The Advantage Blog

Law and Litigation: Shadow juries increasingly guide complex cases

December 14, 2012 | |

Premium content from Puget Sound Business Journal by Peter Ehrlichman and Theodore Prosise, Contributing Writers

Friday, December 14, 2012

 

Trial lawyers live in a complex world of case law, complicated case histories and fact patterns, and often are involved in the technical elements of a case for years. A jury does not live in the same world.

Most jurors do not have the training in the technical rationality that a litigator has, and they have not “lived” the case for years. This all points to the ever-present risk of an experiential and communication “gap” between a trial team and the jurors who will render a verdict.

For the most part, a trial team presents its case, and tries to infer how a jury is reacting to the competing case narratives by observing juror reactions or assessing, based their own inherent biases, how the evidence is “coming in.”

Unfortunately, sometimes lawyers find out too late — when the verdict is read — that their assessments were dead wrong.

But, there is a tool trial attorneys increasingly turn to, especially in highly complex and high-stakes cases, that can help the attorney change course during the trial before running aground: the shadow jury.

What is a shadow jury? It is a group of individuals hired for the specific purpose of attending a trial — from the outset to the bitter end — to hear the same testimony and observe the same evidence as the real jury. The “art” of making this process an effective tool in defending complex cases is in the selection of the shadow jurors, in the debriefing process throughout the trial, and in extracting the critical findings and distilling them in order to determine what, if any, changes need to be made day-to-day in trial.

The purpose of a shadow jury is to constantly assess the connection or lack thereof of the messages sent and the messages received.

It is important to keep a distance between the trial team and the shadow jurors. If the shadow jurors are “blind” to who hired them, they are less likely to explicitly or implicitly provide feedback that they believe the trial team wants to hear; the important thing to do is to avoid what social scientists call the “good subject” phenomenon. Typically, four to six jury-eligible individuals from the trial venue are selected among a pool. Diversity of experiences and attitudes are needed, although one would not want to include a person who would be an obvious strike for either side.

The shadow jurors need to be well-managed. They cannot interact with witnesses, real jurors or lawyers. Their feedback should be on an individual basis, not as a group, to model what a real juror does: develop views independent of fellow jurors until deliberation.

One of the risks inherent in trials is confirmation bias, which becomes a danger when the trial team “gets what it wants in court” and feels very positive about the results (because it was looking for and expecting that result). The jury, on the other hand, may not see such a result as important at all. The shadow jury project manager, often a person independent of the in-court trial team, assesses what is relevant in the nightly interviews, and then provides practical recommendations to the trial team.

The fast feedback provides the opportunity for course corrections in witness testimony, cross-examination, or direct strategy, as well as providing data to construct a targeted closing argument.

If possible, a shadow jury should deliberate before the actual closing arguments. In one recent case, such a deliberation revealed a fundamental challenge in the way the jurors approached the process of deliberation. The “directionality” of the jurors’ reasoning needed to be changed; they were starting with a conclusion, and then simply selecting evidence to support the conclusion.

So a significant portion of the closing argument was retooled in a way intended to teach the jury how to deliberate. The closing argument integrated several legal instructions and particular pieces of evidence to give the jury the right directional map to a favorable verdict.

The typical cost of a four-person shadow jury for a 10-day trial can range from $40,000 to $60,000, including debriefing and reporting.

There are other ways to test case theories with laypersons prior to trial. Typical methods include mock trials and focus groups. Mock trials and focus groups provide great data for settlement purposes and for developing trial strategy heading into the trial. But, the shadow jury can offer something unique to the trial team: daily feedback on all of the actual events, courtroom dynamics and evidence that the real jurors see and the trial team can use.

PETER EHRLICHMAN is a partner and senior member of the Seattle Trial Practice group of Dorsey & Whitney LLP. He can be reached at ehrlichman.peter@dorsey.com. THEODORE PROSISE is vice president and senior consultant at Tsongas Litigation Consulting Inc., and can be reached at ted.prosise@tsongas.com.

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