Our clients frequently come to us with this question, “should we conduct our mock trial in the actual trial venue or in a surrogate jurisdiction?” In our experience at Litigation Insights, there are five primary considerations when making this decision:
- The type of case;
- The size of the jurisdiction;
- Confidentiality concerns (not having the other side learn about the research);
- The amount of local publicity the case has received; and
- The popularity of persons (plaintiffs, defendants, attorneys, witnesses, etc.) involved in the litigation.
Matching Your Surrogate Jurisdiction for your Mock Trial
Although there are no hard rules about when to stay in a venue and when to go, once the choice has been made to find a surrogate jurisdiction, it is important to ensure your surrogate matches as closely as possible your actual trial jurisdiction. Below are some factors to consider when selecting your surrogate location and recruiting your mock panel.
- Does the potential surrogate jurisdiction mirror the demographic composition of the trial venue on enough levels to provide a competent representation of participants?
- What are the major industries of a venue (e.g., farming, mining, white collar/blue collar, government workers, large university presence, etc.)?
- What is the voting pattern of the jurisdiction? Do they lean Democrat or Republican? Is there local support for the Tea Party?
- What is the ethnic composition of the venue and will you be able to replicate the ethnic make-up in the surrogate venue (e.g., can I recruit enough Pacific Islanders in my surrogate venue to replicate what I need to match the trial venue)?
- What is the average median household income of the venue? Is one area more wealthy or poverty stricken than another?
- Is the distance of the trial venue to the surrogate venue enough to quell any confidentiality concerns? If the reason for the consideration of a surrogate jurisdiction is local publicity, the popularity of plaintiff’s counsel or concern that the research will reach opposing counsel, then it is important to consider a move greater than one county over as a greater distance might be needed to protect confidentiality.
- Has the surrogate venue experienced similar litigation or case publicity? If the trial involves ground or water contamination, does the surrogate venue have similar concerns? Sometimes it is worth the risk of conducting mock research in an actual trial venue if media conditions cannot be replicated in a surrogate jurisdiction.
Whatever the jurisdiction, it is important that the mock jury recruit reconstructs as closely as possible the demographic and attitudinal trial venire specifications. It also should anticipate as accurately as possible the effects of hardship excuses and cause strikes on the composition of the jury. Gathering a representative sample in the recruit for either the actual jurisdiction or for the surrogate is essential to ensuring the generalizability of the research to the trial venue.
By Elizabeth Babbitt, M.A. – Consultant