Forewarned is forearmed: The growing trend of mock trials” Published in the Daily Journal
“Find me an expert who lacks expertise.” While this may sound like an oxymoron, it is not an uncommon request when a law firm seeks a former federal judge to serve on a mock panel. The reason: the underlying adjudicator has limited familiarity with the subject matter governing the dispute so the former judge should have the same level of ignorance. Mock often means imitation — the idea where something lacking serves in the place of the genuine item.
Mock trials have evolved from a litigation weapon only used in the biggest of cases, to a tool commonly employed by many major law firms and corporations on a wide variety of cases. Intrinsically, this makes sense. Most professions and leading technology companies have a practice of testing something so that they can perfect their product or service before going full bore in committing to a plan or idea.
Historically, lawyers were understandably reluctant to use mock trials for fear that the results could unduly influence the client (“this is not a strong case”) or subject the lawyers to criticism. However, it is now generally recognized that mock trials conducted with a three-judge panel are an important tool that pro- vide valuable insights to improve the quality of the actual oral argument or trial advocacy. Indeed, in certain situations, it is almost a form of malpractice not to deploy a mock trial for evaluating what arguments will best advance a litigant’s case. As the damages and reputational issues that result from litigation have exploded, the additional costs of hiring an independent mock panel to critique trial counsel and bring a fresh set of eyes to the litigation has become a relatively small in- vestment. A new twist, but for the same reasons, we are also seeing the growth of mock trials in arbitrations (mostly domestic, but some international cases) as well.