Byline: BridgeTower Media Newswires
By Michael D. Wade and Tara L. Velting
Our civil procedure provides various opportunities for counsel to realistically evaluate their case in order to resolve the matter short of trial. Mediation under MCR 2.411 is usually held early to mid-case; case evaluation under 2.403 is held late in the case, usually after close of discovery; the court may hold settlement conferences under MCR 2.451(c)(1)(g). Of course, counsel themselves may discuss the case between and among themselves.
An infrequently utilized though valuable method of evaluating one's case is the shadow jury. A "shadow jury" is defined as a group of mock jurors paid to observe a trial and report their reactions to a jury consultant hired by one of the litigants; the shadow jurors, who are matched as closely as possible to the real jurors, provide counsel with information about the jury's likely reaction to the proofs.
The shadow jury was conceived by defense counsel in a California federal court action in the 1970s involving California Computer Products v IBM. See Vinson, The Shadow Jury, 68 A.B.A.J. 1242 (Oct 1982). Defense counsel engaged an expert in behavioral science to recruit a jury to reflect the demographic and psychological characteristics of the actual jurors. The shadow jury entered and exited the courtroom when the actual jury did and heard the same evidence. The behavioral scientist debriefed the shadow jurors separately each evening in order to learn:
? the decision-making process among jurors;
? whether the jurors understood the evidence;
? how defense tactics and strategies were working;
? what changes to tactics and strategies might prove helpful;
? the effectiveness of the defense to determine if settlement was indicated.
Utilizing a shadow jury is not indicated for the average case, due to the time and expense involved. The jury consultant or behavioral scientist is hired so that the shadow jurors do not know which side hired them. The jurors are paid for their time, usually per diem.
The actual jury panel is extensively investigated, principally through social media, so as to obtain shadow jurors who reflect the actual jurors psychologically, economically and attitudinally. The shadow jurors are instructed to discuss the case with no one other than the consultant, who must remain neutral. In the California case, the surrogate jurors were told they were engaged in social research and were asked to sign confidentiality...