From PLI’s Course Handbook
Trial by Jury 2009
#18266
7
Shadow juries: benefits and limitations
Cindy K. Andrews, Ph.D.
DecisionQuest, Inc.
There are several research methodologies available to litigants who desire insights into trial strategy and seek answers to their litigation questions. While the majority of research exercises are conducted prior to trial, a shadow jury exercise is a highly useful in-trial study. Interestingly, the principals of DecisionQuest developed the concept of the shadow jury and in fact, coined the term – which for many years was protected by trademark. However, the term came to be used so commonly that ultimately, it became unduly burdensome to enforce the mark.
The purpose of a shadow jury is to allow attorneys to obtain knowledge that can enhance their presentation skills, overcome witness vulnerabilities or deficiencies with visual aids, and perfect their strategy throughout the proceedings. Additionally, by monitoring the shadow jurors’ reactions and verdict proclivities, counsel can take advantage of opportunities presented during trial to achieve a favorable settlement. This article highlights the benefits of shadow juries as well as identifies limitations and provides some suggestions for managing those limitations.
What is a Shadow Jury?
A shadow jury is a group of participants, most often four to six, who are demographically and psychologically similar to the actual jury who are hired to sit through the trial and provide their reactions and opinions to a researcher/consultant each day. The consultant then debriefs the trial team each evening summarizing the findings and assisting with ongoing case strategy.
Methodology
A shadow jury is comprised of people who have been selected on the basis of their representativeness of the seated jury. The starting point is to consider the makeup of the venire in the jurisdiction. A relatively large group of prospective jurors are invited to participate in a questioning procedure akin to the actual voir dire. This is an important step because the shadow jurors need to experience the same processes and hear the same information as the actual jurors and because their selection for participation will depend in large part on their answers on a questionnaire and in voir dire.
It is not enough to simply “match” a shadow jury to the demographic characteristics of the real jury since research has consistently shown that demographics do not correlate with verdict. Rather, studies confirm that jurors’ preconceptions are highly correlated with outcome; therefore, the members of the shadow jury should possess attitudes and beliefs similar to those reflected in the actual panel. As such, the shadow jurors will replicate not only the demographic characteristics, but more importantly, they will represent key experiential and attitudinal qualities of the actual jurors.
The shadow jurors are chosen after the actual panel has been seated, which often necessitates a swift selection and moving the participants into the courtroom quickly to hear opening statements. A trial consultant shepherds the group throughout trial; however, the shadow jury will be less conspicuous if they filter in and out of the courtroom individually, while ensuring that they see and hear the same information as the actual jury.
With regard to privacy, the participants must sign a confidentiality agreement which generally precludes them from divulging anything about their participation. There may be instances in which the trial team wishes to inform the judge of the presence of the shadow jury. In point of fact, in a product liability case, defense counsel made this known to the judge who thereafter made efforts to ensure that the shadow jurors could see the exhibits.
The opportunity may present itself to “share” a shadow jury with a co-defendant as a means to save money or perhaps space in the court’s galley. We strongly advise against this option for a few reasons. For example, the co-defendant could settle out or get a directed verdict and release the shadow jurors. Additionally, it has happened that two corporate defendants had planned to utilize the same shadow jury; however, prior to jury selection, co-counsel abruptly denied the co-defendant access to the shadow jurors. Fortunately, in that case, additional participants had been pre-screened and were able to serve as a second shadow jury.
What are the Benefits of Using a Shadow Jury?
Identify Vulnerabilities and Make Adjustments
Based on these information processing tendencies jurors will make up their minds rather quickly. A shadow jury provides a unique opportunity for counsel to assess and understand these early impressions and to identify ways in which they may have an impact on the impression formation and ultimately on the verdict.
Jurors come to the courthouse with psychological baggage that interferes with their ability to hear and judge all the evidence equally. Preconceptions (attitudes, beliefs and opinions) create a cognitive schema that will act as a filter through which the evidence will flow. It is in the early stages of trial (voir dire and openings) that jurors are most influenced by their preconceptions and therefore final decisions are becoming entrenched.
Because of the novelty of the trial process and the inherent anxiety jurors feel, they are inclined to take information processing short cuts, that is, use heuristics to judge the facts.
Heuristics help jurors create the natural story they would tell themselves. The story that they expect and are beginning to formulate will compete with the stories the attorneys are beginning to tell. As such, jurors will search for and interpret information that supports their preconceptions, a phenomenon called “confirmation bias”. When certain facts fail to comport with jurors’ preexisting beliefs, then those facts will be discarded or ignored; they will not be processed at a level that will transfer them to long-term memory. When facts are perceived as neutral they will be modified to fit with jurors’ preconceptions and their evolving story. This “belief perseverance” allows jurors to reduce cognitive dissonance and emotional anxiety by efficiently filtering the information and culling out that which competes with their preconceptions and storyline.
Obtaining feedback following the opening statements will quickly inform counsel where jurors perceived the story to break down, where crucial details were lacking thereby making room for a conspiracy theory, which themes resonated, and which information jurors were going to need to hear and understand in order to return a favorable verdict. At times, counsel will also learn about preconceptions about the litigants that need attention and misunderstandings about the process or the case that should be corrected before they become outcome determinative.
Jurors can misconstrue facts, be confused about claims, and lack adequate comprehension of important technical issues. Interviewing shadow jurors allows counsel to refine their presentations and to prepare witnesses such that jurors’ misconceptions and poor grasp of key concepts can be addressed. The trial team can identify where they need to fill in gaps to generate an adequate foundational understanding of technical issues thereby ensuring that vital points are successfully conveyed. Through jurors’ feedback, the trial team is informed when they can move on without risk to the outcome. Equally important, counsel will know when they or the witnesses are being pedantic, causing fatigue, irritation, or are insulting jurors’ intelligence and need to make adjustments.
Prepare and Order Witnesses
Based upon the perceptions of the shadow jury, counsel has the opportunity to make adjustments to the order of witnesses, course of testimony, and demeanor style. They may find that jurors are unable to maintain attention because he expert witness has a turgid teaching style or is over-relying on technical jargon and teaching on the level of his or her scientific peers.
In one particular trial, defense counsel learned that shadow jurors perceived the plaintiff’s key expert as very professorial, an excellent teacher, and very likable and therefore afforded his testimony a great amount of weight and thereafter strongly favored the plaintiff. Even after hearing from the primary defense expert, jurors were entrenched in their opinions and the defendant decided to settle the case rather than risk more exposure. Further, post-verdict interviews with the actual jury revealed that they had the same perception of the facts and mirrored the shadow jurors’ opinions; therefore, the client was pleased it had made the appropriate decision to settle.
Enhance the Visual Story
The contemporary jury, which is comprised of approximately 43% Gen-X and Millennial jurors in most venues, demands a streamlined and interesting visual case. Regardless of the number of jurors sitting on the panel from the younger generations, the party which successfully presents its case through visuals has the advantage. In point of fact, research has shown that after three days, 65% of information presented both visually and orally was retained compared to only 10% of information presented orally and 20% presented visually (Weiss & McGrath, 1963). Therefore the story should be conveyed through thematic demonstratives to maintain jurors’ attention, facilitate recall, and thereby increase persuasion.
Shadow jurors provide feedback about which exhibits were relevant and whether they were helpful or harmful to the litigants’ positions. The effectiveness of expert witness demonstratives is assessed in real time giving the team the opportunity to refine them or to otherwise enhance the testimony to increase juror comprehension and interest.
Settlement Strategy
Shadow jury research provides an ongoing assessment of the potential verdict and thereby the exposure and settlement value of the case. With this valuable information the litigant has greater assurance that when settlement opportunities arise the team will make decisions based on the most relevant data available. Without it, they rely on general verdict trend data augmented by educated guesses about the jurors’ reactions. Having the shadow jurors’ valuation of the case available during mediation gives that party additional negotiating power. Without this information there is risk of a settlement decision being misguided.
For example, in a trial regarding the wrongful death of a construction worker, the defendants were interested in how much impact evidence specific to a punitive damages claim would have on the jury. After a few days of trial, the judge had not yet ruled on defendants’ motion to deny. Even if the judge had denied the evidence, the defendants remained concerned that information pertaining to a prior incident would be permitted and that this information would anger jurors and potentially aggravate the compensatory award. The parties felt pressured to settle and without the advantage of a shadow jury supplying their daily assessment, the defendants relied on their assessment of value to make a settlement offer. Because they were unnerved by the possibility of punitive damages and therefore agreed to a multi-million dollar deal on the fourth day of trial. Later, a bad faith claim was brought against one of the insurers alleging it failed to contribute its authorized share in the final settlement package.
In the bad faith trial, the insurer argued that its defense counsel did not provide any new or different information which would have caused it to increase its value of the case. Had they used a shadow jury, the defendant and their insurer would have had data specific to the crucial issues driving their settlement decisions. This research exercise, especially for just a few days of trial, would have cost a mere fraction of what the defendants could have saved in settlement and it may have prevented the bad faith claim.
What are the Limitations of a Shadow Jury?
Sampling Bias
The length of the trial will create a self-selection bias with shadow jurors because they ultimately have more choice than do the actual jurors to participate. A person’s ability to be a shadow juror will depend on their occupation, childcare needs, health restrictions, and so forth. If the trial is expected to last for several weeks or months, then shadow jurors may necessarily need to be obtained through, or augmented by temporary agencies or advertisements, which creates another type of sampling bias and potentially attenuates study reliability.
Solution: Because the aforementioned recruiting methods are not ideal, consultants will begin the recruitment process early enough to allow for representativeness through random sampling. For example, for a trial involving claims of construction defect, delay and fraud and expecting to last nine or ten months, the consulting team contacted potential shadow jurors through random digit dialing. They were interviewed and offered the opportunity to participate depending on their representativeness of the seated panel, which was comprised of highly educated, employed jurors with little issue-relevant knowledge. The shadow jury was also comprised of highly educated professionals who were either retired, in a career transition, or decided to leave their usual jobs to participate. If a temporary agency had been used in this case, the panel may have been ill-matched on demographics and socio-psychological characteristics.
Cheerleaders and Experimenter Bias
It is crucial that the research participants remain blind to sponsorship. If they determine which party has hired them, their feedback can become skewed because of a “social desirability bias”, i.e., the shadow juror will provide the type of feedback he or she thinks the attorneys would prefer to hear. The participants also begin to feel aligned with the paying party. Based upon increasing feelings of advocacy and a confirmation bias, jurors will filter the evidence thereby putting the party at risk because the attorneys are being told they are doing well and that the opposition is wrong. The real benefit of this research is in hearing what is broken and what issues are vulnerabilities in order to make the necessary adjustments. If the shadow jurors are acting as cheerleaders then the strategic adjustments critical for winning cannot be made.
In addition, there is always a risk of the consultant/researcher failing to remain objective. Like research participants, they are subject to an experimenter bias that may impair their judgment of the case.
Solution: Identifying the client can be avoided if the researcher/consultant does not acknowledge any of the attorneys in the presence of the shadow jurors, if the interview questions are neutral and well-balanced, and if the shadow jurors are paid cash.
Furthermore, the consultant should be well-versed in the social sciences and cognizant of sources of potential biases. He or she should strive to focus on the weaknesses in the case to avoid becoming enamored with the strengths and potentially misguiding the trial team. Self-awareness is a good way to avoid this pitfall; being able to acknowledge the limitations to one’s interpretation of the data will realistically set the expectations of the trial team.
Another potential solution is for a second researcher to be involved in the process. One researcher would interact with the jurors while the other would work with the clients. There is also the option of keeping the second consultant unaware of the client’s identify thereby creating a double blind study, i.e., the researcher interacting with the jury is not be aware of sponsorship thereby reducing the potential for experimenter bias and skewed feedback. The raw data would be provided to the second consultant who interprets it and conducts the team debriefing.
Intrusion into Counsels’ Game Plan
A daily report card may or may not be a welcome trial tool depending on attorneys’ attitudes. If the trial attorneys have requested a shadow jury then juror feedback is embraced. However, if corporate counsel or the insurance carrier has suggested it, then the “help” may be unwelcome; the attorneys may even feel threatened by the jurors’ observations and consultant’s suggestions. Counsel will need to consider making moderate or even radical adjustments on the fly, therefore, a member(s) of the trial team will need to be available to debrief and discuss potential strategic solutions.
Solution: Conducting pre-trial research exercise(s) would have identified the weaknesses and non-legal factors driving juror decisions thereby allowing the attorneys to polish their and the witnesses’ presentations well before trial.
If the attorneys are provided a shadow jury but are unsure whether or how they will utilize the feedback, then the team might designate one attorney to receive the consultant’s debriefing and to communicate with the team as necessary. There have also been instances in which the corporate client used a shadow jury for their own, not the attorneys’ benefit. The attorneys ignored the feedback but the clients used it to evaluate counsel, witnesses, and gauge the overall case value throughout the process. In those instances, the trial team was provided suggestions only when the client thought it essential to do so.