Editor's note: Peter DePaulo is an independent research consultant and subcontractor for Ann Cole Opinion Research and Analysis (ACORA), a New York jury research firm. Holly Key is a consultant at Research Concepts, a Tennessee-based company that conducts jury and marketing research. Kathleen Murphy is a trial consultant for ACORA. This article is based on a presentation by Key, Murphy, and DePaulo at the 1999 annual conference of the Qualitative Research Consultants Association (QRCA).

A mock trial is a highly specialized yet fascinating venue for qualitative research. Compared to conventional focus groups or in-depth interviews (IDIs), some things are very different in a mock trial. Researchers and their clients spend weeks preparing the presentation materials instead of hours. We keep respondents at the facility for an entire eight-hour weekend day instead of one to two hours on a weeknight. We let the dominators dominate for a while. And we collect voluminous quantitative data from the same respondents.

Nevertheless, the mock trial is typical of how qualitative methods deliver crucial insights that are not available from quantitative numbers alone. Though the methodology has been developed only recently (mostly within the past 20 years), trial simulations now are commonly conducted in preparation for civil cases where millions of dollars in damages are sought, and for high-profile criminal cases. When less is at stake and research budgets are limited, specific issues can be researched in conventional focus groups or other procedures that cost less than a full-scale trial simulation.

While we do not have precise estimates of the size of the mock-trial business, trial consulting in general is a multi-million dollar industry. Approximately 500 firms now provide trial consulting, and nearly all of them conduct mock trials.

Overview of a mock trial

Essentially, a mock trial is a test of which side would be likely to win a pending case, which elements of the case are likely to appeal to jurors, and, in a civil case, how much money jurors are likely to award if they find the defendant liable. The research reveals the strengths and weaknesses of the arguments, witnesses, and evidence presented in the simulation.

In the procedure, respondents play the role of jurors. They hear or read synopses of both sides of an upcoming case, including lawyers' statements, witness testimony (often on videotape), and documents such as letters and contracts. Respondents fill out questionnaires as new information is presented to them. After all of the information is conveyed to respondents, they deliberate until they reach a verdict. Finally, a professional moderator steps in and conducts qualitative interviews (focus groups or IDIs) to gain more understanding of how respondents formed their opinions about the case. The exercise usually takes a full day (morning and afternoon), sometimes two days.

Three or more mock juries (30+ respondents in total) may be run simultaneously, depending on the capacity of the facility. Through most of the day, all of the respondents may sit together as an audience to watch the presentation of the case. Later, the respondents break out into individual juries (N = 8-12), each in a separate discussion room. Each mock jury has its own moderator, who watches the deliberations from the back room (behind the mirror) before conducting the qualitative interviews at the end of the day.

The researcher's clients are the attorneys for one of the litigants (either plaintiff or defendant) in the upcoming case. The attorneys use the results for guidance in selecting the real jury and designing effective communication strategies for an upcoming case - or in deciding whether to settle out of court.

Examples of counterintuitive results

The data often are counterintuitive. Although we cannot give specifics from actual cases (due to strict confidentiality requirements), the generic examples below show how courtroom strategy can be driven by unexpected findings from jury research.

  • When a small company is suing a large one, small-business owners in the jury might be expected to empathize with the plaintiff. Sometimes, however, qualitative data from the mock trial reveals the opposite: The entrepreneurs feel strongly that the plaintiff is an experienced manager who "should have known better." In such a case, the defendant rather than the plaintiff probably should try to get small-business owners onto the jury.
  • In personal injury cases, prospective jurors who have had injuries similar to the plaintiff's might be expected to be antagonistic to the defense. On the contrary, some mock trial respondents with similar injuries may hold the plaintiff to a higher standard of proof. These jurors feel that they have had to live with the injury, and so should the plaintiff. The implication is that when evaluating prospective jurors who have been injured, the attorney should pay attention to how their injuries might affect their opinions, rather than assuming that these jurors would be pro-plaintiff.
  • Consulting services are commonly used in discrimination cases or employment law cases, due to the increased litigation in this area. Many people feel that they have been affected by discrimination in some manner. Therefore, qualitative research is needed to understand how jurors are likely to relate the specific case facts to their own past experiences with discrimination. Suppose, for example, the finding is that jurors can indeed empathize with the plaintiff's particular allegation of unfairness. One possible communications strategy for the plaintiff's attorney, then, would be to use the same words and imagery that respondents used to describe their own experiences with discrimination.

A complex copy and concept test

Essentially, a mock trial is a mixture of a concept test and a copy test. The concepts tested are the basic contentions, e.g., that the defendant is responsible for damages claimed by the plaintiff. The "copy" includes lawyers' arguments, witnesses' statements, documents, and other evidence that may convince jurors to "buy" either the defendant's or the plaintiff's contention.

However, the mock trial is much more complex and detailed than typical qualitative concept/copy testing. For example, in a fraud case, the concept is not the simple idea that the defendant committed fraud. Rather, it is a chain of specific legal propositions: that the defendant made false statements; that the statements were material (important); that the defendant intentionally conveyed the falsehoods; that it was reasonable for the plaintiff to believe the falsehoods; that the falsehoods caused financial injury; that the amount of the injury was X dollars; and that the defendant acted wantonly and recklessly. Likewise, the hours of "copy" (arguments, testimony, documents, etc.) are much more detailed than a single advertisement.

Lengthy preparation and presentation

 Preparing the presentations and evidence to be presented to the mock jurors requires weeks of concentrated writing and revision by researchers and their attorney clients. The challenge is not in coming up with enough material but in paring it down. The full case will take days or weeks to present in the real courtroom, but it must be distilled to a few hours for the mock trial.

Difficult decisions must be made in deciding what to present. Here are two examples:

  • Should one attorney present both the plaintiff and defendant sides of the case? Or, should "opposing" lawyers present the two sides separately, like in an actual trial? (An attorney from your client firm would play the role of the opponent's lawyer.)
  • Which of the many possible witnesses should we show in the mock trial? And how should their testimony be presented - in person, on videotape, or in transcripts? Of course, an opposing witness will not cooperate with your mock trial, but we can have an actor play the role, assuming that our clients know what the witness is likely to say in the real court.

Just one shot

In researching a consumer product, you have the luxury of testing different marketing variables in separate projects. Multiple studies are possible because the market for the product may last for years.

By contrast, pending litigation is like a Cinderella market that will vanish when the actual trial is over. Moreover, attorneys - like corporate clients - do not contract for research very far in advance, so we probably can complete only one study before the real trial begins. Thus, the researcher usually gets only one shot. We must test everything important all at once.

Extensive security

For typical consumer focus groups, "security" means that the recruiters ask brief screening questions to eliminate respondents with personal or occupational ties to your industry or the news media. By contrast, mock jurors are more extensively screened during recruiting, and again in a methodical "voir dire" after they arrive at the facility. Prospective respondents who happen to know any of the litigants, attorneys, or witnesses cannot participate.

Further, the mock jurors must promise that "mum's the word" once they leave the facility. They sign a confidentiality agreement to document their promise not to discuss the case after the exercise. A mock trial usually is conducted in the city or venue where the actual case would be held. It is extremely important that no participant tips off the opposing side or instigates pre-trial publicity.

Letting dominators dominate

When the mock jury is deliberating like a real jury, either the chosen foreperson or some other participants with forceful personalities are likely to dominate the discussion. Meanwhile, the professional moderator (watching from behind the mirror) is cringing because of her ingrained urge to limit dominating behavior. An attorney in the back room with the moderator also may be cringing, particularly when the influencer's opinions are not what the client wants to hear!

Until the deliberations are finished, the back-room observers must resist the temptation to step in and take control. Dominators emerge in a real jury too. To keep the simulation realistic, the mock jurors must be left on their own until they complete their deliberations.

However, if the moderator will be conducting a post-deliberation focus group, then at that time she finally gets the chance to control the dominators. Indeed, it will be particularly important to draw out the respondents who said little during the deliberations.

Voluminous quantitative data

Before the mock jurors are interviewed qualitatively at the end of their deliberations, they probably will have completed quantitative questionnaires before and after major phases of the presentation, such as opening statements, witness testimony, and closing statements. Thus, the results will track any changes in respondents' sentiments as the case is presented. The analysis also may include demographic comparisons and regressions, which will help in selecting the real jury if the case goes to trial.

How can quantitative analysis be justified with such a small, non-random sample? We believe the attorneys are better off seeing the numbers versus not having the data at all. Unlike in consumer research, it would be unrealistic to tell the clients that they must verify the qualitative results through a full-scale, quantitative survey. It would be impossible to present enough of the case to a large probability sample (and even if we could, the security risks would be prohibitive).

The quantitative analysis does serve the important purpose of measuring and tracking the opinions of the particular sample at hand. Whether the results can be projected to the regional jury population is a separate issue. As in any qualitative research, it is our duty as researchers to inform clients about the uncertainty in projecting the findings from a small, non-random sample. Ultimately, the attorneys must decide how much weight to allocate to their expert judgment versus the research findings in deciding how to handle the pending case.

Deliverables include courtroom consultation

When completing a consumer study, the researcher's job usually is over once the report is delivered. It is the exception rather than the rule for the consumer research contractor to go further and help the client implement the findings.

In contrast, jury researchers are commonly engaged to help their clients apply the findings in the forthcoming trial. The researcher is with the attorney in the courtroom and provides real-time consultation for selecting jurors, questioning witnesses, and adjusting communication strategies.

Litigation knowledge needed

Senior jury researchers need in-depth knowledge of litigation and courtroom procedures. Law degrees or ample coursework are the norm. Such expertise is needed to design questionnaires, prepare presentation materials, draw implications from the data for courtroom strategies, and provide consultation during the actual trial.

Societal benefits

Jury research can provide benefits beyond helping well-heeled litigants gain an advantage. As with conventional copy testing, mock trials reveal possible misunderstandings and ways of communicating to ensure accurate comprehension. The better the jurors comprehend the issues, the more likely it is that they will reach a fair verdict.

Another public benefit arises when the mock trial delivers "bad news," for example, that jurors are unlikely to believe the client's contentions or will be highly sympathetic to the opponent. The client may then decide to settle out of court, thus sparing the enormous monetary and emotional costs of a trial. This is analogous to consumer research saving the expense of a marketing effort that would probably fail. Everyone is better off if litigants and companies do not waste time and resources.

The qualitative difference

The two major sources of qualitative data are the deliberations and the post-deliberation focus groups or IDIs. The respondents are giving us their open-ended thoughts and feelings through their own words and nonverbal behavior. Although the quantitative data from the repeated questionnaires are voluminous, the qualitative findings yield valuable guidance that the attorneys cannot get from the numbers alone.

The quantitative data may reveal, for example, that the jurors liked the plaintiff's attorney and disliked the defendant's counsel, but the numbers alone do not tell us why. We need the qualitative protocols to understand exactly which statements or mannerisms turned the jurors on or off, and how the lawyers can improve their approaches.

The qualitative results from the mock deliberations can pinpoint the thoughts, feelings, and perceptions that were turning points for the jurors. The findings show how group dynamics might favor one side or the other. If anything is not clear in the freewheeling deliberations, it can be clarified when the moderator steps in and probes further.

If you had a quantitative result that went against the attorneys' expectations, they might argue that perhaps the respondents did not comprehend the relevant questionnaire item. Qualitative verbatims could refute this objection by showing that respondents really understood and gave heartfelt reasons for their reactions.

How real?

Anyone who doubts whether respondents really behave like jurors would probably be convinced by watching a mock jury deliberate. Participants take the exercise quite seriously and discuss the issues sincerely. Many get quite emotional and argue passionately.

Perhaps the ultimate assurance is that the lawyers are convinced. They appreciate watching from behind the mirror as much as consumer-product clients do.