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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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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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