Anyone who has been utilizing the services of a trial consultant for the past several years has likely been asked whether they wanted a “shadow jury” in their upcoming trial.
Shadow juries are made up of three to six people whose demographics and attitudes, to the extent they are known, resemble those of the real jurors. Immediately after the real jury is seated the recruiting begins: finding similar people who can agree to be in court every day that court is in session.
It’s a mad rush to fill the seats, as a shadow juror cannot miss one minute of trial. It is advisable to use only three to six people, and that depends on a few factors.
One is logistics. How big is the courtroom? The shadow jurors need to be somewhat spread out in the audience and need to come and go as inconspicuously as possible. Shadow jurors listen only to what the jurors hear. For example, if the judge is speaking to counsel outside the presence of the jury, the shadow jurors must also leave the courtroom. In a small courtroom, six people getting up and leaving all at the same time every time the jurors are dismissed can be easy to spot.
Second, the consultant monitoring the shadow jury needs access and time to debrief jurors every evening after court and report back to counsel. The shadow jurors do not know (and should not know) which side hired them; obviously, that would not make for a very balanced review of the day’s events. That means counsel cannot speak with the consultant monitoring the group in the courthouse.
Another factor is the number of jurors on the panel, although that has less impact on the number of shadow jurors. If 14 jurors are deliberating, using six shadow jurors would be ideal, but if the courtroom cannot accommodate it, fewer is acceptable and even advisable.
Shadow juries are a meaningful way to get almost real-time feedback. How did that key witness for the other side really play? How was my opening? Did that document hurt the other side as much as we thought? Did the jurors latch onto our themes? Are our strategies going to work considering the other side’s expert’s stellar performance?
The feedback allows counsel to tweak style or strategy on the go, or, especially in the case of the defendant, know where they stand going into their case in chief.
What are the limitations of shadow juries? First, the obvious: They don’t decide the case, so however much they might “match” the real jurors, their opinions about who’s going to prevail could be completely different. Shadow jurors are better used for feedback, not outcome predictions.
Also, shadow jurors are generally interviewed separately, not as a group, so the group dynamic effect is lost. The real jury may have a couple of strong people who persuade others to their point of view; shadow juries cannot give any insight as to the real jury’s dynamics. Attorneys get isolated opinions and feedback, not a deliberation.
Shadow juries also are not as emotionally invested in the case as real jurors. Real jurors sit through a long and complex trial with a goal in sight, tasked with finding for one side or the other, shrouded in ostensible secrecy as they fulfill their civic duty. A shadow juror might believe one side would win, but is much less invested in both the process and the outcome. That doesn’t mean he or she will not do a good job listening — quite the contrary, in fact — but when the investment is lower and there is no civic duty involved, the feedback is sometimes less passionate.
Another consideration is that juror loss is a much bigger factor. When one of only three or four shadow jurors drops out of the process, the subtraction makes a big difference — and the slot cannot be replaced. Another limitation is that in some jurisdictions, voir dire is limited to non-existent, which means even the demographics of the jury can be a guessing game.
Shadow juries are generally made up of retirees, homemakers or empty nesters in longer trials. Because it is usually a decidedly complex matter that warrants the level of trial monitoring that necessitates a shadow jury, candidates often must be available for a two- to five-week (or longer) experience. That greatly limits the population.
Finally, there is the issue of cost. Shadow juries are expensive, to be sure. Jurors must be paid a fair amount to entice them to participate in the trial’s entirety. A bonus is usually paid if they participate for the whole trial and fulfill their duties, particularly in long trials. The daily rate can be anywhere from $100 to $250 per person, plus a consultant to manage the jurors and conduct evening interviews.
But in certain trials, such as bet-the-company or complex, strategically difficult cases, shadow juries can be invaluable. Their unique attribute is that they offer real feedback from juror-like people; that is, those who have not been trained in the law or in the subject matter of the case. Those are the folks who can help counsel see the forest for the trees, and that’s the kind of feedback counsel does not often get.
A less expensive alternative to shadow juries is trial monitoring, which consists of a trial consultant sitting through the trial and giving feedback to counsel in much the same way as a shadow jury, but using his or her trial experience in understanding what is working and what is not. Obviously, this is one person rather than several — someone specifically advocating for you (though professionals should still be able to give constructive feedback) who has more legal knowledge than the average juror. It’s valuable feedback but quite different than what a shadow jury can offer.
Shadow juries are a unique and powerful way to monitor and shape your case as it moves through trial. It is always helpful to know when you need a course correction, need to drop a witness from your list, or need to reiterate your case themes when they may have been lost along the way.
Julie Campanini is the founder and principal at Trial Insights. She can be contacted at Julie@trialinsights.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.