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Journal of Education for Business
ISSN: 0883-2323 (Print) 1940-3356 (Online) Journal homepage: http://www.tandfonline.com/loi/vjeb20
Mock Trials Versus Management or
Litigation-Driven Models of Business Law Instruction
Pamela Gershuny , Charles McAllister & Carolyn Rainey
To cite this article: Pamela Gershuny , Charles McAllister & Carolyn Rainey (2012) Mock Trials Versus Management or Litigation-Driven Models of Business Law Instruction, Journal of Education for Business, 87:4, 193-197, DOI: 10.1080/08832323.2011.587474
To link to this article: http://dx.doi.org/10.1080/08832323.2011.587474
Published online: 29 Mar 2012.
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ISSN: 0883-2323 print / 1940-3356 online DOI: 10.1080/08832323.2011.587474
Mock Trials Versus Management or
Litigation-Driven Models of Business Law
Instruction
Pamela Gershuny, Charles McAllister, and Carolyn Rainey
Southeast Missouri State University, Cape Girardeau, Missouri, USAThis study was designed to gain a greater understanding of the learning outcomes associated with the mock trial as an active teaching method. Participating in a product liability mock trial presents students with the complex interplay of administrative regulations and common law. As in real life, the harsh constraints of time pressures, less than perfect trials, and financial objectives become apparent. The results of this research may intrigue those who believe that business law is only taught well through a case study method.
Keywords: active learning, business law instruction, legal settlement, mock trial
Business law is a necessary component of the business school curriculum (Morgan, 2003). An ongoing debate in the peda-gogical literature is whether business law classes are overly focused on litigation (Dobray & Steinman, 1993; Lawton, 1997; Leibman, 1994). Lawton called the litigation driven model an anachronism, arguing that business students will not become litigators, but rather entrepreneurs and corporate managers who do not need to understand trials. Because 95% of cases settle out of court (Lawton), why waste time and ef-fort studying the trial process? For those purist instructors, very high-quality case studies are readily available (Harvard Business Review, 2012).
The Litigation-Driven Model
The litigation-driven model of business law instruction has appeal as the traditional gold standard. The American Mock Trial Association (www.collegemocktrial.org) began annual intercollegiate competitions in 1985. Business law professors have been writing scholarly articles about holding mock trials in their classrooms for almost as long (Bennett, 1997; Law-ton & Oswald, 1993; Mann, 1995; McDevitt, 1998; Miller, 1987). The benefits of mock trials include improving criti-cal thinking, increasing long-term retention of material, in-troducing evaluations of the quality of evidence, promoting
Correspondence should be addressed to Charles McAllister, Southeast Missouri State University, Department of Accounting & MIS, One Univer-sity Plaza, MS 5815, Cape Girardeau, MO 63701, USA. E-mail: [email protected]
searches for cause–and-effect relationships, and forcing the pursuit of logical consistency (Karraker, 1993; Lawton & Oswald).
Active Learning
Active learning methods are effective (Sukys, 2008), and mock trials provide opportunity for active student engage-ment. Palmer (1997) observed, “Education is more than delivering propositions about objects to passive audiences” (p. 101). Via the mock trial experience, students learn to apply and voice legal concepts, which facilitates a greater understanding than rote memorization of terms. For professors attempting to reach students with experiential learning styles, the mock trial is a rare opportunity to abandon a lecture mode. Initially, students may not receive this role change with overwhelming approbation. Lawrence Braskamp (2000) stated that students give less favorable ratings to instructors who try unique pedagogical strategies. However, student evaluations of the mock trial experience are traditionally positive (Miller, 1987). The mock trial is also an opportunity to build student peer bonds. Strong classmate relationships increase student satisfaction and also improve learning outcomes (Bilson & Tiberius, 1991).
PURPOSE OF THE STUDY
The purpose of this study was to assess student learning experiences with respect to management decision making
194 P. GERSHUNY ET AL.
before, during, and after the litigation process. We focused on discerning student beliefs about the efficacy of litigation as a dispute resolution method given the role of attorney fees, jury trials, settlement timing, and regulatory agencies. Business managers overestimate the efficacy of litigations and underestimate potential losses (Frantz, 2006). After Tex-aco lost a $7.5 billion verdict for its tortious actions with Pennzoil’s agreement to buy Getty Oil, James Kinnear, Tex-aco’s vice chairman, said, “The case should have been and could have been settled” (Bagley, 2008, p. 382). A secondary purpose of the mock trial is to provide business students with the vocabulary and knowledge to interact with in-house coun-sel and outside councoun-sel when disputes arise, just as students are educated about management information systems, not to become programmers, but to enhance their ability to work with professionals in the field (Miller, 1987). Role-playing attorneys improves the students’ understanding of an attor-ney’s perspective on a trial, but does not train them to be litigators.
Research Methods and Procedures
Students in four required undergraduate legal environment of business classes at Southeast Missouri State University participated in a survey (Table 1) before and after partici-pating in a mock trial exercise. There were 135 participants. Three mock trials were conducted during each semester by six teams of students. Each team represented either a plain-tiff or a defendant in a reenactment of three personal injury product liability cases. Every student was required to play the role of the attorney at some point, in opening statements, closing statements, or direct or cross-examination, resulting in a more evenly distributed workload among the team. Be-cause the attorney’s role is more demanding than the role of witness, instructors may assign a class participation grade for the mock trial work (McDevitt, 1998). Students not serving on the active trial team serve as jurors who deliberate and decide the case.
The mock trial exercise begins during the middle of a 16-week semester. Business law textbooks traditionally begin with the court system, the procedures of litigation, ethics, and dispute resolution mechanisms (Clarkson, Miller, Jentz, & Cross, 2006; Cross & Miller, 2006; Reed, Shedd, Morehead, & Pagnattaro, 2008). The product liability mock trial drew on and reinforced the material covered in the textbook’s initial chapters. After introducing the topics of tort and product liability law, the students had a foundation in procedural and substantive law that enabled them to participate in a mock trial. The students covered six chapters in their textbook before the administration of the first of two identical surveys. The second survey was completed after the conclusion of the three mock trials. Each mock trial and corresponding jury deliberation lasted the length of one class period, about 1 hr. The entire exercise is completed in three class periods with about 2 hr of outside preparation by students.
A traditional, valid argument against implementing a mock trial is the amount of time an instructor must expend in developing the cases (Bennett, 1997; McDevitt, 1998; Miller, 1987). The method used in this study eliminates the need for an instructor to develop cases. Outside of class time, each plaintiff and defendant student team, consisting of 7–9 students, watched a 45-min documentary film of one trial, and then, using the same facts and expert witnesses pre-sented in the condensed film version of the trial, reenacted the trial in class (South-Western Cengage Learning, n.d.). Student teams watched one of three movies involving actual product liability litigation. The first documentary film in-volved a woman with neurological diseases following breast implants, the second film involved a lifelong smoker with lung cancer, and the third involved a young man’s death in an explosive truck crash. Given the fact that documen-tary films served as the basis for the student reenactment, there was no need for the instructor to develop scripts. Al-though the documentaries gave a brief synopsis of opening statements, direct examinations, cross-examinations, clos-ing statements, and witness testimony, students do not nec-essarily have to replay the film verbatim. Students were able to bring thespian skills and creativity to their roles as they pursued varying trial strategies, created new questions on direct and cross-examinations, and closed, based on the facts that came out in their respective trials. The influence of the judge on a trial was illustrated as the judge over-ruled or sustained student objections. At each trial’s conclu-sion, the student jurors deliberated openly and rendered their verdict.
In this study, a relaxed environment and good peer rela-tionships began with the assignment of student teams at the start of the first class meeting. In a brief team conference, the students selected a team name, traded contact informa-tion, and learned about one of their teammates. The students introduced their teammates to the class, focusing their at-tention on someone else, rather than their lack of comfort with public speaking. The team members worked together to present the mock trials. Although team selection was ran-dom, instructors could attempt to create homogeneous or heterogeneous groups. To gain student cooperation with the concept of working in teams, the instructor emphasized that work in business often involves team cooperation and that the ability to maintain a cordial working relationship with others is a valued skill.
RESULTS
The in-class product liability mock trial enhances business school cases by providing a full and robust student experience of the American tradition of post hoc regulation of business through litigation. After hearing testimony about how the three different products, breast implants, cigarettes, and the exploding caused or did not cause suffering and/or death,
student attitudes had shifted in the posttrial survey in three areas.
Settlement
The single largest shift in the survey was in the students’ views of settlement (Table 2, Question 1). Prior to the mock trial, 68% of the students completely disagreed with the con-sideration of an early settlement. After the mock trial, only 5% remained firmly against settlement with the difference shifting to favor consideration. This movement indicates that mock trials could be a valuable learning experience to moti-vate settling instead of litigating disputes.
Product liability mock trials are notable for the use of ex-pert witness testimony to prove causation. The student jurors openly discuss their understanding or lack of understanding of the technical details of the expert testimony. In addition, the student jurors often miss or completely discount a trial team’s critical, but nontechnical testimony. Although a shift in opinion on settling may occur in any mock trial, it is per-haps especially likely to occur in a product liability mock trial because students can hear jurors discount the expert testimony they worked exceptionally hard to present.
A second dramatic shift occurred in the students’ opinions about attorney fees and settlement offers (Table 1). After the mock trial experience, students were far more likely to include the cost of attorney fees when considering settlement offers (Question 2: pretrialM= −0.59,SD=1.296; posttrial
M=1.13,SD=0.732;p<.001). After the jury deliberates and renders its verdict in the classroom, the students are asked how much money they would have earned if they were plaintiff or defense attorneys. Earlier in the course, prior to their mock trial experience, students study contingency and hourly fee agreements. However, it is participating in the trial that changes their position on factoring in the cost of trying the case as opposed to settling the case.
After the mock trial, students expressed an increase in positive attitudes toward attorneys controlling the amount and timing of settlement offers (Question 10: pretrial
M = −0.90,SD=1.144; posttrialM=0.68,SD=0.896;
p<.001).
Efficacy of Trial Process
Students were asked a number of questions about the trial process. The distribution of their opinions on the importance of expert witness testimony (Question 6) and skilled attor-neys (Question 7) shifted to more positively value the role of these individuals (p<.001 in both instances). From pre-trial to postpre-trial surveys, however, when asked whether they believed the truth would emerge during the trial process, stu-dent views reversed. After the mock trial experience, more students believed that the truth would not emerge during the trial process (Question 5: pretrialM= −0.57,SD=1.092; posttrial M = −0.05,SD =1.409; p =.004). This result may indicate the birth of a healthy skepticism about
resolv-ing disputes through trials. Again, in the product liability mock trial, jurors are asked to evaluate expert witness tes-timony that is often complex. The open deliberation shows how challenging it is to evaluate complex testimony.
More students agree that they understood how effective trials are to resolve disputes against businesses (Question 8: pretrial M = −0.41,SD =1.278; posttrial M =0.67,SD
=0.683;p=.001). In fact, litigation does result in a final outcome. However, it is not clear at the conclusion of this project how highly students would rate trials in effectiveness.
Litigation, Legislation, and Business
Surprisingly, there was no statistically significant change in the perception that frivolous lawsuits against businesses present a problem in the United States (Question 11: pretrial
M=0.44,SD=1.292; posttrialM=0.66,SD=1.212;p= .187). This opinion was maintained despite the fact that the three trials enacted by students involved serious injuries and verdicts in favor of the plaintiffs.
Also unexpected was the decrease in the support of pro-tective legislation for business, similar to the “Cheeseburger Laws” that ban litigation against fast-food companies (Ques-tion 14: pretrialM=0.64,SD=0.932; posttrialM= −0.13,
SD=1.207;p=.001). This shift occurred despite the fact that in all three cases, the corporate defendant had concealed research about product hazards from the public prior to mar-keting the product. Research showing that the products were potentially dangerous only emerged during the litigation. Absent the litigation, the research would not have become public knowledge. Despite the benefit to the public in learning of product hazards and the compensation of injured people, the students still supported protective legislation banning litigation against corporations in certain industries.
DISCUSSION
Implications for Practice
Implementing a mock trial may seem a daunting task; how-ever, students have a starting level of knowledge in the field of product liability. Product liability cases are exciting, highly publicized cases. Students are familiar with consumer prod-ucts such as SUVs, cigarettes, breast implants, and fast food. The cases have high damage amounts. As a result of the high dollar stakes, product liability litigation occurs on a finan-cially level playing field. Plaintiff and defendant teams are able to fund a war chest large enough to call expert witnesses. The enormous monetary resources involved in product liabil-ity litigation presents a stark contrast to criminal cases with a typically impoverished defendant.
Some of the most valuable moments in the experience are not measured by the survey. As the trial teams sit silently listening to the jurors deliberate, the trial teams begin to ap-preciate the human element in trial work. The trial teams
196 P. GERSHUNY ET AL.
are always surprised to learn that the jurors may not have believed or understood their witnesses. It is even more sur-prising for them to realize that many jurors may not hear the most important testimony. The gut-level experience of the uncertainty involved when choosing litigation as a dispute resolution strategy, even in the best of circumstances, is very apparent at the conclusion of the trials.
In an attempt to use a hybrid approach, students in this study read the Dow Corning and the Breast Implant Con-troversy(Harvard Business Review, 2012) management case after the mock trial concluded. The case presents historically accurate data on corporate managers’ actions in the face of horrible injuries and deaths. The case also provides informa-tion on how regulatory agencies interact with businesses.
Recommendations for Future Research
An interesting question unanswered in this study is whether students learn that ethical business decision making plays a role in avoiding a jury’s post hoc assessment of liability. Businesses have common law duties, but a business manager frequently has few regulatory guidelines to follow. In effect, business managers make marketing decisions in a regulatory vacuum. For example, Dow Corning produced the breast im-plants at a time when the U.S. Food and Drug Administration had no medical devices division, much less any regulations for the safety of the implant envelope.
Other areas for future research include assessing learning outcomes in corporate self-regulation and government reg-ulation of business. The product liability cases in this study raise questions about the role of regulatory agencies and their attendant issues of time lag between product introductions and regulation, revolving doors, and well-financed industry lobbying efforts. Once students understand that simply com-plying with regulatory agencies does not provide immunity from liability, the topic of ethical business operation, rather mere compliance with potentially outdated or even nonexis-tent regulatory standards arises.
CONCLUSIONS
In this study, the most notable shift in student opinions occurred in the area of settlement issues, a topic that is not covered in depth in standard textbooks or by the media, yet settlement is the final disposition of most filed cases. Interestingly, both sides of the management-driven and litigation-driven debate agree about the impact of the media on students (Karraker, 1993). A student does not enter the classroom as a tabula rasa because prior to class, students learn about litigation from the media. The media typically depicts the courtroom as a place where truth is discovered and justice dispensed (Lawton, 1997). Through the media, stu-dents are aware of multimillion dollar verdicts; however, they are largely unaware of political debates in their states about
setting caps on the amount of noneconomic damages. The mock trial provides the opportunity to discuss policy choices. The mock trial exercise facilitates an understanding of the client’s financial status and motivation to settle. During the mock trial exercise, students experience the importance of hourly fee agreements and contingent fee agreements as they consider how much money they are earning in their role as attorneys as the case progresses. Students learn that client wealth plays an important role in hiring expert wit-nesses. Most business students overvalue potential recover-ies through litigation. Even though the majority of filed cases settle, a more realistic ability to appraise the value of a case is gained through participation in the mock trial (Lawton, 1997).
The mock trial experience better prepares students to talk with attorneys about fees and settlements and promotes a more realistic evaluation of litigation as a dispute reso-lution strategy. An effective approach with undergraduate students may successfully combine the traditional business case method with a mock trial to inspire students, build strong peer relationships, and provide an active learning experience.
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APPENDIX—PRE- AND POSTTRIAL SURVEY RESULTS ON SETTLEMENT OPINIONS
Students were allowed to respond from “completely agree” to “completely disagree,” with the results coded from+2 to−2. A hypothesis test on the difference between the pre- and posttrial means indicates statistical differences in all but questions 9 and 11 (pvalue>.05).
Fourteen-Question Survey
Survey question PretrialM PretrialSD PosttrialM PosttrialSD p
1. If my business is sued, I will consider an early settlement. −1.470 0.925 0.950 1.037 6.55E-50 2. If a product manufactured by my company causes an injury to someone, I will
consider the cost of attorneys’ fees when I make a settlement offer.
−0.590 1.296 1.130 0.732 1.64E-29 3. If I can afford a very long litigation process, I can push for a more favorable
settlement.
0.470 1.210 1.300 0.793 7.66E-10
4. Full compliance with regulatory standards will protect my business and me from being sued.
0.910 1.145 0.120 1.372 3.05E-06
5. If an injured person claims that a product manufactured by my company caused their injury, but I don’t believe that our company’s product was responsible, I can count on the truth to emerge through the trial process.
−0.570 1.092 −0.050 1.409 0.003729
6. Expert witness testimony is very important to winning trials. −0.610 1.136 1.170 0.574 7.92E-38 7. A skillful attorney is very important in winning a trial. 0.460 1.264 1.340 0.614 1.37E-11 8. I believe that a jury trial is an effective way to resolve disputes. −0.410 1.278 0.670 0.683 2.69E-14 9. Business managers should control the amount and timing of settlement offers. 0.070 1.407 0.130 0.947 0.718601 10. Attorneys should control the amount and timing of settlement offers. −0.900 1.144 0.680 0.896 4.45E-25 11. Frivolous lawsuits against businesses are a problem in the United States 0.440 1.292 0.660 1.212 0.187152 12. It is important for business managers to understand the use of trials for dispute
resolution.
−0.500 1.218 1.260 0.785 1.89E-31 13. I understand how effective trials are to resolve disputes against businesses. 0.470 1.131 1.050 0.595 8.07E-07 14. It is a good idea to pass laws to protect businesses against litigation, like the
Cheeseburger Laws.
0.640 0.932 −0.130 1.207 4.66E-06
Changes Measured in Student Beliefs
Survey question
Completely disagree change (%)
Partially disagree change (%)
Neutral change (%)
Partially agree change (%)
Completely agree change (%)
1 −63 −13 4 43 30
2 −32 −22 −12 45 21
3 0 −30 −2 11 20
4 11 15 −4 −2 −20
5 3 −22 −7 16 10
6 −27 −27 −21 53 22
7 −10 −11 −23 30 14
8 −25 −20 6 42 −3
9 −6 −12 8 37 −27
10 −35 −22 −4 56 5
11 3 −16 −3 19 −3
12 −28 −19 −18 27 37
13 0 −21 −27 58 −10
14 24 −3 −8 7 −20
