Trial run: Facility offers opportunity to test legal waters

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By Paul Janczewski
Legal News   

They say that practice makes perfect. And it makes perfect sense when honing skills that help someone hit a baseball, shoot a hockey puck, or throw a football.

It also helps in a cerebral sense; law students study for the bar examination, accountants cram for a certified public accountant designation, and often they take practice exams before the real thing to gauge their strengths and weaknesses.

The same applies for attorneys who want to fine tune their arguments prior to trial, or try out their strategy before the actual court case.

Conducting a mock trial to get an accurate-as-possible feel for your case has been around for years.

But American Settlement Centers (ASC) in Farmington Hills is taking the mock jury trial a few steps further, while keeping down the costs, so that the exercise is not only affordable to many firms and lawyers, but also as close to the real court case as possible.

“They have been around for quite a while, and are extremely helpful tools,” said Christine Logan, executive vice president of ASC. “A mock trial is a practice session. An attorney can come here and try the entire case, or a particular component of their case that they want to practice or are not quite sure how a jury will receive their arguments.”

ASC, which opened its Farmington Hills office several years ago, specializes in alternative dispute resolution — arbitration and mediation — and mock trials, and also offers ancillary services in settlement, witness preparation, and jury consultation, according to Logan.

Several area firms, both large and small, have used the company and its facility and have positive things to say about it.

“I was impressed with the professionalism at ASC, and they were very friendly and accommodating to me in every way,” said attorney William Lamping. Norman Lippitt of Birmingham, said
ASC has a top-notch facility and “state-of-the art” video cameras, utilized in a realistic-looking courtroom setting that mirrors the feelings of an actual trial courtroom.

And all this at a cost that is less expensive than companies he’s used in the past for mock trials.

Logan said attorneys who want to conduct a mock trial contact ASC, which uses a firm to gather up to three panels of mock jurors, using information about the trial venue to gather a pool of people who represent the actual area.

The attorneys then present their entire case, or the portions they have questions about. Usually, attorneys from the same firm play the role of their counterparts in court to present both sides of the case. After the testimony is presented, often in the form of hybrid opening and closing statements, the jury panels are sent to separate conference rooms to debate the case. Those discussions are recorded and given to the attorneys for review. The attorneys also watch the deliberations live from a private viewing room.

“It’s really during those discussions that trial counsel really learns the most about how they’re doing with their case,” Logan said.

Although the majority of mock trials center around civil cases, a criminal case is occasionally portrayed.

The facility boasts of having a number of conference rooms, a courtroom with an interactive white board that can be used for showing documents or videos, and discreet cameras so as not to interfere with the realism of an actual court hearing.

“Once the client informs us about the venue of the case, and how many mock jurors they would like to use, we handle everything else,” said Nina Korkis, general counsel for ASC.

They recruit the jurors using a contract company, provide a light breakfast and lunch, and set up the recording equipment. If an attorney wants a jury consultant to assist with exercise, ASC provides that, too.

“Our jury consultant can make a major difference in not only how the trial is conducted, but also by providing a comprehensive written analysis of the mock jury’s reaction to various elements and components of the case,” Korkis said.

Korkis said using an actual courtroom set-up, rather than hold mock trials in hotel ballrooms or elsewhere, gives it a sense of reality and “a flavor for witnesses, jurors and others…of what it’s like to be in the hot seat.”

“In creating ASC, we tried to develop the best practices we’ve seen across the country in resolving disputes through mediation and arbitration, and we recognize that one additional valuable tool to evaluate whether an attorney takes his case to trial or settles is to really recreate what the trial would be like, and what the potential risks are,” Logan said. “Both sides typically will evaluate what their risks are but, it’s kind of done in a vacuum, so by conducting a mock trial, you are able to get a realistic idea of what potentially could happen.”

The costs of mock trials at ASC typically run from $8,500 to $18,000.

“Historically and traditionally, mock jury trials have been very expensive and only used on the most complicated and high-stakes cases,“ Logan said. “We’ve made a conscious decision to make this type of exercise more affordable.”

Logan said she knows of no other facility in Michigan that offers the amenities that ASC does. Others may use two-way mirrors to monitor jury discussions, “but nothing like this to get the realistic courtroom feel.”

Korkis said other places could charge $30,000 or more to conduct a mock trial.

“But when we start ours at $8,500, we mean $8,500,” she said.

Feedback from attorneys who have used ASC has been positive, Korkis said.

Logan said nearly 20 mocks trials have been conducted so far. Several clients have done more than one in refining their case and presentation. And the outcome also may steer the attorney in the direction of a settlement.

While very few cases actually end up at trial, Logan said mock trials won’t be conducted every day.

“But for cases headed for trial it does make great sense,” she said.

While an attorney may have an idea of the value of a case, the figure can be swayed by hearing jurors argue the points brought up, thereby influencing a settlement.

Logan said confidentiality is key, because attorneys do not want the opposing party to know they are looking for strengths and weaknesses in a particular case.

She has seen three separate jury panels come up with different outcomes on the same case.

“But the lesson learned was what these jury panels were missing and this motivated the attorney to fine tune the case,” Logan said. “Some of these are high-stakes, expensive disputes, so it is worth it to spend a few thousand dollars to perfect your case.”

Logan said the first case tried at ASC was, ironically, a criminal matter.

The attorney ran through his case and found out facts about his star witness and his own client, which persuaded him to eliminate his client as a witness.

At the real trial, the case ended with a hung jury, and prosecutors did not re-file the case.

In another case, a civil matter, Logan said the attorney learned he had a good case when the mock jury came back with a settlement in the millions, and after refining the case at a real trial, he ended up with a verdict of $13 million.

“We’ve had a variety of outcomes, but every lawyer who’s conducted a mock trial here has told us they walked away with information and knowledge that they couldn’t get any other way,” Logan said.

She said mock trials are not the perfect fit for every case, “but when you are looking at a mid to high six-digit exposure, spending a few thousand dollars to test your case makes great sense.

In many ways it is just as important an expense as it is when experts are hired to support your case.”

Mock trials also assist when settlement is assessed, according to Logan.

“Settlement often makes a great deal of sense, rather than rolling the dice and going to trial,” Logan said. “One thing you learn over time is juries are not predictable and bad things can happen to even the best of cases.”

Lippitt, a former Oakland County Circuit Court judge, has done mock trials with ASC and other companies, and has leaned on the results for trial preparation, using witnesses and seeing how jurors will perceive clients. And sometimes he learned that his perception of a client was contrary to what jurors saw.

But he believes the costs are worth it for the knowledge that is gained.

“You really want to know what the average juror is going to think about the case, but every case is different,” Lippitt said. “You’re trying to get a feel for the strengths and weaknesses of the case before the actual trial.”

Lippitt said the fact that jurors are being paid to be a part of the exercise means the mock trial “may not be entirely precise. But it will still give you an educated idea.”

Lamping agrees. He recently conducted a mock trial in a serious case “because the damages were potentially substantial and I wanted to find out more information about how potential jury members would react to the facts and issues of the case.”

He looks at it as a trial run to help an attorney prepare his or her thinking and analysis.

“But for me, the real benefit is getting the reactions from the mock jury members,” Lamping said.

“It’s not as if the results you get from the mock trial are guaranteed to be the same you will get from trial, but you get insights from the kind of discussions between the jury members, the issues they bring out, and the points they use in talking to each other,” he said. “That to me is the value of it.”
 

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