BASF Corp. v. Lyondell Chemical Co., 2010 WL 5288645 (App. Div. Dec. 28, 2010). This appeal involved a contract dispute between two corporations. Trial resulted in a judgment for BASF that totaled over $200 million. As a result of errors at the trial, however, the Appellate Division reversed the damages verdict and remanded for a new trial. Since Lyondell had not contested liability on appeal, the retrial was limited to issues of damages.
The 41-page opinion addresses numerous issues of all sorts, ranging from contract interpretation to evidentiary issues to the ability of a party to take a position that contradicts its own answers to interrogatories. One of the issues involved Lyondell’s use of a “shadow jury” in the courtroom.
Lyondell had jury consultants and a shadow jury— a group of citizens who listened to the evidence and presumably gave Lyondell feedback as to their reactions– present in the courtroom. BASF argued to the “official” jury that Lyondell’s use of a shadow jury showed that Lyondell did not trust the official jury. The Appellate Division found no relevance or probative value to that argument, instead concluding that it “aimed at unfairly prejudicing the jury.”
The Appellate Division went on to discuss the trial judge’s apparent concern about needing to know who was in the courtroom at all times. Apparently, that concern had led to the revelation about the presence of the shadow jury. The Appellate Division observed that trials are open to the public, citing Rule 1:2-1, so that “a general requirement that individuals attending a trial identify themselves appears to us to be inconsistent with the spirit of that rule.” Even where issues of witness sequestration or the like are present, the trial court can readily protect the process without requiring all persons in the courtroom to identify themselves.
Not many cases are large enough to warrant a shadow jury. But now, in cases that where shadow juries are used, the courts and parties have appellate guidance as to what can and cannot be said and done about such shadow juries.