If you’re preparing a high-exposure case for trial or if you’re having trouble evaluating a risky case with high damages or an unusual fact pattern, a mock trial can be a useful tool for a civil defense attorney. Before recommending or committing to a mock trial, you should consider the pros and cons of devoting your time and your client’s resources to this expensive and time-consuming process. While the benefits of putting on a mock trial are potentially great, the decision to “mock” a case shouldn’t be treated lightly.

A mock trial is essentially a focus group where you present your case and the plaintiff’s case in a pretend trial setting. You will either play yourself (the defense attorney) or dust off your high school drama acting chops and play the part of your opposing counsel. The latter is inevitably more fun. You’ll need to pick a colleague to play your adversary – ideally someone at your firm that is already familiar with this case. If this isn’t an option, don’t sweat it. Casting an attorney with a fresh perspective of the case can hold its own benefit and may even make the simulation more realistic. Plaintiff’s counsel usually has the stronger emotional argument, which doesn’t necessarily depend on mastery of the facts.

During the mock trial, you present both sides of the case in what many seasoned mock trial lawyers refer to as a “clopening.” “Clopening” is derived from a combination of the words “closing” and “opening” to denote the fact that each party will have one opportunity to present their case facts and argument in a single hybrid opening-closing statement. Your faux opposing counsel will clopen first, and then your clopening will follow. Following the presentations (and lunch) you’ll then watch the mock jurors deliberate. For a remote mock trial, your view of the mock jurors’ deliberation will take place remotely via Zoom. For an in-person mock trial, you will watch deliberations via a closed-circuit television. The most sophisticated and expensive mock trials will feature three separate jury panels. Each panel will fill out a verdict form following the same rules that would govern a real-life trial. (i.e. a unanimous verdict in federal court or 10-out-of-12 in state court). Presenting the cases and deliberation will take up most of the day. At the end of the day, the jurors will get into a room together to respond to pointed questions from moderators. The mock jurors are sent home and some time is set aside for a participant debrief. I suspect this last phase of the day is designed to keep the lawyers from riding the elevator down with mock jurors. “Hey, I thought you two hated each other!”

The principal benefit of paying for a mock trial is to watch the jurors deliberate. It is stunning and frankly a little scary to see how normal people evaluate and ignore contrary evidence. I have learned a lot by watching the mock jurors deliberate. The most significant of these lessons is this: jurors rely on their personal experiences and the experiences of their fellow jurors to an absurd degree. Yes, they do this despite the instructions they are given that they must base their verdict on the evidence presented during the trial. Have a case with a busted watermain? Beware Juror #4 whose ex-boyfriend worked for Roto Rooter. For better or worse, Juror #4 will have a grossly outsized influence on the rest of the group. Mark my words.
In terms of picking a vendor (sometimes called a trial consultant or jury consultant), here are some questions you might want to ask as you go through the vetting process:

• Does the vendor have experience in the venue where the actual trial is taking place? Are they getting the jurors from the case-accurate jury pool? There can be important regional differences that must be considered to get an accurate sample.
• Does the vendor offer Zoom and in-person options? If so, what is the price difference? (In my experience, the difference is not as much as you would think).
• What does the vendor pay to the mock jurors? How do they advertise for mock jurors? This matters more than you might think. A low-balled set of jurors could result in a less representative jury sample. That being said, you’re never going to get the cardiologist to show up for a mock trial like they might with a real jury summons. It just will not happen.

Another perhaps more obvious benefit to the mock trial is the outcome, as in how the various jurors ultimately render their pretend verdict. This outcome ultimately manifests itself in the form of written report from the mock trial vendor. Thought you had a rock-solid case? Not so fast. It turns out the jurors hated your rockstar client representative or your overly technical defense. This is good for you and your client to know. It is even better that the carrier knows and sees a copy of the mock trial report. Indeed, the adjuster should be invited to attend the mock trial. This presents an excellent setting to discuss the strengths and weaknesses of the case with the person most responsible for valuing it. At the same time, if you “lose” your mock trial, please keep in mind that – as far as I’m aware – there has never been a study commissioned to track the accuracy of a mock trial as compared to the actual result. In other words, while you should consider the empirical data that you collected during the mock, and it is an invaluable tool to value your case, do not let it get you down.

The major obstacle to a mock trial is cost – both in terms of the price or retaining the mock trial vendor and in attorney fees for mock trial preparation. I have found the vendor cost to range from anywhere between $40,000 to $90,000. I’m sure there are more and less expensive alternatives, but I have not encountered them. There are also optional add-ons that can increase the price further (e.g., a Zoom viewing option for out-of-state adjusters who have no interest in coming to Seattle; worth it by the way). Having done quite a few of these and having retained different vendors, I generally subscribe to the adage “you get what you pay for.” You do not want to devote tens of thousands of dollars to the mock trial only for there to be shoddy audio that divests you of any meaningful, real-time data.

In addition to the hard costs, do not discount the attorney time and effort to put on a mock trial. I’d put the degree of effort at somewhere between preparing for and arguing a complex summary judgment motion and putting together a real opening statement. I know that is a wide range. The point is that you should schedule the mock trial during a date where you know you have time to prepare your presentation, the jury instructions, exhibits, and the verdict form. These things all take time and will cost your client money.

One of the main benefits to putting on a mock trial is to see what did and didn’t work. Adjust your trial themes and witness preparation accordingly. As a defense attorney, also keep in mind that our defenses typically lend themselves to a longer format presentation. We often spend weeks of trial time trying to undo the emotional gut punch that opposing counsel can deliver in five minutes. That effort cannot be replicated in a one-day mock trial.

Brian Augenthaler is a Shareholder and member of the Board of Directors of Keating Bucklin & McCormack, Inc. P.S. His practice includes governmental and outdoor recreation defense litigation, including law enforcement, employment, land use, road design, and ski accident matters. Representative clients include cities throughout Washington State, the University of Washington and Harborview Medical Center, and ski areas.