- Tsongas Litigation Consulting
REFLECTIONS ON A SHADOW JURY PROJECT
I recently had the opportunity to manage a shadow jury project on a large patent infringement case. My experience in this trial highlighted a few key theories, and reinforced for me the value of using trial monitors.
The feedback provided by the trial monitors helped shape the strategic choices made by the trial team. Some of the insights gleaned in interviews with the monitors included:
The jurors used motivated reasoning to draw conclusions involving complex ideas. “Motivated reasoning” is a psychological concept that suggests that people are motivated to arrive at the conclusions they want to arrive at, and that they need to construct a seemingly reasonable justification for these conclusions. In this case, the patented technology was complex and difficult for average individuals to understand. As a result, jurors used their “big-picture” perceptions of the case to influence their conclusions about the technological issues. The jurors found the witnesses on one side more credible, therefore they wanted to believe that side’s arguments. But they needed some simple shortcuts to help them feel that their conclusions were warranted, and not based on bias. By providing simple phrases and concepts to the jurors about the complex technologies, the trial team enabled the jury to feel like they had good reasons for embracing their perspective, which allowed them to follow their “gut feeling.”
The jurors liked witnesses who were firm, but not hostile or defensive. The jurors were most supportive of witnesses who clearly articulated their positions and were able to withstand a strong cross-examination without becoming overly aggressive. Witnesses who were prepared to “walk this line” were viewed as more confident and credible than those who withered, or reacted defensively under forceful cross-examination. The positive impression of certain witnesses influenced the overall support for one side’s perspective, which created the “motivated reasoning” described above.
Repetition is key. From one day to the next, jurors frequently forgot key arguments and details that were not emphasized over and over. Repeating a key theme or concept seems like overkill at times, but given the volume of information jurors hear each day, this repetition is critical to fostering recall. This was especially evident with key dates, which jurors had a difficult time keeping straight. The repeating (and writing down on a flip pad) of these dates helped jurors to remember a basic sequence of events during deliberations.
The real-time reactions we were receiving from the monitors on these and other issues enabled the trial team to make adjustments each day to maximize the positive impressions made on jurors. In cases where the issues are complex, and the stakes are high, a shadow jury can provide a critical edge for attorney.
 “The Case for Motivated Reasoning,” Psychological Bulletin, November 1990, 480-498.