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August 16, 2021 Articles

Tips for Conducting Virtual Jury Selections

Is the pandemic-era method a disadvantage, or could it actually be beneficial?

By Jennifer Fischer and Kelley Edwards

Noticing a yawn from Juror Number 5, the attorney rises and states, “The defense excuses Juror Number 5 and thanks them for their service.”

“Do I log out of Zoom now?,” asks Juror Number 5.

What was once a routine, yet complicated, assessment of biographical information, body language, voir dire responses, and instinct has been transformed and confined by the small Brady Bunch–style boxes that offer litigators a minuscule window into the potential jurors’ lives as they sit comfortably within their own homes.

As the world dives into another season of the global pandemic, litigators are faced with a new stage in the world of jury trials: virtual jury selection. What new challenges face litigators who are unable to reach a resolution of their case but whose clients request a trial by jury? Is virtual jury selection a disadvantage, or could it actually be beneficial?

Virtual jury selection presents a host of logistical challenges and considerations for the courts to navigate.

Virtual jury selection presents a host of logistical challenges and considerations for the courts to navigate.

iStock, gmast3r

At a minimum, virtual jury selection presents a host of logistical challenges and considerations for the courts to navigate. First, to secure a fair panel of potential jurors, rather than just ones who are tech-savvy, courts need to inquire and provide technology to ensure anyone called for virtual jury duty is able to fulfill their civic duty. A technology survey is necessary to assess each potential juror’s access to a steady internet connection, computer, laptop or tablet, and camera and to provide any needed devices and services to jurors who do not have their own. Of course, this can be expensive and complicated for the courts to manage.

Then, in advance of the first day of jury duty, all members of the jury pool should attend a practice session with a member of the court staff to ensure they are able to access the court’s Zoom platform, use their camera, hear the court staff, and be heard. Jurors should be compensated for their time for the test run as though they were serving on jury duty for that day. Once again, this requires the courts to expend additional time and resources to ensure a fair and smooth process.

On the actual morning of jury duty—rather than fighting traffic and asking a plethora of questions about parking, lunch, and reimbursements—potential jurors need only roll out of bed, log in to Zoom, and join the virtual courtroom.

However, John Smith’s name does not always appear as John Smith on Zoom. Should the court staff be required to rename every potential juror from JSmith or Johnny or Smitty’s iPad to John Smith? Should the onus be on the jurors to provide the correct formal name? Should the litigators be privy to that information?

Additional guidelines are also necessary for the jurors because their physical presence is not within the control of the court staff. To give litigators as much visibility into potential jurors as possible, jurors are required to keep their head, face, and shoulders visible at all times. Court staff should monitor the jurors to ensure that they are visible and participating.

Litigators picking a virtual jury are challenged by the limited ability they have to see the potential jurors, even in gallery view. Breakout rooms can be used in place of “sidebar” and the “jury box,” but as the judge and attorneys move from the jury pool to the various breakout rooms, are they disadvantaged in what they cannot see? Are they less likely to pick Jane Doe because she can’t figure out how to mute herself and is whispering to someone off screen when, had they been in person, Jane would have seemed to be their ideal juror? Similarly, jurors who are less familiar with the Zoom platform and similar technology may appear to be less desirable jurors in the virtual environment, effectively changing the makeup of the jury pool.

While attorneys have the same information on paper as they would have in a “traditional” in-person jury selection, many other intangible clues may be missing from the jury selection. The attorneys cannot directly assess anyone’s demeanor, for example. Are jurors leaning back in their chairs or sitting at the edge of their seats? Attorneys are not able to assess whether the jurors are the type to stand up and let someone pass or slide down a seat and let the person sit on the end. Attorneys cannot see if the jurors brought a book or newspaper to read while they waited for the jury selection process to finish. And attorneys are not able to hear potential interactions between the jurors, such as chuckles in response to a joke or a sigh in response to a mishap by one of the lawyers.

Conversely, attorneys may have access to much more information in the virtual environment that might otherwise remain a mystery. Are jurors sitting in front of bookshelves? Artwork? Family pictures? Are they drinking out of a “World’s Best Grandma” mug? Do they have children meandering about in the background? Are they focused and attentive while online, or do they appear to be engaging with others off screen?

But jurors, too, may miss out on intangibles by being in their own homes rather than in the courthouse, and such intangibles could have impacts on the outcome of a case. For example, jurors may not be able to see the criminal defendant’s spouse and child in the background or see that the civil plaintiff is crying off to the side. These types of considerations leave attorneys to ponder whether their potential clients are disadvantaged by proceeding virtually. Or do they actually benefit from separation from the jurors, where an in-person trial would have rendered them more nervous to testify?

In the end, does a virtual jury selection have enough pros and cons that it becomes virtually the same as an in-person jury selection? As pandemic restrictions continue, and as judges determine whether the very nature of trials has changed for good, attorneys must evaluate these important considerations before advising their clients to proceed to trial.

Jennifer Fischer is an associate with Littler Mendelson P.C. in Newark, New Jersey. Kelley Edwards is an office managing shareholder with Littler Mendelson in Houston, Texas.

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