

Mistake #1: Waiting Too Long to Begin Litigation Research  

A key cost difference between doing a mock trial one year before and 90 days before the trial can be summed up as opportunity cost. If a defendant has waited until 90 days before trial before conducting a mock trial, and something goes devastatingly wrong, there is not much time to make adjustments. Whereas, if the same defendant conducts a mock trial a year in advance, they have a greater opportunity to fix any aspects that went wrong and allow for more time to try to resolve the case. 

In some instances, the corporate defendant or insurance company hopes a case will settle, and by waiting, they ultimately find themselves unprepared and in a time crunch situation. Unfortunately, once they get that close to the trial, the plaintiff will either not want to discuss a settlement or may drastically increase their settlement demand, knowing that the defendant is anxious to get out of the case. Regardless, it puts the defendant at a strong disadvantage in settlement negotiations.

Mistake #2: Delivering a Weak Opposition Presentation

In a mock trial exercise, the defense counsel presents both the plaintiff and defense cases, which can lead to another common mistake: not presenting a strong enough opposing argument. Suppose the plaintiff attorney you ultimately face is very articulate and engaging. Yet, the person you have portraying their side in the mock trial doesn’t come close to displaying those same qualities. In that case, your mock trial results likely will not be accurate. 

To save money, the defense will frequently use a junior-level person who can be paid at a lower rate to deliver the opposing side during the mock trial. As one might expect, the more experienced defense attorney will likely decimate the less experienced individual. There may be other reasons that the mock trial presents an underprepared opposing counsel, such as the attorney playing the plaintiff not knowing the case, not having the trial experience necessary, or simply not believing the case they are trying to present.

No matter the reason behind their actions, it could negatively affect the outcome of the exercise, such as resulting in a full defense verdict for the mock trial, which may not be realistic. Without a strong plaintiff case, the defense case looks exceptional by comparison, they win the mock trial far too easily, and the exercise fails to provide the insights desired. Consequently, the defense will likely go into trial believing they have a strong case, but that belief would be faulty. 

Ideally, in a mock trial, you want it to be difficult to win so you can pinpoint precisely where you need to improve. Ensure the opposing counsel is well represented to make the exercise most advantageous. A benefit to executing effective mock trials is anticipating the worst-case scenario, obtaining viewpoints and aspects that may not have been considered otherwise, and providing opportunities for improvement.

Mistake #3: Not Wanting to Pay Mock Jurors

Selecting the mock jurors themselves can have a significant impact on your results. You can’t simply gather 18 acquaintances or the first group of strangers you can find, as these individuals won’t represent an accurate sample. While there is generally no voir dire for a mock trial, defense attorneys can screen potential mock trial jurors to help ensure that you’re getting unbiased, neutral individuals who aren’t conflicted about the case. This would include screening for knowledge of the parties involved, knowledge or experience in the areas where the case is taking place, and getting some background information to help assemble a jury that isn’t overly biased. 

One of the reasons that defendants try to cut corners with jury research is that there can be significant cost implications. Individuals generally need to be paid well to volunteer to participate in this kind of research, and defense attorneys often find it challenging to fill in certain demographic categories. If the jury research payment is too low, it may only attract a certain type of individual. In many cases, defense lawyers seek to find 40 to 55-year-old professionals. Jury research has to pay enough to entice those individuals to take a day off of work or spend their time off participating in a mock trial. Unfortunately, the defense attorney could face an invalid sample if the mock jury research doesn’t pay enough. 

A well-designed, well-executed mock trial can help defense attorneys avoid bad litigation outcomes, but only if they can avoid these common mistakes. Courtroom Sciences can help defense attorneys achieve superior litigation outcomes by providing science-backed data that leads to actionable insights and predictive results. Speak with one of our experts to get started.

Key Takeaways

●  Mitigate bad litigation outcomes by avoiding these three mistakes: waiting too long to begin litigation research, delivering a weak opposition presentation, and not wanting to pay mock jurors. 

●  Waiting too long to begin litigation research can hinder the defense’s ability to make significant changes. 

●  Delivering a weak opposition presentation could negatively affect the outcome of the exercise and lead to invalid results. 

●  One of the reasons that defendants try to cut corners with jury research is that there can be significant cost implications.

●  A well-designed, well-executed mock trial can help defense attorneys avoid bad litigation outcomes, but only if they can avoid these mistakes.