Mock Trials Offer Virtual Reality

Simulated juries can be used most effectively early in the litigation process to develop the theory of the case.

Flight 710 was headed from Topeka, Kansas, to Chicago's O'Hare Airport when it went down in October 1989, killing all 53 passengers and four crew members.

"Thomas Bailey," a 36-year-old computer salesman from Chicago, was aboard the twin-engine jet. His wife and two children brought a wrongful death suit against the airline, the manufacturer of the plane and the manufacturer of its rudder.

Although investigating officials could not determine the cause of the crash, liability became a primary focus of a mock jury panel. The jury, however, never was told a critical fact. The crash of Flight 710 never happened. It was a composite of actual airplane crash cases, created for the purpose of the mock trial.

The jurors struggled with the liability issue, unable to justify damages until they could agree on the cause of the crash. Among the possibilities were a rudder problem, unavoidable wind sheer and possibly even a bird caught in the engine.

The mock jury also fixated on the manner in which the "airline" had handled the aftermath of the crash. Unable to identify all of the victims' body parts, the ersatz airline had buried the unidentified remains together quietly in a mass grave without prior notice to the families.

A jury consulting firm conducted this mock trial exercise to demonstrate not only the importance of mock trials, but when to use them. Most firms will conduct a mock trial a week or even a day before the actual trial. At that late juncture, however, it may be of only limited value.

The use of simulated juries has become popular among litigators as a trial preparation technique and as a way to gauge settlement or arbitration decisions. Mock trial exercises were in their infancy 20 years ago. Today, however, psychologists, sociologists and communication specialists have joined the field of trial consulting, trying to anticipate jury reactions through an accumulation of demographic and psychological characteristics.

An estimated 400 full-time trial consultants across the country provide this service in the courtroom, helping lawyers to understand jurors objectively.

DANGEROUS ASSUMPTIONS

The greatest value of a mock trial as the "thirteenth juror" is not necessarily its predictive power. Rather, it should highlight for counsel specific issues with which an actual jury eventually would struggle. If conducted early enough in the litigation process, mock trial exercises can be used most effectively to develop the theory of the case and to assemble pertinent evidence.

A mock jury gives a lawyer the opportunity to identify a case's strengths and weaknesses by testing legal theories and demonstrative evidence before trial. This is particularly helpful when there are two or more equally attractive theories of liability or defense. An attorney might discover unanticipated problems or find out how jurors are likely to feel about key issues or witnesses.

A mock trial also can reveal how jurors may deal with arguments or theories that might be inconsistent with their basic values and beliefs. Counsel also will be in a better position to determine whether their theories of the case have underestimated the jurors' intelligence, ignored its intuition or failed to provide sufficient information to answer their questions. The result of a mock trial can show that counsel's assumptions about a jury's intelligence, knowledge or experience can be dangerous.

The media have led Americans to demand a highly sophisticated level of detail. From DNA testing to re-creations of accidents, jurors expect to relive the incident. This "plane crash" was no exception. The mock trial clearly demonstrated how jurors strain for full and complete proof.

BIRD MIGRATION

The mock jury's foreman took notice of the fact that the pilots had little to say. He complained that there was not much detail in the pilots' conversations recorded on the black boxes.

The time of year was an important issue for another juror, who wondered what the weather conditions were in October and the number of birds that were flying then. This juror felt these factors, though perhaps tangential, merited consideration.

A 35-year-old human resources manager was interested in knowing more about the maintenance records of the plane and the average life of these crafts. He asked when the plane had been brought in last for maintenance and if the 400,000 miles that the plane purportedly had flown was average.

If such details are not presented by counsel to the jury's level of satisfaction, any missing facts become a distraction for jurors. A lack of proof may be explained to the jury as a technological deficiency or as impossible to obtain. But missing evidence should not be attributable to an attorney's lack of preparation.

The mock trial underscored some of the specific elements of proof that jurors would demand at the actual trial: black boxes, cockpit recorders, weather conditions, wind-sheer detection equipment, witnesses' videotapes, experience of the pilots, maintenance records of the plane, coronors' reports, computer malfunction records and even migration patterns of birds and their potential affects on an engine. While not all issues may be legally relevant, such proof may be necessary in order to persuade the jury on counsel's theory of the case.

CHARTS AND BLOWUPS

A mock trial generally is conducted by a market research or a jury consulting firm with expertise in selecting a representative sample of jurors from which the actual trial will draw. In the case of this airplane "crash," the six men and six women on the mock jury ranged in age from 28 to 65 years and included a parking lot cashier, a high school guidance counselor and a retired firefighter. One woman was a bartender. Another juror earned more than $100,000 a year as a self-employed commodities broker. The foreman was a 38-year-old lab technician.

After an abbreviated voir dire, the plaintiff's attorney presents a condensed version of the case, usually with exhibits.

The attorneys' summaries generally are limited to evidence admissible at trial. Counsel, however, occasionally may introduce inadmissible evidence to help determine what the jury thinks about a particular issue.

Depositions may be read at a mock trial. Graphics, charts and blowups of actual documents may be used. In this case, a two-piece lever from the rudder, the only part recovered at the "crash site," was shown to the jury.

Usually, an attorney from the same firm argues the other side. The opposition's strengths, however, must be effectively and clearly presented, or the results may be inaccurate. A rebuttal is presented. These arguments serve as closing statements.

A set of instructions then is read by a neutral person, typically a member of the consulting staff, with a unanimous verdict required on liability and damages.

The jury deliberates privately, with attorneys observing behind a one-way mirror. The entire "trial" is completed in a three-to-four-hour evening. The cost of a mock trial typically ranges from $8,000 to $15,000.

THE RUDDER THEORY

In the "plane crash" mock trial, several theories were presented for the jurors to consider. A faulty rudder was a likely explanation, with strange noises being heard in the back of the plane just before communications ceased. The plane then flipped over and, 75 seconds later, it crashed in an open field, narrowly missing an apartment complex.

But this explanation accompanied by minimal physical evidence, was simply not enough for this jury to accept. The jurors' intense discussions often displayed a need for logic, facts and great detail. What this mock trial demonstrated was that, for the plaintiff, the rudder theory was the most favorable and should be pursued most rigorously in discovery. The "unavoidable, inexplicable wind sheer" theory, however, would help the defendant's case.

Despite the desire for definitive proof, the jury still felt the airline owed the plaintiff's family for failing to get the passengers safely to their destination. Indeed, one juror stated that God did not grab this plane and send it hurtling to the ground.

Another juror found it incredible that a jetliner could fall out of the sky on its own accord. Reasoning such as this demonstrates airlines' difficulty in defending these types of cases.

In the mock trial scenario, there were two tiers of liability. The first was the crash itself and the second, in the aftermath of the crash, was the handling of the remains. The jurors seemed to display an inability to separate these two issues clearly, almost balancing dollars in one against the award in the other.

OUTRAGED JURORS

Since the Tylenol poisoning case, Americans have been sensitized to a large corporation's handling of tragedies. Although several people died in 1982 from the tampered headache relievers on store shelves, the public praised Tylenol officials for their quick and compassionate response to the tragedy.

In this exercise, though, jurors were outraged over the airline's participation in an unannounced memorial service for the remaining body parts. They were told that the airline had selected and purchased two plots and caskets for this mass burial without informing family members.

This "mass burial" of body parts was characterized as reprehensible by a high school guidance counselor on the jury. Another juror felt that, in light of technological developments, the airline should have identified the body parts. Its failure to do so, followed by the hasty and secretive mass burial, made it appear to the jury that the airline had something to hide.

The mock jury awarded $1.5 million to the family of Thomas Bailey for his wrongful death. The jury also awarded $10 million in punitive damages for the mishandling of the remains.

Jury research tools such as mock trials, focus groups and shadow juries have been criticized as "voodoo litigation" or marketing tools which have no place in a courtroom. Others criticize mock trials as luxuries, unnecessary in an era of rising litigation costs.

Jury decisions, however, reflect the strength of the evidence and its presentation. More lawyers are using jury consultants as a way to understand jurors and to help lawyers advocate a position the best way possible -- through an understanding of the facts.

The earlier consultants are brought into the case, the more they can help shape the direction of the arguments, including evaluating depositions, recommending the recruitment of certain types of experts and developing case strategies and themes.

In addition to mock trials, focus groups and shadow juries also offer insight into important issues at trial.

A focus group keys in on a particular issue or witness in a case, not in a trial setting, but in a discussion often led by the jury consultant. Such a service runs about $6,000.

A shadow jury, unlike a mock trial, is assembled during the actual trial itself. Anywhere from five to a dozen people are selected, as close in demographic and personal traits to the real jury as possible

These people sit in the courtroom's audience, listen to the same evidence as the actual jury and, after the day's testimony, discuss their impressions with the attorney who hired the group or with a neutral person who may not reveal who hired them.

Shadow juries often are used by counsel as a means of obtaining immediate feedback during trial. The attorneys then can gauge the need to modify trial strategy.

Usually a shadow jury is most beneficial in a high-stakes, complicated case. A shadow jury can be expensive, costing as much as $1,000 per day per shadow juror.

Generally, jury research gives lawyers an edge when the case is close, when the jury is a heterogeneous group, when the facts are complex, when the issues are difficult to define or when a theory of liability must be advanced. The consultant can help a lawyer avoid inaccurate stereotyping of jurors while at the same time offer insights into predispositions and community attitudes toward particular issues.

Although social science experiments, such as mock trials, never will predict the definitive outcome of a proceeding, they certainly can help even the most seasoned litigator to target and evaluate critical issues for trial, to identify possible sympathetic jurors, to expose litigation risks and to enhance overall case strategy.

The Sixth Amendment requires an impartial jury. Reality, though, dictates that jurors come to a courtroom with preconceived notions and opinions. To help identify and even combat these preconceptions, a mock trial can prove to be a solid investment in significant cases.



(1) The mock trial was conducted Jan. 12 by Chicago's Leo J. Shapiro and Associates.

(2) "Trial Consultant Not Judge for the Big Cases," Conn. Law Tribune, June 20, 1994.