ILNews

'Shadow' jurors outside the box

Back to TopCommentsE-mailPrintBookmark and Share
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.”•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  2. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  3. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  4. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

  5. Oh yes, lifetime tenure. The Founders gave that to the federal judges .... at that time no federal district courts existed .... so we are talking the Supreme Court justices only in context ....so that they could rule against traditional marriage and for the other pet projects of the sixties generation. Right. Hmmmm, but I must admit, there is something from that time frame that seems to recommend itself in this context ..... on yes, from a document the Founders penned in 1776: " He has refused his Assent to Laws, the most wholesome and necessary for the public good."

ADVERTISEMENT