Updated: Nov 7, 2019
Question: Why would any party to a lawsuit conduct a mock trial or a focus group? If you were asked this question you might give some of the following answers:
- To see if potential jurors will be receptive to your case theory.
- To learn if certain witnesses are believable, likable, and credible.
- To develop or test case themes.
- To shed light on key case strengths and vulnerabilities.
- To test the value/usefulness of key trial graphics.
These are all legitimate answers, but what's missing from the list?
- To use as leverage in mediation.
- To mediate with confidence.
- To inform the risk/benefit analysis of going to trial instead of settling or vice versa.
The Wrong Timing
If I had a dime for every time a lawyer told me they had a case that warrants a mock trial, but the client doesn't want to do it until after mediation, I'd be a rich man.
The discussion usually goes something like this: "The client wants to do a mock trial but not before mediation because the case might settle and then all that money will be wasted."
While I understand what prompts that thinking, let me share one of many true stories that should change the way mock trials and focus groups are viewed in this context.
I was engaged to conduct jury research (two mini-mock trials) on a $10 million slip and fall case for one of the largest chicken, beef, and pork producers in the country. The important part of the story is that I was engaged before mediation took place.
In a nutshell the case involved an employee who worked in the company's chicken packing plant. He somehow fell backwards while at work and hit his head on the floor. He was diagnosed with a brain damage, and claimed permanent disability. His position was that the company negligently installed the wrong flooring for the working conditions (the floor gets wet routinely throughout the workday), the water made the floor slippery, and that's what caused him to fall.
The company thought it had a strong defense; nevertheless, it was worried about the level of exposure it might face once a jury learned that this man would never work again because of something that happened on its premises and in the furtherance of its business.
Leading up to mediation, we conducted two mini-mock trials and the results of both were identical: None of the jurors in either mock trial believed the defendant was at fault and none of the jurors awarded damages. These result were both surprising and encouraging.
To Settle or to Try the Case
At mediation (which I attended), plaintiff's demand stood at $10 million. Based on the results of the jury research, the defense team was confident that if they couldn't settle the case for a reasonable figure, they would prevail at trial. This gave them the upper hand during negotiations, thus their counteroffer started at $0. Plaintiff's counsel didn't take this offer very well, nor did the mediator. But the defense stood strong because they had data to support their position. In the end the case settled for $900,000.
The Untapped Value
Let's consider how the mediation might have gone in the absence of the mock trial results. The plaintiff starts at $10 million. The defense is worried that if it doesn't settle the case, a jury might not only award $10 million in compensatory damages, but it might also assess untold millions in punitive damages. So after an all-day contentious and nerve racking back and forth, the plaintiff gives a final "take it, or we'll see you in court" demand of $5 million. The defense reluctantly agrees, but believes it made the right decision by avoiding the expense of going to trial and the risk of an adverse verdict. How much money was saved because the client decided to conduct the mock trials before mediation? Conservatively in the millions of dollars.
When considering the timing of mock jury research, the question shouldn't be "What will be the lost costs if we do a mock trial before mediation if the case settles?" The question should really be "What's the cost of not doing a mock trial before mediation?"
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135