Tips from My Virtual Jury Trial Experience
Monday, February 8, 2021
by: Catherine A. Becker

Section: Winter 2021

Author Bio

Catherine Becker has been a civil litigator for over 10 years. Currently, she is a Senior Trial Attorney with the Law Office of Elizabeth G. Smith. She has been recognized as a Rising Star with Washington Super Lawyers since 2018.
I conducted a fully virtual, two-week jury trial in December in King County.  Below are my tips and recommendations following this experience, feel free to take them or leave them.

Technology Generally
If you are not comfortable with technology or want to focus fully on presentation of case – hire a company that specializes in trial technology.  It can be expensive, but invaluable.  I utilized one and they helped out with run-throughs, creating power points, Zoom witness prep, etc.  

Familiarize yourself with Zoom.  Practice sharing your screen as well as your presence on video and microphone with another person.  

Save a set of exhibits to use throughout trial.  Do not count on Sharefile to access your Exhibits during the trial.

Organize and focus - turn off all other programs outside of Zoom, your exhibits, and/or trial notes.

There is less down time during trial when done remotely.  This cuts both ways.  It can be nice that the jury can be excused and brought back at the click of a button.  However, this also means that the attorneys lose these few minutes to organize their thoughts for the sidebar.  

Voir Dire:
Complete the jury questionnaire early.  Include technology issues in the topic areas: available technology devices, speed, familiarity, etc.  Use the jury questionnaire to find out a lot of information that otherwise might have been learned only through traditional voir dire which allows more time to establish for cause challenges. The questionnaires also allow more information to be included to determine hardship and potential bias.  Inquire if the Court can send the questionnaire early to jurors and send responses early to the attorneys.   

Depending on the judge, the panels are typically 18 persons.  In my trial, we only had to complete two panels to exceed available challenges.  We finished voir dire by 1:00 PM and had our jury empaneled by 3:00 PM.  Pros of this approach were time allotment (2 minutes per juror for each side), ability to hear from jurors that were most likely to be impaneled, and speed.  A con was that jury members had different experiences depending on panel.

We were concerned that the jurors would be less engaged and less likely to speak up if they were protected by a screen.  In my experience, the opposite was true - jurors felt safer with the distance and less judged, by counsel and their peers, for their opinion.  They were very direct and honest with their opinions.  Despite Zoom fatigue, it seemed jurors were paying close attention.  However, jurors were strict with time- 4:00 PM was a hard stop, even when the Judge inquired about staying until 4:30 PM. 

From a practical perspective, virtual voir dire is attractive as a long-term option.  The county and state would save substantial funds conducting voir dire virtually.  Prospective jurors would also save as they would not need to spend time or money driving in or parking.  In my experience, the panel also seemed to be in a better frame of mind being able to participate at home.

Opening and Closing
I suggest utilizing power point or some other prop.  Openings and closings are less dynamic remotely and you are not able to establish eye contact to the same degree.  Relying solely on oration would be a mistake.  I also suggest practicing the opening remotely with another colleague.  You will need to evaluate your performance through the remote means more so than if you were presenting in person.  Ensuring that you are looking straight at the camera and maintaining appropriate volume and inflection are very important.  Make sure you feel comfortable.  I personally do not present openings well if I am sitting down.  I set my screen up so that I could stand and move around slightly.

Double check that you are able to use your power point while using the share screen function of Zoom with a colleague.

For the most part this is unchanged.  Make sure that you schedule a practice round with your witness though.  Do they have their camera set up in a good location - appropriate lighting, not near anything questionable, speaking into camera, and alone in room?  Do they know how to sign in to Zoom and turn on their camera and microphone? Make a plan about exhibits.  For example,     the witness may need their own copy to refer to before it is admitted     .

Cross Examination
In my experience, this was a little different.  The screen provides a bit of separation for the witness, so they are slightly less led and more likely to push back.  On the other hand, the jury can feel that impeachment of a witness is overly rude.  Keep in mind that the jury is seeing (and in some ways feeling) the same thing as the witness.  In the remote setting, impeaching a witness and acting "in their face" or becoming aggressive creates the same sight or feeling in the jury.  The jury is not in the same off-set spectator seat as they would be in a normal court room.  Also, if using cross-examination to introduce any exhibits you will need to have a plan beforehand - either with opposing counsel providing the witness with the anticipated exhibit, or asking the court if you can share a screen with just a witness until admittance, or setting a separate proffer time, etc.

We had an equal mix of men and women and a fairly diverse range of ages.  A young woman indicated that deliberating remotely made her feel safer in terms of delivering her opinion.  In the remote setting, there was less socialization among the jury.  The jury is still out (haha) on the effects the lack of mingling has on jury verdicts.