Civil Jury Project
Volume: 6 | Issue 4
April - 2021
Opening Statement
“The Medium is the Message”

Understanding Media: The Extensions of Man
Marshall McLuhan
McGraw Hill Education 1964
 
 
Dear Colleagues,
 
As we have outlined in the past, remote jury selection may be one aspect of remote trials that some courts will keep in place past the pandemic. Some judges conducting remote jury trials indicate that they may keep remote jury selection due to convenience, cost savings, time savings and lessening the carbon footprint of the court system. There are benefits for both the jurors and the system as a whole.
 
We begin this newsletter with Marshall McLuhan, Remote Jury Selection and Voting in America. What effect would remote jury selection have on a community over a long period of time? Would decades of bringing the court system into jurors' homes affect things like voting patterns and perhaps even lessen the crime rate in that community?
 
We then turn to our request of Professors Harfuch and Lloret to outline the “what” and the “why” of the built-in demographic requirements for juries in Argentina. Since our courts are concerned with and addressing whether remote jury service will affect demographics, we appreciate their reporting on the rationale behind building demographics into the jury system in Argentina.
 
We end with a piece by one of our jury consultant advisors, Benjamin Perkel, J.D. who provides a report from the field on three virtual civil jury trials held in New Jersey.
 
Finally, we congratulate our Faculty Director, Professor Samuel Issacharoff, on his oral argument in the Supreme Court this past Tuesday in the case of TransUnion LLC v. Ramirez. A link to the oral argument can be found here.
 
Here are our goals for this year and I plan on keeping these up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:
 
1.    We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.
 
2.    If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.
 
3.    We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, save time and help cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.
 
Some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive and representative cross-section of the community.
 
4.    Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.
 
If you would like to be involved in any of our goals listed above please feel free to email me directly at markd56.md@gmail.com.

Sincerely,

Hon. Mark A. Drummond (ret.),
Executive/Judicial Director

Upcoming Events
Due to the ongoing COVID-19 pandemic, all in-person events are canceled.

Marshall McLuhan, Remote Jury Selection and Voting in America

By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project

I must admit that I first heard of the communication theorist, Marshall McLuhan, while watching the movie Annie Hall (1977) several decades ago. In that now famous scene, Woody Allen’s character is irritated by a man standing behind him in line to see a movie. The man is droning on and on to his companion about diverse topics ranging from Federico Fellini to Marshall McLuhan.
 
The scene climaxes when the man behind Allen starts talking about what Marshall McLuhan “meant”. Allen “breaks the fourth wall”, talks directly to the camera, then pulls Marshall McLuhan from behind a movie poster. Marshall McLuhan proceeds to tell the man that he does not know what he is talking about. Allen then deadpans to the camera, “Boy, if life were only like this.”
 
Recently, I was listening to the excellent webinar Courts During COVID: Trials Over Zoom produced by Ninth Judicial Circuit Historical Society. During the program, U.S. District Court Judge Robert S. Lasnik (Western District of Washington) referred to the comments of Judge Matthew Williams in our February newsletter regarding aggression by attorneys not working so well over the remote platform.

Judge Lasnik then referenced McLuhan’s oft-quoted admonition that "The Medium is the Message” and advised the listeners that, “The way we send and receive information is often more important than the information itself.” In other words, techniques that may work in cavernous courtrooms might not work as well on 8” x 12” computer screens.
 
This prompted me to probe a bit deeper into "The Medium is the Message" than what I knew from watching Annie Hall. I started with some of Professor McLuhan’s writings and listened to him speak on this topic through a collection of speeches on YouTube.
 
An example by one commentator on McLuhan’s meaning stuck with me—that a family watching a story about a violent crime on television (the medium) results in effects far beyond the facts of the crime (the message). That the crime is being brought into their home through the medium of television affects that family far beyond just learning the facts about the crime.
 
The story is beamed into all homes that are tuned to that channel that night. Some in the family may be watching, some in the family may stop while walking by and listen when they hear about the horrific crime. Only one member of the family may be watching, but then retells the story over dinner.
 
The medium in the example is not a newspaper that must be purchased, the story then found by the solitary reader and then read by this single reader. The medium is not neighbor telling neighbor about the crime. Unlike television, neither of these media may have pictures to go along with the message. In addition, television delivers the message concurrently to all viewers whereas the newspaper transmits information consecutively, unless one has the annoying habit of reading over someone else’s shoulder.
 
Bringing the crime into the family home through television may have more of an effect on the family as a whole than just one member reading about the crime in a newspaper or hearing about it from a neighbor. Some in our fictional household may decide to not travel to or walk after dark in that particular neighborhood. One member of the family may go out the next day and buy a can of pepper spray for protection.

The above is my attempt to explain the content of McLuhan’s message, but perhaps we should turn to an authority on the matter. What is the Meaning of the Medium is the Message[1] is a two-page analysis by Mark Federman, the former chief strategist for the McLuhan Program in Culture and Technology at the University of Toronto.[2]

Two quotes from that paper will frame up our discussion. Federman writes,

“Whenever we create a new innovation - be it an invention or a new idea - many of its properties are fairly obvious to us. We generally know what it will nominally do, or at least what it is intended to do, and what it might replace. We often know what its advantages and disadvantages might be. But it is also often the case that, after a long period of time and experience with the new innovation, we look backward and realize that there were some effects of which we were entirely unaware at the outset. We sometimes call these effects 'unintended consequences,' although 'unanticipated consequences' might be a more accurate description.”

“McLuhan defines medium for us as well. Right at the beginning of Understanding Media, he tells us that a medium is 'any extension of ourselves.' Classically, he suggests that a hammer extends our arm and that the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own. Similarly, the medium of language extends our thoughts from within our mind out to others.”

Given this, the question is: What will be the long-term effect of “extending” the courthouse into people’s homes and places of work through remote jury selection or remote jury deliberation?
 
Many judges we have worked with at the Civil Jury Project like the idea of keeping jury selection remote, even after we return to in-person trials. Courts are also considering having juries deliberate remotely following an in-person trial so as to clear the courtroom for the next case. For voir dire, in lieu of summoning multiple scores of potential jurors at once to the courthouse, the jurors are given a time slot to log in for jury selection.
 
Instead of having to drive, find and pay for parking and then sit all day until called into the courtroom, jurors would only have to log on for an hour or two. This could be done at home or perhaps in a private area at work.
 
The “advantages and disadvantages” of remote jury selection are already being argued in many forums. The arguments heard against this include attorneys wanting to see the juror’s body language as they walk to the jury box. Are they hesitant or do they stride right up to the box? Attorneys argue that they want to see the body language of the juror as they are asked questions and their reaction to the responses by other jurors. Are they nodding in agreement? Are they leaning toward or away from the juror responding?
 
Arguments heard for remote selection are that attorneys can get a better sense of a juror looking at them on a full screen as opposed to looking through one or two panes of plexiglass with both the attorney and the juror wearing masks in a Covid-modified courtroom. Anecdotal reports from remotely selected jurors have been that they feel more relaxed participating at home and more likely to reveal information in that setting rather than in front of perhaps 100 other potential jurors in a large courtroom.
 
Whichever side of the debate you are on, attorneys should be prepared for some judges or some court systems keeping remote jury selection post-pandemic. This brings me full circle back to the question I originally posed and that is what, if any, effect will there be in those communities where judges select jurors remotely? Like the story of the crime coming into the home through television, what will be the effect of bringing the courthouse into the homes and workplaces in a community?

At the CJP we have referenced many times, in writings and speeches, the following by Valerie P. Hans and Neil Vidmar, (both are academic advisors to the Project):
“Jury service itself educates the public about the law and the legal system and produces more positive views of the courts. What is more, jury service can increase other forms of civic participation such as voting. Research done by the Jury and Democracy Project has discovered that citizens who vote only infrequently and then deliberate with fellow citizens in criminal jury trials are subsequently more likely to vote."[3] 
 
So, instead of a solitary juror traveling to a courthouse, what happens when the courthouse enters that solitary juror’s home or office? What effect will this have on the family when everyone knows that Mom should not be disturbed during certain times since she is in the other room answering voir dire questions or deliberating? What effect will this have when a person’s fellow workers are told that Frank’s section will need to be covered for an hour or two since he is in a conference room at work participating in voir dire?

Will injecting the courtroom into the homes and workplaces in a community have an effect on the crime rate over a long period of time? Do households that have at least one family member involved in the justice system have a lower offense rate? If those households do have a lower offense rate, would bringing the courtroom into homes have a similar effect over time? If jury service can increase participation in other forms of civic activities could it also result in a decrease in criminal activities? Will bringing the courtroom into homes and places of work affect both the good and the bad...for the better?
 
I am not a social scientist, but I realize the challenges of studying these issues. I know correlation is not causation. Any study would need to find a community where the justice system used exclusively remote jury selection, as opposed to both in-person and remote selection. An interesting comparable would be a jurisdiction that does not keep remote selection, but has similar demographics to the remote jury selection community. In addition, other variables may come into play and any study would have to be over a long period of time in a community with a sufficient amount of jury trials.
 
With the consent of jurors who are chosen remotely, could a study be narrowed to focus on the effect of serving remotely on those families compared to other families with no remote jury experience? Would a family who had a member serve as a juror in the home have a better voting record over a period of years?
 
If anyone reading this is interested in conducting such a study, we would welcome discussing this project. We would also like to know if any court system is considering doing away with in-person selection and doing all selection remotely. With courts on the cusp of deciding whether to keep or do away with remote jury selection, now would be the time to start to think about, and possibly study, these issues.
 
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[1] Federman, Mark. (2004). What is the Meaning of the Medium is the Message?


[3] See Valerie P. Hans & Neil Vidmar, The Verdict on Juries, 91 Judicature 226, 230 (2008) (citing John Gastil, E. Pierre Deess, Phil Weiser, Jordan Meade, Jury Service and Electoral Participation: A Test of the Participation Hypothesis, 70 J. Pol. 351 (April 2008))
The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench as a trial court judge in Illinois for 20 years. He is currently licensed to practice in Illinois and has applied to be licensed in New York.
The Story Behind Argentina's New Civil Jury System: Part 2

By Professor Andrés Harfuch, PhD, and
Professor Juan Sebastián Lloret, LLM
After such a dramatic approval of the Civil Jury Act (see Part I of this article in the Civil Jury Project’s March 2021 newsletter), let's talk a little about what the civil jury of the Chaco province will be like. It will be a twelve-member jury, which must unanimously render a general verdict and also a special verdict, if necessary, with one retrial if the jury hangs. All jury trials would be oral and public, with a voir dire hearing with four peremptories per side and limitless challenges for cause.

The jury will try class actions, tort cases of over a million pesos, any dispute involving freedoms of speech, belief or press, and collective environmental and land disputes. The latter is very important, since Argentina adhered to the Escazú Agreement, which is an international treaty signed by 24 countries in Latin America and the Caribbean that defines protocols for the protection of the environment and citizen participation.

Jurors will receive instructions on the law from the presiding judge. The evidentiary standard will be the preponderance of the evidence, or the standard that is established by the judge and the parties in accordance with the type of litigation in the case.

In this way, Argentina adopts the form of the common law civil jury trial to a full degree, which in itself is already a notable success due to the difficulty that this form of judicial proceeding has had in being transplanted into non-Anglo-Saxon cultures.

But what distinguishes the Argentine jury are two aspects in particular: 1) It demands gender equality in every jury panel: always six women and six men. 2) There is a special jury for Indigenous Peoples in cases where both parties to the conflict are indigenous. According to Chaco’s jury law, the twelve jurors must belong to the Qom, Wichí or Moqoit Peoples--of which there are more than two hundred thousand members. At the moment, in the provinces of Patagonia it is required that half of the jury be indigenous if the accused of a crime is.

This is not something new in history. The Jury de Medietate Linguae was the 12th century English special jury to protect Jewish and foreign merchants. It was abolished in 1870. In the United States it was applied until the 20th century, precisely to protect the indigenous peoples in Kentucky, Maryland, Massachusetts, Pennsylvania, New York, Virginia and South Carolina. In all of these cases, six jurors were required to be of those ethnicities / nationalities and speak the language of the defendant.

Why did Argentina come to this decision? Its rules for juries regarding race and gender had no relation whatsoever to the #MeToo movement or the local #NiUnaMenos (#NotOneLess) movement. Argentina’s jury rules were in the works long before these movements emerged.

Argentina began its experience with juries in 2005 in the Province of Córdoba, and then continued the experience with great force in 2011, extending its implementation to nine more provinces. Since that date, those of us who promoted the jury system adopted by our National Constitution since 1853 had already decided that our juries should be made up of an equal number of men and women.

That determination was not intended to promote some type of social reform, but to address the problems that exist with the evident under-representation of minorities on jury panels. It was not until 1975 that the U.S. Supreme Court ruled in Taylor v. Louisiana that it was unconstitutional to exclude women from the jury. We grew up watching famous movies that showed blacks being judged entirely by whites, women judged by juries made up of only men, etc.

It always drew our attention--the fact that one of the main constitutional principles of American and English law is that the jury must represent a fair
cross-section of the the community. However, minorities continue to be systematically excluded from juries in countries like Great Britain, Australia or the United States and the system does not know how to react. Or it reacts badly: for example, wanting to abolish or reduce peremptories, which is a serious mistake.

There is no doubt that all citizens are included in the jury pools but, statistically, the possibility that representative juries will be empaneled in the specific case of the accused is very low. Almost nil, in the case of the Argentine natives, for example.

That is why in Argentina we seek in this way to reverse, even in part, this situation. Of course it is imperfect. Of course it can be criticized already, because a law cannot solve such complex problems. That is why we established the rule that the jury be made up of half women and half men. It is a cross-section about which no one can be wrong: We all know that society is divided into half men and half women and that that is a fair cross-section of the community in the specific case. So, that's the story behind Argentina's requirement of gender equality in its juries.

The rule was very well received by the whole society, and this was very important for consolidating popularity of the trial by jury in Argentina. From this point of view, it was a smart political move. 80% of our Judicial Power is made up of men. The jury is today the only constitutional court of justice integrated with gender equality. This is very important and is already part of the due process of law and fair trial in Argentina.

Indigenous law in Argentina does not have the same development that exists in the United States. Native Americans are much more respected and have much more land and rights than those of Argentina. Argentinian indigenous people openly support trial by jury with indigenous integration because they see it as a means to advance their rights.

More than 500 jury trials have been conducted in the period of 2014-2020. The estimated conviction / acquittal rate remains almost the same as in the US (78% convictions / 22% acquittals), apparently showing that the gender equality rule did not harm any constitutional right of the defendants at all. But what we gained in terms of legitimacy of the jury system--in a country that was sunk in an inquisitorial obscurantism--is indisputable.

Further empirical research--which has been launched in many provinces and conducted by Professor Valerie Hans, among many others--will shed light on this experience and advise the government of Argentina about how our jury system is working.

These are the reasons that Argentina offers to the world and to the jury system of the 21st century regarding these two innovations. The innovations are being carefully observed and discussed by Latin American countries that are currently working on reforming their justice systems to implement juries. Only time will give its verdict.
Andrés Harfuch, PhD, is a professor of law at the University of Buenos Aires, the Director of the Institute of Comparative Studies in Criminal and Social Sciences (INECIP)'s Jury Center, and Vice President of the Argentine Association of Trial by Jury (AAJJ).
Juan Sebastián Lloret, LLM, is a professor of Environmental Law at the University of Salta, Argentina, an OAS and UNEP legal consultant, and a member of the Institute of Comparative Studies in Criminal and Social Sciences (INECIP).

Virtual Civil Jury Trials Are a Reality in New Jersey

By Benjamin Perkel, J.D.
This article summarizes the virtual civil jury trial program in New Jersey, discusses some observations from the first three virtual civil jury trials conducted in New Jersey,[1] and explores some strategic considerations for trial attorneys in New Jersey and other jurisdictions where virtual civil jury trials are being implemented.


General background on New Jersey’s virtual civil jury trial program

The first thing to note about the state of New Jersey’s virtual civil jury trial program is that it was developed with extensive input from members of the bar to develop a comprehensive set of procedures and rules. As a result of this thorough process, virtual civil jury trials are proceeding in two phases. A pilot program (“Phase 1”) began in February 2021 with limitations on the criteria for cases that could be called for virtual civil jury trials. As a result of the success during Phase 1, the Judiciary is planning on transitioning to Phase 2, beginning on or after April 5, 2021, which substantially expands the criteria for cases to be eligible for virtual civil jury trials in New Jersey.

Factors considered for Phase 1 cases:
·     Venue in one of the five (5) participating counties
·     Relatively simple fact patterns
·     Minimal live witness testimony
·     Consent of the parties required

In Phase 2:
·     Cases in all Twenty-One (21) counties statewide are included
·     New pools of cases become eligible for virtual civil jury trials, which could include more complex fact patterns and cases involving a greater number of witness testifying at trial
·     Consent of the parties not required

The takeaway for practitioners in New Jersey, and other jurisdictions adopting virtual civil jury trials, is that even if you and your firm have avoided them thus far, chances are that the reality of virtual civil jury trials will catch up to you sooner than later.

Virtual civil jury trial formats utilized in New Jersey

In the cases observed, two different virtual trial structures were utilized: fully virtual and hybrid formats. In the cases conducted fully virtually, all participants except for the Judge participated remotely. In the hybrid format, counsel and testifying witnesses participated from inside the courtroom, while only the jurors participated remotely. We will return to these different formats later in the article to discuss how they can impact trial attorneys and their cases.

Procedural Safeguards

New Jersey, like other jurisdictions utilizing virtual trials, developed and implemented significant safeguards to protect the sanctity of the civil jury trial. The following examples are discussed with the intent of hopefully alleviating some common concerns about the viability of virtual civil jury trials.

One common concern relates to virtual jurors’ access to, and proficiency with, technology. To address this issue, the Judiciary committed to providing each seated juror with a Samsung Galaxy tablet (with Broadband if necessary) to ensure that all jurors selected would be able to participate in virtual trials. Technology training was also provided by Court staff.

Relatedly, virtual jurors were provided clear instructions about how to contact the Court via multiple methods if they experienced any technology problems during the trial. A court staff member was also assigned to monitor virtual jurors for any signs of technical issues. Though it did not appear any virtual jurors had technical difficulties during the trials observed, the procedures in place would have likely allowed the Court to promptly act upon any technology related issues encountered by virtual jurors.

Another commonly expressed concern relates to virtual jurors’ capacity to pay attention to, and understand, the material being presented. To address the issue of “Zoom fatigue” the Judiciary implemented a modified trial schedule which included regularly scheduled breaks. To minimize the potential for distractions, the Court also implemented policies requiring virtual jurors to certify that all personal electronic devices were turned off during the trial.

Last, but certainly not least, are concerns about privacy and confidentiality. Due the importance of these issues, they were addressed with a multi-faceted approach. At the outset, virtual jurors were provided with enhanced instructions emphasizing the importance of being in a private, quiet location. Judges also reminded virtual jurors about privacy and confidentiality instructions at appropriate times throughout the trial, effectively employing repetition to accentuate their importance.

Additionally, Judges and Judiciary staff monitored virtual jurors for any signs of inappropriate conduct and could require them to perform a 360-degree video scan of the room to ensure compliance with privacy and confidentiality policies. Similar policies were also put in place for witnesses testifying virtually to ensure they were not receiving improper assistance with their testimony. Accordingly, witnesses testifying virtually could be compelled to perform a 360-degree scan and were also required to certify that they were in a private room and that all personal electronic devices were turned off.

In jurisdictions like New Jersey, procedural safeguards for virtual civil juries to be viable are in place. Now, we need trust that jurors and witnesses will follow the rules and instructions provided by the Court, just as we rely on them to do so for in-person trials.


Pertinent details about the Virtual Trials observed

All three virtual trials were similar in the following ways:
·     They were all tried in an expedited format;[2]
·     The basic fact pattern in each case involved a relatively straightforward rear-end motor vehicle collision;
·     Liability was admitted in all cases;
·     Each case had live testimony from no more than two (2) witnesses; and
·     Virtual jurors reached unanimous verdicts in each case (one jury found unanimously in favor of the plaintiff, and the other two juries found unanimously in favor of the defendants).

I would like to draw your attention particularly to the final bullet point about unanimous verdicts. Although this is admittedly a small sample size, the unanimity achieved in these verdicts provides optimism that virtual jurors adequately understood the facts and evidence presented, which allowed them to reach reasonable conclusions they could all agree upon.

With this background in mind, let us turn to some considerations to help attorneys set themselves up for success in the brave new world of virtual civil jury trials.


Considerations for Attorneys

Fully Virtual vs. Hybrid[3]

As noted earlier, a fully virtual trial is conducted with everyone except for the Judge participating from outside the courtroom, while in a hybrid format counsel and live testifying witnesses join the Judge in the courtroom and present to jurors located remotely. For attorneys, considering which format is preferable in a particular case goes beyond simply whether you need to drive into the Courthouse on the day of trial. Accordingly, which format is utilized significantly impacts the amount of control counsel has over the technology setup and how equipment is arranged.

In a hybrid model, you are likely at the mercy of however Court staff has set up the technological equipment. In a fully virtual format, you can tailor your technological setup to meet your specific needs. For example, in the trial using a hybrid model, the screen showing virtual jurors was located approximately 90 degrees to the left of the camera counsel was presenting towards. The result was that counsel had to choose between maintaining their gaze into the camera, and thus not receiving any visual feedback from jurors, or awkwardly turning their head to observe virtual juror reactions.[4] Conversely, for trials using a fully virtual format, counsel was able to locate the monitor showing virtual jurors so that it was in the same sightline as the camera, thus allowing them to observe nonverbal reactions more easily like during fully in-person trials.

However, expanded control over technology associated with a fully virtual model can be a double-edged sword because it is fully incumbent upon counsel to ensure that all their technology (and the technology being used by their witnesses) is correctly setup and functioning properly throughout the trial. Conversely, the technology setup is one item counsel does not need to worry about in a hybrid format because it is handled by the Court.

Additionally, the lack of physical proximity in fully virtual trials can pose challenges during cross-examination. For example, not being in the same room can make for awkward exchanges between counsel and the witness being cross-examined, particularly when referencing specific portions of that witness’ deposition testimony. This issue was particularly apparent in one of the fully virtual trials, where the witness being cross-examined significantly struggled to identify which portions of their deposition testimony counsel was referring to. Whereas issues like this could be readily resolved when counsel is in the courtroom along with the witness, by physically opening the deposition transcript to the appropriate page, continued unsuccessful attempts to guide a virtual witness to particular text can cause virtual jurors’ attention to wander and thus detract from the overall persuasiveness of your cross-examination efforts.

Ultimately, the main takeaway for attorneys is not that one format is necessarily inherently better than the other, but to be aware of potential advantages and disadvantages of the different formats so that you can make an informed decision about which structure might be most appropriate for you and your case. Secondarily, whichever format is being used, make sure to practice presenting your case utilizing the specific technological setup that will be used at trial.  

Regardless of whether you will be physically located in the courtroom or not, counsel should consider incorporating the following strategies to help guide your preparation for virtual trials.

Techniques for effective virtual trial presentations[5]

1.    Narrow the focus of your case to a central issue (or as few key issues as possible). While the expedited trial format lends itself to promoting a narrower focus for each side’s case, there is often even more you can do to hone your case presentation. One way to do this is by asking yourself “Is this information absolutely necessary for jurors to be able to understand your case and reach a verdict in your client’s favor?” Going through this process of revising your presentation is always important but becomes even more critical when presenting to virtual jurors who are more susceptible to potential distractions and attentional fatigue.

2.    Thoughtful use of rhetorical tools tailored for a virtual audience can enhance your persuasiveness, while unfocused implementation can detract from persuasiveness. For example, judicious use of repetition can be a powerful tool to emphasize the importance of particular facts and arguments. However, over doing it can unnecessarily lengthen your presentation, and we know that shorter presentations are better for maintaining a virtual jurors’ attention and promoting understanding.

3.    At the outset of your presentation, provide virtual jurors with a clear and simple roadmap of what your case is about, what questions they will need to address, and the evidence you will be providing to help them address those questions. Following this roadmap throughout the trial can help increase virtual juror comprehension of your presentation as well as help them understand how and why the evidence supports your desired outcome. This roadmap can also be used to reinforce your arguments during closing.

4.    Conveying authenticity and humanizing yourself can help bridge the physical proximity gap and establish your rapport with jurors. For example, it can be helpful during your opening to empathize with the jury by letting them know that virtual trials are a new experience for you too. This can be especially useful if you are not the most technological savvy person or are concerned about experiencing technical difficulties during your presentation. By reframing technical issues as something to potentially be expected, it can help inoculate you from damage to your credibility if something does go awry.

Tips for effective design and deployment of demonstratives in virtual trials[6]

1.    Remind yourself that less is more, both in overall quantity and in terms of how much content is on each demonstrative, to help maintain virtual juror attention and keep them focused on what they really need to understand about your case. 

2.    Apply concepts you are accustomed to using for in-person trials and adapt them for virtual jurors. For example, showing virtual jurors a scanned copy of handwritten notes listing the main points of your arguments can have a similar effect to a traditional board that you would use with an in-person jury.


Conclusion

Despite some imperfections and some kinks to be worked out, virtual civil jury trials will likely be a reality for the foreseeable future in New Jersey and other jurisdictions around the country. It is a reality that counsel (and their clients) must accept, and one that all trial attorneys should consider embracing as an opportunity to expand upon your advocacy skills.


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[1] Recordings of the virtual trials observed can be found on the New Jersey Judiciary’s webpage at following link: https://www.njcourts.gov/public/covid19_attorneys_one-stop.html#vcjt


[3] For additional information about the hybrid jury trial model, see Summit Panel Recap: Practical Tips for Post-Pandemic Trials – Hybrid Jury Trials, published in the Civil Jury Project’s January 2021 Newsletter. https://myemail.constantcontact.com/January-Newsletter-of-the-Civil-Jury-Project.html?soid=1127815376566&aid=HBuwPEAv0Kc

[4] I believe it would certainly be helpful for counsel if Courts using a hybrid model tried to locate the screen showing virtual jurors as close as possible to the camera transmitting the trial feed to virtual jurors.

[5] For additional information about effective virtual trial presentation techniques, see Advocacy’s New Frontier: SMART Persuasion Strategies for Remote Communication, published in the Civil Jury Project’s September 2020 Newsletter. https://civiljuryproject.law.nyu.edu/advocacys-new-frontier-smart-tm-persuasion-strategies-for-remote-communication/

[6] For additional information about effective demonstrative design and usage in virtual trials, see Advocacy’s New Frontier: SMART Persuasion Strategies for Remote Communication, published in the Civil Jury Project’s September 2020 Newsletter. https://civiljuryproject.law.nyu.edu/advocacys-new-frontier-smart-tm-persuasion-strategies-for-remote-communication/
Benjamin Perkel, J.D., is a Jury Consultant Advisor to the Civil Jury Project and can be reached at bperkel.jd@gmail.com.

Look out for the May Newsletter!
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