By Thomas M. O'Toole
Over the past decade, shadow juries have emerged as a common tool to gauge potential juror reactions to the day-to-day happenings of high-stakes trials. A shadow jury is where four to six jury-eligible participants from the trial venue are paid to watch the actual trial and provide feedback each evening in the form of facilitator-led interviews. A shadow jury can be a useful tool for clients, but as a lifelong student of jury decision-making, I find them absolutely fascinating.
It is incredibly rare to receive this kind of data, uninhibited by the limitations of mock presentations and post-trial juror interviews. Fortunately, I have had the opportunity to conduct several of these projects across the country in recent years. I recently completed a shadow jury project on a four-week trial and wanted to capture general findings that have been consistent with past projects while my memory was still fresh.
While the cases vary, I've found there are several common threads in the shadow jurors' feedback. The purpose of this article is to highlight a few of those items. In order to provide some context, these findings are from trials generally lasting anywhere from two to six weeks. Some cases were more complex than others, but the element of information overload remained the same due to the length of the trials.
The first area of feedback from shadow jurors shows that opening statements are primarily about impression formation. The shadow jury data show that jurors struggle with the level of detail and sophistication of the information that is often presented in opening statements. This is exacerbated by attorneys who attempt to do too much in opening by previewing too much evidence and testimony while jurors are still trying to adjust to the overwhelming world of the trial.
At this point in trial, everything is new to them. There are a lot of things that simply do not make sense to them, including elementary issues that might not even cross the attorney's mind as being an issue of confusion. Rather than attempt to do too much in opening, attorneys should identify and focus on a few central facts that have symbolic value in the sense that those facts tell jurors everything they need to know about the case.
Some facts evoke core principles better than others and, consequently, are better situated to be the centerpieces of the opening statement. These kinds of facts allow for early impression formation that does not require the jurors to understand the intricacies of the legal claims.
For example, in a recent case involving fraud claims, rather than bury the jurors with all of the technical elements of a fraud claim and the supporting evidence for each of these elements, we started opening by highlighting facts that showed the plaintiffs were atypical "victims" of fraud. The facts that were presented were chosen because they violated general expectations about fraud victims.
In other words, they resonated with common gut feelings and did not require jurors to understand the more sophisticated legal elements, for which we had plenty of strong facts as well. The goal was to create a gut feeling amongst jurors that the plaintiffs were not victims of fraud, with the understanding that this impression formation would likely influence the way they perceived and interpreted later evidence and testimony.
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