12 Steps to an Effective Mock Trial: Preparing for Complex, High-Stakes Trial or Arbitration

While the mock trial has become standard operating procedure in the preparation of a high-stakes jury trial, it is rarely used in the preparation of a bench trial or arbitration.  As bench trials and arbitrations often involve extremely complex, high-exposure disputes, it is surprising that a mock trial or similar exercise is not utilized more often in these types of cases.

As with jury trials, a mock trial can be extremely useful in establishing themes, strategies and organization for a bench trial or arbitration.  All of the same benefits pertain, including the evaluation and refinement of opening statements and closing arguments, graphics and animations, and witness presentation.

While a bench trial or arbitration may require a somewhat different approach to organization and presentation than a jury trial, the principles of persuasion remain the same.  Therefore, the mock trial should be considered as a useful, if not essential, tool to be utilized in the preparation of a complex, high-stakes bench trial or arbitration.

How the mock exercise is structured and who is selected to act as the mock judge or arbitrator(s) will depend on the type of case and the needs and creativity of the lawyers and the client.  Of course, the amount of available resources may also impact the structure and duration of the exercise.  However, the following rules and suggestions will enhance the exercise no matter how it is structured and what the particular needs of the client may be.

1. Take appropriate steps to ensure that the mock trial itself and all communications, documents, and other materials relating to it are confidential and protected from discovery under the attorney-client privilege and the work product doctrine.
2. Be creative and keep an open mind.
3. Be sure your opponent’s side is well represented.
4. Consider having your lead lawyer put on the opponent’s case.
5. Prepare for the mock exercise with the same intensity and thoroughness as you would for the actual trial or arbitration.
6. Don’t be concerned with winning, but rather with learning.
7. Select a mock panel that is representative of your trier of fact.
8. Test your organization, trial themes and strategy.
9. Test all critical elements of your presentation, including briefs, graphics, opening statements and closing arguments.
10. Have your critical and troublesome witnesses testify, either live (preferable) or through deposition.
11. Include a procedure and sufficient time for a complete debriefing and analysis.
12. Based upon what you learn, don’t be reluctant to dramatically alter some or all of the organization and presentation of your case.

Alexander ("Lex") Brainerd is a neutral with JAMS and focuses his ADR practice on complex commercial litigation, intellectual property litigation and professional malpractice matters. You can reach him at abrainerd@jamsadr.com.