NOTE – An additional, and valuable concept discussed was the flexibility to combine in-person and virtual formats during jury selection and the trial portion itself. For example, jurors may be given the option to participate in voir dire in-person at the courthouse or appear through a videoconferencing platform. Similarly, some witnesses might testify in the courtroom while others may be permitted to testify remotely. Flexibility will be the name of the game as civil jury trials begin to rev back up in 2021.
Jury Selection During the Pandemic
As judges, trial lawyers, and jury consultants know, the outcome of a trial can be significantly influenced by the jurors selected. Jury selection during the pandemic creates both new challenges and new opportunities. The following outline addresses solutions and relevant considerations to help you successfully address these new issues utilizing a hybrid jury trial model.
Issue: Balancing Public Health Considerations with Access to Justice
Solutions and Considerations Discussed:
· In-Person jury selection
o Whether a courthouse possesses the physical infrastructure to accommodate large enough jury pools
while maintaining social distancing
o Whether the prospective jurors who show up in-person will comprise a representative jury pool
· Virtual jury selection
o Public health concerns are eliminated by allowing prospective jurors to participate in jury selection
from their homes
o Whether a jury pool consisting only of people who possess the technological capabilities to participate
in virtual jury selection will be representative of the venue
Issue: Whether the jury pool will be representative of the venue
Solutions and Considerations Discussed:
· In-Person jury pools
o Research was discussed which shows that certain segments of the population, particularly those most
concerned about COVID-19, are less likely to appear for in-person jury selection.
· Virtual jury pools
o Concerns have been expressed that segments of the population possessing less technology and less
technological capabilities may be excluded from virtual jury selection
o However, observations from the field have noticed the opposite effect – an increase in
representativeness of virtual jury pools
§ Texas has found that they have actually had more representative juries with virtual jury selection
than with in-person jury selection, and particularly that participation has increased amongst
communities that had been less likely to appear for in-person jury selection before the pandemic
§ The state of Washington has found that permitting jury pool members to participate remotely, in
addition to offering an in-person option (when public health recommendations permit), has
actually allowed more people to be able to participate in the jury pool
Issue: Seeing and hearing the jury pool during voir dire
Solutions and Considerations Discussed:
· Interacting with in-person jury pools
o Alameda County, California, courts have utilized a hybrid approach where jurors are in the assembly
room while the judge and counsel participate in voir dire from the courtroom with each side
communicating through large screens
o Texas courts have provided jurors with clear face shields so that the judge and counsel can see their
faces while responding to voir dire questions
· Interacting with virtual jury pools
o You can only see what the camera is able to capture of each prospective juror, which means it is
important to become comfortable with observing and processing nonverbal clues in a more
compressed format where the focus on facial expressions becomes magnified
Issue: Managing the jury pool
Solutions and Considerations Discussed:
· Managing in-person jury pools
o Pre-screening for hardships helps reduce how many people need to come to the courthouse for voir
dire
o Reconfiguring jury assembly rooms to accommodate social distancing for jurors when they fill out
questionnaires and participate in voir dire
o Limiting the number of jurors on each panel brought into the courtroom for voir dire at a time to
accommodate for social distancing
NOTE – Managing in-person jury pools during the pandemic will likely require more up-front leg work for jury administrators than it did pre-pandemic
· Managing virtual jury pools
o Pre-screening for hardships can help reduce the amount of people that need to join the court’s
videoconferencing platform for virtual voir dire
o Having jury pool members arrive at a virtual waiting room where they can fill out and submit their
questionnaires online using a program like MS Forms
o Limiting the number of jurors on each panel brought into the virtual courtroom at a time so each
juror can be sufficiently observed by the judge and counsel during voir dire because the larger the
jury panel, the smaller each person will appear on the judge’s and counsels’ screens
NOTE - Jury panel members can be easily brought in or out of a virtual courtroom as needed simply with the click of a button, which can be done by the judge or an assigned staff member
Issue: Handling sidebars
Solutions and Considerations Discussed:
· Sidebars with in-person jurors
o It can be difficult for the judge, counsel, and jurors to hear each other when talking softly to maintain
privacy while also trying to maintain social distancing
· Sidebars with virtual jurors
o It is easy to move the other jury pool members to a separate breakout or waiting room while the judge
and counsel have a sidebar conversation with a prospective juror
o Alternatively, it is also easy to move the judge, counsel and prospective juror to a separate breakout
room while leaving everyone else in the virtual courtroom
Issue: Determining the specific procedures and rules for jury selection in your trial
Solutions and Considerations Discussed:
· In-Person jury selection
o Rules and procedures need to be worked out and agreed upon well in advance of the trial date so
courthouse staff, the judge, and counsel can properly prepare to execute jury selection
· Virtual jury selection
o Agreeing upon the rules and procedures well in advance of the trial date is important for virtual jury
selection as well
o Jurisdictions can also provide valuable assistance by adopting standardized rules and procedures
governing remotely conducted voir dire
Topic: Benefits observed of virtual jury selection
Unique benefits of virtual jury selection discussed by panelists included:
· Being able to have the jury pool fill out questionnaires and return them electronically in advance of the trial date, which provides attorneys and their jury consultants with valuable data that can be analyzed to formulate focused voir dire questions and hone voir dire strategy
· Being able to see inside a prospective juror’s home can tell you a lot about them
· Jury pool members were more comfortable participating from their homes and were more forthcoming and open in expressing their personal beliefs
Topic: Whether judges, attorneys and court administrators have a preference
When deciding whether jury selection should be conducted in-person or virtually for a trial that is proceeding based upon a hybrid model, panelists expressed the following about the virtues of virtual jury selection:
· A court administrator expressed that the biggest issue with trials during the pandemic is picking the jury, and that once a jury is selected, court administration can make the rest of a trial work with all participants in the courtroom
· Participants universally expressed that jury selection is the part of a trial attorneys seem most willing and eager to conduct virtually
Despite its imperfections, virtual jury selection offers some unique advantages to all stakeholders and seems to be a preferred format for selecting juries during the pandemic. It also seems to be the stage of trial most likely to not only remain after COVID-19 is in our rearview mirror, but also be expanded upon in the future. If there is one aspect of hybrid jury trials that judges and attorneys should focus on mastering, both for the present and the future, it would be virtual jury selection.
Conducting a Jury Trial During the Pandemic
In courts around country, judges and attorneys have had successful experiences conducting the trial phase with both in-person jurors and with virtual juries. However, courts have recognized that a “one size fits all” approach to civil jury trials will not work, and accordingly prefer the flexibility of a hybrid jury trial model. The following outline discusses the observations of judges, attorneys and court administrators who have experience with the trial phase of hybrid proceedings during the pandemic.
Issue: Balancing Public Health Considerations with Access to Justice
Solutions and Considerations Discussed:
· In-Person
o Whether the courtrooms in your jurisdiction are large enough to accommodate the judge, court staff,
the attorneys, witnesses and all of the jurors for in-person trials while strictly adhering to public
health guidelines about social distancing
§ For example, in Minnesota, courtrooms used for conducting in-person trials are a minimum of
1,900 sq. ft.
o Reconfigured courtrooms must ensure that all jurors will be able to sufficiently see the evidence and
hear the testimony from wherever they will be seated in the new courtroom setup
§ Ideas about how to accomplish this are provided in my discussion of this issue in a section entitled
“Ensuring jurors can see evidence and hear testimony” below
· Virtual
o Conducting the trial portion virtually eliminates the public health concerns by allowing jurors to
receive evidence and testimony remotely through an online videoconferencing platform from the
safety of their own homes
o When conducting the trial portion virtually, it is important that the courts, judges, and attorneys work
together to help ensure remote jurors can sufficiently see and hear counsel’s presentations
§ Ideas about how to accomplish this are provided in my discussion of this issue in a section entitled
“Ensuring jurors can see evidence and hear testimony” below
Issue: Ensuring jurors can see evidence and hear testimony
· Ensuring in-person jurors can see evidence and hear testimony
o Strategically placing video monitors around the courtroom can help ensure sufficient viewing from all
angles
o Providing each juror with their own personal viewing screen is another option
o Utilizing clear face shields will help counsel and witnesses be able to hear each other better
· Ensuring virtual jurors can see evidence and hear testimony
o Providing appropriate technology to jurors who do not already have it so they can adequately see and
hear the trial presentations
o Focusing on designing demonstratives for viewing on the smaller types of screens that virtual jurors
will likely be using (as opposed to the larger screens you would have in a courtroom)
Topic: Preparing to present your case
Solutions and Considerations Discussed:
· Preparing to present to an in-person jury
o In general, preparing to present your case to an in-person jury should not be much different how you
would normally prepare
o However, be aware that you may need to do some additional preparation to get comfortable with
things like new courtroom layouts and knowing current public health rules and procedures
· Preparing to present to a virtual jury
o Getting ready to present to a virtual jury requires you to utilize a very different kind of preparation
process
§ More time should be spent honing virtual presentations to make them as clear and concise as
possible to ensure you maintain a virtual jury’s attention
§ It is also important to spend extra time practicing how to present to the camera because that is a
new skill that must be learned
o As a general rule, attorneys should plan on devoting additional time and resources towards preparing
to present your case to a virtual jury, particularly when you are starting out
§ For example, one attorney reported spending 5 hours to prepare for her closing argument and that
she placed greater emphasis on having professionally designed demonstratives to present to a
virtual jury
Issue: Presenting your case
Solutions and Considerations Discussed:
· Presenting to an in-person jury
o In general, presenting to an in-person jury during the pandemic will likely feel pretty “normal” once
you get in the courtroom
o However, presentation style may need to be adjusted to account for courtroom reconfigurations, such
as the jurors being spread out around the room instead of sitting together in the jury box
· Presenting to a virtual jury
o Critical to keep presentations as concise as possible
§ Time limits are a good way to promote concise presentations
· Judge imposed a time limit permitting each side 15 total hours to present their case to a virtual
jury (an attorney involved in that case reported that each side only needed approximately 12.5
hours)
· An attorney implemented a self-imposed time limit restricting her closing argument to no more
than 45 minutes to ensure she did not lose her audience
o Greater emphasis is placed on demonstratives by virtual jurors to help them understand virtual
presentations
o Presenting to a virtual jury requires a related, but different skillset than presenting to the jury in a
courtroom
§ For example, an attorney learning to present to a virtual jury is like a stage actor learning to present
to the camera for a TV show
Issue: Assessing witness credibility
Solutions and Considerations Discussed:
· Assessing credibility of a witness testifying in-person
o Having witnesses wear clear face shields can help jurors assess credibility because they are able to see
the witness’ face unobstructed by a mask
· Assessing credibility of a witness testifying virtually
o Facial expressions and microexpressions are enhanced, while gestures become compressed and less
distinct when viewed through a camera lens
Issue: Sharing exhibits with witnesses and jurors
Solutions and Considerations Discussed:
· Sharing exhibits in-person
o Generally, the procedures will likely be similar to how this has traditionally been handled in person
o However, be aware that the sharing process may be somewhat modified pursuant to public health
guidelines
· Sharing exhibits virtually
o Can provide them electronically via email, sharing them in a secure folder through the cloud, or using
a videoconferencing file sharing option
o Hard copies can also be pre-transmitted to witnesses or jurors, but be sure to implement security
measures such as placing them in a sealed envelope that must be opened on camera
Issue: Scheduling
Solutions and Considerations Discussed:
· In-Person trial scheduling
o Courts and judges indicated that they have generally kept the same type of full day schedule they
normally utilized pre-pandemic
o It should be noted that some minor scheduling modifications have been made, such as slightly longer
breaks to ensure everyone can comply with public health guidelines
· Virtual trial scheduling
o Importance of shorter trial days
§ Alameda County, California, has successfully utilized a modified half day schedule (8:30am to
1:30pm with two short breaks, Monday through Thursday)
§ Shorter trial days also can make it easier for more jurors to participate, such as parents who need to
find childcare
o Importance of shorter presentation segments
o Importance of more frequent breaks
Topic: An additional benefit of virtual trials
· Being able to see jurors’ faces up close helps the judge and counsel identify when jurors are losing focus in virtual trials better than when in-person, which provides judges the opportunity to promptly take corrective action like suggesting a break
Regardless of whether you will be conducting the trial portion in-person or virtually, I recommend thinking about modifications for this stage by focusing on questions that begin with “How” (as opposed to questions beginning with “What”). That is, the objectives being pursued by judges and attorneys remain the same as they have always been, but circumstances related to the pandemic dictate that they be achieved through different means. The flexibility offered by a hybrid civil jury trial model provides judges and attorneys with opportunities to determine the most practical and effective means to help litigants pursue justice while ensuring the health and well-being of all participants.
Jury Deliberations During the Pandemic
Deliberations are the part of a trial that judges and attorneys have the least direct control over. When jurors deliberate together in-person, the court has some inherent measure of influence over the jury due to physical proximity. When providing virtual jurors with the opportunity to deliberate remotely, courts should try to replicate the sense of control traditionally felt when jurors are confined to a jury room inside the courthouse. Accordingly, the following outline focuses primarily on efforts to maintain the sanctity of jury deliberations conducted online.
Issue: Balancing Public Health Considerations with Access to Justice
· In-Person
o Courts have been able to successfully conduct in-person jury deliberations during the pandemic by
following sensible protocols like utilizing unused courtrooms for jurors to deliberate in so they could
stay social distanced, as well as providing each juror with their own personal copies of exhibits so
they did not need to share them
o However, from an access to justice standpoint, public health guidelines and local public health
ordinances may at times prevent jurisdictions from being able to conduct in-person jury
deliberations, which is why the flexibility of the hybrid jury trial model is so helpful, and why the rest
of this section focuses on virtual jury deliberations
· Virtual
o Conducting jury deliberations virtually eliminates public health concerns by allowing jurors to receive
evidence and testimony remotely through an online videoconferencing platform from the safety of
their own homes
o However, there are numerous novel issues that all stakeholders should be aware of involving the
logistics of conducting virtual deliberations and maintaining the integrity of online jury deliberations
Issue: Confidentiality, Secrecy, and Security of online deliberations
Solutions and Considerations Discussed:
· Ensure that virtual jurors are deliberating in a secure breakout room
o Provide clear instructions to reinforce the formalities of jury deliberations, particularly with regard to
nobody else being permitted in the room during virtual deliberations and that jurors cannot talk
about the case unless all members of the jury are present in the virtual deliberation room
· However, there also needs to be some level of trust placed in virtual jurors to take their oaths seriously in the same way that in-person jurors are trusted not to violate their oaths when they go home, such as by conducting their own research or talking with family members or friends about the case
Issue: Communication between virtual jurors and the court
Solutions and Considerations Discussed:
· Permitting the jury foreperson to deliberate from the courthouse seems to be the most definite way to ensure a direct line of communication
· However, sufficient communication can also be achieved between the court and the jury by providing jurors with a variety of ways to contact the court remotely and clear instructions on how to do so
Issue: How a virtual jury will transmit an executed verdict form to the court
Solutions and Considerations Discussed:
· A jury foreperson deliberating from the courthouse can provide the executed verdict sheet directly to the bailiff
· Even if not deliberating from courthouse, a jury foreperson may also be able to physically drop off the verdict sheet at the courthouse in-person
· If the jury foreperson is not able to provide the verdict sheet directly to the court in-person, it is crucial to ensure that they have the technological capabilities to submit an executed verdict sheet
o Detailed instructions should be provided for how to transmit the verdict sheet electronically and
technical support could be available should any issues arise
Issue: Providing copies of documents (i.e., admitted exhibits, jury instructions, verdict forms, etc.) to remote jurors for use during virtual deliberations
Solutions and Considerations Discussed:
· Can provide documents to virtual jurors electronically via email or a shared cloud storage folder
o If you transmit documents by email, send them separately to each juror so their personal email
addresses are not accidentally shared amongst the group which could provide a means for jurors to
impermissibly communicate outside of the formal deliberations
o If you use a shared cloud storage folder to transmit exhibits, make sure the folder you share only
includes admitted exhibits
· Providing documents to remote jurors in hard copy form is also an option
o Implement security measures like placing the documents in a sealed envelope that each juror cannot
open until virtual deliberations begin
Issue: Monitoring virtual jury deliberations
Solution: Could have bailiff be present in the virtual deliberations room with their sound off
Issue: Remote juror bonding
· When the trial phase is conducted virtually, there are concerns that jurors do not have the same opportunities to bond as they would if physically together in the courthouse during the trial
o While judges have noticed that the lack of virtual juror bonding might be causing deliberations to take
a little bit longer than they normally would, it is also encouraging to hear that they have not noticed
an increase in mistrials
NOTE – Although there does not appear to be a clear answer about how to promote virtual juror bonding, it is an issue that all involved with the civil justice system should be aware of and something we should all be working together to solve.
Courts have had success adapting both in-person and virtual jury deliberations to overcome pandemic-related challenges. Acknowledging a general preference for in-person deliberations, it is important to recognize that there have been, and likely still will be, times when convening jurors to deliberate in-person is not a feasible option. Acknowledging there are still unresolved issues regarding online jury deliberations, such as how juror bonding can be replicated in a virtual format, it should be reassuring to know that panelists reported satisfaction with the sanctity and legitimacy of virtual deliberations, at least in their experiences.
Conclusion
Ultimately, there are challenges to conducting every part of a civil jury trial regardless of whether it is conducted completely in-person, completely virtually, or utilizing a hybrid format. These challenges have become even more complex during the pandemic. A hybrid model offers courts important flexibility to strike an appropriate balance between public health and access to justice, and therefore is an effective tool for addressing the unique and evolving circumstances confronting civil jury trials. I hope you now have a better understanding of what is meant by the term “hybrid jury trial” and have gained some helpful suggestions for operating successfully within a hybrid civil jury trial model.
Finally, although this piece only covers two of the Summit’s eight panels, I learned much more than that from the experiences and insights shared by Summit participants. I strongly encourage viewing the Summit in its entirety if you have not already done so. A full recording can be accessed at this link: https://www.nita.org/summit-register.
