TRIAL DYNAMICS
Trial Monitoring
When you are in trial, variables arise that cannot be accounted for in mock trials or focus groups. Judicial rulings, the nature of trial, unexpected evidence, uncertainty of witness testimony or likeability, and attorney likability all combine with anticipated evidence and themes to affect juror decision-making. The only way to know what to adjust on the fly at trial is to have someone monitoring the trial. There are several tiers and methods to accomplish this:
Transcript Monitoring
The most cost-effective method to monitor trial is to have a consultant review daily trial transcripts. The consultant can foresee areas of concern and help you adapt for the following day or closing. While this method will not help to make adjustments the day-of and will miss some of the human elements of the trial, such as witness demeanor, it is an effective way to get feedback and assistance throughout the trial on witness order, evidentiary holes, points to pull out for closing, and areas that need further explanation.
Live Trial Monitoring
One step up from transcript monitoring is having a consultant monitor trial live via courtroom webcams or sitting in court each day. One benefit of this method above transcript monitoring is that it allows the consultant to see the witness's demeanor and likability, provide on-the-spot feedback, and guide you through the trial. The consultant can provide missed questions as you examine a witness, cue you on when to stop with a witness or back off, when to go more aggressively, and when to allow a witness to explain further details likely to confuse the jury. If the consultant is live in the courtroom, they can also keep an eye on the jury to watch for signs of confusion, disdain, or acceptance. In addition, the consultant can be available after court hours to help plan for the following day's content, witnesses, and themes.
Trial Observers/Shadow Juries
The most intensive option is to have a consultant in court with a group of mock jurors who observe the trial each day and give feedback at the close of court. These shadow jurors also provide questions to the consultant as witnesses testify, thereby allowing you to get juror questions answered without actual jurors having to ask. Having a shadow jury is the ultimate mock trial, with real-time feedback and full access to a consultant to assimilate juror concerns and thoughts into your trial strategy as you move through witnesses. Are themes coming across as expected? Are there people jurors want to hear from? Those witnesses may get moved up in the timeline. Are jurors stuck on a problematic fact or issue? Move up one of your witnesses who can help explain and reframe the jurors' concerns. The shadow jurors help to guide your damages "ask" at closing and can highlight the areas of concern, confusion, and strength.
