X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Chicago lawyer Michael D. Freeborn didn’t need much convincing to realize that using so-called shadow juries could make a difference in his cases. A longtime believer in the technique, which allows feedback during trial from hired court observers without the bias associated with partners or highly paid legal experts, Freeborn has used shadow juries for more than 15 years. Sitting together in the gallery with their hired handler, these lay court watchers can be counted on by lawyers like Freeborn to have their own biases, much like real jurors. And when they are taken aside and debriefed by the handler, one at a time, in the evenings after court, they can be counted on to provide insight that litigators hope will be as close to that of true jurors as possible. This non-expert opinion is what made Freeborn a fan of the technique, especially after he used shadow jurors in a 1995 securities action. The 1995 case already was an unusual one for his 100-lawyer firm Freeborn & Peters, located in Chicago’s lawyer-rich Loop area, because most securities fraud actions settle or end in summary judgment long before trial. Freeborn, the defense counsel, hadn’t employed consultants at that point. At the 11th hour, however, he decided to organize a shadow jury. It didn’t take long for it to prove its usefulness. “After the first day of trial, when the shadow jurors heard the opening statements, they reported to the debriefers that they [didn't] understand the plaintiff’s case,” Freeborn recalls. That was enough for Freeborn and his client. They withdrew their multimillion-dollar settlement offer for good. A gamble? Certainly. But by taking this calculated risk, the defense prevailed in what the firm claims is the only securities fraud class action in history in which a company won after a jury trial despite evidence that insiders sold stock just before a disappointing earnings report was issued, Grassi v. Information Resources Inc., 63 F.3d 596 (7th Cir. 1995). “It was a very professionally satisfying result for all of us,” Freeborn says, adding that he has “complete confidence” that the shadow jury was helpful in bolstering their decision to go to trial and withdraw the settlement offer. Freeborn insists that the tactic never would have worked without the shadow jurors being ignorant about who paid them to be there. That’s one of the many lessons his firm has learned about shadow juries throughout the years. “It is the equivalent of real-time market research,” says Freeborn, a founding partner of his firm. He began using and improving on shadow juries in the late 1980s after hearing about them at a conference of the American Bar Association Litigation Section. Shadow jurors, Freeborn maintains, will speak up if they are confused by a certain point or line of questioning. The trial lawyer can then make a correction or steer a different course on the spot. In one case, a shadow juror commented on how nicely Freeborn & Peters lawyers dressed, but complained that their shoes were a mess. Recognizing this as a potential credibility issue with the real jurors, the Freeborn lawyers remedied the situation and got their shoes shined. Although a minor issue, it told Freeborn that shadow juries are not for the thin-skinned. “The shadow jury report comes back to you and your client unedited,” Freeborn says. “What they think of you is going to be expressed with a hundred percent candor.” That candor and insight from an individual far removed from the case has meant the difference between his client paying a whopping settlement and winning at trial, Freeborn says. He also has used shadow juries to gauge the credibility of witnesses and, in one case, to be certain that jurors were seeing his witness — a hard-driving boss — as a “tough, but fair” Mike Ditka type. He maintains that the millions the technique saved his client in the Grassi case is proof enough of its effectiveness. Others aren’t so sure. C. Barry Montgomery, a commercial litigator and tort lawyer at Chicago’s Williams, Montgomery & John, has used shadow juries but says he probably won’t use them again. He says that it’s very difficult to keep shadow jurors from finding out who hired them. They pick up on clues, they may be able to tell if the debriefing questions would be more helpful to one side, or they may notice if lawyers are paying extra attention to them or their handler. They figure it out. And when they do find out, they become biased. “They can be more misleading than helpful,” Montgomery says, particularly for clients who may make “invalid assumptions based on what they’re hearing from a shadow jury.” Also, shadow juries see everything a jury doesn’t — including excluded evidence and arguments — that can have a significant impact on how they view a case, Montgomery says. For similar reasons, veteran plaintiffs’ lawyer Thomas A. Demetrio of Chicago’s Corboy & Demetrio says he doesn’t use shadow jurors. The crucial part of a jury trial is what happens during deliberations, according to Demetrio. “The trial lawyer is the one who should know how things are going,” he says. “I don’t need a shadow jury to tell me what’s working and what’s not, so I don’t use them.” Taking a softer stance, Fred Bartlit of Chicago’s Bartlit, Beck, Herman, Palenchar & Scott, is critical of shadow juries’ ability to predict results, but he praises the feedback they provide on trial techniques. In the three times he has worked with shadow juries, Bartlit says, they have helped assure lawyers that points are getting across. “It’s an eternal problem,” Bartlit says. “Trial lawyers get so close to [a case that], it’s easy to breathe your own exhaust.” Nevertheless, wages for shadow jurors and their handlers can be prohibitive. Bartlit maintains this expense can increase case costs by 10 percent to 15 percent. Still, he says, he would use them again if a client told him to leave nothing to chance. Freeborn & Peters quickly learned that the system doesn’t work without keeping lots of secrets. In the mid-1980s, during a long-running federal trial in Chicago, Freeborn recalled, the shadow jurors at first offered solid criticism. But as the trial progressed, the shadow jurors began to soften their remarks. “They don’t want to hurt feelings,” Freeborn says. “That was the last time we had a shadow jury where they knew who did the hiring.” Although there are many ways to organize a shadow jury, Freeborn & Peters’ approach is unique in that it tries to keep the process in-house — lowering client costs and keeping billables inside the firm. The firm, however, may be moving towards using outside litigation-support firms the better to ensure that shadow jurors don’t find out who’s paying their way. Typically, a decision to organize a shadow jury doesn’t come until late in the game because most lawsuits settle. Freeborn & Peters Chairman Dave Gustman, who also has used shadow juries, says he waits until about two weeks before trial to propose the idea to a client. “I’ve yet to have a client say, ‘No, I don’t think this is a worthy expenditure,’ ” Gustman says. That’s probably because in the cases Gustman chooses, millions of dollars are at stake. And, he contends, shadow jury costs are relatively low. Freeborn & Peters bills for the cost of a handler — generally a paralegal — and out-of-pocket expenses for six to eight shadow jurors, who are paid a temp wage to sit through trial. Shadow jurors also are furnished with meal and travel allowances. The firm estimates it can cost $100 a day per person, plus the billed paralegal time at $110 per hour — or about one percent of the trial cost. Before being named chief operating officer, and while he was the head paralegal at the firm, the task of organizing shadow juries fell to Lou Bury. To him, the process is as much an art as a science. The shadow jury organizer — the handler — has to create a jury to mirror the jury sitting in the box; only he has to do that before the real jury is empaneled. Freeborn & Peters is careful about demographics — controlling for race, age, gender and education, depending on the jurisdiction. The firm has organized shadow juries in state and federal courts in Illinois, Colorado, Idaho and California. The handler has potential shadow jurors fill out jury forms that solicit information about their experience with the issues to be addressed at trial and that ask whether they’ve had favorable or unfavorable experiences with litigation. The tough part is finding the jurors. Bury says Freeborn & Peters generally relies on churches, asking pastors if members are looking for work. The firm taps employment agencies, but it stays away from friends or relatives of firm members. Bury also says he does his best “not to create mistruths.” He tells shadow jurors that he is working on a research project and that he is not allowed to reveal his identity or say for whom he works. “Surprisingly, people don’t seem to mind,” Bury says. “I’ve had a couple people at the end say they thought I was with [Freeborn & Peters]. I always say, ‘I’m sorry, I really can’t tell you that.’ “ Once a shadow jury is selected, the handler sits with it through the trial; this ensures that the handler knows what questions to ask during the all-important debriefing sessions. At debriefing, the handler interviews each shadow juror, probing the juror’s thoughts on the testimony, the line of questioning and which lawyers made better points. Questioning by the handler has to be neutral, to keep the jurors from picking up on any bias. Feedback collected by the handler is then shared with the lawyers and clients. At Freeborn & Peters, a confidential voice mail box is set up so the clients and lawyers can check it later in the evening after debriefing. The system does have drawbacks. Like real jurors, shadow jurors have been known to fall asleep, stop paying attention or quit showing up for the trial. A SERIOUS JOB For the most part, though, according to Gustman and Bury, shadow jurors take their courtroom jobs as seriously as any other job. “Most people, when they get there, get pretty invested in the process,” Bury says. According to Gustman, “In the end, it’s a human drama. The facts are close. They get into it. They try to figure out who’s telling the truth, who’s not, who should win, who should lose.” With shadow juries to lead them, Gustman contends that Freeborn & Peters has the advantage. “I can’t say that it ever makes or breaks a case, but it gives me more confidence in my own assessment and decision-making,” Gustman says. THE PROS AND CONS OF BEING SHADOWED Pros � Instant feedback on trial performance. � Easy to keep administration in-house. � Relatively cost-effective; about 1 percent of trial cost, in some cases. Cons � Jurors who figure out who hired them may introduce bias. � Shadow jurors see evidence not seen by the real jury. � Litigators want information on deliberations, which they can’t get from shadow juries.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.