Early Focus Groups

  • Some law firms will perform a preliminary Focus Group before they will take a case where part (or all) of their fee will be contingent upon the result.
  • At times, attorneys must “elect a remedy” for their early filings (which is more likely for contract disputes and commercial litigation). An early Focus Group can help you select your theories.
  • Where you have the option of filing your case in different courts or states, early Focus Groups can help you to select the most favorable venue, where the local venire or the laws that apply can significantly increase your chance of obtaining a positive result.
  • Early Focus Groups are often performed to give direction to your discovery. Key themes are identified. The insights gained lets you know not only what your experts, clients and witnesses need to cover, but also what to extract from opposing experts and fact witnesses during discovery.

After the Case has Developed:

  • Identify the potential for, and extent of monetary damages to aid in identifying your risk, and consequently, your settlement position. [This is the most common use of a Mock Trial/Focus Group. Additionally, if we are defeated in our own trial simulation, we know that we must be realistic with our settlement expectations.]
  • Some state courts mandate a formal “Mediation/Case Evaluation” for all civil litigation. Consequently, (i.e. in Michigan as well as some other states) Mock Trials are often performed during the 28-day period following Mediation/Case Evaluation, so that the attorney and client can better decide whether or not they should accept the settlement suggested by this panel, or to continue to trial (risking sanctions).
  • Mock Trials are often performed prior to Facilitation.

  • Sharing the results of your Mock Trial with the Facilitator (in private and only when the results are favorable) usually has the effect of moving the Facilitator toward your position as he/she sees that your settlement position is stronger, more firmly held, and that you are not merely posturing [which we all know is often the case].

  • For your corporate clients, there are often multiple layers of authority needed to settle a case. Mock Trials give all of these layers a “handle” upon which they can agree, thus avoiding the second-guessing that often ensues.

Other Uses for Mock Trials

  • Interestingly, at times Dr. Sherbel is asked to attend settlement meetings which include the actual opposing Party. This has typically led to settlement.

  • [Recently, a trial Judge provided a courtroom for this type of meeting (off the record of course) to confirm the quality and results of a Mock Trial. This soon led to a settlement that was highly favorable to our client.]

  • Many clients have commented that participating in Mock Trials has greatly accelerated the professional advancement of their second-chair attorneys and associates. Trial skills were developed many years before they otherwise would have.
  • Mock Trials are good for your business.

  • “Everyone has a boss”. The lead attorney has the client (or the client’s representative) looking over his/her shoulder. That client’s representative often has a General Counsel (or a Superior) to whom they must report and answer. The General Counsel may be second-guessed by the Board of Directors who must approve the acceptance or rejection of large settlements. Trial Simulations help your client (and/or his/her corporate hierarchy) to feel that they are better informed and more in control, and hence are likely to act in unison when they have the results of a well-performed Mock Trial upon which to base their decisions. This is especially important when a client has unreasonable expectations or underestimates the risk. Firms that perform Mock Trials distinguish themselves from firms that do not. Your client will appreciate that you have “taken the extra steps”, and is likely to feel well represented.

When is it beneficial to perform a Trial Simulation, Mock Trial or Focus Group?

Contact Information

Shortly Before Trial

  • Mock Trials/Focus Groups are very useful for Trial Preparation.

  • Identify the Key Themes to which jurors are likely to attend.
  • Identify the strengths and weaknesses of the respective Parties.
  • Practice your Opening Statement in front of lay-people from the actual trial venue, and garner feedback.
  • Gain invaluable insight into how these lay-people will perceive the key witnesses, typically by showing them excerpts from video-depositions.

  • Beware: If opposing counsel is video-recording the depositions of your key witnesses, they may be performing a Mock Trial/Focus Group to gain an advantage.
  • Gain insight into the likelihood of prevailing, and if the results are unfavorable, seek a reasonable settlement.

  • [As a policy, Dr. Sherbel devotes 51% of his preparation time to maximizing the effectiveness of the presentation of the case-in-chief of the opposing Party so as to avoid a “rosy scenario” at our Mock Trials. Exposing the risk protects both the client, and the law firm.]

  • To gain an advantage during Jury Selection, we can identify the demographic characteristics, attitudes and life experiences of favorable as well as (more importantly) unfavorable jurors. From these insights, we can design a Voir Dire to identify these jurors. This has the potential to convert a possible defeat into a victory by seating an advantageous jury.

  • It is common for a jury pool to include several jurors who are educated, skilled, or experienced in fields that allow them to have a more informed and/or sophisticated understanding of the salient issues of your case. In advance of Jury Selection, it is essential to determine whether these “superior jurors” are favorable or unfavorable, as they are certain to be highly influential to the outcome of their deliberation.

Jury and Trial Strategy Consultants

Steven D. Sherbel, Ph.D.


7021 Yorkshire Court

West Bloomfield MI 48322


(248) 255-1184