Jury trials are among the last pieces of the judicial system to undergo a virtual transformation in the wake of the COVID-19 pandemic. Although some aspects of jury trials will never be replicated online — for example, the bonding process that jurors experience after spending days or weeks together — courts across the country have nonetheless found ways to lawfully provide jury trials for parties that desire to settle their disputes this way.
Three judges who were among the first to preside over virtual jury trials recently shared what they learned during a conference on virtual trials held by the National Institute for Trial Advocacy. Their advice, in a nutshell, was:
- Appreciate the differences between virtual and in-person jury trials
- Make investments in technology needed for effective advocacy
- Take the time to practice and test virtual trial technologies
Appreciate the Difference Between Online and In-Person Trials
Obviously, an online trial is different from an in-person trial. But it’s different in ways that may not be immediately apparent to first-time virtual litigators. A virtual trial is a sui generis proceeding — not merely an in-person trial mediated by digital technology.
The composition of the jury may be different. According to Judge Pamela Gates, Civil Presiding Judge for the Maricopa County Superior Court in Arizona, there is a “digital divide” among jurors who are asked to serve on virtual juries. Data collected by Maricopa County researchers from 32,000 potential jurors this year found that:
- 10 percent lacked a device with a web camera (phone, tablet, laptop, or desktop device)
- 11 percent lacked reliable internet service
- 19 percent lacked a private space in their home
- 24 percent lacked the physical ability to sit through a virtual trial at home
- 33 percent lacked a private place free from interruptions
Approximately 60 percent of potential jurors answered “yes” to each of the criteria listed above.
Maricopa County researchers were able to identify a “digital divide” that burdened several demographic groups. Women disproportionately reported they lacked a home environment “free from interruption.” Potential jurors over age 75 “overwhelmingly” responded that they lacked a device with a web camera. Persons of Hispanic descent evidenced a diminished ability to serve on a virtual jury across all five criteria.
Judge Gates said that the county is working to negate the impact of digital divide issues so that virtual juries represent a true cross-section of the local community.
Virtual juries are also different from in-person juries in other regards. According to Judge Emily Miskel of the 470th District Court in Collin County, Texas, people in her jurisdiction are more willing to serve on virtual juries than in-person juries. Before the COVID-19 pandemic, the yield on juror summons was 45 percent for in-person trials. With virtual juries, 86 percent of persons summoned have indicated an ability to serve.
Judge Gates observed that, in her experience so far this year, virtual jurors are asking more questions than in-person jurors. Unlike an in-person trial, where questions are written out and handed to the bailiff for delivery to the judge, virtual jurors can use online chat to directly send inquiries to the judge.
Judge Gates fielded roughly 40 questions from jurors during a recent defamation trial. “We realized that that access to the ability to privately ask questions made jurors very willing to get their questions to the judge,” she said.
Is it possible that virtual jury trials are more civil than their in-person counterparts? Judge Miskel, a veteran of more than 120 virtual trials so far this year, said that attorneys in virtual proceedings interrupt each other less often, a development she attributed to limitations imposed by videoconferencing technology. This seems to be working to the advantage of women and younger attorneys, she said.
Technology: More Is Better, Practice Makes Perfect
The responsibility to become fluent with the remote communications technologies used in virtual trials rests with attorneys and judges alike. While most of the technology tips below are directed to attorneys, some are for the consideration of the judges presiding over virtual proceedings.
Train Jurors on Virtual Platforms
Virtual jury service is not a passive endeavor, similar to watching television. Courts should work out in advance a way for jurors to indicate whether or not they are experiencing audio or visual difficulties.
Jurors should also be trained on how to operate whatever videoconferencing technology is used so that they can change views at appropriate times, for example, the ability to make an attorney the active speaker during opening or closing arguments.
Make Sure Jurors Have Capable Technology
Judge Nicholas Chu, a Justice of the Peace in Travis County, Texas, remarked that his court conducts test runs of the virtual jury experience for jurors prior to trial, and he has sent bailiffs out to deliver devices to jurors’ homes if they had indicated they lacked suitable technology to serve on a virtual jury.
Don’t Skimp on Virtual Trial Technology
Judge Miskel deploys four monitors while presiding over virtual trials: one for a real-time feed from the court reporter, another for exhibits, another to display the Zoom videoconference, and lastly a screen to show the YouTube feed that goes out to the public.
Judge Miskel advises attorneys litigating with a single laptop to change their ways. Attorneys in virtual trials should have at least two monitors. “It is hard to open the exhibit you are about to share, watch the trial, and do everything that you need to do from one device,” Judge Miskel said. “A multiple monitor setup is going to help you have a better time.”
Don’t Share a Laptop With Your Client
Many laptops contain audio technology that eliminates noise from anyone other than the person sitting directly in front of the laptop. This can have the effect of making it impossible for virtual trial participants to hear a client/or witness who may be sitting next to the attorney.
For this reason, attorneys should consider purchasing a microphone that will reliably capture audio from everyone involved on their end. Capable audio devices can be obtained for very little money.
Test, Test, Test
Regardless of whatever technology is used, attorneys should test their technology setup to ensure that everything goes off without a hitch on trial day.
When you’re in the middle of a trial you don’t want to be worried about troubleshooting audio,” Judge Miskel said. “And you want to have some things that are not very expensive that make your experience more comfortable so that you can be focused on your attorney job.”
Bring an Assistant to Trial
With the court’s permission, a paralegal or even a contractor can be employed to help display electronic exhibits during a virtual trial.
Learn How to Share Your Screen
When it comes time to introduce evidence by sharing a screen, attorneys should know how to share just the evidence — not their entire desktop. Personal email, desktop icons, and other on-screen notifications should never be shared during a virtual trial.
Submit Documents in Advance
If permitted by court rules, litigators should consider transmitting trial exhibits to the court in advance of the virtual trial. That way, if tech glitches prevent the display of the exhibit during trial, the court will have a copy that can be used in its stead.
Present Electronic Exhibits Effectively
Yes, electronic documents can be cumbersome to manage at first. But the reward for learning how to introduce and use electronic documents is great. No more fumbling over paper and page numbers. With electronic documents, all jurors are immediately “on the same page,” and documents can be highlighted and their impact enhanced by attorneys with the skill to do so.
Use a Large Screen
It can be difficult to discern juror reaction to argument, evidence, or questions during voir dire on a laptop screen. Judge Chu advised attorneys to approach virtual voir dire as a unique type of proceeding and not to assume that what worked in-person will be effective online. Without a large screen or an assistant, litigators risk missing small cues, such as an “eye roll” from a skeptical juror.
Divide Potential Jurors Into Manageable Groups
Judge Chu recommended that courts who are screening and training potential virtual jurors should divide them into small, manageable groups — using, for example, breakout rooms with no more than 10 jurors. This can make the check-in process more efficient, he said.
Judges: Know Devices Used by Jurors
Although judges ideally should leave technology troubleshooting to “technology bailiffs” and other staff, it can be helpful for judges to be knowledgeable in all of the technologies and devices that jurors will be using to participate in a virtual trial. This knowledge allows the judge to serve the traditional role of being a helper to the jury’s participation in the trial process, and it alleviates the judge’s worry that something will come up during trial that he or she won’t be able to handle.
Making Virtual Trials Better
Innovation with virtual trials is proceeding rapidly in the United States, spurred on by the COVID-19 pandemic, of course, but also by the widening realization that virtual proceedings can offer a more efficient means of resolving disputes. For attorneys and judges working within what has lately become a dynamic environment, the task is to acquire expertise in virtual proceedings and to realize the possibility that a better system of justice could be created through continued innovation and experience.