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How to Use Mock Trials in Case Evaluation and Trial Preparation

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The Importance of Mock Trials in Litigation

Mock trials may not be as common as other aspects of litigation such as depositions or discovery meetings but many lawyers, especially those who specialize in trial cases, consider them one of the most powerful tools at their disposal. An ejury is an opportunity for you to explore various contingencies with potential jurors and judges before any actual trial begins – which means you'll know exactly how each witness's testimony will play with any possible jurors before you ever get underway with your case.

What Are Mock Jury Trials?

A mock jury trial is a powerful tool for attorneys to evaluate their case prior to actual trial. It is an opportunity for a legal team to bring together potential jurors and hear what they have to say about both sides of a case. An ejury can be referred to as online jury, since lawyers can focus group various strategies and concepts before any major time or money has been invested in their work. In addition, they allow both attorneys and jurors to get comfortable with each other—and with seeing themselves in each other's roles, which can reduce anxiety during real trials.

To start, attorneys must first select a pool of potential jurors to serve on their mock jury. There are several ways to do so, including randomly selecting names from voter rolls or those who have been through jury duty before and asking people if they would be willing to participate in a trial. If your case is being held at an institution like a university, you can also post notices and survey students on campus. It's important that you create a fair and representative selection of potential jurors so that you know how your case will play out with different groups in different parts of your jurisdiction. Most online groups are conducted via Skype or some other platform that allows participants to appear together.

Why Do Law Firms Use Them?

The fact is that mock trials are one of most powerful tools for case evaluation and trial preparation. But what are they exactly? In a nutshell, they’re an effective way to recreate your entire legal case without actually going to court. Law firms use them to help assess whether their arguments have any basis in reality, or if there might be holes or vulnerabilities that can be exploited by opposing counsel. They can also give you valuable insight into how witnesses will perform under pressure, which will come in handy when you’re crafting your final presentation before a jury. And on top of all that, they are fun!

You can do these trials with witnesses and attorneys, and you’ll learn a lot about their strengths, weaknesses, and how they perform under pressure. You might even discover that some things you thought would be extremely powerful for your case might not be as effective as you hoped. Even though it’s great to get your legal case ready for trial, remember that nothing is more important than preparing yourself to appear before a jury. After all, if they don’t believe what you have to say then they won’t award any money—even if you have an excellent case. The best way to prepare yourself is by practicing answering difficult questions under pressure so when it comes time for actual trial everyone already knows what to expect.

Is a Mock Trial The Same As A Focus Group?

Because they were often done at law firms by junior associates, they sometimes got confused with a focus group. These groups are meant to gauge opinions and inform marketing efforts, but ejuries are designed for one purpose: helping lawyers better prepare for trials. These two concepts aren't interchangeable, but that doesn't mean you should discount them both. You should know what a focus group is before your firm decides whether or not to use them (hint: they're not used nearly as much today), and you should also familiarize yourself with these types of trials because of their many benefits. As long as you know why your firm wants to do them, then it will be easy to see if they make sense for everyone involved.

While there is no standard structure for how these trials are conducted, they generally fall into one of two types: process or result. Process mock trials are meant to mimic every step that happens during a real trial, so each side prepares evidence and calls witnesses to make their case. When these events happen, they're usually run like actual trials with a judge present to rule on objections and ensure everyone is following protocol. It may sound like a lot more work than doing it yourself, but one benefit is that your law firm can see how you perform under pressure. How do you handle objections? Are you quick on your feet when cross-examining witnesses?

What Can I Learn From a Mock Jury?

One of the most powerful tools for case evaluation and trial preparation is a mock jury trial. Mock trials, also known as simulated jury trials or focused feedback juries, give parties an invaluable opportunity to test their case and refine their arguments before spending tens or hundreds of thousands on actual litigation. In addition to providing rich insights into how jurors will perceive your client's story, mock trials can be used to gather important insight into pretrial issues (for example, creating a juror pool) and offer additional opportunities for direct jury contact. The use of mock jury exercises has been on a steady rise over recent years due to their popularity with both legal professionals and research consumers. Today more law firms conduct one or more online ejury trials per year than ever before.

What mock trials can tell you about your case: Mock jury research will reveal a lot about how potential jurors think and how they interpret your arguments. As opposed to the traditional focus group, these trials offer insight into not only what people think but also why they hold certain views. During litigation, judges and juries are required to reach their decisions based on both law and fact; mock trials provide important insights into how jurors analyze information based on each category. If your trial strategy is strongly grounded in legal precedent or if you expect a great deal of disagreement over key facts, then they are especially valuable for helping attorneys anticipate what arguments will resonate with jurors and which ones won’t.

How Does My Law Firm Benefit from Online Focus Groups?

In recent years, there has been a drastic increase in popularity for using focus groups as an integral part of marketing campaigns. However, lawyers have been slow to adopt such tools due to significant challenges and costs. Fortunately, a new wave of online focus groups are not only making these opportunities more accessible but also vastly improving their effectiveness. Here is a way that mock jury trials can benefit your law firm's litigation preparations

Focus groups have historically suffered from two significant limitations that have prevented them from being used as litigation preparation tools. First, a typical focus group can cost around $7,000 to host, which is far too high for most lawyers to be willing to foot. Second, it has proven difficult for participants to relate their everyday experiences and opinions into a legal context without some form of active prompting or outside information. While traditional focus groups are still valuable marketing resources, recent developments have made online mock jury trials an ideal tool for increasing trial readiness. Their ease-of-use makes them much more accessible than ever before. Additionally, since they mirror actual courtroom conditions (e.g., testifying under oath), they allow you to test your case theories and witness testimony with greater accuracy than would be possible otherwise.

How Do Ejury Focus Groups Work?

Jury focus groups are an important part of any trial preparation process. You can't talk to every person who will hear your case during jury selection, but a jury focus group allows you to get feedback from a small number of people who have gone through that process and have heard your case. With an online focus group, you can easily reach out to those people and get their honest opinions on everything from whether or not your evidence is convincing to what points you should emphasize. Focus groups are becoming more common as law firms continue to recognize their value, so it's more important than ever that you start thinking about how to use them now!

The goal of focus groups is to get feedback that can help you understand what works about your case and what doesn't. A good focus group will let you know if your evidence has convinced people, if there are any holes that need to be filled or specific points where people have concerns. Online focus groups allow you to reach out to as many people as possible and target participants based on factors like their geographic location or demographic information, so you can ensure that you're getting opinions from people who are actually likely to serve on a jury for your case. Focus groups also help eliminate selection bias—you'll be able to identify potential jurors who fit with a wide range of circumstances, rather than just looking at a narrow group of pre-screened individuals.

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A Mock Jury's Emotional Response Predicts Trial Verdict

For most trial lawyers, going to trial means presenting your side of the case before an actual jury of your peers – and the stakes couldn’t be higher because your client’s future and livelihood depend on it. What if there was another way to predict the verdict of a real jury – and avoid the risk, expense, and uncertainty that come with going to trial? In recent years, mock juries have been emerging as an effective alternative to traditional jury consulting that can help you determine how you should approach your actual trial.

mock juries

Here’s how it works: Your legal team assembles their ideal mock-trial tribunal by selecting several individuals who match your target demographic in age, gender, educational background, employment status, etc. The mock jurors then sit through all or part of your presentation in much the same way that their counterparts in reality would. As one might expect from any sampling pool, some people nod in agreement while others shake their heads when watching various moments throughout your performance.

What is a mock jury?

It may sound complicated, but a mock jury is exactly what it sounds like. It is a jury of people who are pretending to be jurors to judge something or someone. A mock jury can be used by lawyers to test how effective their case will be in front of a real jury. Most often, though, they are used for training purposes for people who may eventually serve on a real jury. Regardless, mock juries keep a level playing field for both you the lawyer, and your client when it comes time to go to trial.

How are mock juries created?

Creating a mock jury requires recruiting people from a variety of different areas that reflect those in your actual jury pool. You can use college volunteers, social media platforms and other mechanisms to recruit a diverse set of participants. In addition, you'll want to obtain demographic information about them so you can try to match them as closely as possible with those who will serve on your actual jury. For example, if most jurors are going to come from within a specific zip code, then half of your mock jurors should come from that area as well. If your actual trial is taking place at night or on weekends, then make sure that half of your mock jurors were recruited during those times as well.

Benefits of using mock juries

One of our favorite benefits of using mock juries is that it helps both sides predict how they will do in a trial. For example, if jurors feel that your client isn’t taking full responsibility for his or her actions (which can be difficult to tell during real trials), then you may want to make changes before filing suit—or settle for less money. Similarly, you can use mock juries to predict what damages might look like before trial—the more jurors think your client deserves compensation, the better you'll probably fare in court (i.e., If we try my case, I'm going to win $1 million). So don't just send mock juries home after completing one survey; talk with them individually and have them discuss their findings with each other.

How do virtual juries work?

To obtain e-juries, law firms pay about $750 to obtain a pool of 500 people from various demographic profiles. Then they randomly divide these 500 people into two groups: one group sees and hears a three-minute video clip and then votes on whether they think it’s funny or not. The other group does not see or hear any video and just reads transcripts of witness testimony. Next, both groups hear arguments from opposing counsels before voting again on their verdict. That’s all there is to it. If an attorney feels like using an e-jury is worth $750—especially in today’s legal climate—it can be a win-win situation for everyone involved because e-jury results are taken very seriously by U.S. courts.

Lawyers who don’t believe e-juries should be used say that juries shouldn’t take place online at all but rather consist of real people who come together in courtrooms face-to-face to deliberate on cases with lawyers present. They also note that people who participate in internet jury pools aren't always representative samples of society, so they may represent biased opinions rather than accurate representations of how actual jurors would rule if presented with similar evidence. But others point out that these characteristics are true for live jurors as well since selection processes aren't always carried out accurately during jury selection.

How to use mock jury focus groups

Before lawyers try a case in court, they will often use a mock jury focus group to test their arguments and witness testimony. This is done because of one simple fact: emotion trumps all else when it comes to reaching an online verdict. Having people sit on a jury for your case allows you to gauge how they feel about your arguments and what type of approach is most likely to sway them. Focus groups give you qualitative feedback rather than quantitative, so you’ll want to keep that in mind as you work through your presentation. While participants may not be able to identify specific examples of false information or flaws in logic, they will be able to tell you how they felt after watching certain evidence or seeing particular witnesses on stand.

When can you tell what verdict will be handed down?

Once upon a time, juries were sequestered until it was time to render their verdict, but these days, jurors are allowed to leave at regular intervals during trial. Still, lawyers pay close attention to who isn’t in court when they’re making their closing arguments and hope that means any absent jurors weren’t swayed by emotional reactions. However, given today’s advancements in technology and online culture , there may be some merit to crowdsourcing that emotional response after all—especially if you don’t trust your own instincts. That was what one law firm did when they created a mock jury of 300 volunteers and gave them videos of real trials.

What are they looking for?

If you're trying to determine if your case is worth using a virtual jury, it might be a good idea to find out what people think about it. That's where mock juries come in. For trial lawyers, asking potential jurors their opinion on video evidence is crucial when deciding whether or not to take a case to court. But an online jury takes things one step further—it allows trial lawyers to ask dozens of potential jurors what they think at once by giving them access to online videos and letting them watch and react without having any knowledge of other responses (which means there are no biases).

How can an e-jury help my case?

The power of emotions to drive opinions may be more powerful than you know. If an ejury is introduced into your case before trial, it may help you determine not only what arguments to focus on during trial, but also how much your case might be worth if you are able to reach a settlement prior to going through with trial. The knowledge of how persuasive your case is likely to be can have a strong impact on determining value. It can also help you gauge how much should be offered in any settlement negotiations so that both parties walk away feeling like they got their money’s worth.

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Test How Fiction Increases Empathy With Mock Jury Focus Groups

If lawyers can garner empathy from jurors, they can generally put their case in a favorable position. As we’ve seen, empathy has been a driving force for the success of civilization, small communities, and individuals throughout time. And this can be tested with mock jury focus groups before entering the courtroom.

Weaving together a story that encourages empathy will firmly commit jurors to a lawyer’s side. Seeking truth and justice should always be the goal of any courtroom proceeding. But plain facts and statistics do not encourage empathy. Fiction does.

mock jury focus groups

Therefore, courtroom lawyers must hone their storytelling abilities. Indeed, telling a great story is one of the strongest assets a good trial lawyer can have.

Fiction and Empathy in the Courtroom

A few years back, the concept of empathy drew the interest of researchers in the psychology field. Through multiple studies, psychologists began to draw a link between the level of empathy research participants showed and the amount of fiction literature these individuals consumed.

But why is this the case? On the surface, it would seem that someone who consumed more non-fiction would be better able to relate to others. After all, non-fiction events actually transpired at some point. How can there be any better way to relate to others than learning about real experiences?

Let’s take a look, starting with some definitions.

Clear Definitions

With any practical discussion, it’s always important to begin by defining terms.

  • Empathy: the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.
  • Fiction: something invented by the imagination or feigned.

So, to rephrase the initial premise: “’something that is invented by the imagination’ increases the ability to ‘vicariously experience feelings, thoughts, and experiences of another.’”

But this stance can cause issues with some of our core beliefs. For example, if this premise is true, how is it compatible with “survival of the fittest” and the evolution of our species?

Empathy and Evolution

We have long held that “survival of the fittest” led to our evolution as a species. While this is widely accepted in broad terms, it’s important to note that kindness, sympathy, and empathy have enabled communities to thrive throughout all of civilization. If our communities were simply based on “survival of the fittest” in its purest form, we would immediately cast aside members of our society who were not as “fit” to thrive in the world.

But this is not at all how we operate in civilization. We take care of our elderly, our sick, and our disabled. We are horrified when these vulnerable members of our society are treated poorly. Swift justice is sought when one violates our natural, agreed-upon rules of compassion and empathy.

To further emphasize this point, we can look to the great works of literature and storytelling throughout the years. Stories that have been passed down through the generations continue to teach us the importance of empathy, morality, kindness, and the golden rule. While these stories were based on real people and real events, they largely came from the imagination (some of them even used farm animals as the main characters). In other words, they were fiction.

Weaving a great story will definitely help engender empathy from the jury. Fortunately, you can know what the reaction will be before having to present in court. Using AI-Powered digital focus groups to test out how empathetic one’s storytelling is with a mock jury focus group is an inexpensive way to know the effect of your presentation ahead of time.

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How to Create Compelling Melodrama in the Courtroom

Plot-Driven Melodrama in a Courtroom – He Who Tells the Best Story Wins!

With every story there are essential elements, such as plot and characters. Without these minimum requirements, a story would be incoherent. Great storytellers know how to emphasize the most compelling components of characters as they carry out the plot.

When it comes to real life situations, especially in the courtroom, the involved characters may not always be the most exciting part of the story. Therefore, the plot has to be strong enough to keep the interest of, and win the favor of, the jury. A good way to create a strong plot is to deliver the story in the style of a melodrama.

What is Melodrama?

How to Create Compelling Melodrama in the Courtroom

In some writing communities, the topic of melodrama in stories is one that is constantly debated. Even the definition of the term often comes into question as writers struggle to weave melodrama into their masterpieces.

But for the purposes of clarity, a melodrama can be defined as “a work characterized by extravagant theatricality and by the predominance of plot and physical action over characterization.”

Again, one could probably debate what type of work technically falls into the category of melodrama, but an example of this storytelling style can be found in many soap operas. Characters in these shows often don’t demonstrate great depth in their backstories. Further, soap opera audiences are often more interested in “what will happen next” rather than how the characters will grow and change.

How to Create Compelling Melodrama in the Courtroom

The plot to any story, regardless of whether it’s in a courtroom or a storybook, will have 5 elements:

  1. Exposition: To start, the storyteller must set the scene. For the jury to be invested at all, they have to be hooked during the exposition.
  2. Rising Action: Significant events that led to the cascade of future events are often used as a means of building tension during the story. This is known as the rising action and it ultimately leads toward the climax.
  3. Climax: The climax is what all the tension built during the rising action has led to. This is the point in a melodrama where the audience is basically holding their breath, waiting to see what will happen. Every story needs a good climactic moment.
  4. Falling Action: Once the tension has built to the breaking point and the climax has left the jury in shock, it’s time to start easing them back to a gentle calm in which they will deliberate on the case at hand. The falling action allows the audience a slow descent from the action so that they can move on to the conclusion.
  5. Dénouement/Conclusion: At this point, any remaining questions will need to be addressed or left hanging to build suspense for the next story in the series (although the latter option should be avoided in the courtroom). Denouement translates literally to “untying”. This part of the story unties anything that’s still knotted up in the jury’s mind and leaves no doubt about the trial lawyer’s message.

The Art of Storytelling

Above all, storytelling is an art. Trial lawyers need to treat this part of their craft as they would any other artistic pursuit: with an open mind, creativity, and willingness to receive constructive feedback.

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Successful Trial Lawyers Use Storytelling to Connect with the Jury

Successful Trial Lawyers Use Storytelling to Connect with the Jury

Not everyone will enjoy the same type of story. Some people like tragedies, some like comedies. Furthermore, connecting with everybody is hard. But it’s not impossible.

There are certain elements of stories audiences from all different backgrounds, with all different interests will enjoy.

When it comes to the courtroom, the most successful lawyers are those who can quickly develop rapport with the jury and tell them a story they will never forget. Mock juries are a great way to test out the emotional impact of your closing arguments.

mock jury script

Traits of a Great Trial Lawyer

Judge Mark Bennett published a list of 8 traits which he believes makes for the quintessential trial lawyer. While all 8 of the points provide excellent guidance for courtroom attorneys, three of them stick out above the rest with regards to storytelling and jury connection:

  1. Preparation. As the Stoic philosopher Seneca stated: “luck is what happens when preparation meets opportunity.” While one could argue that luck is always involved to some extent with courtroom proceedings, this does not absolve trial lawyers from being prepared for whatever may happen during the trial. Preparing, practicing, revising, and being ready to shift the direction of the courtroom story are some of the best preparatory skills to have as a trial lawyer.

  2. Excellent Listening Skills. It may sound counterintuitive, but to be a superlative storyteller, one needs to be a great listener as well. Listening to the tone, inflections, and content of witness testimony, as well as anyone else who may be speaking during the trial is a phenomenal skill to have and one that many trial lawyers neglect in favor of those that involve the “talking” portion of storytelling. To be great at something, one must practice and study the art from multiple angles. Listening to both excellent and poor storytellers is a good way to take courtroom storytelling skills to the next level.

  3. Raconteur Ability. The word raconteur sounds fancy and exciting. Denotatively, it just refers to someone who is great at telling stories. But connotatively, and perhaps more importantly, raconteurs are the storytellers that everyone wants to hear speak: the storytellers that people will travel for miles to hear them deliver their tales. Courtroom lawyers should start thinking of themselves as raconteurs. They should create such compelling stories that people will want to look back after the fact just to admire the skillful ability of the trial attorney in question.

Telling a Story That Everyone Wants to Hear

When discussing storytelling ability, sometimes the most obvious way to craft an appealing story is overlooked: what do YOU look for in a story? If you like stories for a certain reason, odds are many other people in the world will as well. Trial lawyers should strive to understand the art of storytelling so that they can connect with anyone who might hear their story.

It’s not an easy skill to master for most. Becoming a great storyteller takes a lot of practice, time and dedication. But it a skill that is well worth the effort. You can gauge your effectiveness by utilizing a mock jury to finalize arguments.

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Facemasks in the Courtroom

Throughout the course of any interaction, we are constantly gathering tons of information about the person with whom we are talking. For example, we will obviously pick up on the content of what they are saying, but there are many other subtleties in body language and tone that can significantly affect the message that a person conveys.

facemasks in courtroom

Some of these subtleties, known as micro-expressions, are critical for understanding. In fact, this topic has recently come under close scrutiny due to the necessity of using facemasks in the court room.

The Importance of Facial Expressions

For years, researchers have been studying macro and micro-expressions as they relate to communication and trustworthiness.

Macro-expressions are fairly easy for anyone to spot. These facial movements can last as long as 4 seconds and tend to correspond with the topic of conversation as well as the tone expected of the conversation in question.

Micro-expressions, on the other hand, are a whole different ball game. These facial movements are fleeting, typically lasting less than a half of one second. Further, they can demonstrate feelings about a topic which are below the level of consciousness. i.e. the person who produced the micro-expression may not even realize they feel a certain way about a topic without some deeper examination.

Issues and Benefits Concerning Micro-Expressions

Because micro-expressions happen so quickly, they can often lead to misinterpretations and misunderstandings. It can be very difficult for the human eye to process such quick, transient movements correctly. However, this doesn’t make micro-expressions any less valuable.

These expressions are still an integral part of our conversations, even if we can’t specifically identify a micro-expression in real time. Through the use of computer analysis, researchers have seen the potential of further study on micro-expressions both in isolation and when combined with macro expressions. For example, a hypothetical man might smile when he hears that a friend got engaged. However, further analysis of his micro-expressions may tell a more complicated story.

Facemasks and Expressions

In the era of facemasks and COVID-19, we lose a large part of the face for analysis of macro and micro-expressions during conversation. Of course, we still have the content of what a person is saying, their tone, and much of their body language. But not being able to see their mouth affects our ability to determine their trustworthiness and honesty more than one might think.

In a related instance, a recent federal court case made headlines when the judge ordered that all witnesses must wear transparent facemasks while testifying. While this is not a perfect solution to address the issue of reading witnesses’ faces, it helps to satisfy current courtroom safety requirements while also allowing some measure of facial expression analysis.

Moving Forward

How will the issue of masks affect court cases in the future? Perhaps mask mandates will remain in effect for a longer time than we imagine. If this is the case, lawyers and jurors are going to have to develop excellent means of assessing trustworthiness in witnesses and defendants without full analysis of their micro-expressions.

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The Art of Storytelling in the Courtroom

jury test

Atticus Finch, Vincent Gambini, and Elle Woods all have something in common. Yes, they are all fictional lawyers from excellent movies. But there is something else that is consistent in their approach in the courtroom: they all tell a great story.

It would have been impossible for one of the jurors to stop paying attention during Joe Pesci’s cross examinations in My Cousin Vinny. The same goes for those shown in Legally Blonde. Similarly, one could have heard a pin drop during the closing argument shown in To Kill a Mockingbird.

Each of these fictional lawyers have varying levels of expertise and each movie situation is diverse. However, their ability to tell a story creates interest for the jurors and forces them to hang on every word.

While some of the situations presented in these movies are absurd, the importance of telling a good story cannot be overstated. There’s no mystery or special skill that good litigators have hidden away. Plain and simple: they know how to tell a story that catches your attention.

Elements of Exceptional Storytelling

Obviously, everyone has preferences when it comes to stories. Some people like fantasy, some like comedy, while others enjoy romance. But whether inside the courtroom or out in the world, there are three underlying elements that can make any story better or worse.

  1. Emotion - Before we have concrete facts or knowledge, we connect with others based on how we feel about them. Even though facts and truth are vitally important, they play second fiddle to emotion when it comes to storytelling. For example, Harry Potter takes place in a fictional world. There is no truth to the magic, dragons, and other fantastical elements present in the story. But readers and viewers can easily connect with the characters on an emotional level. J.K. Rowling made the characters so universally relatable that anyone can feel their emotions throughout the tale, regardless of the factual accuracy or relatability inherent in Harry Potter’s world.

  2. Logical Flow - It’s much easier for the average person to follow a logical, step-wise story, than it is to pick out the details from incoherent rambling. Effective storytellers can put events in an order that makes it easy for listeners to process the details and create a “big picture”. The father of logic himself, Aristotle saw how easily even the least educated person could appreciate and follow a well-stated syllogism. In today’s world, this fact remains true, and necessitates that logic be used as a scaffolding for every good story.

  3. Avoidance of Extraneous Details - The human attention span is short. Once a person loses interest in something, they will quickly move on to the next thing and never look back. Therefore, storytellers have a small window to hook a listener and get them interested in the story in question. If a storyteller wastes time with extra details that will distract from the main point, they may lose their audience and never get them back.

Incorporating Excellent Storytelling into a Legal Strategy

As simple as the three elements of great storytelling may sound, perfecting the craft is far from easy. Becoming a great storyteller takes practice. But with a lot of time and effort, any lawyer can become an exceptional storyteller and leave everyone in the courtroom wanting more.

Need some help with your storytelling in the courtroom? Check out Emotiontrac to see what they can do for you.

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Claim: Artificial Intelligence Could Level Playing Field for Big Law and Small Firm Litigators

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The artificial intelligence-powered software utilizes facial detection through a mobile app to capture the visceral reactions of focus group participants in the blink of an eye.

By Michael A. Mora | June 23, 2021

virtual jury
Photo Credit: Rick Kopstein/ALM

New artificial-intelligence technology could be a game-changer for solo-practitioners and small firms around the country, who do not have the deep pockets of their Big Law competitors.

Developers say the new A.I. could help lawyers with jury selection.

A newly awarded patent for EmotionTrac’s artificial intelligence-powered software utilizes facial detection through a mobile app that captures the visceral reactions of focus group participants in the blink of an eye, according to the company.

‘Focus group-like results’

One user is attorney Patrick Megaro, a partner at Halscott Megaro, who has practiced criminal defense law in Florida and New York for about 20 years.

Megaro said he used a video of a complaining witness to test her credibility with potential jurors. He said the software equipped him with everything he needed to move forward with the case, to attack the witness’ credibility and to develop a juror profile.

“I love this because the focus groups are a hell of a lot of money, and it takes a while to get the results,” Megaro said. “It’s very rare a client is willing to shell out $50,000 or $60,000. But the technology makes it extremely affordable to get focus group-like results without the time, trouble and expense of going through a focus group and a jury consultant, which are also extraordinarily expensive.”

But a potential concern with any unproven technology is whether it will work as the company claims.
In this case, will jurors render a verdict based upon their initial visceral response to physical evidence, testimony or legal argument, or might juror discussion during deliberations sway them?

Shelli Garson, director of insights at Emotiontrac, implied that the technology is groundbreaking and comprehensive. However, if the lawyer loses the case despite using Emotiontrac’s artificial intelligence, the company is not taking any responsibility for the ultimate outcome at trial.

“I’m not giving any money-back guarantees,” Garson said. “By the time facial expressions are recorded, that’s genuine or authentic of their responses. Later on, they might say, ‘Oh, no, I don’t agree.’ But we already know that it is just gesturing and lip service because we already caught them on camera expressing their true facial expressions and reactions.”

How it works

To use the technology, Aaron Itzkowitz, CEO of EmotionTrac, said attorneys provide the company with five minutes’ worth of content, such as testimony, expert witnesses, photos from the case, and video depositions that technicians assemble in a five-minute video.

Then, the video is delivered to an independent panel of at least 100 people to review through a mobile application. As the focus group watches the video, the front-facing camera records slight changes in their facial expressions, second by second, frame by frame.

From those facial reactions, EmotionTrac will use data science to interpret the emotional responses, and then send it back to the client to deliver specific conclusions, objectives, and takeaways about their case. As far as privacy, the information sent to the panel will then be automatically deleted from their smartphones, and at no time will there be any mention of the name of the counsel who plans to take the potential case to trial.

EmotionTrac Dashboard partial view
Partial view of the EmotionTrac Dashboard

After viewing the video, the audience will then answer a survey with questions, such as: “If you were the juror, would you award the injured party $100,000, $500,000, $1 million, etc.,” according to Itzkowitz.

Now, EmotionTrac is offering a test pilot for lawyers to assess whether the artificial intelligence technology can provide value in preparing for an upcoming trial.

After sampling the technology, the company will offer to sell the software as a subscription model specific to the client’s needs. For example, Itzkowitz said a traditional focus group could cost the lawyer upwards of $10,000 or $20,000, and this service will cost 10% of that.

Itzkowitz said this product could solve one of the biggest challenges for attorneys preparing for a mediation, trial or settlement, because the cost of traditional research can be cost-prohibitive to the value of what their case might be worth.

“The advantage for the smaller law firms: It allows them to determine case valuation, whether their exhibits are effective, or if they will be effective in delivering the arguments of their case at a fraction of the price,” Itzkowitz said. “By utilizing artificial intelligence, we’re able to deliver that data to attorneys to prepare for their cases in an easy and quick way.”

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