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Shadow Juries an Excellent Tool…But Not For Everything

- November 10, 2009

An article in the New Orleans Times-Picayune caught my eye the other day. The headline was “‘Shadow’ Jurors Give Lawyers Idea of What Verdict to Expect.” The problem with this is that shadow jurors are very useful and powerful tools for providing daily feedback to trial lawyers but don’t necessarily have much predictive value of what the actual jury will do when they deliberate. For one reason, there are just not enough of them.

A “shadow juror” is a juror that is hired by one side in a civil or criminal trial to report back on how they saw the day in court. A “shadow jury” is a group of these shadow jurors. It used to be that some trial consultants would put a full group of twelve in the observation gallery. Now, it’s more common to have four to six sit. They do not know who they are working for typically and they are told not to interact with anyone. Most importantly, they are expressly forbidden to interact with any members of the trial teams or the jurors for obvious reasons. Even with these rules in place, supervision is essential. There are a few horror stories out there of unsupervised shadow jurors misbehaving, usually due to curiosity (there’s a reason why curiosity killed the cat).
An example of the remarkable utility of shadow juror feedback in an appropriate case would come from the interview at the end of a trial day. In this example, the trial consultant asks, “What were your impressions of witness John Anderson?” The answer, “I had no idea what that guy was talking about.” The trial consultant probes, “in the end what did you take away from his testimony?” The answer, “I got the sense that he was supposed to be an expert on this sort of thing but I really didn’t understand his bottom line?” If the trial team hears this from several jurors then they can reasonably conclude that the evidence they thought was “in” because it is now in the court record, may not be where it really needs to be—in the juror’s minds. Where as they may have closed this section of the case, thinking it was well covered, they can now try their best to get this evidence to the jury through other witnesses and other documents. Again, feedback, not prediction.
The best qualitative tool to “test” one’s case is a mock jury exercise that involves 3-4 groups with each group deliberating to a verdict. This way you have enough people to see patterns and reduce chance as a factor. One of the big mistakes any trial lawyer can make is to fall in love with one particular litigation preparation tool and use it for too many purposes. It’s committing the error of, “if all you have is a hammer, everything looks like a nail.”

 

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