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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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