You Can Know Your Jury as Well as You Know Your Shadow

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We recently assisted in a trial by facilitating a shadow jury. As is the case with most shadow juries, the results of our shadow jury mirrored the final results of the seated jury.

The tangible advantage of the shadow jury we conducted was that it allowed the attorneys to gauge the impact of each day of the trial. While the shadow jury feedback allowed the attorneys to tweak their presentation of the case on a day by day basis, the real help came when formulating the closing.  Here is how the effects of the shadow jury unfolded over time.

  • Recruiting shadow jurors – Once the venue of the trial was determined, we developed a profile of the jury pool.  Then we recruited potential shadow jurors so we would have a group of potential shadow jurors that matched the jury pool.
  • Selecting shadow jurors – Once the jury was seated, we met with the attorneys and identified who among the seated jurors were likely to be leaders. We selected six shadow jurors to match the six leaders on the seated jury.
  • Orienting shadow jurors – The facilitator met with the shadow jurors and provided an orientation for their job, e.g., don’t listen to media reports about the case, do not research the case, do not discuss the case, do take notes during the day, and be ready to discuss your opinions about the trial at the end of the day.
  • During the day – Shadow juries did not know each other, so they could sit right next to each other in the courtroom and not know they were both working on the same assignment. The facilitator attended each day of court and verified that the shadow jurors were present. Shadow jurors were instructed to avoid contact and conversation with the facilitator during the day.
  • Nightly debriefing– There are two ways to debrief a shadow jury, individually or in a group setting. In an effort to eliminate the influence of group discussion, we chose to debrief shadow jurors over the phone.
  • Nightly report – Each night the facilitator wrote a report and emailed it to the attorneys. The report addressed six areas: general impression for the day; strengths of the attorneys; strengths of the opponents; critique of each witness who testified; impression of the judge; and verdict.
  • Preparation for Closing – When the attorneys for both sides rested, the trial was continued to the next day. For the first time, the shadow jurors learned who had paid for their services because the shadow jurors met at the attorneys’ offices to deliberate. The attorneys watched the deliberations and when shadow jury deliberations concluded, the attorneys interviewed the shadow jurors. This allowed the attorneys to try out different arguments for closing. It also led to the attorneys discovering some arguments that could be used during closing.

The seated jury can’t tell you how a witness, argument or evidence affected them but a shadow jury can. And you can get the feedback on a daily basis, which allows you to make adjustments in your presentation on a daily basis, all the way to the end of the trial.  A shadow jury is just one way you can Combine the Art of Law…with the Laws of Science.


About the Author:

Dr. Ferrara is the president of Westlake Trial Consulting, LLC. He is an experienced trial consultant, writer, and expert witness.