By Dr. Ken Broda Bahm:
The jurors assemble and begin watching the trial — not the actual jurors but the shadow jurors, the ones who are recruited by one side, matched to the real jurors, and offer feedback on the trial as it comes in. They watch opening statements, and each of the witnesses, and give daily feedback on what makes sense and what is influential. As they watch the trial, they aren’t worried about the judge or the other side wondering who they are. They aren’t trying to avoid the gaze of the real jurors, or worried about running into one of them in the restrooms. The handler who accompanies these jurors doesn’t need to suspiciously herd them out of the courtroom all at once when the jury is dismissed or on a break. The shadow jurors are able to watch only the parts of trial they should watch without concerns over being identified. That is because they are all online.
During the pandemic, many jurisdictions have experimented with hosting civil trials largely or completely in an online setting. As the health emergency drags on, other courts may end up taking a very real look at the virtual trial. Of course, there are some factors that don’t make it ideal, particularly for attorneys — there may never be a gripping courtroom drama about an online trial. But there are many silver linings: witnesses and jurors have felt greater comfort from their own homes, panels have been as representative or more so, and courts have been able to safely continue operations. In many cases, it has also become easier for the public to be able to watch these trials. The same factors that increase public access also increase access to shadow jurors, and may put what has been one of the most expensive trial persuasion tools into easier reach for more litigants. In this post, I will share what I see as a few of the best practices for an online shadow jury.
Use a One-Way Connection
As you have probably noticed by now from online CLE conferences, there are usually two ways to watch: One is to be on the same Zoom call or other web conference as everyone who is speaking; and the other is to watch a feed from that conference via a platform like YouTube. The difference is that, in the latter setting, you are watching and listening only — you are not speaking or being seen. That’s not always ideal for a conference, but it is perfect for a shadow jury: They get to see everything, and no one gets to see them.
Bring Them Together
A conference room with the shadow jurors watching on a monitor is the best way to do it. While they could, in theory, watch from home, that arrangement would make it harder for the group’s facilitator to monitor their attention and their singular focus on the trial. When the group is together, the facilitator can take them on- and off-line based on the real jury’s presence or absence, and also conduct a live debriefing at the end of the day.
Consider Having Them Watch on Delay
If the proceedings can still be viewed a little after the fact, then think about having your shadow jury watch the proceedings on the same day, but not at the same time. That way, you can hit pause from time to time and get their feedback while it is fresh in their minds. You can also fast-forward through the “dead time” that seems to be an inevitable part of a trial day whether it is in-person or virtual.
Make it Complete or Partial
If the trial is online from start to finish, the shadow jury can also be there right up to the point they’re released to deliberate. Alternately, the ease of putting a group together to watch also makes it more feasible to pull a shadow jury together to just react to openings, or to a single witness. You might expose them to additional information as a way to decide whether it is worth introducing it in actual court. The flexibility of remote viewing makes it easier to use a shadow jury on an “as needed” basis.
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Other Posts on Online Trials:
- Online Trials: Expect Both Challenges and Opportunities
- Break the Backlog: The Durable Conclusions from the Online Courtroom Project
- Appreciate the Advantages of Online Mock Trials