Eric Rudolph was given two life sentences on Monday, after pleading guilty to the bombings of an abortion clinic, a gay bar, and the Olympics in Atlanta. Two days later, one of his victims suggested that Rudolph might have been acquitted had his case gone to trial. In her memoir, Life’s Been a Blast, the victim says that prosecutors conducted four “mock trials” of Rudolph—and that he was acquitted in three of them. How does a mock trial work?
Attorneys present highlights of the case to a set of mock jurors, who deliberate until they reach a mock verdict. Either side of a case can hold a simulated trial, and they’re used in both civil and criminal cases. But because these productions can cost quite a bit of money—a one-day event might run $40,000—they’re most often used by lawyers who represent wealthy clients or companies in a civil suit.
First, the attorneys find a random pool of mock jurors in the jurisdiction where the trial will be held. Participants are selected by random telephone calls, classified ads, or through an employment agency. (Anyone who has recently received a summons to serve as a real juror is immediately disqualified.) Eligible candidates are offered $100 or $200 dollars a day to participate and must sign confidentiality agreements.
Mock trials can take many forms and fall along a spectrum from simple focus groups to full-scale simulations. In a focus group, attorneys present the jurors with a summary of the case and describe the evidence they would present. Then a discussion leader questions the jurors about their reactions. The jurors might also be asked for a verdict and—in civil cases—for the amount they would award in damages. (Some lawyers conduct focus groups even before they file a lawsuit.)
For a full simulation, the lead counsel selects a colleague to argue for the opposing side. Then the two lawyers make their opening statements and present their evidence as they would at the actual trial. Friendly witnesses might be called to the stand, although there is a danger that anything said in a mock trial (or even the fact that a witness participated) might emerge in a real courtroom. Attorneys can instead present videotaped depositions, or they can hire actors and give them talking points or scripts. In some cases an actor might be instructed to imitate the mannerisms of whomever he is impersonating. Or he might play a composite witness who can provide the evidence that would come from several different sources in the real trial.
Only the most important testimony comes out in a mock trial, which lasts between a few hours and a couple of days. (Real trials can last weeks or months.) Then each side makes closing statements, and someone—often an actor in a robe—issues the judge’s instructions to the jury. (All of this can be presented to the jury live or on an edited videotape.)
The mock jurors retire to a separate room, while the attorneys videotape the deliberations and watch through a two-way mirror or on a closed-circuit television. Once the jurors have reached a verdict, the lawyers or trial consultants interview them about their reactions to the evidence and ask them to fill out a questionnaire.
The jurors hear the case without knowing which side hired them, and they aren’t told which participants are actors. They are told that their verdict is important and should not be taken lightly. At least one consulting firm tells jurors that their vote “will be used to decide the case,” even though they simply mean that lawyers will consider it as they make their own decisions. The litigation team uses the mock trials to assess the quality of its arguments, plan the structure of its presentation, and predict the outcome of the trial.
Explainer thanks Robert Clifford of Clifford Law Offices, Patricia Refo of Snell & Wilmer, Jeffrey Frederick of the National Legal Research Group Inc., and Don Waters of Oakland, Calif.
