By Melissa M. Gomez
Special to the Legal
It’s all the rage. It is pretty darn cool and it is much less expensive than the old, archaic way of doing things. Online mock trials. The technology now even has avatars that look like jurors sitting around a discussion table talking about your case. Really, how cool is that? There are myriad new and interesting ways to get juror feedback about your case and you don’t even have to leave the comforts of your office. Sorry to say, I am not yet convinced.
I am open to having my mind changed. Really, I am, but I haven’t heard anything yet that will make me think that conducting a mock trial with a group of people in different rooms and different houses and different towns is a good idea. I am uncomfortable relying on the feedback of people I can’t see, so I can’t be sure whether they are really there and paying attention or went to get a snack or are checking their email or playing Sudoku or letting their teenaged son take their place because they need to run to the grocery store. Call me old-fashioned.
So, let’s say we can get those identity things under control and there are ways to make sure that the person providing the feedback is there and paying attention and is the same person as the person who is supposed to be providing the feedback. Sorry, still not convinced.
There are two important aspects of communication. There is the central message of words being said, and then there is the peripheral message of everything that happens around the words. Is the person raising his or her voice? Has she crossed her arms and pushed back from the table? Is he watching the presentations intently or snoozing? How are people reacting to one another across the table in deliberations? The human dynamic is an enormous part of the courtroom – not only for witnesses and their communications but for jurors as well. While we do our best to capture a high-level idea of how humans react in a human way to a case, I think these important dynamics are truncated quite enough in the context of a traditional mock trial in which we present the case without live witnesses (usually) and in a much shorter period of time. It is one thing to ask someone to rate his or her anger toward a party on a scale from zero to 10 and quite another seeing how people speak with emotion (or not) about their feelings toward that party and the relevant experiences that impact those feelings.
So, I ask, what are we gaining from taking so much of the human element out of these exercises by conducting them online with a group of folks who haven’t met or seen each other? Will we really be able to understand how participants are really reacting? Why are we limiting the feedback they can give by only asking for what they can type? People tend to say more when they can talk through their thoughts and when they can tell a story as opposed to when they type. What happened to the ability for people to engage in a real debate in the same manner in which they will debate at trial?
Not every case and every client can afford a live mock trial or focus group, of course, but I believe that we have to take a close look at what is helpful and truly useful information from a reliable source and what is just marketing. While I risk losing some competitive edge in my industry by staying “old school,” I believe that, currently, online focus groups lose too much of what is real about people in the courtroom to be something I would use as a resource to make decisions about important cases. I am ready and willing to be convinced otherwise. It just hasn’t happened yet.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at [email protected] or call 215-292-7956.