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Law360 (October 8, 2020, 12:30 PM EDT )
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| Kevin-Khristián Cosgriff Hernández |
The jury awarded Griffin, a former dancer, $354,000 for damages stemming from a physical altercation at Paradise Gentlemen's Club in Jacksonville, Florida, where two bouncers caused serious injuries when removing Griffin from the premises. The altercation took place in February 2018, when Griffin attempted to retrieve her personal effects from the club after being fired. The defendant did not take part in this trial to determine damages, as they did not dispute the facts of the matter.
Virtual Trial Fundamentals
The trial was conducted using the Zoom platform, and voir dire took place over two days, with a one-day trial. Judge Bruce Anderson of the Fourth Judicial Circuit Court of the state of Florida presided, and his court staff adapted juror instructions to manage voir dire and trial.[3] Matthew Kachergus of Sheppard White Kachergus DeMaggio & Wilkison PA represented Griffin, the petitioner, while the respondent chose not to participate in trial.
Jurors were only permitted to communicate with the court bailiff via the chat function. Jurors were allowed to submit questions to court staff that Judge Anderson then read aloud, and Judge Anderson was the only person in the courtroom, with all other participants (jurors, counsel, witnesses and court staff) appearing remotely.
Virtual Trial Takeaways
Based on this trial, there are several considerations for the trial team that ventures into online voir dire and/or trial:
Prepared Voir Dire Is Optimal
The Florida court employed a paneling method for voir dire, where small groups were brought into the Zoom platform to answer questions. Counsel relied upon a short script with a set of questions and acknowledged having previously conducted online social media research on jurors during voir dire. Use of research for drafting scripts and any suggestions to findings from said research need to be carefully framed so as to quell potential Big Brother concerns among the panel, especially considering the trial's online context.
Witness Rapport Is Tantamount
In this new space, the witness you are questioning may not be in the same physical location. It will be more difficult to read conversational cues as well as the cues from the judge and jury. This will pose challenges for effectively communicating key facts and themes to the jury. These new communicative challenges underscore the importance of effective witness preparation — especially with a witness who is not familiar with the expectations of the court and technology.
Technology Influences Credibility
We know from trials and pretrial research exercises (focus groups and mock trials) that mishaps with technology negatively impact a juror's perceptions of a trial team's credibility. This is only magnified in the online trial setting and highlights the necessity for having a team member in place to assist with tech issues. A tech person with appropriate experience will also prove useful for coordinating with the court prior to trial. In the process this will free attorneys up for other considerations that require your attention for trial preparation.
Additionally, in the online format, jurors have a limited attention span for shuffling of papers, technical glitches and unintended pauses. These minor delays in presentation will not transfer well in this medium. We know from testing videotaped depositions at focus groups and mock trials that jurors have expectations of performance that are magnified due in part to saturated exposure to entertainment. In other words, jurors want their evidence, and they want it now.
Court Formality Still Applies
In an interview, Judge Anderson commented, "We're learning as we go along, but it felt like a real trial. It looked like a real trial."[4]
Temptation may be to remain seated in front of the screen, but posture and vocal inflections will be challenged to rise to the occasion. Instead, stand and make sure that you have a camera that provides a shot to capture any hand gestures you may make. Standing for presentations will help to communicate the seriousness of the moment to jurors and emulate what is expected for in-person trials, while improving performance as an orator.
Jury Attention Span Strained
Some scholars argue that individuals' attention span in the online space is less than that in live settings.[5] The medium itself presents too many opportunities for distraction, which is only compounded by stressors of the time.[6]
The bottom line is that attorneys and judges will have additional challenges to first capture and then retain jurors' attention. With this in mind, careful consideration should be given to the complexity of the case, the main themes, best organization and presentation of facts, and what each witness will testify about.
In preparation for trial, the team should practice with strategically designed demonstratives to optimize time for a seamless presentation that adequately captivates jurors' attention in this new medium. The trial team that better prepares for and is more able to capture jurors' attention will be in an advantageous position at trial.
Story Matters
For this matter, Judge Anderson permitted jurors to submit questions to court staff. This practice is not specific to virtual trials, and many judges around the country employ this practice in their courtroom. When permitted, the practice provides crucial insight into what jurors may be thinking at that moment in trial, and/or about a specific witness.
The questions presented in this particular trial pertained to witness testimony. What was most notable about the questions submitted by jurors was the importance of narrative and context as jurors made sense of testimony. Jurors strive for the full picture. It is no different in the virtual trial.
In light of constraints of the medium and role of rapport between counsel and witness, trial teams will want to ensure that witnesses get to the point, while providing a fuller context that ultimately aids jurors as they connect the dots. These aspects can be honed during witness training.
Show Your Case Strategically
As a general rule, effectively designed demonstratives go a long way in aiding jurors during deliberations. We see this time and again in pretrial research exercises and at trial.
Demonstratives reinforce critical points and assist jurors with recall during deliberations. Often, we observe how mock jurors rely upon demonstratives to support their positions. For this trial, when demonstratives were displayed, they took up the entire screen with the presenter's voice sounding in the background. This controls the audience's attention by dominating their screen. Moments such as these provide key opportunities to transmit key facts, events, dates and themes.
Careful consideration should be given during preparation as to how demonstratives can help to simplify, reinforce and recall the important aspects of the case as you show your case.
Conclusions
The virtual voir dire and trial will continue to be tested in venues across the country. This pilot program provides crucial insights into how to better prepare and execute for trial.
One final note is that our fellow citizens once again provided litigants with a resolution to their conflict, even at this time when we are all undoubtedly challenged by the pandemic. The resolve, commitment and dedication of the jurors in this historical instance reinforced what we knew — jurors take their task seriously. For those of us working in the litigation industry, the example presented to us provides an opportunity to continue our craft, albeit in a new space.
Kevin-Khristián Cosgriff Hernández is a jury consultant and partner at Delphi Litigation Strategies.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://pages.cvn.com/duval-county-florida-remote-trial-program.
[2] https://www.floridasupremecourt.org/News-Media/Court-News/Five-trial-court-circuits-chosen-for-virtual-civil-jury-trial-pilot-program-due-to-pandemic.
[3] Marbut, M. (2020, August 14). Plaintiff awarded a nearly $355,000 verdict in the first remote jury proceeding in the U.S. since the COVID-19 shutdown. Available at: https://www.jaxdailyrecord.com/article/duval-trial-makes-history-how-they-did-it-virtually.
[4] https://www.jaxdailyrecord.com/article/duval-trial-makes-history-how-they-did-it-virtually.
[5] Drummond M. A., (2015), Is Technology Changing Our Brains? Jurors Go Cold Turkey on Cell Phones, Originally published in Litigation News, 40:3, available at: https://civiljuryproject.law.nyu.edu/2918-2/; and Shammas, M., (2020, July 8), Thoughts on Optimizing Time & Attention in Virtual Trials, NYU Law and Economics Research Paper No. 20-39, available at SSRN: https://ssrn.com/abstract=3646490.
[6] Lerner, H. (2020, July 15). Jury selection via Zoom: First Miami-Dade case is a glimpse of court in the coronavirus era. Available at: https://www.miamiherald.com/news/coronavirus/article244218482.html.
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