Blawgletter's firm handles much of our work on a contingent fee basis. That means we share risk with our clients — and earn no fee if we don't help our clients get a good result.
What counts as a good result will vary from case to case. It often involves a money inflow, sometimes not having to pay. In some instances, a particular outcome — winning a motion to dismiss, to compel arbitration, for class certification, for preliminary injunction, and so on — defines success.
Why do we mention the risk-sharing? Mainly because our firm has a rule that, before trying any case in which we have a contingent fee on the line, we must MOCK TRY it. That should tell you how much we believe in the usefulness of the mock trial.
But what good, you may ask, does the mock trial do? Do the results predict the real outcome? How could they? Cramming weeks of opening statements and witnesses and argument and PowerPoints and blow-ups and expert opinions and juror notebooks and sidebars and so forth into TWO OR THREE HOURS — how could that possibly tell you anything worthwhile?
Okay. Listen up. We don't want to have to repeat this.
Mock trying the case forces you — the lawyer and the client — to prepare. It makes you think about the other side's strengths — especially if you compel your lead trial counsel to play the other side's lead (in her or his own style, of course). And it fast-forwards your client to the main event, which he or she may have an unrealistic Hollywood-y image of.
Does the outcome predict actual results? Heck no — by which we mean in the particulars. Mock juries often differ widely in their damages awards. That goes double for punitive damages. But the direction of their verdict — you win, or the other side does, big time — has a fair degree of reliability.
Third, the process reveals the One Fact. The One Fact that the lawyers know Has Importance. But that nobody realizes — until the mock trial — the Whole Case Turns On.
So mock try your cases. Spend your own money doing it, if you work on a contingent fee. Clients should insist on jury research. You'll like the results.