By Sylvia Hsieh
The Daily Record Newswire
BOSTON (Dolan Media) — During a recent med-mal trial in Pennsylvania against two doctors and a hospital over a birth injury, 12 people with similar attributes to the 12 jurors filed in and out of the observation area of the courtroom every time the actual jurors took a break during a recess, lunch break or sidebar conference. The 12 visitors were shadow jurors, chosen for their demographic similarities to the real jurors to give their detailed opinions about each day’s events to the trial lawyers.
The shadow jurors were not told — in fact great pains were taken to make sure they did not find out — which side of the dispute hired them.
Unbeknownst to the shadow jurors, the trial consultant who debriefed them each day was hired by the plaintiffs’ legal team.
“They didn’t know [for whom] they were working … but they were observing and giving feedback. Every day, they were debriefed during the lunch break, and we would receive feedback about what could be done better, how they evaluated each witness, and which defenses were stronger than others,” said Daniel
Weinstock, the plaintiffs’ attorney.
In one example of their input, the shadow jurors honed in on a piece of evidence that the lawyers in the case had not thought was the strongest, according to Ron Kurzman, the consultant who ran the shadow jury.
“Based upon that feedback, the lawyers were able to refocus questioning and create graphics in the midst of trial to focus on the important piece of evidence,” said Kurzman, director of litigation consulting at Magna Legal Services in Philadelphia. The shift in focus appeared to pay off: at verdict time, the real jury awarded $78.5 million in damages to the mother and her baby.
Weinstock, who handles only birth injury cases as an attorney at Feldman Shepherd in Philadelphia, said it was the first time he used a shadow jury and he made the choice because he expected to entertain offers to settle during trial.
“I didn’t want to turn down an 8-figure settlement offer without being confident I would win and win big. The best way was through a shadow jury,” he said.
While not new, the use of shadow juries at trial has become more refined in the past few years.
Jury consultant David B. Graeven said he is more excited about shadow juries now than he has been in his 20 years of doing trial strategy.
“Five years ago I was not a convert. Why not just have a consultant sit in the courtroom? But what I’ve learned is that feedback from naive, non-related parties gives so much more information about whether a jury is understanding a case. It’s worked out very, very well for our clients,” said Graeven, president of Trial Behavior Consulting in San Francisco.
Graeven, who primarily works for defendants, said that insurance carriers are using shadow juries to decide whether to try a case all the way to verdict or offer to settle, as well as how much to offer.
A shadow jury is not for every case because of the time and cost involved. A jury consultant typically picks a panel of about 30 potential shadow jurors. Once an actual jury is seated in a case, shadow jurors matching the general demographics — age, income, gender and race — of each of the actual jurors are selected out of the original group.
They observe the trial in the courtroom and at the end of each day, give their opinions of the witnesses, lawyers, and direct and cross examinations, as well as which way they would vote if they had to decide that day.
“You get the good, bad and ugly from that day’s testimony,” said John A. Koepke, a partner at Jackson Walker in Dallas, who last year used a shadow jury in defending a $64 million bad faith case against an insurer. The trial ended in a defense verdict.
Unlike pretrial jury studies and mock juries, which are designed to identify and develop themes, the purpose of using a shadow jury at trial is mainly to get real-time feedback.
This “allows a trial team to make finely tailored modifications in trial presentation, informed by what issues shadow jurors find confusing, convincing or in need of further explanation,” said Alison K. Bennett, a trial consultant at Bloom Strategic Consulting in Dallas, who runs about three to four shadow juries per year.
“The shadow jury helps validate whether a witness communicated the message you wanted to communicate. If [the shadow jurors tell you that] witness #1 didn’t get the point across, then you regroup so that witness #2 bolsters the message the next day,” said Koepke.
Shadow jurors’ opinions aren’t limited to substance; they comment on style too.
“When you’re trying a case you’re focused on the substance, but how you come off, when you’re being too aggressive and when you’re being too passive, and how people are saying things is incredibly important,” said James G. Munisteri, a partner at Gardere Wynne Sewell in Houston, who has utilized shadow juries in contentious business litigation.
“A shadow jury gives input every single day on how the lawyers are doing, how effectively a lawyer is communicating, and they rate the lawyers on likeability and how clear their points are. … They enable you to see the big picture when you’re so far down in the weeds,” he said.
The main drawback lawyers point to is cost — paying 12 shadow jurors roughly $100 a day for weeks of trial and covering the cost of a jury consultant’s daily debriefing reports can add up.
Graeven says using a shadow jury will cost between $8,000 and $15,000 per week.
For that reason, they’re typically used only in longer trials, bet-the-company cases and other high-stakes litigation where the expense is justified.
Bennett noted that shadow juries should also be considered in cases involving “emotion-based evidence,” such as employment disputes, defamation cases or wrongful death litigation.
“In high-emotion trials, it is critical to get a sense if the jury’s reaction to critical issues comports with the trial team’s perception,” said Bennett.
For example in a high-profile sex discrimination trial in 2008 against a company that Koepke defended, he relied on feedback from shadow jurors that what the plaintiff’s witnesses saw and heard was not believable to make the focus of his closing arguments the lack of credibility of those witnesses. Koepke won the case.
Attorneys sometimes worry that shadow jurors might be disruptive and the jury might be distracted or annoyed to find out they are being mirrored.
To avoid problems, Bennett emphasized the need to hire an experienced trial consultant trained in interviewing shadow jurors and giving qualitative analysis.
An important component of those debriefing skills is not letting on which side the consultant and shadow jurors are working for.
“It’s critical that the shadow jurors are unbiased. If they know a project is underwritten by one particular side, they will make comments to favor that side, because they want you to like them,” Bennett said.
Although shadow jurors are not meant to be predictive of the end result — and some consultants stop using them before closing arguments and don’t let them decide on a verdict — another potential drawback is no matter how closely the shadow jurors mirror the sitting jury, they are not real jurors responsible for a real decision.
In Weinstock’s med-mal trial, for example, the shadow jury was asked to reach a verdict. They awarded more than the actual jury and did so much faster.
“The real jury spent 15 hours deliberating on damages. They treated it like it was their own money. The shadow jury took only one or two hours to come up with bigger numbers. They may have felt they were playing with monopoly money,” said Weinstock.
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