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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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