"Best Practices" for a Do-It-Yourself Shadow
Jury
By Michael D. Freeborn
(Reprinted with permission of the Illinois Institute for
Continuing Legal Education)
Something like 80% of the time, a jury's final verdict at the end of the
trial is the same as what they thought about the case immediately following
opening statements. (Indeed, some people place the percentage even higher.)
Throughout a trial, jurors are constantly processing information with a bias
toward reconciling that information to what they already believe
after the opening statements.
Thus, wouldn't you like to poll the jurors immediately after the opening
statement, and do it again periodically during the trial? After all, this
could save a lot of expense, encourage settlements and, even if the case
can't be settled, provide some insight regarding what needs to be done if
necessary to change juror attitudes before final verdict.
Of course, we can't poll the jury. But we can do something close. We can
use a "shadow jury," which acts as a surrogate for the real jury.
They sit in the courtroom whenever the real jury is present, and hear and
see all the same evidence and argument. But unlike the real jury, they agree
to be interviewed at regular intervals about their perceptions, their
understanding of the case, and their beliefs regarding how the case should
turn out.
In other words, they provide real-time "market research"
regarding how your product is selling.
Litigation consulting firms like DecisionQuest and TrialLogix offer this
service and do an excellent job. But your firm can probably get useful
results on your own, at a fraction of the cost. Our firm has done it both
ways, with great success. Following are a half dozen "best
practices" to follow in assembling and using your own shadow jury.
- Do your best to match demographics of the shadow jurors.
It is
impossible to match the shadow jurors perfectly, but you know what the
venire in your jurisdiction is likely to be and you just need to come
close. Advertise in the local paper for people willing to participate in
a research project. Use a temp employment agency if necessary. But keep
in mind the socioeconomic characteristics of the people you know will be
approximately similar to the actual panel.
- Don't let them know they're working for you.
During a long trial
(one which lasts more than, say 3-4 days) the shadow jurors will begin
to identify with you, and want to be your friend. If they know they are
working for you, their advice becomes tainted by their personal feelings
for you. From the beginning use an intermediary to recruit them. The
intermediary can be a firm employee as long as they have a separate
phone number and voice mail to receive messages. The intermediary needs
to meet the shadow jurors offsite, and when in court refrain from
communicating with you or your firm employees. Pay them with checks
which don't identify your firm (later, long after the trial is over, a
W-2 may ultimately reveal who they were working for.)
- Ask the right questions.
During the lunch break and after each
day of trial, your intermediary needs to know the right kinds of
questions to ask -- open ended questions designed to probe attitudes
rather than elicit mere yes-or-no responses. What is the case about?
What is the plaintiff seeking? Why? What is the defendant's response?
Why does he believe he's not responsible? How do feel about what you've
heard so far? Why?
- Interview them individually.
In a group, shadow jurors -- just
like real jurors and the rest of us -- are influenced by the strongest
personalities in the room. There will come a time to observe this
dynamic, but in the early stages of the trial interview the shadow
jurors separately to ascertain their true feelings on the issues.
- Use voicemail to rapidly distribute feedback to the trial team.
Set up a voicemail box accessible by the trial team and, perhaps, the
client. The interviewer of the shadow jurors reports the results of the
mid-day and evening interviews in the voicemail. Then, each member of
the trial team can retrieve the information sufficiently timely to do
something about it. If the shadow jurors are confused about a concept,
or wonder what a witness would say about a particular question, you can
decide whether to clear it up.
- Pay as you go, but keep a "carrot.
" Shadow jurors may
get bored with a trial just like real jurors. Pay them a portion of
their compensation daily, with the balance due at the end of the trial.
This will help assure that they are around when you need them most. For
a do-it-yourself shadow jury you shouldn't have to pay more than about
$50-100 per day, plus lunch and transportation. If you have a half dozen
shadow jurors, this expense may be less than what you are paying for a
court reporter. But the value of the information could be huge.
