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'Shadow' jurors outside the box

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Indiana Lawyer Focus

They sit in the courtroom, observing the trial just as any person can do. But these aren’t ordinary court observers.

Instead, these individuals situated throughout the courtroom are hired to hear and see all the same evidence and arguments that those in the jury box are observing. Then, they’re surveyed about their thoughts, observations, and overall feelings on how the litigation is progressing and how they think the case might turn out.

“Shadow jurors” are surrogates for the real jury, offering the lawyers trying a case insight into what the actual jurors might be thinking and how the lawyers are doing. While the concept isn’t new and has been used in cases nationwide for years, it hasn’t been embraced widely by Indiana lawyers likely because of its cost and complexity. But one Indianapolis attorney who has used the litigation technique more than a dozen times in other states recently brought it to the medical malpractice case he was handling in St. Joseph County.

“I think shadow jurors, or court observers as we call them, are a valuable tool in any attorney’s arsenal,” said Norris Cunningham with Hall Render Killian Heath & Lyman, the defense attorney on the med-mal case. “You are trying to find out if your theme is working and the information you’re trying to impart on jurors is getting across, or whether you have to try something new and different. You can glean some great information from them about where the actual jurors are at, and it allows you to adjust on the fly if need be.”
 

cunningham-norris-mug Cunningham

That high-stakes medical malpractice trial involved parents Hector and Brandi Lopez, who sued Interim Healthcare Inc. for $10 million on claims that the company was partly responsible for major brain injuries their 2-year-old son sustained under the care of a home health nurse in 2007. The nurse worked for a local franchise called Northern Indiana Health Care.

Cunningham hired New York-based jury consultant Trial Solutions Inc. to assist as the case headed for trial, and the firm hired six local residents from a pool of applicants to serve in a shadow juror role. Cunningham said applicants responded to an ad for an opinion research focus group and were paid from $100 to $200 per day.

Trial Solutions managed and interviewed the shadow jurors, and assisted with jury selection. Those serving as shadow jurors aren’t told which side they have been hired by, in order to provide an unbiased perspective, Cunningham said. Shadow jurors whose attitudes and insights resemble those serving in the actual jury are sought. They are held to the same standards as the real jury – forbidden from talking about the case with anyone, researching the case, or reading any media accounts.

Questions asked of shadow jurors in the St. Joseph case included: what they thought was the single most important fact or piece of information that particular day, how the witnesses responded on the stand, and whether a witness or evidence helped the plaintiff or defense more?

Cunningham said that each evening, shadow jurors are debriefed by the jury consultant and a report was forwarded to the attorney by the next morning, in time to allow for any litigation strategy change.

“It’s worked out very well and I’ve found it to be a very useful tool, but not one you want to bring out all the time,” Cunningham said, citing costs that can run as high as $12,000 to $14,000 depending on the jury consultant costs and length of trial. “This is definitely not a cheap way to go, and that’s probably part of reason you don’t see it a lot.”

He said the amount of exposure in a case can be a key factor in determining when to use shadow jurors. For example, using shadow jurors might not be the best solution if a case boils down to the credibility of a couple key witnesses rather than general perceptions about health care providers or issues, he said.

Before using shadow jurors in court, Cunningham notifies the judge and bailiff in order to make sure they are mindful of those faces that will be regularly appearing in their courtroom. Most don’t have any issue with the method, he said. In the St. Joseph County case, Cunningham said he notified the court about his shadow jury minutes before the jury was brought in for opening statements.

Plaintiffs’ attorney Thomas Doehrman from Indianapolis firm Doehrman Chamberlain objected and said he hadn’t heard of that being done before, and he wanted assurance that there would be no interaction between the real jurors and the “shadows.” Cunningham told the court and opposing counsel that there’d be no cross-communication. St. Joseph Circuit Judge Michael Gotsch approved their presence, noting that anyone can attend a trial in open court, and allowed the shadow jurors to enter the courtroom at the same time as the selected jurors. While the trial was expected to last a week or more, the litigation ended after a handful of medical experts from the plaintiffs took the stand. The parties reached an out-of-court settlement.

Litigation support firm Theme Vision in Indianapolis has used the “relatively uncommon technique for Indiana” in federal court there. They say shadow jurors provide real-time feedback about the litigation progress, making it more useful than mock trials or focus groups, but that the case has to justify the time and expense, which can be high because of the shadow juror debriefing and attorney meetings about the findings.

Fort Wayne attorney John Feighner, president of the Indiana Trial Lawyers Association, said the St. Joseph County case is the only one he is aware of that has used shadow jurors.

“The concept is rare because of the cost and complexity, and a lot of plaintiffs lawyers in longer high-damages cases will use other techniques like a mock trial or focus group,” he said. “They’ll try using anonymous jurors ahead of time to learn the themes and strengths and weaknesses in their case. But I suppose that as long as you get court approval and the guidelines preserving trial and evidence integrity remain, it can be a useful technique.”

Defense Trial Counsel of Indiana president Scott Kyrouac in Terre Haute said the use of shadow jurors is an extension of the practice by some attorneys of asking a relative, co-worker, or even an insurance representative to attend a trial and provide informal feedback.

“I am not sure that the procedure will become real popular among the civil defense bar,” he said. “A shadow jury could ultimately undermine the trial process and our faith in the judicial system if their results are consistently different than that of actual jury verdicts. As an advocate of the right to trial by jury, I’d advocate caution concerning any procedure that could ultimately be used to attack the credibility of our system of justice.”•
 

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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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