Civil Jury Project
Volume: 6 | Issue 1
January - 2021
Opening Statement

"Judges from around the country report that,
where jury trials have resumed, responses to
jury summonses have met or exceeded their
high hopes for the public’s willingness to par-
ticipate in the legal system during these very
challenging times."

"...jury trials [are]
the bedrock of fairness in our system of justice."

-excerpts from the 2020 Year-End Report on the Federal Judiciary
Chief Justice John G. Roberts, Jr., United States Supreme Court
December 31, 2020

Dear Colleagues,

We hope that you and yours had, or still are having, a great holiday season as we bid farewell to a very challenging year. We begin with this note of hope for our jury system from Chief Justice Roberts.

The new year will bring many changes to court systems and also to the Project. When Steve Susman started the Civil Jury Project, the original endowment was intended to last for five years. Due to the generosity of Ellen Susman, Steve’s wife, and The Susman Foundation we are able to complete our sixth year, which will take us through August of 2021.

So, with your help, here are our goals for the next eight months:

1.    We want to continue to assist 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 help, 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. Your additions would be welcome.

3.    We all want to get back into our courtrooms. However, remote jury selection could be one aspect of the pandemic to offer benefits post-pandemic. Selecting a jury remotely would save transportation costs, save time and help reduce 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 achieving a more inclusive representative cross-section of the community.
4.    Finally, if you have any thoughts or ideas for funding opportunities that we could explore to continue our work past August of this year, please send them to us.

Turning to this issue, we begin first with an article by Mitchell Chester addressing the timely topic of ethical considerations in light of the pandemic. Next, we have a piece by our Research Fellow, Michael Pressman, outlining the important results of the juror survey conducted in Cook County, Illinois. We end with a piece by Ben Perkel, a Jury Consultant Advisor, who provides us with a thorough and cogent review of two sessions of November's 2-day Summit (conceived of by CJP Jury Consultant Advisor Richard Gabriel and co-sponsored by the Online Courtroom Project and the National Institute for Trial Advocacy).

If you would like to be involved in any of our goals listed above, please feel free to email me directly at

We wish you all a healthy and safe 2021.

Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
Upcoming Events
Due to the ongoing COVID-19 pandemic, all in-person events are canceled.
Confronting the Accelerated Shock of COVID-19
with Virtual Jury Trials: the Ethical Implications

By Mitchell A. Chester, Esq.
As the U.S. legal community has adapted to on-line hearings and non-jury trials with all deliberate speed, the almost singular focus has been on the technical aspects of this sudden shift.

Now is a good time to ponder the ethical implications of failing to include virtual jury trials in the list of powerful advocacy tools available as the pandemic and its consequences rage on.

Over fifty-one years ago, visionary Alvin Toffler penned the astute book, Future Shock. He wrote about “the roaring current of change” and its “accelerated thrust” that has personal psychological and sociological consequences. In March 2020, America’s storied legal institutions, shocked by sudden change and a microscopic virus that temporarily attacked our justice system, were presented with historic challenges. Since then, courts and their officers have adapted with unparalleled efforts by harnessing digital strategies. 

This process is evolving daily in venues from coast-to-coast. Understanding tools to fight COVID’s attack on courthouses is but one dimension. Comprehending our personal responsibilities to move the justice system forward in 2021 is the next element of our fight to deliver legal services. 

Lawyers have a duty to educate their respective clients on the availability of Zoom jury trials and the ramifications of waiting until things “get back to normal.”

Many courtroom advocates have expressed sincere doubts about jury trials using on-line platforms. They worry about the lack of physical presence in the formal courtroom atmosphere and the inability to stand before jurors and witnesses to directly assess body language.

Their concerns, however, do not justify trial lawyers acting as “gatekeepers” when it comes to presenting options to their clients during courthouse lockdowns. As officers of the court, we all have a duty to educate our respective clients on ways civil justice can be restarted at the trial stage, with jurors focused on the proceedings remotely.

Rule 3.2 of the American Bar Association Model Rules of Professional Conduct states, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

Employing digital trials in the time of this exceptionally dangerous and distracting pandemic is more than justifiable and should not be overlooked because such methods are atypical.  

Speeding up litigation does not mean waiting until there is enough health and security for courthouses to start traditional jury proceedings. As vaccinations are deployed and accepted, physical trial presence, in most jurisdictions, may not happen safely, equitably and consistently on a wide scale for at least another 6 to 9 months from the date of this publication, if we are fortunate.

In the meantime, the psychological and sociological interests of clients need to be in our collective focus. The elderly involved in personal injury litigation, important product liability disputes affecting the welfare of the public, contract actions impacting the daily business operations of small businesses, and a host of other controversies require swift attention. Parties often do not want to live under the cloud of litigation for protracted periods with prolonged expenses with lengthened emotional stress.

Lawyers who have decided to wait COVID-19 out until courtrooms reopen may be facing a set of uncomfortable realizations. Post-pandemic courthouse procedures and layouts may be significantly different from those we knew back as recently as February 2020. One can reasonably expect social distancing with facial coverings to be the norm, along with restrictive plexiglass architecture dividing trial participants for the next several years.

For example, health experts have warned that just being a recipient of a COVID-19 vaccine may not insure the end of dangerous viral transmission capabilities. The New York Times, on December 9, 2020, posted an article entitled, “Here’s Why Vaccinated People Still Need to Wear a Mask.” Michael Tal, an immunologist at Stanford University, was quoted as saying, “A lot of people are thinking that once they get vaccinated, they’re not going to have to wear masks anymore. It’s really going to be critical for them to know if they have to keep wearing masks, because they could still be contagious.”

On December 11, 2020, the Atlantic published, “The Next Six Months Will be Vaccine Purgatory.” In her article, Sarah Zhang reminds us, “...vaccines are not an off switch. It will take several months to vaccinate enough Americans to resume normal life, and this interim could prove long, confusing, and chaotic.” Her warning is particularly insightful as new mutations reach from Europe and Africa to our shores and while scientists react by adapting vaccination strategies to meet variations of evolving COVID threats.

Each week, we learn more about this pandemic, and as medical experts absorb accelerated information, new and compelling questions arise. How long will the vaccines last? What age groups and populations will be most protected? Will individual levels of pre-disposing medical conditions result in different classifications of vaccine efficacy? What portion of the general public will take different vaccine solutions, and if so, when and to what degree? Will the properties of COVID-19 continue to mutate over time? Which of the three main vaccines (mRNA, Protein subunit, and vector) will be best?

Juror pools come from all segments of society. With complex plans to make the vaccine available to certain groups before others, will only vaccinated individuals be required to perform their public duty? Will potential jurors brought into courthouses no longer represent a cross-section of society as we work through the intricate process of stabilizing public health across our multitude of urban and rural jurisdictions to achieve “herd immunity”? Will requirements to be physically present ignore concerns about asymptomatic transmissibility?

Clearly, seeing subtle facial expressions is crucial in the trial process. Given our reality is apparent for much of the coming year, we do not know when unobstructed in-person perception will happen. Can your client wait until late 2021 or 2022?

Trial lawyers who think masks will soon be eliminated from the jury trial process seem to assume jurors will patiently sit for hours and days without some sort of facial protection after vaccines are accepted by hundreds of millions domestically. Even the use of “safe” clear shields can be distracting, not to mention the likely undermining concern of jurors pertaining to proper courtroom filtration and ventilation systems.

As advocates for our clients, we all want maximized juror focus. During COVID-19, in-person jury trials may dilute that expected concentration with nagging and distracting concerns by jurors about their own health as they are simultaneously asked to focus on the problems of the litigants, pay proper attention to jury instructions and to render a fair verdict.

As we comprehend more about the planet’s medical crisis and its post-traumatic effects, judicial stakeholders need to evolve their thinking and services to act in the best interests of our clients, not only from a legal and technological standpoint, but from informed and current emotional and ethical perspectives.

Considering the above, here are some rational tools to help practitioners focus on the ethical implications and opportunities posed by video technology when considering jury proceedings in the coming year.

Informed Consent By Clients- By employing administrative orders or division requirements for mandatory client consent or waiver, courts can consider ordering attorneys to disclose the advantages and disadvantages of virtual jury trials before cases are scheduled. This can be done with a standardized form, where parties can accept or reject the virtual procedure after informed consent.

In cooperation with the Seventeenth Judicial Circuit in and for Broward County, Florida, the local American Board of Trial Advocates Chapter has developed such a form for potential use, which can be seen and downloaded at (or by clicking here).

Parties may reject the opportunities of virtual jury trials, but they should, at the very least, be fully informed about the benefits and ramifications of such digital proceedings. In cases where one, some or all of the parties have demanded their Seventh Amendment rights to a civil jury trial, attorneys should be required, during the pandemic, to certify to the court that they have at least discussed the virtual option with their respective clients.

Joint Stipulation- Once parties agree to virtual jury trials, they can enter into a mutual agreement to provide the court with specified technical details to assist the Judge and Clerk. A model form is also available at (or by clicking here) and has been developed with feedback from the Seventeenth Judicial Circuit.

Posting Video Orientations- Judges and Court Clerks can promote virtual jury trials by way of videos posted on their division websites to help explain the advantages of proceeding remotely during the pandemic.

Technical Reliability and Proficiency- To meet the spirit and intent of ABA’s Model Rule 3.2, trial practitioners need to make sure they have, as much as practicable, optimal audio and video equipment with reliable internet connections to facilitate smooth and technologically secure communication methods. Backup digital strategies, in case of unanticipated disruptions, should also be practiced. Counsel should recognize their ethical duties include technological proficiency.

Our justice system is flexible, and our profession must not be myopic when cases are ready for trial. We, as trial lawyers, need to adapt to the difficult circumstances of our day, and not retreat from challenges by rejecting the technological options of the present based upon personal convenience. We can meet Toffler’s warning about a “roaring current of change” by summoning our collective talents in this time of extreme crisis and overwhelming opportunity.

Virtual jury trials are needed today, but there is always tomorrow. While this will not be the last pandemic, we can create the technical and psychological architecture today to be ready for the future shocks of tomorrow.
Mitchell A. Chester, Esq., is a member of the American Board of Trial Advocates Fort Lauderdale Chapter and a participant of the group working with the 17th Judicial Circuit in the development of virtual jury trials.
A Report on the Cook County, Illinois, Jury Survey
By Michael Pressman, Research Fellow
I. Introduction
This newsletter piece reports on the results of a jury survey carried out this fall in Cook County, Illinois. We first reported on this survey in our August newsletter. We were involved in crafting the survey and we thank Chief Cook County Circuit Judge Timothy C. Evans for including us in this project.

The goal of the survey was to determine the public’s willingness and ability to perform jury service remotely—and to compare this to the public’s willingness and ability to perform in-person jury service.

As the reader will see, the data arising out of the survey are interesting and informative in and of themselves. They also, however, provide information that is the first step of an exploration that can and should inform the county’s practices. Although, as will be discussed, additional fruitful routes of inquiry exist, the Cook County survey provides a valuable window into prospective jurors’ capabilities and preferences regarding jury service.
Section II of this piece provides background regarding the survey, Section III provides the questions included in the survey and the survey’s results, Section IV provides additional observations and more fine-grained details about the data, Section V discusses some additional implications of the data and additional inferences that might be able to be made, and Section VI provides some concluding thoughts.
II. Background

On October 19-20, 2020, Cook County’s Jury Administration sent a jury survey in the mail to 15,904 individuals selected randomly from a pool of 292,035 prospective jurors who had validated addresses. Accordingly, the survey was sent to 5.4% of the prospective juror pool. The mailed survey asked that recipients submit their responses online on the court’s website ( ), and responses were due on November 6, 2020. The online system remained open beyond that date, however, and responses continued to be submitted through December 2, which is the date on which the data were calculated.

As for the survey’s purpose, it was to determine the extent to which prospective jurors in Cook County were willing to, and capable of, performing jury service remotely—and to compare this to the public’s willingness and ability to perform in-person jury service.

As of December 2, 2020, 2,512 of the 15,904 individuals who were sent the survey (i.e., 15.8%) submitted responses to the survey online. (In addition to the surveys that were submitted online, the court also received 112 emails and 56 letters stating that the intended recipient either was deceased or had relocated out of Cook County. These responses are not included in the data below.) The following are the results from the survey that was completed by 2,512 prospective jurors.

III. Survey Questions and Results

1. Are you a citizen of the United States?
Yes: 2,380 (94.7%)
No: 131 (5.2%)
Missing: 1 (<0.1%)

2. Are you a resident of Cook County?
Yes: 2,481 (98.7%)
No: 30 (1.2%)
Missing: 1 (<0.1%)

3. Do you have a location where you could participate by videoconference without being distracted or interrupted? 
Yes: 2,059 (82%)
No: 452 (17.9%)
Missing: 1 (<0.1%)

4. Do you have a web camera, speakers, and microphone connected to or integrated into your device? 
Yes: 2,116 (84.2%)
No: 395 (15.7%)
Missing: 1 (<0.1%)

5. Do you have access to a computer, smart phone, or internet capable device, such as a tablet, that will allow you to participate by videoconference?
Yes: 2,307 (91.8%)
No: 203 (8.1%)
Missing: 1 (<0.1%)
6. Do you have access to an internet connection that will allow you to participate by videoconference? 
Yes: 2,272 (90.4%)
No: 239 (9.5%)
Missing: 1 (<0.1%)
7. Do you understand the English language?
Yes: 2,304 (91.7%)
No: 207 (8.2%)
Missing: 1 (<0.1%)

8. Have you ever used Zoom, Skype, or similar internet videoconferencing software before? 
Yes: 1,982 (78.9%)
No: 529 (21%)
Missing: 1 (<0.1%)

9. Type of jury service interested in:
Remote Jury Service Only: 2,005 (80%)
In-Person Jury Service Only: 152 (6%)
Either Remote or In-Person Jury Service: 352 (14%)
Missing: 3 (<0.1%)
IV. Additional observations and more fine-grained details about the data

In light of 80% of those responding preferring remote jury service to in-person jury service, 6% preferring in-person jury service, and 14% being willing and able to do either, this means that 2,357 (94%) of those who responded to this survey would be willing to do remote jury service and 504 (20%) would be willing to do in-person jury service.

Out of the 2,512 responses to the survey, 967 (38.5%) were from residents of Chicago. The other 1,545 (61.5%) responses were from suburban parts of Cook County.

Of the 504 responses expressing either a willingness to do or a preference for doing in-person jury service, 210 (42%) were from residents of Chicago and the other 294 (58%) were from residents of suburban parts of Cook County.
Of the 2,357 individuals who expressed either a willingness to do or a preference for doing remote jury service, the following describes their responses to the survey questions:
·     1,909 (81%) have used Zoom, Skype, or similar internet videoconferencing software;
·     2,184 (93%) have access to an internet connection that will allow them to participate by videoconference;
·     2,210 (94%) have access to a computer, smart phone, or internet capable device, such as a tablet, that will allow them to participate by videoconference;
·     2,048 (87%) have a web camera, speakers, and microphone connected to or integrated into a computer device;
·     1,999 (85%) have a location where they could participate by videoconference without being distracted or interrupted. 

V. Implications / possible inferences that can be made

The results provide information that is the first step of an exploration that can and should inform the county’s practices.

For example, if paired with additional data, the data regarding the percentage of recipients who responded to the survey and the data regarding the percentage of those who responded that are willing to do a particular form of jury service could help determine how many summonses might be needed in order to recruit a particular number of jurors.

First of all, if we have reason to assume that—or have data supporting the fact that—the percentage of prospective jurors who filled out the online survey is equal to (or similar to) the percentage of prospective jurors who would appear for jury duty, then we can see that the likely response rate to juror summonses would be 15%. We can then use this number as the basis for the following inferences. (If the percentage of prospective jurors who respond to summonses for jury duty diverges from the 15% figure, then the actual number can be substituted for the 15% figure in the following inferences.)

If we were to assume that the group of individuals who completed the survey is completely representative of the population of prospective jurors in Cook County in terms of their willingness to participate in remote jury service and their willingness to participate in in-person jury service (and assuming the 15% response-rate figure mentioned above), we would get the result that approximately 7 summonses would be needed to be mailed in order to get 1 prospective remote juror and that approximately 32 summonses would need to be mailed in order to get 1 prospective in-person juror. The expected yields of the different types of jury summonses would be valuable information for the court, and thus the information that it is derived from—i.e., information regarding the willingness of prospective jurors to serve in person and remotely—is valuable information as well.

There is, of course, reason to think that the group of prospective jurors who responded to the survey might not be representative of the full population of prospective jurors in Cook County. After all, even though the survey was mailed to its recipients, the survey was filled out online—not by hand. Many of the findings in the survey are about whether people have access to things related to internet and computer use and remote jury service, and there is reason to think that a non-negligible portion of the 85% of prospective jurors who were non-respondents might have been non-respondents because of their lack of access to (or facility with) computers and the internet. As a result, this means that the group of people who responded to the survey might be much more comfortable with remote jury service than the whole population of prospective jurors would be. The extent to which this is the case, however, is unclear.

In order to explore the extent to which this is the case, an interesting follow-up study could be for the court to send an identical survey to prospective jurors in Cook County and require that the survey be returned by mail. 

Further, there are interesting questions regarding how the rate of response for the survey compares to the rate of response for jury summonses, and the data obtained in the survey could be used in conjunction with prior (or future) data about prospective jurors’ rates of response to jury summonses.  
VI. Conclusion

Even if additional surveys will help provide an even more detailed picture of the landscape of prospective jurors, their preferences, and their capabilities, the data obtained by the Cook County survey is an extremely valuable first step. It enables us to begin to get a sense of prospective jurors’ capabilities and preferences regarding jury service.

Going forward, it is crucial for us to gather this type of information and, as best as possible, to formulate our policies and procedures with this information in mind. Although there are various interests, values, and goals that a jury system seeks to promote and balance, one important one is having a system where jurors constitute a fair cross-section of the community—and having a system that enables, as best as possible, all prospective jurors to in fact be jurors. Now that we are capable of carrying out jury service not only in person but also remotely, it is incumbent upon us to use our technological tools to make jury service more accessible to those who might otherwise (and for whatever reason) have been unable to participate in person. Using surveys—such as Cook County’s survey—to gather information about the capabilities and preferences of prospective jurors is an important step in furthering these goals.

Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.

Summit Panel Recap: Practical Tips for Post-Pandemic Trials – Hybrid Jury Trials

By Benjamin Perkel, J.D.
Here we are over nine months into the COVID-19 pandemic, and as the calendar now turns to 2021, the outlook for civil jury trials still appears somewhat cloudy. On one hand, recent approvals of the Pfizer and Moderna vaccines are a significant step towards reopening America’s courthouses and represent a hopeful tool that should help us towards a “return to normal.” On the other hand, infection rates and fatality counts continue to accumulate at alarming levels across the nation. We also know that manufacturing, distributing, and administering vaccines are complicated and time-consuming challenges. These challenges remind us that uncertainty still abounds.

While civil jury trials are likely to proceed primarily virtually in the imminent future due to public health concerns, it is anticipated that a hybrid jury trial model will take their place as 2021 proceeds. Though timelines for implementation will likely differ amongst jurisdictions, now is the time to begin preparing for hybrid civil jury trials.

A hybrid civil jury trial model incorporates aspects of both in-person and virtual proceedings within the same trial. Early on during the pandemic, and largely out of necessity, courts successfully completed jury trials by blending in-person and digital modes of interaction. Following these experiences, many jurisdictions around the country began developing their plans for proceeding with civil jury trials based upon some form of a hybrid model – that is, until recent spikes in the spread of COVID-19 required a pivot in favor of virtual trials to ensure the safety of judges, attorneys, litigants, jurors, and court staff. However, this shift towards fully virtual civil jury trials appears to be temporary, and courts will likely resume plans for phasing in hybrid civil jury trials as soon as public health conditions permit.

Hybrid civil jury trials were a prominent topic discussed throughout November’s two-day Summit entitled “Covid, the Court, and the Future of the Jury Trial,” which was hosted by the Online Courtroom Project and the National Institute for Trial Advocacy (and for which the Civil Jury Project was one of many co-sponsors). This piece reviews practical tips and lessons learned from members of Panel 1 and Panel 2 on the first day of the summit (November 13), comprised of judges, attorneys, and court administrators who have participated in various aspects of hybrid civil jury trials during the pandemic.

Panel 1: Practical Tips for In-Person Trials

Ken Broda-Bahm, PhD., Senior Litigation Consultant, Persuasion Strategies, Denver CO

David Slayton, Administrative Director, Office of Court Administration, Austin, TX;
Hon. Kerry W. Meyer, Hennepin County District Court, MN;
Cory BulandSusman Godfrey, Gastonbury, CT.

Panel 2: Practical Tips for Hybrid and Online Trials

Hon. Mark A. Drummond (Ret.), Executive/Judicial Director, Civil Jury Project at NYU School of Law

Hon. Matthew W. Williams, King County Superior Court, WA;
Hon. Jo-Lynne Q. Lee, Alameda County Superior Court, Department 18, San Francisco CA;
Coreen Wilson, Partner, Weick Wilson, PLLC., Seattle, WA;
Kenneth R. FriedmanPartner, Friedman | Rubin, Bremerton, WA.

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
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
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
§ 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
·     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
o  Presenting to a virtual jury requires a related, but different skillset than presenting to the jury in a
§ 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
·     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. 


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:
Benjamin Perkel, J.D., is a Jury Consultant Advisor to the Civil Jury Project and can be reached at Ben applies his knowledge of psychology, social science research, and persuasive communication techniques to help lawyers prepare and present compelling arguments tailored to the various audiences they encounter during the litigation lifecycle.

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