Source of article The Advantage Blog - Tsongas Litigation Consulting.

Decades before the O.J. Simpson trial, America had another Hollywood “Trial of the Century.” Errol Flynn, a handsome Australian actor at the height of his Hollywood career, was adored by fans from around the world. That was until 1942 when he was arrested for allegedly taking advantage of an underage girl at a party. When she filed a complaint, the District Attorney remembered a similar complaint made by another young girl, and subsequently pressed charges against Flynn.

Flynn hired famed attorney to the stars Jerry Geisler to represent him. It was said that during jury selection, Geisler purposefully left 9 women on the panel under the impression they would be drawn to Flynn’s good looks. And in 1943, after a nearly 4-week trial, the jury acquitted him.

Was it his good looks that led to his acquittal? Not necessarily. It was reported that jurors afterward revealed they were persuaded by minor inconsistencies in the prosecutor’s case – inconsistencies the prosecution never explained. Thus, they decided the prosecution did not meet its burden in proving Flynn was guilty of assault.

This is a great example of when a shadow jury could have been an extremely valuable tool. Shadow jurors are able to give counsel real-time feedback on important issues, such as:

• How are my witnesses doing?
• What are jurors likely forgetting about?
• Are they picking up on key themes?
• Where are the confusions or perceived inconsistencies?

Based on a recent presentation we gave at the American Society of Trial Consultants’ annual meeting, we identified several key components of a well-designed shadow jury. Discussing these components with your trial consultant will ensure you are receiving the type of feedback you want, and that your key research questions are answered.

First, you and your consultant will want to consider how long shadow jurors will participate. This is largely a budgetary question—the longer you want shadow jurors to monitor the case, the more expensive it is to pay them to be there. But it is also a consideration based on your interests and the research questions you intend to answer. For example, do you want feedback throughout trial, or would you rather get feedback in segments: only during opening statements, for only the first two weeks of trial, or from only a certain number of witnesses?

Second, how many shadow jurors will you have? Nightly feedback takes longer to receive when your consultant interviews more participants. However, the more trial monitors you have, the more confidence you can have in the reliability of the feedback. Discuss ahead of time what the benefits and limitations are depending on the number of shadow jurors.

Finally, how would you like to receive the shadow jury feedback? Does a nightly debrief meeting fit into your trial schedule, or do you prefer a written report? A nightly debrief will ensure feedback is heard and incorporated, so is the best bang for your buck (shadow jury feedback does no good if no one receives the feedback). That being said, it is often difficult to get key players in the same room at the same time during trial. Consider what is best for the trial team when time is of the essence.

In closing, it is critical to remember that the shadow jury is not predictive of the attitudes of the real jury. With a handful of participants, you do not have a large enough sample to have confidence that the leanings of the shadow jurors will mirror those of the real jurors. However, although it is not predictive, the feedback you receive will focus on the clarity of the information presented, areas of confusion, recognition of certain themes, reaction to particular evidence, and responses to key witnesses. Our job as consultants is to boil down all of the information given by the shadow jurors into actionable feedback and advice. Successfully accomplishing this task will unlock the full potential of a shadow jury project and avoid it becoming a distraction to you and your team.

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