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Mock Proceedings Offer a Competitive Advantage When Done Right
Most litigation teams leave a mock proceeding feeling good. That’s precisely the problem: A polished performance isn’t the same thing as insight, which is what matters.
Maximizing insight comes down to two decisions: who sits on the mock panel, and who interprets what the panel says — and what it doesn’t say.
Rising Stakes
Complex litigation and arbitration is growing and procedurally becoming more complicated. Multidistrict litigation, for example, now accounts for 67.8% of the pending federal civil caseload, up from 29% in 2012, according to Lawyers for Civil Justice’s analysis of federal court data. Mass arbitration has grown alongside it: the American Arbitration Association reported 82 consumer mass arbitrations in 2024, comprising 247,327 individual filings.
Given the volume and value of these complex cases, parties engage in mocks to test and refine dispositive motions with case-ending consequences, class certification, or a bench trial with a technical record.
Fit Over Prestige
Mock panelists add value when the assignment matches the case. Panelists need substantive familiarity with the area of law and, separately, with the procedural posture at issue: a motion to dismiss calls for a different frame of reference than one testing claims that survived summary judgment.
The first planning question isn’t who is available, but where the case sits in its life cycle and what the team most needs to test.
Fit also has a limit. Matching a panelist too closely to the actual decision maker (same background, generation, professional formation) can narrow rather than sharpen the exercise, confirming assumptions the team already holds. A panel chosen for a genuine range of backgrounds is more likely to surface an unanticipated reaction, at some cost to precision about how the real decision maker would react.
Neither approach is correct in every case. The choice should be deliberate, based on what biases, overt and hidden, the exercise is meant to discover.
Force Multiplier
Litigation teams that run mock proceedings entirely on their own risk two problems.
The first is cognitive dissonance: unintentionally designing exercises that validate the strategy already in place. Observers exposed to identical evidence construct different accounts, as shown in a 1954 study of a Princeton-Dartmouth football game, where fans from each school watching the same film counted roughly twice as many infractions by the opposing team.
Independence requires assigning primary responsibility for interpreting results to someone who didn’t develop the strategy being tested and isn’t rewarded for validating it — someone with enough distance to report an unwelcome finding.
That separation addresses a second problem: groupthink. Research on decision making from committees and mock juries has found that groups spend most of their discussion on points every member already shares, giving little attention to a point only one panelist has grasped, even when that point is decisive. A structured debrief that draws out each panelist’s reasoning individually is more likely to catch what open discussion would lose.
The same research finds panels defer heavily to whichever member seems most expert in a technical subject, so one panelist’s read can carry the group’s conclusion with less scrutiny than it deserves. That view needs to be tested, not recorded.
Maximizing Exercise Value
Five functions drive the success of a mock exercise:
- Define precisely which decision is being simulated.
- Select panelists with relevant substantive and procedural experience.
- Conduct structured individual debriefs before or in addition to group discussion.
- Separate the analysis of the results from the litigation team’s existing strategic assumptions.
- Document which reactions reveal recurring vulnerabilities, and which may be panelist-specific.
That last function is where most of the analytical work lives. A single panelist’s strong reaction to one argument is not, by itself, evidence that the argument is weak; it may reflect that panelist’s background rather than the case’s substance. Whoever performs this analysis needs a basis for comparison across enough exercises to tell the difference.
Limitations
A mock proceeding isn’t a statistically reliable predictor of outcome, and treating it as one is a common misuse. A panel of three or four is a qualitative sounding board, not a representative sample.
Several conditions can produce a misleading result: a panel that doesn’t reflect the actual decision maker’s background or disposition, a single forceful panelist whose reaction dominates the group’s stated feedback, a presentation polished well beyond what the actual hearing will resemble, and a case theory revealed too selectively to give panelists a fair test of it.
Teams should expect resistance when results challenge an existing strategy. When new information conflicts with a belief held with confidence, the common response is to explain it rather than revise the belief. Findings presented incrementally and systematically, with the reasoning exposed, are more likely to be absorbed than a headline.
Beyond the Argument
A well-run exercise is a sharper argument, but there are others. A structured exercise gives a litigation team a more informed read on settlement leverage, supports client and board reporting with something more concrete than counsel’s own assessment, and helps allocate the remaining litigation budget before it’s spent on a theory the exercise shows is unlikely to hold up.
In complex litigation, the margin between success and failure is often narrow, and a well-designed mock exercise can expose that margin before the actual decision maker does. It works only when the panel fits what the case needs to test and the analysis afterward is independent enough to say something the team didn’t already believe.
Originally published in Bloomberg Law. Reprinted with permission.
Author Information
Kennen Hagen is CEO of FedArb.
Faye Honig is managing director of Jury Research at DRC, a trial consulting firm which provides independent analysis of mock proceeding results.