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20 Lessons Learned from Trials in the COVID Era – Part 2

COVID-19 has shifted much of the litigation process into unfamiliar virtual territory. Luckily, we’ve assisted with quite a few trials during this period, and have emerged with some valuable experiences and lessons.

In Part 1, we covered our top tips for conducting effective voir dire/jury selection in a virtual or semi-virtual setting. Now, we move on to remote witnesses (i.e., streamed via videoconference software like Zoom), as well as general presentation technology tips:

COVID Remote Witness Tips

  1. Your Zoom witnesses should create a “set” in the room they’ll testify from. Similar to our recommendation for attorneys, your witnesses will come across as more credible – and will present more effectively – if they’ve prepped their space, optimized their lighting and camera angle, and removed distractions.

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  1. Conduct a “tech check” with any Zoom witnesses to ensure they are familiar with the functions. For instance, be sure they know how to minimize and move their own video in order to see evidence that is shown to them. Due to connection and technical issues that arise with witnesses, we also recommend that the Court ensure the witness is logged in, visible, and audible after every break, before the jury returns to the “courtroom.” (On a side note, Zoom witnesses should also avoid using iPads, which frequently have sound-compatibility issues.)
  2. When witnesses appear by Zoom in an in-person trial, use a second, separate screen to display any documents or demonstratives to the jury. Cramming it all onto one screen can result in the witness video becoming very small and difficult to see, and their video box may end up covering an important part of the document if the Court does not select the “side-by-side” mode within Zoom.
  3. Instruct Zoom witnesses to pause before answering. Due to time delays, they may otherwise risk answering before hearing counsel’s objection.
  4. For in-person trials, display live witnesses on a large screen in the courtroom via laptop webcam or video camera. Distancing measures often place the witnesses too far away from the jurors to be seen clearly. In our post-trial interviews, jurors have told us they appreciate having witnesses in court to observe the witnesses’ body language, but also like to see witnesses on screen to gauge their facial reactions.
  5. Move a little slower than normal when walking through documents on screen. Given the distance from the jury in a socially distanced trial, documents on screen may be more difficult to see than normal. Moving through them too quickly can have jurors miss important information or give the impression you’re trying to hide something. The same can be said when moving through documents on Zoom, as there may be a slight delay between how the document appears on your screen and the screens of your viewers.

COVID Presentation Technology Tips

  1. Many problems with Zoom connections can be solved simply by signing out and back in. It’s kind of like that “Did you turn it off and on again?” tech-support cliché. Except it works more often.
  2. Beware of being “mic’d up.” Socially distanced courtrooms often require sensitive microphones for the judge and attorneys to be heard. Be mindful that whispers to your client or co-counsel may be more audible than usual. If jurors are participating by Zoom, even if your laptop mic is muted, some courts route the microphones in the courtroom through the Clerk’s or Bailiff’s computer, so you can still be heard by everyone on the platform. Always be sure you step away from the microphone and have your settings on mute for any private conversations.
  3. If speaking to the jury or questioning a witness while standing, wear a lapel or clip-on microphone instead of a microphone at the podium. This is especially helpful if you will be walking around or tend to shift your body position when speaking. Attorneys who are used to straying from the podium will find it a hard habit to break, so a clip-on mic ensures every word will be heard. (Just be sure to remove it for sidebar conversations!)
  4. Consider engaging a trial technology consultant who is well versed in all audio/visual aspects of virtual or semi-virtual settings. There are too many things that can go wrong in a Zoom setup for the many tech responsibilities to fall to a presenting attorney or paralegal. That is the presentation technology consultant’s specialty – i.e., handling multiple tech duties at once – from displaying the witness with corresponding demonstratives to advancing the slides during opening and closings. Much like a TV-station control center, they have multiple screens to manage the entire process.
    Likewise, judges and their staff have some training in handling the expanded technology, but it is often limited, and they may have difficulty troubleshooting when issues arise. When conducting socially distanced trials in a remote courtroom such as a conference center, gymnasium, or similar location, an experienced presentation technology consultant can assist with setup and operation of the multiple displays, projectors, cameras, and microphones required.

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Final Thoughts

We hope these tips offer insights into what you can expect from upcoming trials and help you avoid many of the pitfalls experienced by those who pioneered the efforts. If you have any tips of your own to add to the list, let us know!

Reach out to us for more information about our COVID trial experiences and how we might be able to help your team.

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By: Christina Marinakis, J.D., Psy.D. – Director of Jury Research & Adam Bloomberg, Managing Director of Visual Communications

With contributions from: Jill Leibold, Ph.D. – Director of Jury Research & Merrie Jo Pitera, Ph.D. – CEO

 

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