Importance of Testing Your Trial Theme With a Mock Trial

Akin to a buddy-cop movie—there are some pairings that are stronger together. For trial attorneys, one such pairing is trial themes and mock trials. 

A trial theme, also known as a case theme, is critical to simplifying a story, providing context, and connecting elements of a case in a compelling and convincing way. That said, they’re difficult to get right in a vacuum, which is where mock trials come in.

Developing Your Theme

A trial theme is an overarching message, idea, or ideal that encompasses and echoes throughout your arguments, evidence, and witnesses. In practice, it’s typically one sentence, phrase, or even one word that you return to again and again from the opening statement to the closing argument. 

It can be leveraged to both support your claims and defend against the opposing counsel’s arguments, tactics, or theme. Some examples include¹:

• Betrayal of trust
• Take full responsibility
• Making up for the harm caused
• Vote for science, not speculation
• They got what they paid for
• Profits over patients (greed over safety, callousness over care, etc.)
• Your eyes don’t lie (i.e., look at the video or pictures)

What a trial theme shouldn’t be is a throwaway catchphrase that’s only mentioned in the opening statement and closing argument. A great theme will weave both the language and the message throughout your witness questioning and presentations. 

Mock Trials as a Test Environment

Mock trials are the closest a trial lawyer can come to a test run to predict the outcome of their case. When managed by expert jury consultants, they recruit mock jurors with similar demographics to a jurisdiction’s actual jury pool and help you curate a shortened version of the critical elements, evidence, and arguments that support your trial theme. 

The results—both the jury decision and post-trial juror interviews—provide you with priceless insights into credibility, perception, and conclusions from the jury’s perspective that help you refine your theme as well as tactics, demonstratives, and arguments. 

Multiply the Test Runs

You don’t have to choose just one mock trial theme—instead, you can opt to divide your jurors into two groups to view two alternate themes or hold multiple mock trials to test different themes as they’re considered. 

Most Efficient Type of Jury Research for Trial Themes

For testing a trial theme in particular, it’s critical to not just question a focus group point blank about which theme resonates best with them, but to test it in practice in a trial environment. The mock jurors can provide feedback about:

• If your theme was conveyed early
• Whether the elements seemed consistent throughout
• Why it did or did not convince them to vote in favor of your client

Mock trials aren’t typically for misdemeanors or minor disputes, but when you’re investing significant time and resources in a case that has six-figure or higher outcome potential or major criminal penalties, they’re worth the cost and time. 

Will Your Trial Theme Resonate Better in a Bench Trial?

Mock trial jurors are typically selected to mirror the anticipated demographics of the jury pool within the pertinent jurisdiction, but otherwise are entirely free of connection to the case. This is no guarantee that their votes will mirror a live jury’s decisions, but using multiple mock trials to test jury outcomes is the closest prediction you can get to how a jury will react to your trial theme and assign fault or determine damages. 

While this information is critical for strategic adjustments, it also provides an opportunity to consider whether to opt for a bench trial vs a jury trial when possible. Choosing a bench trial, where a judge decides the outcome, might be preferred if your trial theme is more focused on technical legal aspects rather than emotional appeal.

Boost Courtroom Confidence

Practice makes perfect. Mock trials provide an opportunity for you to²:

• Test out the experience of convincingly presenting your trial theme
• Practice the arguments and tactics that support your theme in a courtroom scenario
• Review the findings 
• Better understand how your performance impacts jurors
• Identify opportunities for improvement

Partner with Experts at TrialQuest 

TrialQuest, the trial services division of U.S. Legal Support, offers trial and jury consulting, jury research, and more, including mock trials customized to your needs. TrialQuest’s seasoned professionals have a proven track record of supporting more than 53,000 high-risk trials, arbitrations, and mediations across all practice areas.

Along with mock trials, TrialQuest provides full-service jury research and consulting, witness preparation, trial graphics and demonstratives, and trial presentation and technology services. 

To learn more about our litigation support services, connect with us by phone, email, or website request form to discuss your trial consulting, mock trial, and other litigation support needs.

Sources: 

1. Advocate Magazine. Using a trial theme effectively throughout your case. https://www.advocatemagazine.com/article/2015-july/using-a-trial-theme-effectively-throughout-your-case-2
2. The Employment Law Solution. Why Mock Trials Are Important. https://www.theemploymentlawsolution.com/supreme-court/why-mock-trials-are-important/

Julie Feller

Julie Feller is the Vice President of Marketing at U.S. Legal Support where she leads innovative marketing initiatives. With a proven track record in the legal industry, Juie previously served at Abacus Data Systems (now Caret Legal) where she played a pivotal role in providing cutting-edge technology platforms and services to legal professionals nationwide.