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By on October 22nd, 2018

How Shadow Juries Can Predict a Trial’s Outcome

peter-hecht

When Mark Calzaretta watches a jury, hearing evidence in a high-stakes lawsuit, it isn’t necessarily an impartial panel of citizen peers he sees. Rather, Calzaretta sees 10 human beings with emotional biases that, if studied diligently, can help lawyers predict, with startling accuracy, the outcome of a case, often before it is tried.

Calzaretta is a founding member of Magna Legal Services, a Center City firm that specializes in modeling juror behavior for lawyers who want to squeeze every advantage out of their arguments. Though widely used, it’s a technique that challenges basic assumptions about the process in a civil trial, that verdicts result from an impartial weighing of facts, and that emotions and personal biographies of jurors have less impact. Instead, it is those traits and emotions that determine the outcome, Calzaretta says, and he and his colleagues have built a successful business turning them to clients’ advantage.

CalzarettaBefore a case even goes to trial, Calzaretta and his team will scour social media sites to prepare personality profiles of each juror and the alternates. They will have tested arguments for both sides on focus groups outfitted with remotes recording their responses. When the focus groups deliberate, lawyers and consultants observe the give and take through one-way glass to understand how their arguments were received.

Once a case goes to trial, Calzaretta and his team often assemble a shadow jury that, based on personality profiles of actual jurors, matches as closely as possible those sitting in judgement. These shadow jurors attend the trial and at the end of each day are debriefed to find out what arguments worked for their side and which arguments fell flat.

Throughout the trial, strategy and tactics are continually tweaked based on shadow jurors’ responses. “The more you know about the jury, the better you can craft your story and testimony to hit home with them,” says Calzaretta. “We are trying to figure out what story sells to the masses. That is really the goal.”

Such services don’t come cheap. Running a shadow jury costs about $50,000 a week, and clients can spend several million dollars in high-stakes litigation for the full array of jury modeling services. But Calzaretta maintains that his shadow juries have never failed to predict a trial’s outcome accurately. “I’ve always had them line up,” he said of shadow jury panels and actual juries.

Many trial lawyers have come to rely on a firm such as Magna. Among them is Gary Mennitt, Co-Leader of Complex Litigation at Dechert LLP, the sprawling University City-based firm. Mennitt says he typically uses Magna in cases in which a client’s exposure is in the multiple millions of dollars. The results typically confirm that the trial team is on the right track, but also can lead Dechert litigators to adjust strategy.

The process actually begins long before trial. During jury selection, the firm uses a proprietary service called Jury Scout for information on potential jurors gleaned from social media. Such searches can produce personal information that jurors are reluctant to share during voir dire, the screening of potential jurors before trial. The advantage is two-fold. Knowing more about a juror’s personal biography can help lawyers craft arguments that are more likely to succeed. Also, by gleaning the information from the internet, lawyers can avoid angering jurors who might believe that such questions are intrusive.

Calzaretta founded Magna Legal Services 11 years ago with Peter Hecht, the firm’s Head of Sales, and Bob Ackerman, President. Growth in the early years was robust, topping 30% annually. There are now 100 full-time employees and hundreds of contract workers affiliated with the firm’s court reporting service. Magna’s annual revenues are north of $10 million a year, with current growth at a more measured pace of 10%.

Hundreds of firms nationwide provide court reporting and some form of jury consulting work, competing in one way another with Magna. But most of Magna’s larger competitors, such as Esquire Solutions, a national company with offices in Philadelphia that focuses on court reporting and deposition services, have their own niche.

A big part of what Magna does is provide stenographers for trials and depositions. Hecht says the deposition work feeds naturally into its trial consulting and jury modeling services. The firm often learns of difficult, high-stakes litigation that way and pitches lawyers on the benefits of its trial consulting service. Although shadow jurors and focus groups are never told which side they are working for – to do so might bias the result, Calzaretta said – the firm is typically hired by big companies defending themselves in commercial disputes or against personal injury claims.

One recent case shows how the firm helps lawyers shape the outcome. The client, a utility company, was sued by survivors of an employee who died when a transformer exploded as he and others were trying to repair it. In strictly legal terms, the evidence favored the utility company because the worker had sought to restart the downed transformer by circumventing prescribed safety procedures. The resulting explosion caused burns over 90% of his body and an agonizing year-long hospitalization that ended in his death.

Calzaretta learned from a series of mock trials that jurors were sympathetic to the argument that the worker had caused the transformer to explode. But they rejected that evidence when shown a video of the worker undergoing the excruciating process of having his bandages removed and wounds redressed each day.

“Once they saw that video, all they wanted to do is give the guy money,” Calzaretta said. Based on that finding, lawyers for the utility company successfully argued that the video should be shown during voir dire. Then potential jurors were asked whether they could be impartial. The tactic enabled the legal team to exclude jurors who would have decided against the utility company. With that changed dynamic, Calzaretta said, both sides settled for an amount that was far less than the utility company’s worst-case scenario.

For Calzaretta, it was about making a bad case less costly for the client. “There are plenty of cases that we have gotten that when you look at them, they are horrible but with a lot of study and research, we have been able to completely change the outcome,” he said.