With the possible exception of prize fighter pilots, trial lawyers are probably the most fiercely competitive people on the planet.

 

When a fighter pilot fails, however, he merely goes does down in flames. But when a trial lawyer loses an important case, it could well mean he is quietly crossed off his law firm’s list of possible future partners. And for most lawyers that’s a fate far worse than flaming out at 12,000 metres.

 

So it’s with good reason that for lawyers, who spend the greater part of their careers inside courtroom fighting to convince a jury that their client is the Good Guy, they will adopt any tool, technique or trick that might help them win more cases.

 

Increasingly today, America’s best trial attorneys are winning their cases through the ingenious use of specially created focus groups, which act as mock jurors weeks, or even months, before the actual trial begins.

 

Using a focus group as a mock jury serves four main purposes for trial lawyers. First, it tests how persuasive their client’s case is. Secondly, it demonstrates the impact that various arguments or various witnesses will likely have on a real jury. Many attorneys have had the frustrating experience of working with a witness whom everyone thought would make an excellent impression on the jury, only to discover during the trial that the witness is an absolute disaster. Presenting a witness to a jury for the first time is like going in for a first kiss you only get one chance to make the right impression.

 

Thirdly, a mock jury helps a lawyer decide which type of jurors he should avoid when selecting the actual jury.

 

"The practice of using focus groups to help trial lawyers goes back at least 25 years, but the concept did not become widespread until the last 15 years," says Jerry W. Thomas. "Today, thousands of mock juries are held annually in the US, and the use of mock trials is on the up trend."

 

Thomas knows of what he speaks. As president and CEO for the past 25 years of Decision Analyst Inca leading Texas-based international marketing, research and consulting firm Thomas has helped put together thousands of focus groups for clients ranging from major consumer goods packagers and telecommunications firms, to those in the medical and pharmaceutical industries.

 

Thomas says the mock jury concept is a direct descendent of focus groups first developed by American marketing firms in the 1950s. Typically, says Thomas, a mock jury consists of eight to 12 jurors who are assembled to hear a summary presentation of both sides of a case. Once the case is presented, participants then discuss the evidence and the arguments.

 

In order to be effective, however, Thomas says it's crucial that mock jurors be representative of the types of jurors likely to be on the actual jury. The mock jury should be conducted in the city where the case will be tried, or at least nearby in a similar city.

 

Thomas also cautions you should "set quotas for men, women and minorities, so that the mock jurors are representative of the people likely to appear on the actual jury." But, he adds it is also important to "screen out" anyone associated with the judicial system including law enforcement, the legal profession or news media as these people’s views would not be typical of a real jury.

 

Generally, the concerned lawyers observe the group discussion from behind a one-way mirror or via remote video transmission, with a typical mock jury discussion lasting up to two hours.

 

Mock juries are valuable in any type of legal case, if a jury is involved, says Thomas. They are less valuable but still have merit if the case is heard only by a judge. Interestingly, like fighter pilots, many successful lawyers have sizeable egos. So it’s probably not too surprising that not all attorneys immediately fall in love with the idea of using mock juries to set the direction of their cases. Few lawyers like to be second guessed, especially by lay people.

 

"In most cases, lawyers who’ve had personal experience with mock juries tend to really like them," says Thomas. "But at times their egos can get badly bruised when jurors are critical."

 

"One of the biggest problems in trying to help lawyers is arrogance," explains Thomas. "Many attorneys assume that because they’re good lawyers, they know how to run the mock jury discussion and how to interpret the results. This arrogance becomes an impediment to getting real value out of the mock juries. If you hire experts to do the groups, then pay attention to them, and let them do the mock juries the way they should be done."

 

"If lawyers can handle the sticks and stones sometimes tossed at them by mock juries, the knowledge gleaned from groups can dramatically increase the chances of winning in front of a real jury," says Thomas, because mock juries "can help a lawyer determine those themes he should emphasize and those ideas and concepts to avoid as well as what he should do to counter the arguments and evidence from the other side."

 

"A mock jury can also be an effective tool to help an attorney manage his client," explains Thomas. "If the client is overconfident, in a state of denial, or refusing to face up to the risks of the case, sometimes the videotapes of mock jury deliberations can be a powerful influence upon the client’s attitudes and behaviour."

 

Amy Merrill, president of the Ohio-based marketing consulting firm of DecisionPoint Marketing & Research, has made mock juries one of her company’s specialties. So much so, in fact, that Merrill’s firm has even designed special facilities specifically to meet the needs of a mock jury trial, including a main presentation room, a jury deliberation room and a viewing room for their lawyer clients.

 

Having personally managed over 5,000 market research projects since 1987, Merrill believes strongly that the mock jury concept is still only its infancy stage. In the future, she says, there will simply not be a case that is tried without the attorney doing their homework in order to understand how the case sits with the jurors.

 

When putting together a mock jury, she purposely stacks the deck against the attorneys, so that they can learn to understand and overcome obstacles that might hurt their case before actually stepping in front of a real jury.

 

For instance, says Merrill, if there is a medical malpractice case and the attorney is defending the physician, we probably would not want a wife of a physician to sit on the mock jury. But if they are a relative of an individual that is a practicing physician, they may be sympathetic to the case and offer insight that may help to formulate their strategy.

 

Like Jerry Thomas, Merrill says it’s important that the mock jury mirrors as much as possible the demography of what the actual jury will look like. To do this Merrill uses a database of some 35,000 possible jurors in her area, using voter registration lists.

Amy Merrill also agrees with Jerry Thomas in that trial attorneys are, for the most part, skeptical about trying new techniques, but says many of their clients are now actually insisting on having a mock trial before they go into court. Merrill notes that in some cases mock juries have even been used to mediate a case to actually eliminate the need for trial. Considering that America is arguably the most litigious nation on earth (70% of the world’s lawyers live in the US) that benefit alone is considerable.

 

Merrill says that the mock jury process is often used for medical malpractice cases and for plaintiff trials against corporations. I believe that any trial litigation could be supported by the mock jury trial processes. The voice of the (mock) jurors is invaluable to our clients in formulating strategy and winning their cases.

 

Michigan-based trial lawyer Carole Bos might well be considered a top gun in her trade. Bos law firm, Bos & Glazier, has handled cases ranging from complex commercial issues to wrongful death claims in both state and federal courts throughout the country. She served as Special Attorney to the United States and is a member of the Million Dollar Advocates Forum a prestigious organisation restricted to trial lawyers who have won multi-million dollar verdicts.

 

Bos, who has used mock juries for nearly two decades in all types of civil cases and for both plaintiff and defense, says that unlike many firms whose trial lawyers haven’t put a case to a jury in years we actually try case and so we use this tool on a regular basis.

 

"Generally speaking, I would never try a major case without first conducting a mock trial. Even if I think the case can be settled before trial, I often use mock juries to help us assess its value."

 

In some instances, Bos has hired expert outside firms to assemble a mock trial, but in instances where her client has budget worries, her law firm puts together the mock trial itself, using a local employment agency.

 

Bos also always makes it a point to have her client on hand to personally witness the mock trial, even though the mock jurors will not know who they are. It is a great way, says Bos, for them to hear real people discuss their cases. Sometimes it is the best way to get at the unvarnished truth.

 

Another American top-rated ace attorney who swears by focus groups is Florida-based lawyer Barry Richard, whose firm, Greenberg Traurig, has offices in New York City and Washington, DC, and clients around the world.

 

Among the high points of his 30-year career, Richard was the lead litigation counsel in Florida for George W. Bush, during the historic Bush-Gore election dispute. Richard's clientele has included such diverse corporate clients as Aetna Insurance, Anheuser-Busch, Caesar’s Palace, Ford Motor Company and the Hard Rock Cafe.

 

Writing about mock juries in the March 2004 issue of the prestigious National Law Journal, Richard says, "The exercise is not a contest of skills between the opposing lawyers. In fact, care should be taken to be sure that the opposing lawyers are evenly matched in terms of skill and experience. The exercise is necessarily a highly truncated version of the actual trial. The jury will see only selected issues and evidence that counsel have determined should be tested."

 

Though mock trials using mock jurors are indeed abbreviated stripped-down versions of real trials, they certainly don’t come cheap. The detailed research necessary to carefully select and vet the proper jurors takes considerable time and money.

 

"The jurors themselves are paid several hundred dollars per day, and the opposing counsels can charge US$300 per hour. So the total cost of putting together a mock jury, says Jerry Thomas, "can range from US$5,000 up to US$10,000 or US$15,000 per group depending upon who the jurors are, how elaborate the court facilities are, and on the reputation of the moderator."

 

But if that’s what it takes to shoot down their opposing counsel in a legal dogfight in a real courtroom in front of an actual jury, there are few legal eagles who wouldn’t leave their egos outside, and use the technique to bring victory to their clients.