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Law360 (October 22, 2020, 5:52 PM EDT )
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| Rick Norris |
It is unclear how long courts will continue to conduct jury trials online, or whether online trials will become more common and adopted more generally across various states and courts. For the foreseeable future, however, attorneys preparing for upcoming jury trials should begin to assess how they will handle the trial if it is remote.
This article recounts a recent remote jury selection in Alameda County, California, based on my personal experience picking the jury entirely over Zoom. The information contained within this article is purposely very granular. Many of the procedures ultimately used during the trial were the result of negotiations and discussions among the parties and the court.
There are certainly ways the process could be improved, but hopefully this article provides insight on what to expect when conducting remote voir dire and how you might better prepare for your first, or next, remote trial.
Hardship and Voir Dire Process
The jury was physically summonsed to the courthouse to start their jury service. The prospective jurors were divided into multiple rooms throughout the courthouse to allow for social distancing. The court and the parties communicated with the jurors through the online conference service BlueJeans, which is similar to Zoom, and advised the jurors that the trial would occur remotely.
Jurors completed three forms: a hardship request, a technology questionnaire to assess whether they could participate in the trial remotely, and a case-specific jury questionnaire. After completing these forms, they were provided with further reporting instructions and excused for the day.
Jurors who did not have hardships and who were able to appear remotely were emailed a Zoom link and a time to appear for voir dire. Jurors who could not appear remotely were asked to return to the courthouse for voir dire. The three jurors in the courthouse also participated in voir dire via Zoom from court-provided computers in courtrooms throughout the courthouse. They appeared in masks.
In total, approximately 80 jurors appeared for voir dire after prescreening and the completion of questionnaires. Voir dire was conducted via the six-pack method, where the first 18 jurors were questioned collectively, then as jurors were excused more jurors filled the empty spaces.
Zoom did not allow the court to prepopulate the 18 jurors for initial examination within the first screen on gallery view, the setting that allows a participant to see everyone on the call within little tiles.[1] In order to appear on the first screen of the gallery view, each juror had to verbally identify themselves. Having the jurors speak was the only way to move their tiles onto the main screen of the Zoom gallery view. This procedure had to be repeated anytime there was a need to go to a breakout room.
As the jurors appeared, the court manually changed their screen names so that they appeared as their juror name and juror number, e.g., Jane Doe - 3. Similarly, the lawyers used screen names that identified both their name and whether they represented the plaintiff or defendant, which jurors found helpful. Lawyers who were not participating in questioning also agreed to turn off their video during examination to minimize the clutter on the screen.
Jurors used different devices during voir dire, including cell phones, tablets and computers. Some jurors who were not involved in the questioning left their video off during the voir dire, others were noticeably absent for portions of the voir dire and some were performing other tasks. None of the jurors who were noticeably distracted ended up on the panel, but the court had to give constant reminders for the jurors to pay attention and to turn on their cameras.
Voir dire lasted four days. Challenges were handled outside the presence of the jury. Jurors that needed to speak to the court and lawyers in private were taken to a separate breakout room. After the resolution of the trial, the lawyers spoke with the jurors, the feedback from which has been incorporated into portions of this article.
Recommendations for Online Voir Dire Based on Experience
1. Consider calling fewer jurors at predetermined times.
As noted above, voir dire lasted four days via Zoom. While a similar case could have taken as long if the trial had been in person, the length of the voir dire was in large part due to the logistical challenges associated with working with the Zoom platform.
Anytime there was a break, or the parties were sent to a breakout room, the court had to go through the procedure of having each juror introduce themselves so they would appear on the main screen due to the limitation that the Zoom platform does not allow the moderator to prepopulate where people are located on the screen.
One suggestion to consider raising with your trial court is only calling 12 or 18 jurors at a time for voir dire, such that separate sets of jurors will be asked to appear at staggered times. Because the gallery view on Zoom will display up to 25 participants on the screen, smaller groups will reduce the clutter caused by multiple screens and should expedite the process.
A downside to this suggestion is that all jurors are not hearing the exact same questions and answers as they would in normal voir dire, with 18 jurors in the box and the rest in the gallery. Jurors also have little opportunity to begin to form relationships. However, the downside of jurors not getting to know each other is lessened by the fact that in long trials, where the jury will participate fully via videoconference, the jurors likely will not have created the bonds with fellow jurors they typically would have with daily in-person interactions.
Thus, what they do or do not learn about their fellow jurors in voir dire would likely be irrelevant by the time of deliberation. In questioning jurors after our trial, jurors commented on this very thing — how odd they thought jury deliberations would be, when there had been no direct communication among jury members since jury selection.
2. Group questioning remains important.
Whenever I conduct voir dire in person, I try to question and engage the group as a whole as much as possible. I was able to accomplish this on video by having jurors literally raise their hands on the screen so they could be seen.[2] Group voir dire provides insight into which jurors are more likely to be leaders and how the jurors interact among themselves.
This dynamic remains equally, if not more, important in a remote voir dire, because on videoconference calls, there is no opportunity to see the jurors interact with each other outside of jury selection. In a normal trial, even during voir dire, you might see certain jurors forming groups and friendships. This interaction is impossible when videoconferencing.
Consequently, voir dire serves as the only opportunity to gauge who feels comfortable speaking and sharing their thoughts online, as those will likely be the same jurors who take charge in the deliberation room, especially if it occurs via Zoom. Notably, when we were able to speak with the jurors at the conclusion of the trial, the same jurors who were active in the voir dire were active in sharing their thoughts to the lawyers.
3. Consider toggling between speaker view and gallery view.
One of the most difficult challenges with conducting voir dire remotely was making a connection with the jurors and observing their reactions to questions. It is very important when communicating via video to make eye contact with the person speaking — but this means looking at the camera and not at the person.
As voir dire progressed, I started to experience difficulties in gallery view mode. I could not observe the jurors respond to questions while also looking at the camera, because in gallery view the jurors would appear on one side or the other on the screen. Thus, I switched to speaker view, where the speaker is enlarged and encompasses the majority of the Zoom screen.
This worked well with my setup because I had a large monitor and had placed the camera directly in front of it, below the picture. Therefore, when I was in speaker view, as the juror was responding to questions, they were directly above my camera and I was able to make it appear like I was making eye contact, while also being able to observe the juror's body language when they were responding to questions.
Another option to consider is setting up your camera so that you are far enough away that the jurors cannot tell exactly where you are looking, but still close enough that they can observe your demeanor when you are asking questions.
4. Set up a communication system with other members of the trial team.
With a large number of jurors on a videoconference call, it is not practical for the attorney conducting the voir dire to pay attention to everyone on the screen, much less multiple screens. It is important, though, that someone on the trial team be observing the jurors who are not subject to active questioning to note their reactions to specific questions and answers, and to confirm that they are paying attention to the process. Additionally, consultation with the trial team may be necessary for any follow-up questions that arise.
For these reasons, it is critical to develop a fast and discreet means for communicating with other members of the trial team who are in different locations. Email is too cumbersome and slow for this application, and unlike an in-person trial, you can't walk over to your colleague to ask a question, because presumably your trial team is also in separate locations.
Our team utilized an internal messaging program, but nearly any application such as Teams, Slack or even iMessage or WhatsApp on mobile devices would work.
5. Practice extensively.
Remote voir dire is likely going to be a new experience for everyone. Even those attorneys who have conducted voir dire in hundreds of cases will likely find new and exciting challenges with conducting voir dire online. Thus, to the extent possible, practice extensively in advance.
Preparation and practice includes testing your speaker, your camera angle and your lighting. All of these issues need to be tested from multiple different angles and at different times of the day with different lighting, because the trial sessions will usually go the majority of the day. Try enlisting others in your office to critique your setup.
Consider also working with your client to arrange mock voir dire sessions in order to practice questioning jurors via Zoom. The practice would include the best ways and questions to facilitate a group discussion in the remote setting.
You should also test speaker view versus gallery view, and determine the optimal distance from the camera to allow you to observe the jurors while still making eye contact. Finally, your team should practice sending comments and questions while the voir dire is occurring, to simulate the trial experience as much as possible. All of this may take a commitment from the client, but will make the real experience flow better.
Conclusion
Nothing will replace the experience of trial in the courtroom, and I cannot wait until we can resume in-person trials. Online trials, however, are likely to become more prevalent as courts grapple with balancing public health against the need to resume jury trials. Hopefully, the lessons provided above will help you prepare for your next or first online voir dire.
Rick Norris is a partner at Dentons.
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] Zoom has two options for viewing participants. The first is gallery view, where the Zoom participant can see everyone on the call within little tiles, up to a maximum of 25 people on the screen. If there are more than 25 participants, then the remaining participants will appear on different screens, and the viewer can toggle between those screens. In speaker view, the speaker is enlarged and encompasses the majority of the Zoom screen. Within speaker view, the moderator for the Zoom call can spotlight a specific speaker so the view never leaves the spotlighted individual. This is a good option for witness examination.
[2] The chat feature was not used during the trial for fear of the inability to control the communications and to avoid any improper ex parte communications.
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