Shadow juries involve recruiting a group of people who resemble a seated jury, having them sit through the trial, and interviewing them at the end of each court day. Shadow juries are capable of generating the most interesting and valuable insights one can get during the course of an actual trial. Unfortunately, they are also incredibly complex, expensive, and sometimes downright hard to run well– and this generally makes them poorly suited for all but the most significant of high exposure trials.
On one hand, the feedback from a shadow jury can be incredibly useful. You get a daily litmus test of the case, you can use the feedback to pivot in the middle of a multi-day witness exam, you’ll find out in short order if the jurors don’t understand or don’t pick up on something, and whether your arguments are generally resonating with them.
On the other hand, shadow juries can be demanding and risky from a logistical standpoint. You may luck out and have a trial where video of the proceedings is streamed and can have the shadow jurors can watch remotely. But if the jurors are physically going to court each day, you’ll have to decide at the outset whether you’re going to tell the judge about the shadow jury’s existence (in the hope that he or she will prohibit the other side from mentioning it to the real jurors). Shadow juries can also be politically challenging and stressful for the uninitiated. Having your every move second-guessed by a group of people who may or may not be thinking the same thing as the actual jurors can be psychologically taxing on trial counsel, or worse, cause tension between trial counsel and in-house counsel. Moreover, the fact that there’s no way of knowing whether the shadow jurors are moving in step with the real jurors has some sticky implications for what you should do with the information they provide. We think the only reasonable answer is to take it with a grain of salt and try to keep the takeaways high-level.
Our experience is that shadow juries aren’t for everyone, but for the right team with right case, it can be a god-send.