Use A “Guerilla” Mock Jury To Prepare A Witness For Cross-Exam

Again and again the message I hear from accomplished trial lawyers is that preparation is the absolute key to success in the courtroom. I previously wrote a post endorsing what I will term a “guerrilla” mock trial exercise as a valuable component of this preparation.

Why “guerrilla”? While firms across the country will gladly perform Cadillac-quality jury research, using state-of-the-art facilities and carefully selected mock jurors, this requires a level of investment that is far outside the budget for most parties facing a trial. A “guerrilla” mock trial, in which  you invite office staff, friends or even relatives to act as jurors, and use whatever space is available, can provide a reasonably priced alternative to a full-blown mock trial, rendering the unquestionably useful exercise available to parties that aren’t Fortune 500 companies. Just be sure to validate the jurors’ parking and buy them lunch.

In a perfect world, we would have the opportunity to present every aspect of the case to multiple sets of mock jurors before the big day. Since we live in the real world, however, I’ll focus on one aspect of mock trial presentation that I’ve personally found useful: preparation of one or two key witnesses for their cross-examination. In fact, doing direct and mock cross-examinations, in front of mock jurors, can be an excellent way to prepare a witness who is nervous, inexperienced at testifying or otherwise expected to struggle on the stand.

What is involved? First, I recommend running through several mock direct and/or cross-examination sessions alone, with no jurors present. It is hoped these preliminary exercises will smooth out and/or help identify particularly rough areas of examination. When the jurors are present, both counsel and the witness should treat the exercise as a dress rehearsal, taken seriously, without interruption.

It can be useful to provide the mock jurors with questionnaires following the examination, asking specific questions. For example, if the witness is expected to be presented with potentially damaging impeachment evidence during her cross-examination, it could make sense to ask in the questionnaire something like: “Did the evidence that _________ make you question the witness’s credibility?”Alternatively, if you are presenting a direct examination of a witness, and there is concern about the witness’s ability to provide a clear explanation, the questionnaire could ask: “Was the witness’s explanation of ______________ completely clear? Was it confusing? If so, what made it confusing?”

Another idea is to combine a mock opening statement presentation with examination of one or two witnesses. Jury consultants often present mock juries with “staged” questionnaires, to see how jurors receive and process new information. For example, jurors can be asked to complete a questionnaire following the mock opening statement. Then, they can be asked to complete an additional questionnaire following the mock direct and/or cross-examinations. Learning how the mock jurors process new information in the context of the case can help counsel develop a strategy for dealing with potentially damaging evidence–one of the great benefits of jury research.

It is a good idea to videotape the examination. This makes it possible to spend time after the mock trial reviewing the witness’s posture, demeanor or other issues both alone and, if necessary, with the witness.

A couple of additional thoughts. First, it is a good idea to reinforce the notion that the mock trial and any of the information discussed during the mock trial, should be treated as confidential. Remember, too, that there is no attorney-client privilege covering information conveyed to mock jurors, so take care not to inadvertently waive the privilege. Second, if the budget allows for a jury consultant to participate in the mock trial, this can be hugely helpful. Consultants have extensive training, and have typically participated in many, many mock trials and/or other focus group work and will bring an entirely different dimension to the analysis.

So, next time you’re getting ready for trial, think about incorporating a “guerrilla” mock trial as part of your preparation.

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