Civil Jury Project
Volume: 5 | Issue 5
May - 2020
Opening Statement
Dear Readers,

The founder of the Civil Jury Project, Steve Susman, was involved in a serious biking accident in Houston. He was knocked unconscious at the scene and continues to be under hospital care. We look forward to his ability to rejoin us in the work that has meant so much to him and to all of us over these past years.
Professor Samuel Issacharoff
Faculty Director

All of us at the Civil Jury Project echo Sam's sentiments for Steve's recovery. In our last newsletter, our focus turned to courts coping with the pandemic. Since then, we have reviewed administrative orders dealing with Covid-19 issues from courts around the country. We have watched and learned from numerous webinars addressing the same topics. We have started to brainstorm model orders for virtual civil jury trials.

So what can the Civil Jury Project do now?

Courts across the country have entered orders determining which cases have priority. We realize—and agree—that civil jury cases probably are at the bottom of the list for most courts. Cases with priority are emergency matters such as orders of protection, in-custody bond hearings and felony cases.

Speedy trial deadlines have been extended, but criminal jury trials will need to resume soon.  Many legal scholars question whether a remote criminal jury trial will satisfy the Confrontation Clause. Many studies have been done on the differences in live testimony versus testimony over a video screen.

We hope that we go back to the courthouses soon. However, they will not be the same. Courtroom seating will be modified to allow for social distancing between jurors. The cramped jury boxes will not be used. Jurors will sit in the gallery some distance apart from each other. Large rooms in the courthouse will be turned into the jury deliberation rooms.

So courthouses around the country will, in essence, shrink. The backlog of criminal cases must be heard. Is there anything we can do to help the criminal cases? Where do these issues leave civil jury trials?

It is safe to say that virtual civil trials have fewer constitutional issues. Most issues will be solved if both parties agree to a virtual civil jury trial. Perhaps virtual civil jury trials can lead the way and provide a template should criminal cases need to be heard online in the future.

There could be a middle ground. Courts could adopt a partial virtual trial. Jury selection might be the starting point. Questionnaires can be sent to potential jurors. Court and counsel can confer on excusing those who cannot or should not serve. The remaining venire could be examined remotely. Instead of 100 potential jurors traveling to a courthouse, only those selected will make the trip. A trial then could proceed in person with social distancing in place.

We have assembled a working group so we can model a complete virtual civil jury trial. We are meeting again this week. Our goal is to model what a virtual civil jury trial might look like well before courts start entering orders reinstating civil jury trials.

Ellen Susman, Steve's wife, a former journalist and television producer, alerted us to tonight's episode of the show All Rise . Tonight's (May 4) episode at 9:00 E.T. on CBS will feature a virtual trial. In past issues, we have reported on the television show Bull , which involves a jury consultant.

It is important for jury trial attorneys to know how the legal system is portrayed on television and in the movies. Many studies have been done on what is commonly called the " CSI effect" and to a lesser degree, the effect of shows such as Law & Order and NCIS . With Steve in mind, we will be tuning in and reporting on the episode in our June newsletter.

In this edition, we bring you reporting from one of our research fellows, Michael Pressman, on what may be one of the first virtual bench trials held in the United States. Another research fellow, Michael Shammas, joins Michael Pressman for their joint article on the constitutionality of virtual civil jury trials. We end with a piece by Ross Laguzza on the effects the pandemic might have on juror decision making.

Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our  website . In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or  here .
We hope to be a resource for courts looking at virtual trials. We invite our readers to send us model orders that are being proposed or are already in place regarding remote advocacy.

Last month, my wife, who is a communications consultant, and I did two webinars for The National Institute for Trial Advocacy (NITA). If you are interested in what we told attorneys about effective remote advocacy those webinars can be found here .

Please stay safe out there and, collectively, we will work to get our jury system running again.


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

Upcoming Events
Due to the Stay Home orders, all spring events are being rescheduled to the fall.
Bench Trial by Videoconference
By Michael Pressman , Research Fellow
In various courts across the country, judges have been beginning to conduct civil bench trials over videoconference platforms (such as Zoom). Among the first of such videoconference trials was a one-day civil bench trial conducted by Judge Beau Miller, a state-court judge in the 190th District Court in Harris County, Texas, on Wednesday, April 22nd. The Civil Jury Project took the opportunity to observe the trial, which was livestreamed, and here we briefly report on some of the takeaways from the videoconference trial—which seems unquestionably to have been a success.

The Case

The plaintiff in the case was Adil Ahmed, represented by Richard Daly and John Black of Daly & Black PC, and the defendant was insurer Texas Fair Plan Association, represented by James Old of Hicks Thomas LLP. The trial arose out of an insurance dispute after Plaintiff’s house was damaged during a storm and Defendant refused to pay for repairs, with Defendant arguing that the sum did not exceed the deductible. Plaintiff sued, the appraisal value ultimately exceeded the deductible, and Defendant paid the sums that were found to be owed pursuant to the policy. Defendant, however, did not pay attorney fees or interest and, in the current trial, Plaintiff was seeking to recover the amounts it argued were due to Plaintiff as a result of Defendant’s failure to pay the initial attorney fees and interest. At the close of the one-day trial, Judge Miller requested that the parties submit proposed findings of fact and conclusions of law within two weeks, and he stated that he would issue his opinion thereafter.

Notes regarding trial-by-videoconference

According to Judge Miller, more than 3,000 people watched portions of the livestreamed trial, and observers were able to view the trial by clinking on a link on the Texas Courts website. As for counsel in the trial, who used a different link, they were expected to appear in business attire, which they did.

Viewers were instructed not to record the proceedings. They were told this both via a message on the screen at the beginning of the trial and via text on the webpage of the livestream (located beneath the video window). The message stated: “No person, other than the court reporter, may record a court proceeding without the court’s permission. This prohibition applies to all persons, including members of the public viewing court proceedings on any court’s live stream and to persons with the ability to record any virtual court proceeding. Any person found to be in violation of this order faces contempt proceedings, including a fine of up to $500 and a sentence of confinement for up to six (6) months in jail for each act of contempt of court.”

At the beginning of the proceeding, Judge Miller requested and received consent orally from counsel to conduct the trial being via Zoom. Judge Miller also addressed a variety of other preliminary housekeeping matters pertaining to the videoconference nature of the trial, including that counsel should be especially mindful of the need to not interrupt one another.
The court reporter was a participant in the Zoom conference and had her own window, but participants and observers were unable to see her, as she had covered her camera. She was able to see all of the participants in the trial, and this was necessary for her to carry out her role of transcription.

Exhibits were often shared and shown on the Zoom screen. This was not the only source that the participants had to explore the exhibits being presented and discussed. Parties were required to exchange exhibits and provide copies to both the judge and the court reporter a day before trial, so the judge and court reporter both had paper copies at their disposal during the proceedings. This likely was a helpful measure because, while showing documents on the screen was a useful feature that worked well, documents would often be scrolled through and removed from the screen by the party sharing the exhibits, and it might at times have been difficult for participants to fully keep up without paper copies at their disposal.

There were some interruptions here and there—for example, with the court reporter at times stating that she could not hear what the parties were saying. This, however, did not seem to occur with a greater frequency than one would expect during a trial in a courtroom, where court reporters from time to time ask parties to repeat words or phrases that they missed. Another interruption was an audible message alert on one attorney's computer.


The trial clearly seems to have been a success. Any technological difficulties were minimal, and the trial proceeded smoothly. Although some might have concerns—be they legal or be they practical—regarding whether trial-by-videoconference in civil bench trials can be extended to civil jury trials or to criminal trials, Judge Miller’s trial provides grounds for optimism. It provides optimism for the continued use of videoconference in the context of civil bench trials, and it also provides optimism for the possibility that civil bench trials by videoconference will serve as a springboard for judges to employ videoconference in the contexts of civil jury trials and criminal trials. While these contexts raise additional issues, a successfully conducted civil bench trial via videoconference is a key first step. We express our gratitude to Judge Miller—and to the other judges across the country who have begun to conduct trials via videoconference—for being willing to blaze a new trail forward.
Michael Pressman is a research fellow for the Civil Jury Project.
Predicting the Pandemic's Impact on Juror Decision-Making
By Ross P. Laguzza, Contributor
Over the last few weeks, trial lawyers and corporate clients have asked me to estimate the lasting effects of the pandemic on juror perceptions and attitudes. This is a simple question with a complex answer.

While I have been consulting for over 30 years, including significant events such as 9/11 and the economic meltdown, and while I love to get my crystal ball out as much as the next person, neither I nor anyone I know has ever negotiated a pandemic (the last one, as we have been reminded, was in 1918, and though it comes as a shock to my children, I was not around for that one).

The stark reality is that at this point, no one really knows what is going to happen next.

I've asked clients to think about the question of significant effects as a function of time and uncertainty. As depicted in the conceptual chart [above], over time, circumstances related to the pandemic become less uncertain. Any attitudes we might measure now and in coming days will be quite unstable.

As certainty increases over time, attitudes become more stable. For example, early on, there was a great deal of instability and fear, which seemed to grow every day. Businesses closed, jobs ended, toilet paper disappeared, and many of us were plunged into extended family time. As the pandemic crisis unfolded, every day — and in some cases every hour — it seemed that everything changed. Whatever you thought you knew on Monday was no longer true on Tuesday.

As denial gave way to what seemed like daily revelations about the spread and consequences of the virus, changing risk assessments, and new restrictions, it was impossible for the typical person to feel certain about what was happening and what it meant for them. Unlike other natural disasters, which are visible and finite, like a hurricane or earthquake, the pandemic is invisible and constantly evolving and seemingly getting worse and more unpredictable every day.

Measuring juror attitudes when things are so uncertain is not very useful. It's like asking someone in the middle of a car accident how they feel about the price of gas. What people say when they are most fearful and when circumstances are most unstable is interesting in assessing people's current mental status, but it doesn't tell you much about what their mindset will be later.

A recent survey of 8,000 Americans showed an increase in feelings of "solidarity." [1] Will that "fellow feeling" persist once we are back on the roads fighting traffic? It is reasonable to wonder about the long-term stability of that attitude.

However, as things start to settle down, attitudes become more stable, and the "new normal" begins to take shape, it will be interesting to see if: (1) the average juror and the way they see the world has changed in a fundamental way; and (2) these fundamental changes, if any, influence the way they evaluate litigation, and more pertinently, specific types of cases.

It is possible — and even likely — that jurors will be fundamentally changed, but those changes still don't overtly manifest in litigation or are only relevant in specific types of cases. This is part of the complexity because the equation will be multifactorial and won't reduce to convenient aphorisms. In addition, how long any changes actually last as distinct factors before being absorbed into the matrix of daily life will be an empirical question.

For example, we noticed that following the 2007-08 economic meltdown, people reported having been affected, and most had specific ideas about who was to blame. [ Editor's Note: The results of the survey questions are available at this link.]

What is fascinating about these data is that while jurors held strong attitudes and clearly were still angry about the economic collapse, as the worst days receded, these attitudes and experiences typically did not correlate with verdicts — even in cases directly on point. This suggests that while jurors can be changed by significant events, these changes don't always operate in simple and obvious ways in their verdict decisions.

The most important point is that we can't know which attitudes will matter most until we have stability.

Since we are not there yet (and as of this writing, much of the country is still waiting for an accurate projection of how and when the country will restart), it is hard to make an accurate forecast about any of this, but we do know which variables to evaluate when the trial process restarts in earnest.

1. Feelings of Helplessness, Anger and Loss of Control

Generally, people who feel decreased amounts of control in their life tend to gravitate toward plaintiffs. Not only can they identify with the plaintiff as a victim, they see the jury process as a way to effect some control in the world.

Many people may feel for some time that they have no control over their economic well-being. Many will be under severe economic duress for reasons completely out of their control. Some jurors may have increasing doubts about science and medicine. Others may be close to people who actually experienced the virus firsthand.

Some people who internalize this duress will feel helplessness. As Kübler-Ross[2] posited decades ago, people move through distinct grieving stages, which she identified as denial, bargaining, anger, depression and acceptance.

We would expect people who are stuck at the anger stage to be particularly difficult to evaluate during jury selection, and much would depend on with what, or with whom, they are angry. Are they mad at the government, the health care industry, their employers? Are they out for revenge? Do they want to hurt someone? These jurors aren't automatically good for either side.

2. Heroes and Villains

We don't know yet exactly who the heroes and villains will be in the narrative that most jurors come to accept about this pandemic. Right now, health care professionals seem to be the main heroes, but it is too early to say what effect that will have, if any, on how jurors think about cases involving medical professionals.

If, at some point, a pharmaceutical company develops a miracle vaccine in record time, will that mean that jurors have more positive feelings about big pharma in the context of product liability litigation? Or will they now hold the industry to an even higher standard of conduct? If jurors ultimately conclude that they were let down by the local, state or federal government, it may have significant implications for their general disposition toward "the system" and case-specific calls to "fix" it.

3. Emotional Overload

For some people, in the weeks and months following the "restart" into the "new normal," the thought of doing even limited jury service will seem practically and emotionally unfeasible. I suspect many judges will be sympathetic to people saying that they simply cannot afford to miss any work or any opportunities to pursue work.

Some jurors may actually admit to stress exhaustion that makes them unfit for jury duty, and I wouldn't be surprised if these jurors are excused as well. Then again, depending on the rules for the new normal, jurors may be excused simply for admitting to a fear of being in close proximity to other people. This means that, for a while, juries will be far less diverse than they were pre-pandemic.

4. Personal Relevance

In normal times, cases that jurors find personally relevant are processed more deeply. Even cases that are technical and boring are often reframed in a way that makes it more personally interesting for jurors.

However, even in the best of times, jurors will resent lawsuits between big companies over a contract or something that jurors feel could have been settled over a conference table. We expect that for a while, jurors will particularly resent being asked to give their time and attention to a case that seems quite trivial in the context of world upheaval.

Who has the emotional bandwidth to worry about whether this or that company pays or receives millions of dollars when people are jockeying for position at the food bank? This may result in jurors not investing in particular cases and doing whatever they can to "get out of here as fast as possible."

Either party to a lawsuit would be worried about the damage that could be done by jurors who feel this way. On the other hand, cases that are high in personal relevance — for example, a wrongful termination case — may just be too triggering for many.

5. Survival Instinct

There will be those people who, because of positive circumstances, past experience or personality, come through this more robustly than others. They may have been able to play some useful role in helping others during this time, or they may have received help and support when they needed it.

They may have felt a sense of community and participation in efforts to contain the spread of the virus. They may have been isolated from economic consequences. There may be many other reasons why they are generally unscathed, but the important thing is that they have not been damaged and are not under ongoing duress.

It would be wrong to conclude, however, that these people are unchanged. You don't have to be traumatized to experience a change in some aspect of your worldview. Yet, these are the types of people who may seem most like people in the "old normal" and may be least likely to seek or receive relief from jury service.

Implications for Trial

It is important to understand that people will be under continued stress long after we have moved into the new normal part of the continuum. Feelings of resentment and anger may linger for many months, depending on what happens to the job environment. For a variety of reasons, people may find it difficult to sit through any trial for any length of time.

The one thing that is unique about the pandemic is that it has affected just about everyone in some way. As a trial attorney, and more importantly as a human being, you have some insight into what people have had to contend with over these past few weeks and will, in some form or another, contend with for a long time.

In cases where lawyer-directed voir dire is permitted, it will be important to have authentic conversations with prospective jurors in terms of their current status and how it might affect their ability to serve on the jury. If you are open, honest and genuinely interested, people will tell you. The fact that you are interested will also make you seem more trustworthy.

In having this conversation now, or anytime, it is important to avoid trying to convey that "you know just how they feel" or "you went through the same thing" because jurors know that you occupy a different rung on the socioeconomic ladder and that you and they likely do not experience hardship the same way. What is important is that you make them feel safe and valued so they tell you what they are actually feeling.

In cases in which you can't talk directly to the jury, it will be important to persuade the judge to allow a written questionnaire. More judges may be open to this technique under the circumstances. Jurors with remarkable answers could then be interviewed for clarification and additional assessment by the parties.

Two questions I would want to add to any standard battery of questions normally asked of every prospective juror are:

  1. Could you tell me how the pandemic has affected you personally?
  2. Would your personal experience during the pandemic make it hard for you to participate as a juror in this case for any reason?

Anyone who has ever suffered through one of my presentations knows that I believe jury selection is just a tiny fragment of the work necessary to capture the hearts and minds of jurors. No matter what the process and how many strikes are afforded, you eventually run out of strikes before you run out of jurors you want to strike.

This ultimately means that you have to build a narrative that will appeal to jurors who may start out opposed to your position, or at least are unenthusiastic about your perspective. Crafting an effective and persuasive narrative that motivates jurors to find for your client is, in normal times, where most of the heavy lifting gets done.

In the new normal, we expect this will be especially true. For example, if you are defending a product liability case to a post-pandemic jury in the new normal, knowing that your jury has lost faith in the system designed to protect them will be quite important for the defense attorney seeking a creative way to connect with jurors. The bar for corporate conduct may be set higher than ever, but knowing this creates an opportunity to reassure jurors that, at least in some places, the safety system is fully operational.

Often we find that until there is adequate anxiety reduction, jurors find it difficult to attend meaningfully to otherwise important facts and arguments. No matter what the case, the challenge will be to find a moral imperative that makes sense to jurors based on their current thoughts and feelings about what is right and wrong with the world.

In a large and complex corporate contract case, jurors may be agitated, and even offended, by what seems like a petty squabble over technicalities. The challenge here will be to convince jurors that getting the outcome right in a case like that actually, in its own way, makes the world just a bit more predictable and a little less chaotic — where agreements matter and people live up to their word.

Finally, it is important to realize that as the pandemic crisis recedes, the actual lasting effect on juror decision-making in specific cases will be difficult to measure. This certainly was the case for 9/11 and the Great Recession in the first decade of this century.

People will be changed by significant events, but soon these changes become part of the new normal, are integrated with all the other variables that determine a person's worldview, and no longer stand out as individually remarkable. You can bet we will be assessing this all along the way.
Ross P. Laguzza, Ph.D , is a founding partner of R&D Strategic Solutions LLC and trial consultant. This article originally appeared in Law360 (April 22, 2020) and is republished here with permission.
Look out for the June Newsletter!
Tune in next month for more articles by our judicial and academic advisors. We will also report on our recommendations for virtual civil jury trials.
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Stephen Susman
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Michael Pressman
Research Fellow
Samuel Issacharoff
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Michael Elias Shammas
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Mark Drummond
Judicial Director
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