Having assisted with nearly a dozen jury trials during the COVID-19 pandemic, both in person and by Zoom, we’ve learned a lot along the way. While courts and litigators are adapting admirably to social-distancing protocols and the increased (or total) use of video-conference platforms like Zoom, it’s still a novel experience for many. So, for those preparing to return to trial in the coming months, we wanted to offer our top tips based on what we’ve personally encountered in these COVID-era trials.
In Part 1, we begin with 10 ways to help you handle voir dire/jury selection during COVID:
COVID Voir Dire & Jury Selection Tips
- Jurors who are especially fearful of contracting COVID-19 tend to lean in favor of the plaintiffs. It is to defendants’ benefit to identify and excuse jurors who have a great deal of anxiety about serving. This finding, which we’ve identified in a recent analysis of both mock jurors and actual jurors, coincides with our previous research concerning the types of people most susceptible to plaintiffs’ “reptile” approach – those with state anxiety.
- Do not agree to excuse every juror who raises a health concern or who is in a high-risk group. Often, these jurors are still willing to serve, especially after seeing/hearing about the measures in place for social distancing and sanitizing. Therefore, in juror questionnaires or during voir dire, jurors should be asked not just whether they have concerns or are in a high-risk group, but whether they are requesting to be excused because of it. Despite what you might expect, it is jurors in their 30s and 40s that have tended to report being the most fearful and unwilling to serve – not older jurors.
- Simplify jury data into individual summaries, face sheets, or cards for ease of use. When conducting individual follow up with a juror during voir dire and when making decisions about cause challenges and peremptory strikes, it is typically easier to have one summary sheet or “stats card” for each juror than to be scrolling through many columns within an Excel file. When jury data is provided by the court in an Excel format, the datasheet can be downloaded into individual juror summary sheets in Word, eliminating the need to hand-enter data.
- Attorneys conducting voir dire by Zoom should create a professional-looking “set” in their presentation room. If given the option to conduct voir dire by Zoom from a home/office or within the trial courtroom, we suggest doing it from a home or office to avoid having to wear a mask, which can muffle your speech and make you less approachable. If conducted from home or in an office, be sure you are sitting in front of a window so the natural light shines towards you. Also, consider creating a “set,” similar to ones used by a news anchor. This is easy to accomplish with a decent-sized conference room or home office. Simple lighting, an uncluttered background, and a camera connected to your computer will make a big difference in how professional you come across. If using a built-in camera, we suggest putting a Bankers Box, shoe box, or similar item beneath your laptop to lift the camera to eye level. Or, for those who prefer to stand, try putting the laptop on top of a chair placed on top of a table.
- Be prepared for the “Zoom scramble.” As people turn on and off their cameras or lose connections, the video boxes on the screen can shift around. Thus, any seating charts you make should be flexible. One method is to use index cards or large sticky notes, which can be shuffled around when cameras move. With the assistance of co-counsel or a consultant, you can also use a bulletin board on a wall behind your laptop, which would prevent you from having to look down as often.
A recent Zoom update also allows you to move jurors’ video tiles in numerical order by juror number – a great feature to keep the questioning attorney organized and focused on the jurors, but one you’ll want to be sure to practice using ahead of time. Many attorneys find it helpful to have a presentation technology consultant with access to the display who can control the tiles, as it can be difficult for the questioning attorney to do so while also focusing on jurors’ answers.
- Whether by Zoom or in person, small groups of jurors are preferred. For example, by Zoom, it is better to have several one-hour panels of eight to ten jurors each than to voir dire 60-80 jurors all at once for several hours. When so many are on the call, jurors are reluctant to speak up, they’ll talk over one another too frequently, and there will be more moving video boxes to keep track of. (Indeed, Zoom has a limit on how many people can be shown on one screen; any more than that will require the user to scroll through different windows, meaning you can easily miss jurors who raise their hands.) In person, many of the same benefits apply, and smaller groups scheduled throughout the day will also help ensure social distancing can be maintained in smaller spaces. Lastly, smaller groups help prevent “hardship and cause cascades,” where jurors learn from others what they need to say to get excused.
- Recommend that the Court instruct jurors to use headphones during the voir dire by Zoom. This will help limit outside distractions and ensure that the proceedings can be heard. It also prevents nosey family members from listening in and making comments to the juror, which might not be heard by counsel if the juror is on mute. Likewise, ask the court to recommend that jurors log in through a computer rather than a smartphone or tablet, if possible. Jurors tend to have difficulty holding the camera still and staying in frame when on their phones, and iPad users frequently struggle with getting their audio to work on the Zoom App.
- Discuss with the judge and opposing counsel ahead of time what will be done with jurors who have poor connections, show up late, or roam off camera. For example, when Zoom is used, jurors inevitably have been tempted to participate in voir dire at their places of work, diverting their attention from the court process. It is also inevitable that some jurors will have connection issues. Decide ahead of time whether to dismiss those jurors or to try to reschedule them for a later panel, if possible. (For the latter, be sure to clarify whether that will affect the jurors’ place on the random order list.) While each juror may be handled on a case-by-case basis, it is helpful to establish general rules up front to avoid unnecessary delays and surprises that might disrupt your voir dire strategy.
- Prior to voir dire by Zoom, recommend that the Court Clerk conduct brief “tech checks” with each prospective juror. This reduces technical problems that can prevent jurors from participating. (Otherwise, factor in 30-45 minutes to get all jurors online and ready before voir dire can begin.)
- Beware of putting jurors into online breakout rooms unsupervised. When there are sidebars or private juror follow-ups, someone from your firm or the court staff should be present in the breakout room. Otherwise, jurors can discuss the case or talk with witnesses who may have also been diverted to the “room.”
In Part 2, we offer our second set of 10 tips, including how to present remote witnesses effectively and how to avoid/fix common presentation-technology hiccups.
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