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The shadow jury

For the past 2½ months, two sets of jurors have reported to Judge Audrey J.S. Carrion’s downtown courtroom and sat through testimony, argument and objections aplenty in a megamillion-dollar case over carbon monoxide poisoning.

One jury is what you’d expect: its eight members wear tan juror stickers, they get paid $15 per day, they sit in the jury box, and if they have to go to the bathroom during testimony, they write a note to the judge.

The other jury, to the untrained eye, is just a group of observers in the gallery. But their movements, behavior and even appearance seem to mirror their counterparts.

By court order, no one in the case is allowed to talk about it — the real jury is not supposed to know about them — but the octet of onlookers with perfect attendance and more than a casual interest in the case is a shadow jury.

Rare in Maryland

Shadow juries are hardly new — they’ve been around for decades, according to those in the business — but they remain a rare and controversial litigation tool. And while they have been used in Maryland before, the current case, Adrian Wynn, et al. v. M J Harbor Hotel LLC, et al., is the first in recent memory.

“I have had zero experience with it and I’ve never heard of it happening in Maryland before,” retired Howard County Circuit Judge Dennis M. Sweeney, who writes a column on juries for The Daily Record, said last week.

While everyone seems to use and approve of pretrial mock juries, the shadow jury — the in-trial version of a mock jury — is a more polarizing topic. While many lawyers and trial consultants frown on them, other highly regarded practitioners say they are useful for the right case — generally big-money or high-stakes — and that they would “absolutely” use one again.

Advocates praise the window they provide into the minds of the real jurors through their nightly post-trial feedback and how this insight can lead to an adjustment in trial strategy or even to settle a case before the real jury hands down a verdict.

Detractors say relying on shadow juries for guidance is distracting and potentially dangerous, as they are not the ones who will be deciding the case. Other pitfalls include their cost — often more than $100 per person per day, plus all the related expenses; their effect on the real jury if found out; and perhaps a tendency to tell their sponsors what they want to hear.

Brett Ingerman, a partner at DLA Piper US LLP, has both used a shadow jury and had one used against him.

“I do think there’s some value to it,” he said. “In my experience … having an objective third party give you their view is helpful. As the lawyer in the case, you’re so steeped in the details, you might think you finished a cross-examination and think you crushed a witness … but six people who don’t know the facts might have a different view on that.”

On the other hand, Ingerman said, the biggest problem is the potential for distraction.

“You can fall in love with your shadow jury and lose focus on the real jury,” he said.

Here’s how it usually works:

Because of the expense, shadow juries are generally reserved for high-ticket lawsuits. The one in Baltimore is no exception: William H. “Billy” Murphy Jr. and his firm are representing 23 plaintiffs in a carbon monoxide poisoning case against the operator of an Inner Harbor hotel. The defendants are represented by the Atlanta office of Weinberg, Wheeler, Hudgins, Gunn & Dial, which identifies itself as “a national trial law firm with particular expertise in high-exposure catastrophic cases.”

Neither side’s lawyers would discuss the shadow jury that’s sitting in on this case.

More often than not, it’s a deep-pocketed defendant, as opposed to a plaintiff or plaintiffs’ attorney, who requests a shadow jury. An outside trial consultant hired by the defendant or defense counsel will contract with a market research firm to recruit people who match the demographics and, aspirationally, the attitudes of the jury pool.

“Race is certainly a factor, but it’s also economics, employment, education level,” said Michael Brown, a principal at Miles & Stockbridge P.C. in Baltimore who has used shadow juries twice in products liability cases in California.

Everyone agrees it’s crucial to mirror the true fact-finders in as many ways as possible, and as closely as possible.

As the jury is selected, so are the shadow jurors from a larger roster of candidates compiled by a research company, according to Bill Grimes, a veteran trial consultant at Zagnoli, McEvoy, Foley Ltd. in Chicago.

“You try to get people who you think would be sympathetic to the other side’s case and some people who are kind of middle of the road,” explained Grimes, who has arranged “probably a half dozen” shadow juries in his 20-year career. “The best information you can get from shadow jurors are where are the hurdles, what stuff do we have to take care of so we don’t lose the case, where is the other side scoring points.”

“It doesn’t do any good to have somebody who’s going to tell you what you want to hear,” he said.

There may be as few as one shadow juror, or they may outnumber the actual jury. And, ideally, they don’t know which side has hired them.

They might only watch part of a trial, or watch remotely, or see videotaped portions the evening after a day of trial. But the most effective method, attorneys and consultants agree, is to have them in the courtroom every day, as much in the same position as the real jury as possible.

Typically, every evening after trial, the jury consultant or a member of the client’s law firm will debrief the group about what they heard: the effectiveness of a witness’s testimony or a lawyer’s presentation, their impressions of people’s body language, and anything else that might be of value going forward in the case. The consultant then reports back to the sponsoring client’s attorneys orally or in writing so that the observations and suggestions might be used going forward.

Ideally, Grimes said, the shadow jury will deliberate before the real jury gets to deciding.

‘You didn’t touch him’

David J. Heubeck, a partner in the Baltimore office of Venable LLP, used a shadow jury in a weeks-long commercial contract trial a decade ago here in Baltimore. The client wanted to evaluate the case, to peer into the jury’s mental window, as it went along.

“It was useful in the sense that we were able to get a sense how … our shadow jury was perceiving the facts as they’re coming in,” he said.

Ingerman, of DLA Piper, remembers adjusting his questioning in his case because of what his shadow jury told him.

“I thought I was just killing the guy,” Ingerman said of the witness.

“ ‘You didn’t touch him,’ ” his shadow jury told him.

“I went back the next day and made those points,” Ingerman said. “I think it was an effective use of the shadow jury.”

A shadow jury could also be useful for a case in an unfamiliar jurisdiction (“I’m pretty sure that Billy Murphy knows what to expect from a Baltimore jury,” Brown noted); or where there are likely to be similar upcoming cases in another jurisdiction.

“You could have a situation where your first one’s in Baltimore city but your next 10 are in Mississippi,” said Joseph W. Hovermill, who chairs the mass torts practice group at Miles & Stockbridge. “You might want to see how the trial is going to go somewhere else.”

Going on instinct

On the other hand, the disadvantages are manifold.

The cost can be significant, especially in a case like the one going on in the city circuit court, with eight people getting paid every day for months.

Accounts varied as to a shadow juror’s compensation, but everyone agreed it would be quite a bit more than a real juror’s pay, and could be as much as $200 per day — plus parking, meals, and mileage, maybe. And then there’s the jury consultant’s heftier bill for debriefing them.

For those for whom cost isn’t as big an issue, other concerns prevail.

Steven L. Snyder, who recently scored a $150 million verdict against Exxon Mobil in Baltimore County, has never used a shadow jury and wouldn’t, he said.

“My best weapon is my instinct,” he said last week. “I don’t need the benefit of third parties telling me what they thought. My instincts are strong enough to rely on what I thought was the effective testimony.”

Snyder said a shadow jury “would definitely be distracting.”

“It would throw me off,” he said. “I would have a mock jury trial in advance to determine how the issues sit with lay people but I would never have one during the course of the trial.”

Ronald Matlon, the Phoenix, Md., trial consultant who helped State Prosecutor Robert A. Rohrbaugh pick the jury that convicted former Baltimore Mayor Sheila Dixon, has never used a shadow jury and is “not a fan.”

“We didn’t even talk about using a shadow jury” in the Dixon trail late last year, Matlon said.

“Let’s suppose that you learn something but you can’t do anything about it,” he said. “And you got to live with it or who knows what you do with that information.”

Possibly the biggest pitfall is forgetting the shadow jury isn’t the real jury. They take no oath from a judge, they aren’t in the box or the jury room — it’s just not the same, detractors say.

“You can get a same group demographically as another group, and they can think very differently from the other group,” Matlon said.

And then there’s the human error that can affect shadow juries just like real juries: not paying attention, sleeping, etc.

Even Brown, who’s used them twice, admits they’re a “minor distraction.” But he won both of his cases.

Heubeck lost his.

“But the shadow jury, they weren’t far off from, I think, the perceptions of the real jury,” Huebeck said.