One on One with Judge Keenan Regarding Zoom Jury Trials
Monday, February 8, 2021
by: Erin Seeberger

Section: Winter 2021

Erin Seeberger, Bennett Bigelow & Leedom P.S., defends physicians and health care institutions against claims of medical malpractice. She also represents health care providers in licensing and disciplinary actions. In her career Erin has tried multiple cases, including claims for employment discrimination, contractual indemnity, medical and dental malpractice, and wrongful death. Erin has been selected to the Washington Super Lawyers Rising Stars® list from 2016 to 2020. She previously practiced in Sacramento, California, before moving to Seattle in 2011. Erin is licensed to practice in California and Washington.
On January 27, 2021, WDTL was lucky to have Judge David Keenan and Judge Matthew Williams of the King County Superior Court present on Zoom Jury Trials from the Judge’s Perspective.  The presentation was excellent, insightful, and full of useful information about navigating the new world of jury trials by Zoom.  WDTL had over 200 attendees tune in for the judges’ remarks.  If you were not able to attend the presentation, it is available on demand on WDTL’s events page.  The King County Superior Court also launched four new training videos regarding Zoom jury selection and Zoom civil jury trials.  The training videos are available on the King County Superior Court’s website under the “Get Help / Information” section.  

In addition to lending his time during the presentation, Judge Keenan also addressed a few recurring questions related to Zoom jury trials.  Check out his answers below: 

How do you ensure that jurors are paying attention and not multitasking during trial? 

I set expectations and I monitor.

I start level-setting expectations during jury selection and return to the point throughout selection and trial.  During voir dire, I show the jurors a photo of the courtroom and even turn the camera so they can look around, and I tell them that they’d normally be crowded onto benches here in a group of fifty.  Having given the prospective jurors that context, I ask them to conduct themselves during remote jury selection just as they would if they were with me in-person.  Then, during opening instructions for the empaneled jury, I show the jurors a PowerPoint, laying out the rules, emphasizing that jurors must not multitask, and must keep their cameras, screens, and speakers on so that we can see them and they can see and hear us.

During trial, I hide the non-video participants on Zoom (e.g., bailiff and courtroom clerk), and I use Zoom’s tile-arranging feature to arrange the jurors by juror number on my screen.  By keeping the screen orderly and relatively uncluttered, I can watch the jurors pretty closely.  In observing the jurors, I’m watching to see if they’re distracted by something in their space, and in particular whether they’re scrolling on a device or typing on a laptop.

Finally, I look for signs that the jurors are engaged.  During voir dire, the fact that jurors are answering and asking questions is a good sign that they’re paying attention.  During trial on Zoom, when jurors ask thoughtful witness questions, it shows that they’re paying attention to the testimony and exhibits.

How do you address the importance of non-testimonial information jurors get during trial such as watching the parties interact with counsel, entering and leaving the courtroom, or their reactions to witness testimony? 

I think it’s a tradeoff, and in-person and remote jury trials each have advantages.  On the one hand, with an in-person jury trial, jurors may be able to use their observations of body language and courtroom interactions as they assess a witness’s credibility.  On the other hand, having everyone’s faces on screen means that jurors get up-close views of a witness’s expressions, and counsel get up-close views of jurors’ expressions.  Sometimes, during Zoom voir dire, I’ve heard a lawyer say, “juror number __, you seemed to have kind of a reaction when I asked that last question, is there anything you’d like to share.”  I typically do Zoom voir dire in groups of eighteen jurors; with a group of fifty jurors in-person, I don’t know that you’d be able to observe those kinds of juror reactions as closely.

How do you address concerns about representation in the jury pool?  What if a potential juror does not have access to reliable internet?  

This is a great question and a really important issue.  The jury pool is the same for in-person or remote, but some important initial questions are whether the prospective juror has: (1) an email address where we can reach them, (2) a reliable device to access the internet and Zoom, (3) reliable internet, and (4) sufficient understanding to navigate Zoom.

When I get a list of prospective jurors, nearly all of them have email addresses; for those who don’t, we call them and send them letters.  For jurors who don’t have a device or reliable internet, our court leadership and staff have made spaces available at the Seattle and Kent courthouses for those jurors to come and use a device in an environment where they can be physically distanced from others.  I know other courts have made devices and wifi hotspots available for jurors to actually check out.

Do you have any requirements for the size of screen jurors must use to observe trial?  If jurors are viewing on a cell phone, are they able to adequately view exhibits?  

I strongly suggest to jurors that they use a laptop or tablet, but I don’t outright prohibit using a phone.  I know that in the first-ever federal all-remote civil jury trial, a juror reported at the end of the trial having used a phone and reported liking, for example, being able to use the phone to zoom in on things.  Still, I think a laptop, desktop, or tablet is preferable.

How do you ensure that witnesses are not reading from notes or receiving communications during their testimony? 

I get this question a lot.  My first answer is to remind everyone that this is still court, and all of the rules still apply.  For the lawyers, all of the rules of evidence, professional conduct, and civil procedure still apply.  For the witnesses, all of my pretrial rulings still apply.  I also remind counsel that remote testimony is not new; rather, it was already permitted under CR 43(a)(1).  So I don’t think that, just because so much is happening remotely now, we’ll see a material increase in unethical behavior.  Also, I watch the witnesses very closely during their testimony, and if I see a witness looking around as if they might be communicating with someone in their space, or looking down or at another part of the screen, as if they’re reading from notes, I will stop the testimony and inquire.  

Have you encountered any technology hurdles for jurors during Zoom proceedings?  How have you addressed those? 

The technology hurdles for jurors during a Zoom trial are generally the same ones you might see during any Zoom meeting.  Jurors sometimes have bandwidth issues, where their video and audio slows down, and jurors sometimes become disconnected.  When these things happen, I stop everything, because it’s the Zoom equivalent of having a juror disappear from the in-court jury box.  We call or email the juror, ask what the issue is, and wait for them to reconnect.  I think you can expect that this will happen—I’ve had it happen during voir dire and trial—and it requires some patience.  Overall, I’ve found that the technology issues haven’t been too disruptive.

What has been the most challenging part of presiding over Zoom trials?  

For me, the biggest challenge is probably all of the moving parts.  Whether in Zoom voir dire or Zoom trial, I’m checking the jurors into Zoom from the Zoom waiting room, changing their screen names to juror numbers, sending them to a Zoom breakout room (i.e., the Zoom jury room), arranging them by juror number on screen, bringing witnesses in from the waiting room, sending jurors and witnesses into breakout rooms and waiting rooms if I need to discuss something with counsel, watching everyone on screen for signs of distraction or connection issues, and then making sure that we can handle instructions, exhibits, juror questions, and the verdict electronically.  And that’s all while I’m doing all of the normal things, like taking notes from testimony and ruling on objections and motions.  It’s fine, and I actually really enjoy all of the choreography; but it’s a lot to monitor.

Practice each of the Zoom skills you’ll employ during trial, like displaying exhibits, and rehearse with your witnesses.

What advice to you have for practitioners proceeding with a Zoom trial?  How should their presentation of evidence be different by Zoom versus during an in person trial?  

The number one piece of advice I’d offer is to practice a lot.  Practice each of the Zoom skills you’ll employ during trial, like displaying exhibits, and rehearse with your witnesses.  Lawyers often use technology during in-person trials and it’s good to make sure the tech works; a Zoom trial is no different.

As far as tailoring your evidence presentations for a Zoom trial, definitely think about how your evidence will look on screen, and remember that many jurors are probably on laptops and tablets (and maybe a phone).  You may want to think about some illustrative exhibits to capture points, where you wouldn’t necessarily need those illustratives for an in-person trial.  Consider also that, depending on your particular case, the jurors may be accessing all of the exhibits electronically during deliberations; you’ll want to be even more careful about not offering voluminous exhibits when all you really wanted to get in was one page.