THE “FREE” SHADOW JURY

I just finished reading “How About a Free Shadow Jury?: Inside the Juror’s Mind” in the ABA’s Litigation News section.

The headline was undeniably compelling. As a member of a consulting firm that offers shadow juries as a service, I was curious how anyone could provide this work for free. As it turns out, the article talks about how understanding jurors’ questions during trial can be “like” having a free shadow jury. The Honorable Mark A. Drummond delivered a strong claim worthy of commentary.

First of all, it is certainly true that the benefits of allowing juror questions outweigh any negative effects. The research in this area has been consistent (there is an excellent summary of this research at http://www.thejuryexpert.com/2012/05/juror-questions-why-attorneys-should-embrace-allowing-jurors-to-ask-questions-of-witnesses/). Some of this research is what helped juror questions during trial become mandatory in states such as Arizona, Colorado, and Indiana.

Over the years, there have been many concerns about jurors’ questions. These concerns were based on false assumptions. One attorney I spoke to was worried that jurors were literally sticking their hands up, and then being called on by the judge. In most cases, jurors’ questions are taken at the end of the witnesses’ testimony, by jurors passing notes to the bench. The judge then determines if the question is allowed. If the judge does allow the question, the judge asks it in a legally permissable way. This format benefits everyone by clearing up juror confusion. Jurors also pay more attention during trial because they now have an active role in the process; this can help prevent jurors from turning to outside sources for information. And it may give attorneys insight into how jurors are processing the case. My caution is about the word “may.”

While jurors’ questions may provide insight on how jurors are processing data and advocacy, this information is not of the same quality as that given by a shadow jury. It is not unusual for jurors to ask questions that appear to give an indication of how they think, when in fact, the questions merely indicate a void of knowledge, or their curiosity. This is not unlike the problem of the juror who nods their head during opening statement, and then at the end of trial is revealed as someone who nods just to let you know that they are listening. Furthermore, you may later discover they were never persuaded by your case.

In comparison, shadow juries provide daily feedback from people similar to the actual jury on anything the attorneys want to know. Furthermore, since they don’t know who they’re working for, their comments are unbiased. After a long day of an expert explaining fiduciary duty, infringement, good faith, or anti-competitive behavior, a trial team utilizing a shadow jury can learn that night what the shadow jurors understood, compare it to the intended message, and then adjust to make sure the message is clear the next morning. An excellent summary of the benefits of shadow juries, and objections to them can be found in the article, “Shadow Juries: A Unique Advantage in Civil Trials” by Theodore O. Prosise, Ph.D.

Jurors’ questions are beneficial, no doubt. However, it should be clear to litigators and corporate counsel just how little a few questions are “like” a free shadow jury.