Editor's note: Stanford Odesky is president of Stanford Odesky and Associates, a market research firm located in Toledo, Ohio. Richard Kerger is an attorney with Marshall and Melhorn, also based in Toledo.
The playwright has completed his task. The producer has raised the funds. The director has found the actors and actresses and moved through the rehearsal process. The play is ready to open.
But before it reaches Broadway, most plays are given a test "on the road." This allows the cast to work out any rough parts. The director and the playwright can improve the pace. Concepts can be modified. When the production moves to the Great White Way, the likelihood of success is significantly enhanced. The alternative, moving directly to Broadway, is less expensive but substantially more risky.
Many legal trials have a far greater economic potential than the best New York shows. Yet they have traditionally "opened in New York," largely because there was no equivalent of the small Connecticut towns used for off-Broadway openings.
That is, until the simulated trial process came along. While the format may vary, it generally involves the presentation of a trial through extended opening statements to a jury selected by a trained professional to reflect the demographics of the jury that will ultimately try the case.
Try out arguments
Simulated trials offer two main benefits. First, they allow lawyers to try out their arguments before unveiling them in the courtroom and assess a jury's reaction to certain features in a case. In the past, the way to test these various points has been to bore one's friends and relatives with a disjointed presentation to see how they react. Secretaries and other lawyers in the firm can be found occupying the same unfortunate role.
Second, while most attorneys spend considerable time preparing for trials and presenting arguments to juries, only a rare few have actually had the opportunity to watch the deliberation process. We all recognize it would be helpful to have that opportunity, but no one had really come up with an effective way to do it.
A key element of the trial simulation is the selection of prospective jurors. In most cases, quotas are established - based on consultation with lawyers and judges--on the demographic makeup of the average jury in the given court's jurisdiction. Respondents are qualified on age, sex, education, race, employment and other criteria.
These simulations are most often held in law firm conference rooms. They may consist of a presentation only of remarks from attorneys, but witnesses can be presented to the extent desired. Exhibits can be used. A lawyer representing one of the parties simply divides his loyalties for the moment and presents the opponent's case. The "judge" can be anyone; in-house counsel for the client is perhaps the best person for that role. The deliberation process is monitored and recorded by a video camera. After the verdict has been returned, the lawyers can speak with the jury to conduct additional inquiry.
In some simulations, the jury is slanted toward a given demographic profile. When this happens, the lawyers want to test part of the case against one important demographic, such as elderly individuals or college graduates. The disproportionate core can serve as their own jury, with the "representative" group meeting separately, or they can be individually interviewed and excluded from the jury process. In one simulation we used a double jury (i.e., 16 people) that was split randomly into two groups to come to a decision. (They came to the same end result, but used different criteria.)
An example
To explain the process a bit more, let us assume a case involving alleged age discrimination resulting in the termination of an employee. The plaintiff is a former executive who is 66 years old. The company contends that the decision was based on economic necessity, but is uncertain as to how the issues will be viewed by a jury.
After discovery has been concluded, and about one month before trial, a simulated trial is held. A large conference room is booked in an office building. A market research firm is contacted and asked to arrange for 12 to 15 people to be available for four or five hours on a Saturday morning.
The lawyers determine which demographic profile they wish to observe and give the marketing firm a list of the sort of people they wish to have present. The marketing firm then conducts telephone interviews to recruit them. Typically the prospective jurors are told they will participate in a market research project and will be paid for their time. The rate of pay varies based on time involved. We have had some last four hours and at least one took two days.
Since the cases that benefit from this approach are often larger ones, there are ordinarily two or more lawyers handling them. One of the lawyers is selected to present the opponent's case. Determining which lawyer will represent the client and which will represent the opponent depends in part on the goal of the simulated trial. Is it to be a trial run? Is it to assess jury response to a particular issue? Is it to give a client an indication of how a jury would analyze the case to help a settlement analysis? There is no right answer to these questions, but they are among the factors that should be considered.
The ideal setting is a large conference room with an adjoining smaller room. In the smaller room sit the clients and others who are interested in the proceeding. A video camera is set up in the large room to cover the jurors, and perhaps another camera to cover the attorneys and/or witnesses, again depending upon the purpose of the presentation. Someone is designated to serve as judge and a brief jury charge prepared.
All of the participants, other than the jurors, remain in the small room during the arrival of the jurors. Then, the contact for the marketing firm will enter the room and explain what the nature of the "market test" will be. The identity of the party sponsoring the event is not disclosed, although it is important to have the plaintiff and defendant identified.
Care must be exercised to make certain that jurors identified with one or the other party are not a part of the panel. This should be left to the marketing firm. If the community is a smaller one, you may have to hold the mock presentation in an adjoining county to avoid polluting a jury pool.
With the jurors seated, the judge gives brief introductory remarks about the kind of case involved and who will be making presentations. Then the lawyers conduct a limited voir dire. This is done more to screen out anyone who might have some bias that could skew the result. For this reason we recommend starting with a pool of 12 to 15, although we have never asked any juror to leave.
Next, the lawyers make what are most accurately characterized as extended opening statements, freely using exhibits as they deem appropriate. If necessary, witness testimony might be presented, either through videotape or in person.
At the conclusion of the presentation, the jury charge is given and the judge and the lawyers retire. A camera operator is left in the room and jurors deliberate. After a verdict has been returned, or at a point at which it appears a verdict will not be forthcoming in a reasonable time, the lawyers and the judge return and can conduct further interrogation of the jurors. This can focus on some of the stylistic issues, as opposed to the more important issues in the lawsuit that deal with the substance of the claims. Depending upon the jurors' reaction, theories can be changed or claims modified.
Fascinating experience
It is a fascinating experience, regardless of the outcome, to watch the deliberative process. The jurors miss points that the lawyers thought were terribly important and will pick up on issues that the lawyers simply had not thought to be issues. The economic value of the case can be better analyzed after these laypersons have had their chance to give a view through their verdict.
In seconds, the jurors forget that the camera operator is present and that this is a demonstration. People champion their ideas vigorously. Indeed, in one of the simulated trials, two male jurors began moving toward a fist fight before the floor person calmed things down.
What the lawyer sees is the dynamic of the jury process, the flow of ideas, the different personalities that appear from people who seem innocuous on the jury panel.
The most valuable insight is that the traditional wisdom about selection of the foreperson as being most important is not necessarily true. Selection of the foreperson during the voir dire process is not that difficult for an experienced lawyer. Certainly one or two people can be viewed as having that role.
But the role taken by jurors who can only be described as talkative become crucially important. That is, people who would not be identified as having the personality strength necessary to be forepersons nonetheless play a very active and potentially influential role in the negotiation process. They talk a great deal and skew the deliberations, with the result being a fairly radical shift in either the amount to be awarded or, in some instances, even in liability.
This insight is invaluable in the trial of any jury case since it sensitizes the trial lawyer to the problems such people can present.
Purpose can vary
As noted earlier, the purpose of these proceedings can vary a great deal. They can be done to help a witness become comfortable with testifying, and to have some feedback on credibility. Or to test a jury's ability to follow particular arguments, or to assess how the jury will react to a very emotional but essentially irrelevant aspect of a case.
We feel that any case that has significant economic importance will benefit substantially from this proceeding, whether the case settles or not. Indeed, the videotape of the deliberation could be used as a device to convince the other side to settle, assuming it is sufficiently compelling.
We have used this process in cases involving various issues including product liability, lender liability, employment litigation, medical malpractice and libel actions.
In the lender liability proceeding, the simulation jury became concerned over a totally innocuous issue concerning one of the documents. Neither counsel for the plaintiff nor the defendant had ever considered that this aspect could be an issue, but it was extremely troubling to the mock jury. The presentation at trial dealt with the issue and eliminated the confusion over that point.
In the product liability action, counsel for the company was extremely concerned about whether any jury could deal with the causation aspect in view of the horrible injuries sustained by the young plaintiff. The simulation jurors could, and a unanimous verdict was returned for the defendant. While the extent of the injuries could not be portrayed with complete accuracy since the involvement of the plaintiff was not possible, the pictures used and the description of the injuries seemed sufficiently clear to provide an accurate assessment.
In the libel action, a hotel chain sued a television station for allegedly false statements concerning the hotel's discrimination against black customers and its failure to pay real estate taxes. The case was presented to a simulated jury before trial, since the damage claim made by the plaintiff was $50 million. The defense was modified following the simulated jury trial. Subsequently, a defense verdict was returned after a six week trial.
A side benefit, if you will, is that the representatives of the party get a chance to see how the jury process works. In that sense, it leads to more informed decisions about the trial process and can help the lawyer in working with the client to make the decision to settle or go to trial.
Additional uses
There are additional ways to use this general process. For example, before filing a lawsuit, or shortly after receiving a complaint, a focus group might be convened. The people would again be selected by someone trained to demographically replicate the jury in the area in which the case is pending. The case would be discussed with them to determine their reaction to various claims and defenses. Having this information at an early stage might alter the development of the claim or the presentation of the defense and assure a successful result.
Another benefit is that the attorney presenting the other side has the opportunity to truly think about the case from the other lawyer's perspective. Developing the information necessary to present the issue from the opponent's side can lead to insights in one's own case. Holes which did not seem to exist suddenly loom large. Witnesses change character. Arguments with which you had previously been in love seem very unattractive.
The lawyers also get a chance to work on the case at a slightly earlier point than they otherwise might. The lawyer presenting the client's case has the equivalent of the "road test" given the Broadway play, at least as far as the opening statement is concerned. Similarly, any witness presented has the same benefit.
Confidentiality agreements
There is the danger of having the information leak out, but with appropriate care in selecting the simulation jury, that can be minimized. We have asked for the execution of confidentiality agreements by the jurors in some cases. However, they may lead to more mischief than they are worth. Put differently, we doubt very much that the participants ever give much thought to the idea of selling their information to the opposing party. To the extent that disclosure is a concern, it would not be difficult to simply change names of the parties.
By holding the presentation relatively close to the trial date, the cost in lawyer time is minimized since much of the work would have been done to prepare for trial anyway. The cost of conducting the screening to select the jury, payments to the jurors and the actual holding of the proceeding itself will run in the neighborhood of $7,500, with a like amount for time in preparing the opposing party's case.
Still, while we recognize that the cost may be a problem in certain cases, we feel it is almost inexcusable for this process not to be used in any significant case.