"Toto, I've a feeling we're not in Kansas anymore."
-Dorothy Gale,
The Wizard of Oz, MGM (1939)
Dear Colleague,
Welcome to our “reports from the field” edition. The report from my office is that I find myself in many robust discussions about remote jury trials. As I have written many times before, we all hope for a vaccine so we can get back to court in person.
For those who might feel that in-person is the only way to go, I have been suggesting that walking into a Covid-modified courtroom may give one the same feeling Dorothy experienced when she landed in Oz.
When I reached out in early September to our first author, the Honorable Matthew W. Williams, he reported there were currently 21 jury cases (7 criminal and 14 civil) being tried in King County, Washington. The picture below is a civil case courtroom set up in a local convention center.
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We have been working with court systems around the country on remote jury trial issues, with a particular emphasis on remote jury selection. Remote jury selection certainly gives the greatest safety benefit for all concerned and arguably gives attorneys a better sense of the juror. The alternative is voir dire at a distance, through not one, but possibly two panes of plexiglass with perhaps the jurors allowed to keep their masks on. Having a full screen view of a juror may be a better option.
When asked by judges whether to adopt remote jury trials or remote jury selection I have settled on a “Swiss Army Knife” analogy. Until Covid-19 is defeated, shouldn’t we offer as many options as possible for access to justice?
There is good news coming from those who are navigating the remote world. We begin with Judge Williams. The State of Washington was hit hard and early in the pandemic. We reached out to him to pose four questions about his experience. His report is enlightening, encouraging and amusing. His report may quell some fears for those evaluating remote jury selection. It appears that remote jury selection may result in a deeper and more diverse jury pool than in-person selection.
We then travel diagonally across the country to Florida, where our long-time contributor, Mitchell A. Chester, updates us on the work being done in the 17th Circuit. Their efforts in reaching out to Zoom to craft a more user-friendly platform for court proceedings will benefit courts around the country.
We then go back to the State of Washington with a report from two of our Jury Consultant Advisors, Dr. George Hunter and Dr. Andrea Blount Hunter, on remote jury selection and the specifics of how it works.
As always, we welcome your views on these issues. It has never been more important to outline options for access to justice and we welcome all views. Please send them to us at [email protected]
and in the meantime, we wish you all the best.
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Sincerely,
Hon. Mark A. Drummond (ret.),
Executive/Judicial Director
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Due to the ongoing COVID-19 pandemic, all in-person events are canceled for the remainder of 2020. |
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Remote Jury Selection: A Judge's Report from the Front Lines
By the Honorable Matthew W. Williams
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Q. Washington was one of the states that was hit hardest early on. What did you do first?
Everyone will remember that in March 2020 the knowledge base about the virus seemed to change daily. Every day it seemed like we got another shock as the seriousness of the pandemic became more and more apparent.
The Governor of Washington State was one of the first to issue a Stay-At-Home order for the general public. While that order did not apply to our operations (Separation of Powers), our State Supreme Court recognized that extraordinary action was required to keep the public safe. They issued a series of emergency orders that helped us ramp down all but essential operations. They issued orders that allowed courts to move some proceedings into virtual space, so long as the court made an appropriate record, took steps for public access, and ensured the ability of the public to get copies of the record.
Our Court is NOT nimble. Basically, we are a large ship with 53 rudders:
The King County Superior Court is a court of general jurisdiction (with 53 independently elected judges). It is the 15th largest court in the nation. And we do the full breadth of civil (torts, asbestos, class actions, land use, family law, dependency, protection orders, probate…) plus criminal and juvenile offenses, AND appeals from lower courts. Every division has its own processes and set of stakeholders.
The changes came daily (sometimes hourly). So, our Chief Presiding Judge and the departmental presiding judges instituted an 8:00 a.m. daily court-wide teleconference. That daily touch point for the entire court, including any interested staff and the presiding judge of our district court, paid immense dividends. It unified our court. It provided a forum for discussion and quick communication of the decisions that had to be made and implemented. It allowed quick stakeholder communication in our diverse areas of practice. It allowed us to quickly and RATIONALLY ramp our operations down (and later to ramp back up).
Our Presiding Judges issued a series of emergency Ramp Down orders that kept some limited operations in person with appropriate precautions, continued/recessed others, and moved almost everything else into either a remote or virtual court space.
We had some cases that were moved into a completely virtual space (in compliance with orders from our Supreme Court) where the courtroom was empty and locked, and the judge and parties met in virtual space. In our court, we were on the record in the courtroom, but the courtroom was dark and locked. (Like that scene from the movie “Real Genius” where the student walks into a classroom where the students and professor have been replaced by tape recorders.) We posted information on how to get into the virtual space. We made the record available on request for free.
We had some cases where the judge (and only the judge) was on the record in an unlocked courtroom and the parties were attending either telephonically or by video.
The Ramp Down was complex. Everyone was pushed past their comfort zone. Judges and staff found themselves doing things that would have been inconceivable just weeks before. Judicial officers and court staff were directed to remain out of the courthouse unless specifically directed to come in. Everything that could be moved into a telecommute environment was moved there.
We found that our technology was woefully inadequate for the challenges that we were facing, and we found ourselves trying to conduct virtual hearings using the equivalent of a conference call. We did a lot of “McGuyver”-ing.
Most importantly, together we faced the daily challenge to our preconceptions as to what truly NEEDED to be done in court, as opposed to what really could be done remotely.
We faced (and still face) the “but we’ve always…”, and the “but I’m not comfortable/familiar with…” and the “but it’s better if…” We embraced the essential reality that we simply don’t live in “better” any more.
Ultimately, those daily meetings would form the basis of our division of tasks and collaboration when it came time to deal with the crisis…and then the even harder task of ramping back up.
Q. It appears that jury trials will not commence in some states until later this year or early next year. What has been your experience?
It is good to be cautious and thoughtful in any ramp-up plan. The consequences of approaching the dangers of the pandemic without careful thought are too great to rush the process. Like everything we do as judges, we have to balance the need to make sure we do not become a disease vector, with the reality that our society cannot survive without a functional justice system.
In King County we have been fortunate to have the support of a remarkable administrative team, a dedicated (if woefully understaffed) IT team, plus the creativity of 53 judges, their bailiffs, and a team of remarkable and committed court clerks. We have been fortunate to have a local bar filled with committed attorneys who understand that we can’t just hide from the crises, and who brought their collective energy into this process. With all of us working together (mostly) we focused a lot of creativity in fully vetting and scrutinizing each aspect of our ramp up process.
We adopted two basic philosophies. 1) Keep people out of the courthouse unless they need to be there. 2) If they need to be there, keep them socially distanced and require everyone to wear PPE. Follow the best advice from health experts, and don’t be afraid to enforce the rules.
Social Distancing & PPE: We have three main courthouses. We implemented social distancing and PPE requirements in each, and reconfigured our courtrooms so that we could have socially distanced juries (at the expense of most, but not all, of our spectator space). Every trial now requires two courtrooms: one for the trial, and a second for the jury to use as a socially distanced jury room. We rented a local convention center and built out 6 temporary socially distanced civil courtrooms. (It was not safe or practical to transport criminal defendants.)
Limiting the need to be physically present in the courthouse: We required all civil motions and bench trials to be done by video unless in-person appearances were authorized by the assigned trial judge.
We moved most of our jury operations into “asynchronous” practice. In other words, anything that could be done prior to a juror physically coming to the courthouse, we did that. Instead of being summoned into a big room with other jurors to wait for court assignment, jurors were assigned to a trial judge, and managed by that judge. They only come to the courthouse when the judge specifically tells them they must physically report. Juror questionnaires, preliminary hardships, and most voir dire is done without the jurors being physically in the courthouse. Some civil jury trials are done entirely by Zoom. Some criminal trials are done with some witnesses testifying remotely after the judge does an analysis under Maryland v. Craig, 497 U.S. 836 (1990), State v. Cayetano-Jaimes, 190 Wn. App. 286, 297, 359 P.3d 919 (2015) and State v. Sweiden, 13 Wash. App.2d 53, 461 P.3d 378 (Div III, 2020) (which contains a nice compendium of the law related to confrontation).
So, the wheels of justice began to churn forward. Slowly. Deliberately.
And most of us have adapted to one essential reality: A witness who appears unmasked via zoom is much easier to read than a masked / socially distanced witness in a courtroom. Same thing for a juror during voir dire.
We’ve learned that those who want everything done in the courtroom are still thinking that it will work like court in pre-COVID times. And…of course…it doesn’t.
This IS complex…and you can’t foresee every challenge…. But what we are finding is that once you get started, as the issues come up…you solve them. It turns out that when you approach it that way…as a problem you MUST solve… it’s actually not that hard. But you HAVE to get started. Consider this:
"At some point, everything’s gonna go south on you… everything’s going to go south and you’re going to say, this is it. This is how I end. Now you can either accept that, or you can get to work. That’s all it is. You just begin. You do the math. You solve one problem… and you solve the next one… and then the next. And if you solve enough problems, you get to come home. All right, questions?"
Mark Watney, The Martian, 20th Century Fox (2015).
Q. There have been concerns raised about not being able to get jurors to serve? Has that happened?
To a degree.
Everyone is concerned about being in an enclosed space with a bunch of strangers. But by ADDING the option of jurors to participate in voir dire remotely, and then educating them in our summons, and during the voir dire process about the stringent steps we have taken to keep our jurors safe, most of our jury pool is actually quite willing to serve.
In my last trial (a mesothelioma case), a challenge to our process in the time of COVID was raised based on the assumption that jurors over the age of 60 would disproportionately claim hardships or be excluded. As it happened, I had very good tracking of my entire jury pool. The data didn’t support that conclusion. In fact, the COVID-related hardships requests of the 22-35-year-olds appeared greater due to economic desperation and a lack of child care (no in-person schools).
So there have been some challenges and we summon larger jury pools per trial. That being said, since we have better connectivity with our jurors, and have made jury service less burdensome, some of those issues have balanced out.
Q. There is the additional concern that the jurors who do serve will not be a representative cross-section due to the technological divide coupled with the pandemic hitting some demographic groups harder than others. What has been your experience?
The exact opposite. We find we have more diverse jury pools.
There are a few reasons why.
1) We didn’t eliminate the opportunity for jurors to come in person for jury selection. We just ADDED
the option for jurors to participate in jury selection from their homes/workplaces. Most jurors take
advantage of this option. In my last asbestos trial, out of a pool of 78, only two opted for the in-person
option.
2) Remote voir dire is less intrusive and more affordable for hourly workers who are struggling to
survive. Their initial time commitment is about 45 minutes to 2 hours. They don’t have to take days off
of work just to get the process started, and it is simply more affordable and accessible to individuals who
really can’t afford not to work (or who have no child care). With “asynchronous” voir dire, instead of
being hauled into court and then sitting and waiting for lawyers and judges to bring them into a
courtroom (sometimes taking 1-2 days before they even get summoned into a courtroom), then taking 1-
2 more days for the judge and lawyers to ask questions, we can complete hardships and challenges in
about 1-2 hours (of the juror’s time). That means that we have a much broader pool of jurors who have
the ability to serve.
3) We tend to conflate the digital divide with the socio-economic divide. While they might have been the
same thing in 1980, this really isn’t the case in 2020. Traditional jury service relies on jurors receiving a
summons in the mail, and then having to physically appear in court. The first hurdle for our jurors is
having a stable brick-and-mortar address where they can receive mail. With increasing homelessness
and transitory housing, people find it more difficult to have a stable brick and mortar mailing address
(which our traditional model of justice assumes). For so many in these desperate economic times, that
kind of stability is simply beyond their economic reach. But if we can connect with potential jurors using
the mail, using cell phones, using email addresses, we expand our potential jury pool to include jurors
who may have otherwise been unable to be part of the process.
The second hurdle jurors face is getting transport to the courthouse. With limits on public transportation
options (in part due to COVID), that can be quite a barrier for many of our potential jurors. With respect
to private transportation, more people have smartphones than have cars. The sad reality is that by
requiring our jurors to try to find / afford transportation and risk the potential of COVID exposure, we
can unwittingly create barriers for jury service. By ADDING the opportunity for jurors to participate
remotely, (and not removing the ability of those who prefer to participate in person), we have actually
expanded the ability of distressed populations to serve.
This is not to say that remote voir dire is without its challenges. In my last trial, I had a juror who had an “important meeting,” but who agreed to participate in video voir dire. Turns out she was in a nail salon, got up, paid, and then started walking to her car. I stopped the voir dire, and informed her that she needed to pay attention. She settled into her car, and appeared to focus…for about 15 seconds. And then she started to drive. I had to admonish her twice before she finally pulled over…and then she started walking again. I simply explained to her that we needed her undivided attention and ordered her to appear for an in-person panel. She was not happy, but she complied.
Most jurors are pretty good about not being distracted. There are steps that the trial judge can take to make sure they focus. But it does require thought and vigilance on the part of the trial judge.
Conclusion: Mark Watney was right. You just have to get started. Solve one problem…then the next…then the next.
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The Hon. Matthew W. Williams is a Superior Court Judge for the State of Washington. He was elected to the Superior Court in 2016. Prior to serving on the Superior Court, Judge Williams served six years as a District Court Judge. He is a Judicial Advisor to the Civil Jury Project. |
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The Dynamic Opportunities and Responsibilities
of Virtual Jury Trials
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By Mitchell A. Chester, Esq. |
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Since March of 2020, the vigorous national debate on the efficacy of using the Zoom video platform to conduct jury trials has evolved, sometimes even emotionally.
Supporters are embracing virtual interactive technology to meet the challenges of COVID-19 and have devised proven methods and strategies to use Zoom tools effectively in the jury trial system.
Detractors often express concerns about losing the ability to communicate effectively by remote connections.
Unlike any other time in the legal profession’s recorded history, the velocity of adaptation to circumstances has been profound. In the 17th Judicial Circuit, in Broward County, Florida, it was almost unimaginable in February of this year that in just a few months, thousands of hearings would be conducted via Zoom, and that non-jury trials would emerge as preferred methods and be encouraged.
Through the leadership and vision of Chief Judge Jack Tuter, the local Chapter of the American Board of Trial Advocates, as well as the other judges of the Circuit and their talented and inspiring Judicial Information Systems staff, the transformation to and embracement of Zoom technology, was swift, determined, and steady.
The year 2020 will be remembered as a galvanizing moment in the maturity of legal systems across America. How we deliver legal services and make court appearances will not be the same, nor should they remain mired within inefficient and outdated practices.
Disasters and national challenges often shape society and its sometimes pliable, but reluctant, institutions and professional habits. In 1871, massive fires in Chicago tempted architects to build vertically and transformed future urban centers. Hurricanes such as Andrew in 1992 promoted stricter building codes and underground burial of utility lines. Oppressive and threatening heat waves led to the advent of air conditioning in 1902, which revolutionized human health and opportunity. Frightful and daunting public health threats in the past have produced vaccines and therapeutics to tame exceptional and extreme hazards threatening humankind.
In an exceptional transformation, the legal system has now been reshaped with innovation that protects constitutional rights with the concurrent and forward-thinking assistance of creative and practical court administrative requirements.
Today the challenges COVID-19 presents to the American delivery of justice are exceptionally complicated. The virus steamrolled into each courthouse and law office in the nation with an arrogant and brazen speed and continues to conflate. The demands of COVID were greeted by the left side of the brain with logical reactions and by the right side with the gifts of creativity. As awful as it is, the coronavirus has created a new way of thinking about what jurists and practitioners can accomplish, and how they can do it.
Sometimes change is very difficult to embrace. Legal professionals have been historically reluctant to alter their comfortable patterns of conduct but, when given opportunities, have also seized new technologies that made sense and delivered benefits. Computerized legal research, the fax machine, the introduction of email in 1971, the PDF, electronic signatures and, most recently, the use of artificial intelligence…all are just some of the many storied examples of how our offices and courts have recognized the practicality of technological transformation and pursued these tools into brilliant and profitable reality with societal benefit.
Clearly, Zoom presents a new way of thinking to meet the challenges of our complex era. For some, Zoom is a natural evolution of legal systems. For others, it is an uncomfortable distancing from reality. Those who are reluctant to embrace the opportunity of remote jury trials, however, must confront the common shared viral emergency we face in the months to come.
We have been swept by an intellectual tsunami of dynamic change, in a matter of mere weeks, and cannot let COVID-19 delay the administration of civil justice any more than it already has.
In Southeastern Florida, gone are the days of fighting often intolerable traffic and atmospheric dumping of transportation-related greenhouse gas emissions as we travel to in-person hearings. Risking lives on the congested highways for 10-minute hearings has been stopped during the worst of this pandemic. Attorney time is more efficient, and clients paying hourly rates have seen a tremendous benefit in the reduction of billable time, while practitioners have done more work, on a greater quantity of cases, because of these efficiencies.
But it is the psychology of taking on Zoom in the jury trial process that is most fascinating. Many believe they cannot connect with potential jurors during the voir dire process because all they are looking at is a screen. They worry jurors will not take the gravity and responsibility of being in court seriously. And some, frankly, feel they are lawyers, not technicians, and do not want to be distracted from practicing their art of persuasion by simultaneously worrying about what option or video tool to start and stop on their devices as they deliver their carefully crafted examinations and arguments.
And yes, some are just intimidated by the opportunities embraced by remote video conferencing in the judicial setting. They will not admit that insecure feeling, but they, and to a certain extent even your author, do suffer from that introspective but quiet concern.
To embrace the COVID-19 threat several months ago, Chief Judge Tuter assembled a group of legal stakeholders in the 17th Judicial Circuit to have a discussion with a lead developer at Zoom. It started with the judge writing the company a simple email, and shortly after doing so, Eric Yuan, Zoom's founder, wrote him back. Within a few days, the Broward County group presented a list of about a dozen technological enhancements to the developer. Each idea was embraced as "doable" by everyone on that Zoom video conference.
Zoom listened, responded, and as of September 1, 2020, made using its platform even easier for the legal community by releasing a new update. Since then, other enhancements have followed.
Meanwhile, while technology and creativity came to the rescue of the hearing and non-jury trial process in the Circuit Civil Division of the 17th Judicial Circuit, as it did across all 50 states, efforts were made locally to explore a hybrid solution seeking to fuse video with in-person participation at various stages of the jury trial process.
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The jury assembly and voir dire procedures were studied using potential expanded facilities built for social distancing, while employing plexiglass and workstation cubical partitions. We looked at converting the potential juror assembly room, how to streamline the juror summons process, and methods to cope with courtrooms which are only accessible by a limited number of elevators. Considerations were made to ascertain how courtroom space could be better configured to allow for 6 feet of separation, with lots of see-through partitions.
It soon became clear that altering courthouse common areas and courtrooms would mean each trial would probably command more than one courtroom, that jury deliberation rooms could be considered health threats and that high-rise judicial complexes were of little use in the viral environment.
The virtual model is a lot easier for jurors psychologically than the physical labyrinth of plexiglass reconfiguration option with surrealistic face shields and masks with slower, methodically managed movements into and out of the courtroom. For lawyers who now must employ attention strategies for jurors who are seated in the jury box and in the visitor’s gallery, being in the actual courtroom is a new dimension and complication of non-virtual advocacy. Keeping people physically safe in courtrooms presents juror distraction and attention issues which have not been fully comprehended.
On July 10, real jurors were summoned for service, and did so from their homes. Their service was focused and enthusiastic. In a mock trial conducted by Circuit Judge Patti Henning, actual summoned jurors were selected and reacted to proceedings as if they were physically in the courtroom. Instead of masks, partitions and social distancing using courtrooms which were not configured with aggressive air ventilation and purification systems, jurors felt comfortable not being called into a building with the nagging but persistent mental distraction of the COVID threat as a tradeoff for accomplishing civic duty.
Of note is the response rate for potential jurors to go through the voir dire process…approximately the same number of jurors appeared virtually as the percentage of travelled jurors in the months before shutdown.
The remote proceeding helped jurors focus better. To be sure, there were challenges for those participating on Zoom. The moving “tiles” with the images of participants changing screen locations without user control on the screen made it difficult for judges, lawyers, clerks, interpreters, court deputies, and court reporters to keep track of who was where on the screen at any given moment.
That has now been solved. With the latest updates from Zoom’s proactive developers, one can now move and “pin” video tiles in one static place. Judges who serve as “hosts” on the platform, can broadcast their view to those in the trial, so as to show what the judges see, in the order they want people to be visible, and without shifting images.
Presentation tools have been strengthened. Giving new life to Power Point and Prezi, the world of demonstrative exhibits and evidence is leveraged with advanced screen-sharing options. Even imaging specific portions of documents is now easier than it was a few months ago.
As cases near conclusion, exhibits can be brought physically to remote jurors before deliberations in electronic breakout rooms. Cases with multiple, or even hundreds of exhibits, should no longer be considered too challenging for the virtual administration of justice.
Third-party vendors can serve enhanced roles. Just as we did in pre-COVID days with videographers entering courtrooms with computers, television playback equipment and other devices, technicians can now be partners with trial lawyers to select and show exhibits seamlessly as if they are in a remote studio control room.
Many cast doubts upon the delivery of advocacy because they cannot see and connect with jurors. To the contrary, using the dual-screen spotlight mode option provided by Zoom, your author has been able to create an emotional, face-to-face connection with video participants, in many cases much better than being in a courtroom 15-20 feet away. Zoom-connected lawyers can see facial expressions and emotions better than in the courtroom. The mental connection has been exponentially improved and is greater than previously thought possible.
As we enter the fall and the feared “second wave” combining the flu and COVID nationally, while thousands of new cases of COVID-19 are still identified each day, and projections of when a vaccine will truly be effective are uncertain, we as officers of the court have the responsibility to avoid delays that can produce trials in 2021 or 2022 because we did not want them conducted in 2020.
In fact, there are those that argue lawyers have an ethical duty to explain the advantages of remote jury trials to their respective clients, many of which will not want justice delayed when there are methods to bring cases to conclusion today through proven and effective technological means.
Zealously protecting and advancing the legal rights of clients has entered a new digital dimension. It is up to the Bar to embrace these amazing opportunities and move the system forward. We cannot let an already diminished number of civil jury trials be further hampered by viral concerns…it is incumbent upon us to think differently.
And when COVID-19 threats are tamed and controlled by effective and proven vaccines which are distributed and accepted on a wide scale, our profession can look forward to the day when we re-enter the courtroom for that physical presence, while also looking back and stating, with a sense of significant accomplishment, that jury trials changed a bit, but persisted through the greatest public health threat in over 100 years.
Not insignificantly, we will also be more prepared for the next public health challenge to the legal system.
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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.
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Remote Jury Selection in Seattle:
the New, the Improved, and the Familiar
By George B. Hunter, Ph.D., and Andrea Blount Hunter, Ph.D.,
Mind Matters Jury Consulting
Fifteen days into 2020, a man flew home into the Seattle-Tacoma airport not knowing how his mere arrival would trigger changes that would ripple throughout Western Washington and the entire United States. He was returning from visiting the city of Wuhan in China and, although he did not realize it, he was infected with the coronavirus. He would not be diagnosed with Covid-19 until five days later, when he was promptly quarantined in a medical facility in nearby Everett, Washington, for the remainder of the month. Even at this early point in 2020, it was becoming evident that although he was the first American to be identified with the virus, it had already begun to spread throughout the county in separate outbreaks.
Throughout February, hotspots around the country continued to emerge, and on February 28 an outbreak in Kirkland, Washington, began in a long-term nursing facility. For a while, this outbreak cast the Puget Sound region of Washington as the epicenter of the coronavirus. By mid-March, state courts shut down and all trials were suspended. During the months that followed, Washington State officials and King County Superior Court (KCSC) worked tirelessly to adapt to the new realities of 2020. Most children have still not returned to physical classrooms, but the court system in Western Washington is finally active again. Like so many other aspects of our lives, however, it is not quite how it used to be.
On July 30, KCSC conducted a Zoom webinar describing its plan for how the State was going to resume jury selection procedures for civil trials. A few weeks later in August, we assisted with a jury selection following the new remote protocols. As jury consultants, we work closely with our trial-attorney clients throughout the jury selection process to help them identify the highest risk jurors for their case--from advising on which questions to ask of the venire to advising on strike strategy. With over 35 years of combined experience assisting with jury selection across the country, but more recently focused in the Pacific Northwest, we offer our observations on what trial attorneys can expect as they return to court and select juries, at least in King County, Washington.
The overall flow of jury selection follows a familiar pattern: jurors fill out questionnaires, hardship and potential cause challenges are addressed, attorneys conduct voir dire, and then the parties make their peremptory strikes to narrow down the venire to create a jury. However, to protect the potential jurors, court staff, and trial teams, these steps are conducted remotely, with everyone in their separate locations. Naturally, this changes the dynamic and strategy considerably.
Supplemental Juror Questionnaires
Before 2020, use of written supplemental juror questionnaires in Washington varied by the court’s preference, case type, and negotiations among the parties. At least for the cases we were involved in, the trend was to limit juror questionnaires as much as possible to aid in the logistics of getting them copied and distributed to the trial teams quickly enough to make them useful during voir dire. Courts would also voice concern about how to secure confidential information from hundreds of potential jurors. Now, however, the court sends potential jurors links to two questionnaires to complete online--the first is a brief questionnaire to determine jury eligibility and the second includes case-specific questions. These case-specific supplemental juror questionnaires (SJQs) are now considered to be an essential part of the process, and they are used in every case.
As suggested in the court’s webinar, development of the SJQ should begin several weeks in advance of the trial date so the parties can come to an agreement. Unlike the paper questionnaires in the past, the online version allows for much more extensive questioning about individual backgrounds, case-related experiences, attitudes, and potentially biased perceptions. Additionally, the court includes questions assessing access to technology, hardships, and COVID-19 risk levels. It would be feasible to have 75-100 or more questions for these SJQs, especially since voir dire time is limited. The Bailiff assembles the SJQ responses into a spreadsheet, which is updated as jurors submit their completed questionnaires, and distributes the spreadsheet to the parties.
The overall length of the online questionnaires could exceed 100 responses per person, so with approximately 200 jurors, the spreadsheet can contain around 20,000 data points. Having someone skilled in organizing and processing this volume of data is critical, particularly because the spreadsheets’ data changes day-to-day as jurors send in their responses at different times or are dismissed for hardship, cause, or other reasons. As before, jurors will have pre-assigned numbers signifying their placement in the venire sequence, but they do not submit their responses in order. It takes time, potentially a couple of days, before a complete spreadsheet is available to the trial teams. Although it gets complicated, the overall system works well once everything comes together.
As always, the challenge in successfully using the SJQ responses to inform a jury selection strategy rests with organizing the information efficiently and knowing how to separate out the “noise” from the factors that matter to you or to your client. Expertise in understanding and manipulating data within a spreadsheet is a new must-have skill to conduct remote jury selection effectively. Extrapolating the information for each juror into a physical document that can be printed helps keep everyone on a trial team organized, focused, and on the same page once voir dire gets underway.
The Venire
While it is still too soon to understand how our collective and individual experiences of surviving this pandemic will change jurors’ attitudes and decision-making, we are already seeing differences in which individuals are even willing to answer the call to jury service. Of course, the goal is to have a venire of randomly selected citizens that represents equal and fair representation of the venue’s population. The pandemic has made this illusive goal even more challenging. Positively, people are showing up to serve their duty as jurors, even if in smaller numbers than before.
The exact number of jurors summoned for each case will likely vary, but it would not be unusual for the court to summon 1,000 citizens for a civil trial expected to last a few weeks. Of those, approximately only 200 people respond and meet qualifying criteria. This self-selection process skews the venire toward younger jurors and those who are more comfortable with technology. While jurors at high risk for COVID-19 are not automatically excluded from the jury selection process, jurors are given the opportunity to explain any health concerns they have related to COVID-19 and whether that would impact their ability to serve as a juror.
Voir Dire
When the SJQ responses have come in and after a hearing to exclude those jurors with clear and obvious hardship and / or cause challenges, the remote voir dire process begins. In King County, voir dire is conducted through Zoom in a series of small panels ranging from 10-20 jurors (at the court’s discretion), which is designated and set up by the bailiff. This changes the voir dire dynamic from talking to the venire all at once in a large court to a Brady-Bunch method where attorneys are addressing a small group of jurors on screen. Conducted in this manner, voir dire takes at least two days, perhaps more depending on the number of jurors remaining after some are removed for hardships.
Everyone is in their own location and responsible for their own technology set-up. Depending upon resources and comfort levels, trial teams may choose to set up in a large conference room and show the video feed on a large screen. The attorney conducting voir dire would be in front of his or her own computer, but other members of the trial team could still be in the same room allowing for easier communication.
Voir dire begins with the judge providing instructions and then attorneys using their allotted time to question the jurors. Just as in court, attorneys can question jurors as a panel or individually but there should be a clear plan in how one wants to proceed. With a limited amount of time available to question each panel, remote voir dire must be targeted and efficient. As before, having jurors’ SJQ responses organized and in a user-friendly format makes the process much easier, effective, and provides a starting point for questioning jurors--getting the SJQs organized, however, takes more time and effort than photocopying and collating a stack of paper.
The process of how one keeps track of jurors in the venire remains both familiar and different. Jurors are still identified by their court-assigned number, but depending on how the schedules work out they may not necessarily be voir dired in order. For example, individuals who are not willing or able to participate in the video voir dire are given the option of attending court in person to be questioned in a setting where social distancing is possible.[1] Furthermore, it is not possible to look out over the courtroom to get a complete visual of the venire as a whole. Judges generally prohibit anyone taking screenshots of the voir dire videoconference to protect jurors’ privacy. However, for the purpose of preserving information for Batson-type challenges, judges may opt take a single screen shot of the voir dire panels after each juror has given consent.
Exercising Peremptory Challenges
Except for happening through a videoconference with the court and the other parties, exercising peremptory challenges follows the usual pattern. The size of the jury to be seated remains the same (12), with the number of alternate jurors determined by the court. Following these new procedures, trial teams have more time to review their notes and consider their strike strategy than was the case when everything happened all at once.
The parties take turns informing the court of their strikes and when the last peremptory challenge is exercised, the process is complete. Previously, the jury would be sworn in and given preliminary instructions by the court and opening statements might even begin. Now, strikes are exercised without any jurors present. After days of hearing from jurors, some of whom share deeply personal experiences and concerns, the process of striking numbers off a spreadsheet feels surreally impersonal.
Impact on Jury Selection Strategy
In many ways, preparing for and engaging in remote jury selection remains familiar to the “typical” way things had been done, but there are new factors, as well as benefits, trial teams should consider.
To begin with, the most obvious change is the introduction of videoconferencing and the accompanying technology challenges. At a minimum, everyone must have a Zoom account, computer or device with a webcam and a strong internet signal. Individual comfort levels with technology, however, will vary greatly among litigators and jurors themselves. In addition to setting up their device(s), trial teams also need to consider and plan for the impression they want to provide their potential jurors through their presence on video. Just as in court, jurors’ perceptions of the case and the parties involved begins with the first interaction. The same is true on video, but it will be repeated multiple times as voir dire is conducted with different jury panels.
When setting up your videoconferencing environment, attorneys should pay attention to setting a scene that promotes a positive impression of you, your team, and your client. For instance:
- Position the webcam so that it is at or above your eye level. This may require raising a laptop up on a stack of books or purchasing a separate webcam that can be mounted above your screen. If the camera is not properly positioned, jurors could wind up looking up your nose, at the top of your head, or your profile--none of which provides a positive impression.
- Unless your device has a high-quality microphone, consider using a separate microphone so your voice can be clearly heard by all participants on the videoconference. Having someone need to continually repeat themselves because others cannot hear him or her is annoying and wastes valuable time.
- Pay attention to the lighting so that most of the light is behind the camera, not behind you. Turn on the webcam and test a variety of lighting solutions to determine what looks the best; you may need to adjust window blinds, reposition the camera, or bring in additional lamps.
- Consider your background and the message it would convey. Simple backgrounds with few distractions are best. Think about how you can use your setting to begin connecting with jurors and creating the image that fits with your case themes.
Perhaps the greatest benefit to the remote jury selection process is that it grants much more information about potential jurors through the comprehensive and case-specific juror questionnaires and by having the opportunity to observe them via videoconferencing. Following the traditional jury selection methods, it would not be unusual to have some jurors in the venire who were blank slates--they would not volunteer information during group voir dire and may not have revealed anything personal on a written questionnaire, if one was even allowed. Now, all jurors must complete the extensive SJQ and appear on screen in small group panels. No one will be a complete mystery. Videoconferencing allows a glimpse into jurors’ personal spaces and how they live their lives in their homes, offices, or cars. Moreover, when the trial attorney is actively involved in voir dire, consultants and/or other members of the trial team can observe the jury panel for their reactions, or lack of reactions. After a few minutes, most people forget about being on camera and begin to let their guard down, revealing their personal reactions to whatever is being discussed.
King County Superior Court officials began working on potential solutions for the COVID-19 shutdown in March, when the Seattle area was the first U.S. epicenter of the pandemic. The protocols KCSC created work very well for the Puget Sound region, but we are a unique population and it is unclear how well this model would work in other areas, especially those with limited access to technology and internet service. Additionally, once the jury is selected through this new process, jurors must then report to the designated location to observe the trial while wearing face masks and maintaining social distancing. A majority of King County residents follow such guidelines willingly, but that might not be the case in other venues. With the politicization of the coronavirus, many other venues will likely face resistance to the establishing of alternatives to the traditional court system.
At least for this venue, the newly established remote jury selection method keeps significant aspects of the jury selection process familiar while introducing improvements such as the online juror questionnaires. Even though jury selection participants are physically distant from one another, the process remains authentic and dynamic. There is nothing “virtual” about the experience.
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[1] To provide for adequate social distancing, King County has moved some of its civil trials to the Meydenbauer Center in Bellevue, WA. It is a 36,000 square foot convention space that has been divided into courtrooms designed to keep parties, court staff, jurors, and observers safely distant from each other.
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Dr. George Hunter ([email protected]) and Dr. Andrea Hunter ([email protected]) are founding partners of Mind Matters Jury Consulting based in Seattle, WA. With backgrounds in psychology, they use their understanding of how jurors think to advise their civil litigation clients on all aspects of jury selection, trial strategy, and effective witness communication. You can learn more about them through www.mmjury.com. They are both Jury Consultant Advisors to the Civil Jury Project.
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Look out for the November Newsletter! |
Tune in next month for more articles by our judicial, academic, and jury consultant advisors. |
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Samuel Issacharoff
Faculty Director
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Mark Drummond
Executive/Judicial Director
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Michael Pressman
Research Fellow
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Kaitlin Villanueva
Admin. Assistant
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