"The Shadow Knows": Shadow jurors can help lawyers adapt on the fly

"The Shadow knows"
Shadow jurors can help lawyers adapt on the fly
By Edward P. Schwartz
July 16, 2007 –
It is the sixth day of trial and the mechanical engineer is droning on about
shopping cart construction. You can't keep your mind from wandering - and
he's your witness. As you scan the courtroom, your patented "sincere,
competent and friendly" smile expertly cemented on your face, you notice
for the first time just how many people are watching this completely
unremarkable premises liability case. Even more surprising, they actually
seem to be paying attention. Who are they? They don't look like folks on a
day pass from the state hospital next door. They're too old to be a ninth
grade civics class on a field trip. Not even the local rag of a newspaper
would be desperate enough to cover this case.
You don't need Rod Serling to explain this particular phenomenon. These
members of the gallery are probably shadow jurors, hired by your opponent
to watch the trial and provide feedback about how things are going. "Wow!"
you think, "The defense is really pulling out the stops."
Not necessarily. In truth, using shadow jurors can be a very economical
way to get valuable information on your next trial.
There are several ways to make effective use of shadow jurors. Some of
them can be used in conjunction, while others require the litigator to make
a strategic choice before the trial begins.
Handy-dandy focus group
Imagine having access to an up-to-date focus group at any point during the
trial.
If you use shadow jurors, you can debrief them at any point in the
proceedings. You don't need to prepare any presentation materials since
they have been watching the whole trial. As with conventional focus
groups, it is best to zero in on one particular theme or piece of testimony -
"Did you understand the explanation of how a CT scan works?" or "Do you
think the plaintiff was being completely truthful in her testimony?"
While an attorney can conduct these sessions, it is preferable to get a
professional moderator to do so. If the shadow jurors are talking to the
person who is paying them, they may be tempted to report what they think
the lawyer wants to hear. This problem is only exacerbated if the shadow
jurors develop a rapport with the attorney over the course of the trial.
Finally, if the shadow jurors start to feel like part of the trial team, they
might cease to be objective evaluators of how a real jury would see the
case. It is critical to get honest, objective, unbiased opinions from your
shadow jurors.
Regular focus groups quickly turn your shadow jurors into a shadow jury.
You might want to solicit their individual opinions throughout the trial, free
from the influences of the other shadow jurors. There are several ways to
pursue this strategy and still get good data.
One possibility is to give your shadow jurors dial testers. These are little
hand-held controllers that look like pong paddles. As the shadow jurors
watch the trial, they turn their dials from "cold" to "hot" depending on how
they feel about what is happening in the courtroom. In addition, it is
possible periodically to prompt the shadow jurors with particular questions
that they answer using their dials. The results can be monitored by a
member of the trial team in real time, and new questions can be introduced
whenever they come to mind.
There are now several companies that provide dial testing hardware, data
collection and analysis, including:
www.perceptionanalyzer.com

www.presentationtesting.com

www.audienceresponse.com

They are all experienced at working with attorneys and trial consultants to
configure their systems to the needs of particular cases.

Limitations of dial testing
Dial testing does have its limitations, however. You will probably need to
find a way to broadcast the trial to a remote location where your shadow
jurors will be free to twist away. The controllers are wireless, so they can
be used in a courtroom, with the technician and responsible trial team
member squirreled away nearby. But it may be difficult to convince a trial
judge to let your shadow jurors sit in the courtroom with their controllers.
I recently asked Nancy Gertner, a U.S. District Court Judge in
Massachusetts and a courtroom technology advocate, whether she would
allow shadow jurors to use dial testers in her courtroom. To my surprise,
she replied, "I wouldn't have a problem with them so long as they and the
'dial testers' are inconspicuous and the 'real' jury wouldn't know that they
are being 'shadowed.'"
When requesting permission to use dial testers, I recommend that you
demonstrate for the judge how inconspicuous they can be. Coach your
shadow jurors on how to keep the dial testers in their laps while using
them.
While it's possible to work with shadow jurors who are not in the courtroom
you lose the realism of watching a trial live, where they can watch
reactions and body language in addition to hearing the testimony itself.
Another concern is that this technology doesn't come cheap. Expect to
pay at least $3,000 per day plus expenses for the equipment rental, the
staff to run it and the resulting data analysis.
You can accomplish many of the same goals with a distinctly low-tech
approach. A trial consultant can hand out short questionnaires to your
shadow jurors during breaks and debrief them individually at the end of
each day. This approach requires a bit of extra manpower, since one
person won't be able to interview every shadow juror in the same evening.
One good question to ask every day is "Are there any questions you wish
someone had asked of a witness?" This information is particularly valuable
in jurisdictions that do not allow jurors to submit questions to witnesses.
A few refinements
One advantage of keeping shadow jurors apart during trial is to track trends
in attitudes and opinions. If a shadow juror starts to warm up to the
defense case, it is nice to know whether the change is the result of
evidence and testimony, as opposed to the influence of other shadow
jurors.
Such isolation also allows you to ask the shadow jurors to deliberate as a
jury at the end of the trial. While you can have a shadow deliberation in
any event, if the shadow jurors have been regularly sharing their views
throughout the trial, such deliberation is unlikely to mimic what the real
jury is going through.
What should you make of your shadow jurors' responses?
Even though the shadow jurors are watching the actual trial (unlike mock
jurors or focus group participants, who typically watch an abbreviated
presentation), their responses should still be interpreted as suggestive,
rather than predictive. Shadow jurors are very useful for learning about what
themes have been important, which witnesses have been credible and
which information has been internalized by the actual jurors.
That said, how such matters get transformed into a verdict choice is often
the result of idiosyncratic features of individual mental processes and
collective deliberation dynamics. Your shadow jurors can improve the
accuracy of your evaluation of how the case is going, but they can't tell
you for sure what the actual jury is going to decide.
Suppose your shadow jurors are reacting negatively to your case. That
doesn't automatically require a dramatic change in your approach. You
should be careful to interpret shadow juror responses in conjunction with
the results of your pretrial research, your trial consultant's evaluation of the
case and your own experience with similar trials. You should huddle with
your entire trial team before resorting to Plan B.
Plan B and how to use it
It is often difficult to change tactics in the middle of a trial. It is a good idea
to have contingency plans laid out in advance, anticipating that you will be
receiving regular feedback from your shadow jurors. This will allow you to
smooth out any necessary strategic transition.
Suppose you anticipate that you might need to become more aggressive in
your cross-examination of a particular witness. You should script out both
versions of your questions in advance and plan a transition from one to the
other that won't be too jarring to the jury.
A final note about shadow jurors. You should discuss this option with your
trial consultant well in advance of trial. It takes some time to recruit a
representative group of shadow jurors who are free to spend several days in
a row in court (not to mention the debriefing sessions). In addition, you will
want to put a lot of thought into the techniques that your trial consultant
will employ and the types of questions she will ask. You will be busy
enough during the trial - you don't need to be drafting multiple-choice
survey questions and scheduling conference rooms. So, if you think you
might want to use shadow jurors, get the ball rolling early - it's much easier
to dismiss shadow jurors you don't need than to find decent ones at the
last minute.

Edward P. Schwartz is a trial consultant based in Lexington, Mass. He
also teaches a course in jury trials at the Boston University School of Law.
His website is www.eps-consulting.com
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