Like other civil cases, sexual harassment cases can have shortcomings: for instance, dubious #MeToo witnesses and clients with unrealistic expectations. Jury research using focus groups and mock trials can correct case problems before trial or spot cases that should be settled. Trial scrimmaging (i.e. mini-mock trials) can hone case themes and arguments that resonate. If I were conducting jury research in a sexual harassment case, I would focus on the following.
The victim’s credibility is essential to her case. Some jurors will look at how the plaintiff dresses to assess whether she “welcomed” the behavior. Body language and facial gestures are also important. Whether by video deposition or by a separate session, the mock jury needs to see how the plaintiff presents.
The same holds true for defendants. Jurors will key into whether defendants acted with indifference to harassment.
If a corroborating witness did not pursue her own claim, jurors will ask why. Especially if the claim was delayed. Nonetheless, #MeToo witnesses can make a plaintiff’s case. Jury research can verify this.
The earlier a plaintiff’s attorney tests the case, the better. A focus group exercise can help get a headstrong client under control. Before mediation, I do a case diagnostic exercise to uncover jury attitudes and to gain a case valuation. I suggest this be done before mediation. If the case is bound for trial, I recommend doing case scrimmaging exercises. These are variations on a theme of mock trying the case. The highest end version is a full-blown mock trial with a mock judge (save that for the bigger cases). Less formal hybrids of these simulations can be done.
As an employment lawyer and a man, I believe the #MeToo movement brought legitimate sexual harassment claims to light. Certainly, some harassment cases are bogus. As a trial consultant, I have helped both sides get to the truth and win.