Dear Colleague,
We hope this edition of our newsletter finds you and yours doing well and adjusting to the challenges of the pandemic. We begin this issue with a survey we conducted. We asked our Judicial Advisors if they had any sense of jury demographics changing. We reported on some anticipated demographic changes in our July newsletter based upon the June survey by the National Center for State Courts (NCSC).
We were encouraged to see that perhaps there might not be a drastic change in jury demographics. However, we also realize that these initial reports, while encouraging, involve very few trials. We hope that the pandemic does not prevent courts from achieving a true cross-section of the community for jury trials. We concluded that we need to send this survey again, perhaps six months from now in order to get a clearer picture.
Next, one of our Jury Consultant Advisors, Benjamin Perkel, provides detailed “best practices” for communication and persuasion in this new, remote world we live in. While geared toward the practitioner, his in-depth research and sources have value for both court and counsel.
And we close this edition with a piece by our departing Research Fellow, Michael Shammas. Mike outlines protocols he has been reviewing and offers a personal reflection on the work he has done for the Civil Jury Project. He has been a valuable member of our team and we wish him the very best in his clerkship.
Finally, we would love to hear from you about what is going on in your courts and how the system is coping with the pandemic. Please consider sending us any report from the field that we might be able to include in our next newsletter. We continue to work with courts around the country on these protocols and you reporting on what works is invaluable.
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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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Results from Our Survey of Judicial Advisors
Regarding Juror Demographics
By Michael Pressman
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This month, we sent a survey to our Judicial Advisors that contained a variety of questions about what they have recently been observing in their courtrooms regarding juror demographics. In June, the NCSC (National Center for State Courts) asked 1000 people whether they would prefer serving as a juror (1) in-person, (2) remotely or (3) had no preference either way. We reported on this survey in our July newsletter found here.
The responses to the NCSC poll showed some clear differences in demographics for those likely to report for an in-person jury trial. The survey found that gender (fewer females), age (younger), and race (fewer minorities) were the most relevant variables. We wanted to get a sense of what was happening in the courts that have started jury trials with regard to these demographics. The NCSC survey analysis can be found here.
We received 83 responses, and we extend our sincere thanks to everyone who took the time to respond. The full survey results can be found on our website by clicking here, but this article provides a selection of the notable results.
Before providing the selection of the notable results, however, we first mention the main takeaways:
· The main takeaway is that 79.5% of those responding have not started in-person trials. As a result, the findings as to what has been observed by those who have started trials are drawn from a considerably smaller sample than the total number of those responding. As a result, we plan to conduct an additional survey with similar questions further down the road.
· 44.4% of those who resumed trials have noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic), and the main demographic difference reported is that potential jurors are now younger than before the pandemic. It is encouraging that 55.6% did not notice any change in jury demographics.
· All who have resumed trials have noted an increase in requests by potential jurors to be excused for hardships.
· Almost all who have resumed trials have increased the number of jury summonses being sent.
The following is a selection of all of the notable results:
1. Have you started in-person jury trials?
Yes: 20.5%
No: 79.5%
2. If you answered “No", when do you expect in-person jury trials to begin in your court?
September: 21.5%
October: 13.8%
November: 4.6%
December: 1.5%
Not Yet Determined: 58.5%
3. If you have started in-person jury trials, have you noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic began)?
Yes: 44.4%
No: 55.6%
4. If you have noticed a difference in the demographics of gender, age or race please check all that apply. If you do not check a box in a demographic category of age, gender or race that will be recorded as the demographic remaining the same as before the pandemic. (Please check all that apply)
Older than before the pandemic: 0/18
Younger than before the pandemic: 8/18
Same: 10/18
More minorities than before the pandemic: 2/18
Fewer minorities than before the pandemic: 4/18
Same: 12/18
More women than before the pandemic: 3/18
Fewer women than before the pandemic: 0/18
Same: 15/18
5. Have you noted an increase in requests to be excused for hardships by potential jurors?
Yes: 100%
No: 0%
If yes, please estimate the percentage increase in those requests.
Most responses ranged between 2% and 52%.
Please estimate the percentage of those requests that you granted.
Most responses ranged between 60% and 100%.
6. Has the standard you have been using for excusing jurors been more forgiving, less forgiving, or the same as before the pandemic began?
More forgiving: 93.1%
Less forgiving: 0%
Same: 6.9%
7. If a potential juror falls into a high-risk category due to age (65+), being a member of a minority community or caring for a high-risk individual do you:
Automatically exempt that individual with no inquiry: 51.7%
I make my usual inquiry about service and then decide: 48.3%
8. If you have increased the number of jury summonses being issued as a result of the pandemic, please estimate the percentage increase:
Most responses ranged between 10% and 30%, but there were a number of responses that departed significantly from this range.
9. Additional comments: (For example, if your demographics are the same as before the pandemic but you are excusing more people in the high-risk categories, we would like your thoughts on ways to achieve a true cross-section of the community.)
[The following is a selection of some of the responses we received to this question.]
“Use of video-based voir dire tends to increase participation, and increase the juror's comfort level with coming to court.”
“[Our] Court has added a check off box in the jury summonses for persons over 65 with concerns about Covid. If the box is checked, the person will not be called to report for jury duty. This will skew juror demographics in favor of younger jurors, a concern of both sides of the bar.”
“Biggest issue here is not juror availability but lack of many trials going forward. pleas in crim cases are more favorable, due to prosecutor discretion.”
“Due to increasing summons to populations more likely to seek hardship requests, we have not seen a significant change in our actual reporting jury pools.”
“We have had more juror response in that we have had more jurors planning on appearing than we needed. I have presided over 3 jury trials since June 8th (2 civil and 1 criminal) and in all three cases we did not have any issues having a cross-section of the community on the jury. I start another civil (patent) trial next week.”
“The start up of in-person is still dependent on the orders of our State Supreme Court and the directives issued by our local Health District. We are attempting to pilot zoom jury trials from start of impaneling to verdict.”
“This is difficult to respond to. There are definitely more hardship requests. But part of our reopening protocol involves our court prescreening for hardship requests and dealing with a large percentage of them before they even reach the courthouse. So for the trial judge, we are not seeing as many as we were pre-Covid because they have been dealt with before the individuals ever come to the courthouse.”
“The demographic concern, to be fair, should also look at self-exclusion of older people who tend to be much more conservative. I have actually seen this in a recent situation. If anything, COVID has tilted the jury pool in favor of defendants in criminal cases, and plaintiffs in civil cases. But the likely scenario is a wash. Fewer lower-end demographics, but ALSO fewer upper-end demographics (older, wealthy people).”
“I just concluded a jury trial. No one asked to be excused because of Covid. They enjoyed their service and appreciated the steps we took to make them safe. Jury trials are essential. We must and can continue to have jury trials. The results I found in my Division are consistent with courts in other parts of my District.”
“We are excusing more in high risk category particularly age, but previously older jurors were overrepresented.”
“We have started some criminal trials on a limited basis. My first jury trial will be September 9. Given our criminal backlog, we will not start civil jury trials until perhaps early 2021; more likely 2nd quarter 2021.”
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Thank you, again, to all who responded. To see the full results, click here. We plan to send a similar survey out once it seems that more courts have begun jury trials. Please stay tuned.
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Michael Pressman is a Research Fellow at the Civil Jury Project. |
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Advocacy's New Frontier: SMARTTM Persuasion Strategies for Remote Communication
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Introduction
Welcome to the “new frontier.”
Remote hearings, remote depositions, remote mediations/arbitrations, remote settlement conferences, remote witness preparation.[i] The list goes on and on. Remote communication is progressively replacing traditionally in-person interactions between attorneys and Judges, as well as between attorneys and their clients, co-workers and opposing counsel.
Though these types of remote activities have become much more prevalent in recent months, they have actually been available and utilized within the legal field for longer than you might think.[ii] So, while remote proceedings and interactions are not necessarily new, the fact that you are communicating remotely now more than ever, likely is. The ubiquitous use of remote communication is likely to endure, and potentially increase in the future as technology improves and institutions become more comfortable exploring additional uses for remote technology.[iii] The widespread use of remote communication is transformative and it is here to stay.
While the medium and methods of communicating may be different, the good news is that your core communication objectives remain the same and the foundations of persuasion have not changed. Accordingly, the “new frontier” requires adopting an updated persuasion paradigm and adaptive advocacy strategies to overcome the unique challenges (as well as take advantage of new opportunities) presented by remote communication. Put another way, “You can’t play today’s game with yesterday’s rules.”[iv]
In this article, I intend to (1) educate readers about why remote communication differs from in-person communication, (2) explain the SMARTTM Remote Persuasive Advocacy framework for developing, evaluating and implementing “Best Practices” for remote persuasion, and (3) provide actionable tips throughout the piece that you can implement to enhance your remote communication skills.
What makes remote communication different from in-person communication?
To understand why remote interaction is different than in-person interaction, we can look to biology, evolution, and neuroscience. As you might expect, our brains are hardwired for in-person communication[v] and our senses have evolved over thousands of years, primarily based on in-person interaction.[vi] In contrast, modern technology enabling the type of robust synchronous remote communication discussed in this article (e.g. modern videoconferencing platforms) has only been around for approximately 25 years.[vii] Consequently, our sensory and perceptual systems have had a relatively brief window of time and limited opportunities to adjust to this comparatively new form of communication.
Due to our extensive evolutionary experience with in-person interaction, it is not surprising that our brains have become accustomed to utilizing their “full nonverbal packages” available during in-person communication.[viii] Over thousands of years of relying mostly on in-person interaction, our brains evolved to convey and process information in 3-dimensional, shared environments.[ix] In contrast, remote communication occurs in physically detached, 2-dimensional settings that, by comparison, limit expressive and perceptual opportunities. Furthermore, neuroscientists have discovered and teach us that our brains respond differently to information received remotely.[x]
As we journey further into the “new frontier” it is critical for remote presenters to tailor their content, presentation style, and delivery to account for the ways remote audiences receive and process information differently than in-person audiences. Consequently, successful remote persuasion requires purposeful adjustments to how you execute your advocacy strategies.
Regardless of whether you are persuaded by science-based explanations, have personally “felt” the differences between remote communication and in-person interaction, or simply believe it “just makes sense” that communication in a shared environment is different from communicating remotely, the takeaway is the same: Remote communication is different than in-person communication, and therefore requires an updated persuasion playbook to be successful.
The SMARTTM Model of Remote Persuasive Advocacy
With a basic understanding of the underlying reasons remote communication differs from in-person communication, the next step is exploring how those differences manifest themselves and what you can do to achieve your remote persuasive objectives. To accomplish this, I developed the SMARTTM Remote Persuasive Advocacy system as a structure to explore how “doing things differently” can enhance the effectiveness of your advocacy strategies. Let’s look at each element of the SMART system.
S stands for Start with the Basics. This means beginning your trek into the “new frontier” by building upon familiar foundations of persuasion: Ethos[xi], Logos[xii], and Pathos[xiii] (and Brevity[xiv]). These concepts can be effective anchors to help you understand how your remote advocacy choices can advance (or hinder) your persuasive goals.
M stands for Modify for the Medium. This means accounting for medium-specific differences between remote communication and in-person interaction. Some examples discussed in greater detail below deal with how you make eye contact, limitations on non-verbal communication, emphasis on facial expressions, and accounting for attentional issues.
A stands for Accentuate effective information delivery tactics. This means emphasizing many of your core persuasion techniques, including strategic chunking and sequencing of information, maximizing the primacy and recency effect, and using vivid imagery to connect with remote audiences.
R stands for Review from an Audience-Focused Perspective. This means thinking about your presentation, delivery, and content based upon how they are likely to be received and perceived by a remote audience. A common theme amongst successful presenters is understanding how to meet an audience’s needs and considering the best ways to capture and maintain their attention throughout the persuasive process.
T stands for take control of Technology. This means understanding the types of technology and technological equipment at the core of remote communication and learning how to utilize them to enhance (not detract from) your remote persuasiveness.
SMART: Start with the Basics
Start with the Basics by reviewing the foundations of persuasion: Ethos, Logos, and Pathos. Another fundamental tool of persuasion, Brevity, is also included because of its unique importance for remote communication. Reminding ourselves of these rhetorical principles, and how they impact persuasion, provides a framework to discuss “best practices” for remote persuasion and a context to assess the potential effectiveness (or ineffectiveness) of our remote communication strategies.
Ethos[xv] relates to the credibility of a presenter. Maximize ethos by:
· Sharing your credentials and/or relevant personal experience
· Presenting a balanced and non-coercive argument
· Citing credible sources
· Using appropriate language and grammar
· Being likable and humble
Logos[xvi] relates to the reasoning and logic of your arguments. Maximize logos by:
· Presenting a sufficient number of relevant examples to support a proposition
· Building conclusions from known information
· Providing credible supporting material including expert testimony, definitions, statistics, and analogies
Pathos[xvii] relates to the arousal of audience emotion. Maximize pathos by:
· Using figurative tools such as metaphor, similes, and personification
· Providing lay testimony that speaks to human elements
· Varying your voice, cadence, posture, and repetition
Brevity relates to expressing your arguments and supporting information as compactly as possible without sacrificing the quality of the message.[xviii] Due to attentional constraints imposed by remote communication, keeping presentations short and to the point is particularly important on the “new frontier.”[xix]
Each of these rhetorical devices (Ethos, Logos, Pathos, Brevity) can serve as conceptual anchors to guide your remote advocacy decisions and help you develop persuasive presentations that are most likely to resonate with your audience. Accordingly, keep these concepts in mind as you consider modifications required by remote communication, accentuating core persuasion principles to help overcome remote communication related challenges (and take advantage of remote communication related opportunities), reviewing your presentations from a remote audience perspective, and taking control of the technology involved in remote communication.
SMART: Modify for the Medium
Modify for the Medium by understanding and accounting for medium-specific differences between remote communication and in-person interaction. I suggest you think about the adjustments discussed below to address threshold challenges and as new opportunities to enhance your remote persuasive advocacy.
It is also important to note that remote presenters and remote audiences each face their own unique challenges and opportunities. Therefore, the challenges and opportunities discussed below are broken into four unique (but related) categories:
1. Remote Presenter Challenges
2. Remote Audience Challenges
3. Remote Presenter Opportunities
4. Remote Audience Opportunities
Unique challenges facing remote presenters
From the presenter’s perspective, challenges primarily relate to the availability, use and effectiveness of non-verbal communication tools. More specifically, a remote presenter has reduced access to non-verbal expressive tools, subject to a couple of exceptions. For example, the camera typically only captures presenters from the shoulders up. This has important implications for the types of nonverbal communication you typically should (and should not) utilize. Nonverbal signals commonly used during in-person interactions, such as hand gestures, are unlikely to be seen by the camera when presenting remotely.[xx] A related consequence of a “tight close-up” is that it tends to place increased importance on your facial expressions.[xxi] Accordingly, it is critical to be even more purposeful and careful about making sure your facial expressions are congruent and consistent with your arguments.
Additionally, how you employ certain non-verbal cues when communicating remotely can be very different than how you employ them in-person. For example, the way you make eye contact with a remote audience is significantly different than in-person eye contact. When in-person, you are likely accustomed to achieving eye contact by looking directly into another person’s eyes. Conversely, accomplishing eye contact remotely requires training your eyes to focus on the camera, not the audience’s faces as they appear on your screen.[xxii] One tip to help focus your eyes on the camera when speaking is to place a photo of a person who you like speaking with just above or beyond the camera lens to simulate an in-person experience.
Unique challenges confronting remote audiences
A remote audience’s challenges are primarily attention related. We know that remote audiences have shorter attention spans and feel fatigued faster than in-person audiences.[xxiii] Remote audiences also face a greater risk of distraction, both from their own and other participants’ physical environments. Fortunately, you can accommodate for these types of challenges by accentuating a variety of effective information delivery tactics.[xxiv]
Unique opportunities for remote presenters
Remote communication also offers opportunities that are not available when persuading in-person. First, you get to control the lighting, whereas it is largely outside of your control when presenting in-person. This may seem like a subtle detail, but how well an audience is able to see your face is really important when communicating remotely. After all, your facial expressions and eyes are your primary nonverbal expressive tools in remote communication, so it is essential to make sure your face is well lit so the audience can see the cues you want to convey.[xxv]
Additionally, remote communication allows you to choose what appears behind you, whereas the setting of in-person interactions is dictated by the location you are in, such as a courtroom, Judge’s chambers, or conference room. As remote presenters you have an opportunity to set the scene by choosing a virtual background that conveys an appropriate context and emotional tone. The key takeaway is that you have a choice and the setting you select can help provide a foundation to reinforce your persuasive communication objectives.
However, you must also be aware of some caveats for selecting virtual backgrounds. These include, but are not necessarily limited to, ensuring that the background: does not distort how you appear (e.g. over/under pixelation), does not cause green screen effect (e.g. floating head), and does not have the potential to distract from you or your presentation (e.g. a library of books with the titles visible that may distract attention from your presentation).[xxvi]
Unique opportunity for remote audiences
Because remote audiences are usually viewing a close-up of your face, it provides them a unique opportunity to see deeply into your eyes. This principle is supported by feedback from participants in a recent online mock trial demonstration conducted by the Online Courtroom Project. In that study, mock jurors reported that close-up views helped them form quicker connections with presenters, which they described as a useful tool for assessing credibility.[xxvii] Accordingly, further research on how audiences judge credibility without being in the same room as the person being assessed appears worthy of further exploration.
Bonus Tip: There is much you can learn about modifying for the medium from other disciplines that have more extensive experience utilizing remote communication technology. Take advantage of opportunities to observe, study, and emulate how other types of professionals, like actors, businesspeople, educators, news reporters, and others successfully communicate with remote audiences.
SMART: Accentuate effective information delivery tactics
Accentuate effective information delivery tactics by emphasizing and (in most cases) amplifying core persuasion techniques. Consequently, when advocating remotely, consider using more of the tactics discussed below and (in most cases) applying them at intensified levels. Put another way (in most cases), turn it “up to eleven” [xxviii] in terms of both breadth and depth when selecting and implementing the following tools for remote presentations.
How you organize, structure, and sequence your presentation is always important, regardless of whether you are live in a courtroom or interacting remotely. When presenting remotely, you must account for the fact that remote audiences looking at a screen have shorter attention spans than their in-person counterparts. To address these attentional issues effectively, your chunking and sequencing decisions take on increased importance in remote communication.
Focus on structuring remote presentations into shorter segments (i.e. more smaller chunks). In addition to helping maintain a remote audience’s attention, breaking your presentation into a greater number of smaller pieces also maximizes the positive effects of primacy and recency, as each segment offers its own opportunities to capitalize on an audience’s recollection of what they see/hear first and last.
Clarity & Simplicity[xxx]
A primary objective of presenting in any medium is to provide accessible content that is easy for your audience to understand. Due to inconsistencies in remote audience technology and the physical distance between you and your audience, remote presentations require heightened clarity and simplicity.
For example, it is unlikely that you will know the quality and specifications of every remote audience member’s technological equipment. Accordingly, rigorously apply the principles of clarity and simplicity to design remote-audience-friendly exhibits and demonstratives (e.g. checklists).
Clarity and simplicity also help to minimize potential for confusion. Due to the physical distance between you and your remote audience, you will not have the same ease of opportunities to clarify information. While clear, simple, and universally understood analogies and metaphors are essential to communicating the core elements of your arguments, they also help minimize the chances of audience misunderstanding by making the gist of your arguments readily accessible.[xxxi]
The importance of being concise serves as another reminder that remote audiences have shorter and less resilient attentional capabilities than in-person audiences. Because a remote audience is burdened with the strain of receiving your presentation through a screen, it is critical to harness as much of their cognitive energy as possible. Consequently, condensing your remote presentations as much as possible will help minimize cognitive load on remote audiences, and therefore increase the likelihood of learning. Accordingly, the more concise a remote presentation is, the more likely your audience will understand the content and be persuaded by your arguments. Some examples of ways to be concise include using images instead of words and using shorter sentences.[xxxiii]
Building connections with remote audiences may seem more difficult due to being physically separated from the presenter. However, using present tense and active voice can be powerful ways to establish important connections during remote communication. Communicating in the present tense draws an audience into the story you are showing and telling them. Providing information in active voice allows audiences to experience the story as if it were happening in real time. Guiding an audience through your story in the present tense invites them into the plot and active voice enables them to develop meaningful connections with the characters and events.
Exploiting the primacy and recency effect by strategically placing crucial information at the beginning and end of presentation segments (as well as at the beginning and end of entire presentations) should always be part of your advocacy repertoire. Research indicates that people tend to most easily remember information that appears at the beginning and end of a learning session. Given what we know about the delicate nature of remote audience attention, maximizing the primacy and recency effect can enhance the likelihood that your key points will be accurately received, properly understood, and correctly remembered.
Employing sensory words and images can help transport an audience into the world you create via your presentation. Captivating imagery is particularly useful in storytelling to help audiences empathize with the characters.
We all have some sort first-hand experience interacting with vivid imagery communicated remotely. Who amongst us hasn’t chuckled or teared-up while reading a novel or a news story? Who amongst us hasn’t felt the excitement or heartache of a TV or movie character? As an advocate you want to emulate how authors and TV/Film writers use vivid imagery to cultivate important connections with remote audiences.
Varying your cadence, inflection, intonation, and volume can send subtle, but important signals that signify importance, build suspense, evoke emotion, and attract your audience’s attention. Interacting in-person, you have broader access to nonverbal tools like hand gestures and varying physical proximity to convey those concepts than when communicating remotely. Consequently, vocal variety plays an even greater role in delivering persuasive presentations to remote audiences.
An Exception to the Rule - A Note About Repetition[xl]
I discuss repetition separately because of its special power and its special risks. If not used judiciously, too much repetition can conflict with your goal of accommodating remote audiences’ fragile and less resilient attentional capacities. However, this does not mean the underlying principles supporting the effectiveness of repetition should be abandoned. You can still consider utilizing repetition but dialing it down and delivering each repetition in different packaging.
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Whenever you use repetition in a remote presentation, try to provide the content differently for each reference. One way to do this is by varying between verbal and visual representations. You can also utilize a variety of analogies and metaphors that communicate similar meaning to highlight the core claims and principles of your arguments. The key to remember is that, if you plan on utilizing repetition to persuade remotely, don’t overdo it.
SMART: Review from an Audience-Focused Perspective
Review from an Audience-Focused Perspective by undergoing a “role reversal” to explore how you and your presentation content are likely to be perceived and received by your audience.[xli] Evaluating your presenting skills and considering your arguments from the audience’s perspective are always useful tools to help you prepare persuasive presentations, and they become even more critical when preparing presentations for remote audiences.
Due to the differences between in-person and remote interactions (as well as the relative “newness” of synchronous long-distanced communication technology), it is crucial to assess remote presentations from a remote audience perspective. This means learning about how remote audience’s information-receiving needs are different than in-person audience needs and applying those lessons to your remote presentations (hopefully you’ve learned a bit about those differences and how to be a better remote communicator if you’ve made it this far into the article). It also means seeking feedback from people who observe you presenting remotely and applying what you learn to make your presentations more remote audience friendly.
If you are new to remote advocacy, remember that it, like anything you have previously mastered, comes with a learning curve. Learning and practicing new skills takes time. Even professional actors experience a learning curve when transitioning from stage to screen.[xlii] Considering remote communication from an audience-focused perspective can immediately help to guide your remote advocacy decisions as you gain more experience. Getting reliable feedback from trustworthy sources can only help accelerate your growth as a remote persuader. Even if you have been advocating remotely for years, devote some time to assessing/re-assessing your remote persuasion capabilities from a remote audience perspective. You might be surprised at what you discover.
The most valuable feedback you are likely to receive will come from unbiased strangers recruited for online focus groups. However, you may also be able to obtain useful information from colleagues, family members, or friends who you know will provide honest and constructive critiques. You can even evaluate yourself from the audience’s perspective, by watching recordings of remote presentations you have given. The usefulness of this final method, however, will vary based on how candid you can be with yourself. Whichever method suits your circumstances, spend some time in your remote audiences’ shoes to understand their needs, expectations, and concerns.
When evaluating your remote communication skills and remote presentation content, keep the following considerations in mind:
· Remote audiences receive and perceive information differently than in-person audiences
· Remote audiences have shorter attention spans than in-person audiences
· Remote audience members have varying levels of technological capabilities and connection strengths
SMART: Take Control of Technology
Take Control of Technology by ensuring your technological capabilities are up to the task. Obviously, if you are not able to properly transmit your persuasive messages, the audience will have little, if any, reason to be persuaded. Perhaps less apparent is that your technological competence can impact your overall credibility. According to a phenomenon called the Halo Effect[xliii], conveying competence in one area (e.g. technology) can influence audiences to perceive you as competent in other areas, thus enhancing your credibility. On the other hand, showing a lack of competence (e.g. with technology) can spill over and have a deleterious effect on your message and your credibility. Consequently, it is critical to either achieve technological competence through practice and experience or be wise enough to seek assistance when you need it. A good place to start is by evaluating your technological equipment and comfort with operating technology as part of a Technological Capabilities Assessment.
First ask yourself (and answer) some basic questions about your equipment, such as:
· What kind of Camera do I use?
o Am I using the camera built into my computer
or an external camera source?
o Does it capture and transmit a clear image to
remote audiences?
· What kind of Microphone do I use?
o Am I using the microphone built into my
computer or an external device?
o Does it pick up and transmit my voice clearly
and consistently to remote audiences?
· What kind and quality of Internet Connection do I have?
o Am I using Wi-Fi or am I connecting
directly through an ethernet port?
o Is my signal strong enough to consistently and
smoothly communicate with remote audiences?
Next, ask yourself (and answer) questions about managing technology, such as:
· When presenting in-person, do I usually navigate through the visual aspects of the presentation myself or do I feel more comfortable directing a “hot seat operator” to proceed through a presentation?
· How proficient am I at navigating videoconferencing platforms (e.g. Zoom, WebEx, etc.)?
· Am I adept at adjusting my presentation on the fly if something goes wrong?
While a full Technological Capabilities Assessment would likely go into further detail and depth (and include answers), this illustrates the types of questions that can help you begin determining how you can attain better control over technology.
Additionally, don’t forget about utilizing aspects of remote presentations that you cannot control in-person. Consider how you might strategically select virtual backgrounds to set the appropriate scene for different types of remote communication sessions. Many occasions will require formality; however, other situations might call for a less daunting setting. Utilize effective lighting so your audience can clearly see your eyes and facial expressions. To accomplish that, consider employing a variety of external light sources to help you look your best.[xliv]
Though technology may not always work perfectly, it is important to understand what technology can and cannot do. It is also important to recognize the aspects of technology you can and cannot control. Additionally, take advantage of new opportunities to set the scene and present yourself in the best light. Whether you tame technology all by yourself, or with some assistance, technology is an integral part of remote persuasive communication that must not be neglected. Make technology your friend. Do not let it become your foe.
Conclusion
Do not try to “play today’s game with yesterday’s rules.”[xlv] Utilize what you have learned in this article to update your persuasion playbook and optimize your remote advocacy strategies for the “new frontier.”
[ii] National Center for State Courts. (2010). Videoconferencing Survey Results. https://www.ncsc.org/__data/assets/image/0014/16430/q5.png (over one-quarter (27%) of State Courts that responded indicated they had been using some form of videoconferencing since 2000 or earlier, almost one-half (46%) responded they had been using videoconferencing technology since at least 2005, and over three-quarters (82%) of the courts that responded revealed they were either already utilizing videoconferencing or planned to do so in the future)
[iv] This is how trial consultant Katherine James summarizes the need to adapt
[vii] Senft. T. M. (n.d.). Videoconferencing. Britannica. https://www.britannica.com/technology/videoconferencing (“The practice of desktop videoconferencing over the Internet began in 1994, when Intel introduced ProShare for Windows PCs, which required only a webcam and microphone, a sound card, a reasonably high-speed Internet connection, and videoconferencing software”)
[xxiv] Strategies to combat remote audiences’ attentional challenges are addressed in the section titled “Accentuating Effective Information Delivery Tactics”
[xxx] Gallo, C. (2010). The Presentation Secrets of Steve Jobs: How to Be
[xxxi] Reyna, V. F., Hans, V. P., Corbin, J. C., Yeh, R., Lin, K., & Royer, C. (2015). The Gist of Juries: Testing a Model of Damage Award Decision Making. Psychology, public policy, and law: an official law review of the University of Arizona College of Law and the University of Miami School of Law, 21(3), 280–294. https://doi.org/10.1037/law0000048. (“Throughout the course of the trial, jurors engage in mainly gist-based reasoning about the plaintiff’s injury and the defendant’s culpability. The case facts, the character of the parties, the context and nature of the case, jurors’ attitudes, views, and world knowledge all combine to lead a juror to arrive at a more or less coherent interpretation of events, or gist representation of the case, which would typically support a decision about whether the defendant is liable for the plaintiff’s injury.”)
[xlii] According to trial consultant Andrew Caple-Shaw, based on his personal experience as a professional actor when learning how to transition from stage to screen
[xlv] Quoted language attributed to trial consultant Katherine James
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Benjamin Perkel, J.D. is a Jury Consultant Advisor to the Civil Jury Project and can be reached at SmartPersuasion@gmail.com. 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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The Verdict Is In: Online Jury Trials Are Possible
By Michael Shammas
In our May newsletter, at the prescient suggestion of our late founder Steve Susman, Research Fellow Michael Pressman and I wrote a memorandum regarding the constitutional and practical viability of virtual jury trials.[1]
In our memorandum, Michael and I noted that COVID-19’s scope leaves no institution—private or public—untouched. The pandemic has fundamentally altered our political, environmental, legal, and economic environment, which seems to imply that—in Darwinian fashion—the institutions that survive will be those that adapt.
Initially, it seemed our institution of interest—the judiciary—might have challenges adapting. Trials in most jurisdictions (jury and bench, criminal and civil) were continued, often indefinitely. Speedy trial deadlines were suspended or extended.
Faced with what may be the greatest risk ever posed to the American judiciary—the possibility that civil and criminal jury trials could be delayed for years—Steve Susman directed us to address remote trials.
Assessing the Constitutionality & Practicality of Online Trials
While the mock jury trial we hosted in May focused on the practicality of online proceedings, the memorandum Michael and I wrote[2] focused on the state and federal constitutionality of such proceedings, ultimately concluding that—though due process concerns might render an entirely digital jury trial unconstitutional in criminal cases—applying a balancing test to our public health crisis weighs in favor of allowing online civil jury trials. In fact, permissibility could be the wrong issue entirely. Online civil jury trials could be constitutionally necessary in order to actualize the Seventh Amendment’s requirements.
Although we endorsed the constitutionality of digital jury trials in our memorandum—and although the practicality of such trials was vindicated by our mock trial—we noted from the beginning that even civil jury trials might be impossible to conduct entirely online. The risks would be especially great if confidential proceedings such as jury deliberations were held online, as it would be impossible to guard against a juror recording the session. Because of such issues, and since a digital trial will never be as secure as a physical one, we concluded that courts may need to conduct “mixed” trials—partly online and partly physical.
From Theory to Practice
By necessity, our May memorandum and virtual mock trial were theoretical; with the passing of time, it has been interesting to note how theory has translated into practice, and (specifically) how various jurisdictions are safeguarding the right to a civil jury trial. Many jurisdictions have arrived at several of the same conclusions we did, especially regarding the (constitutional and practical) impossibility of hosting entirely virtual trials due the necessity of holding sensitive proceedings like jury deliberations inside the actual courthouse. As with so many things in law, then, a mixed answer—a “mixed” online and physical model—seems most able to address the constitutional and practical implications of jury trials during COVID.
Official Protocols
As a research institution, the Civil Jury Project’s protocols were obviously strictly advisory, which is why it is exciting that so many jurisdictions are beginning to tackle the issue—and to do so in depth.
For example, the Yolo County Superior Court of California has put out exemplary guidelines for jurors and attorneys that minimize the potential for viral spread. Effectively, the county has determined that only proceedings that cannot be constitutionally, practically, or confidentially (e.g., jury deliberations)[3] done over videoconferencing should be carried out inside the courthouse, and then only with commonsense safeguards such as social distancing or spaced-out juror seating.
To Yolo County’s credit, while it requires jurors to be present for deliberations, it has struck a balance between the government’s duty of care and every citizen’s civic duty by holding jury deliberations not in the usual cramped jury room but instead inside courtrooms with plentiful social distancing.
What Other Jurisdictions Can Learn from the Superior Court of California
In my view, the Yolo County Superior Court did several things right.[4] Adopting guidelines like Yolo County’s—and studying those guidelines—will give other jurisdictions the best chance to balance public health against the need for a functioning jury system. With that in mind, per its Jury Reporting Instructions for COVID-19, the Yolo County Superior Court:
(1) Included easy step-by-step instructions for jurors to report to their summons. Indeed, the court’s website includes hyperlinked—and quite large—buttons enabling potential jurors to respond to summons by Zoom or phone. Given increased technological proficiency by the wealthy, the young, and the educated, the inclusion of such an intuitive system is essential if we wish—as we should—to achieve a representative cross-section of the community.
(2) Made it absolutely clear not only that “[s]ummoned jurors who have health concerns related to COVID-19 may be allowed to be postponed,” but affirmatively wrote that “[i]f you are sick with respiratory symptoms, a fever or a cough, DO NOT REPORT.” For these potentially COVID-infected jurors, the court included a link “to request that your jury service be deferred.” This discourages potentially sick jurors from infecting other jurors while also ensuring—through the deferral link—that jurors do not unjustly avoid jury duty.
(3) Outlined safety protocols clearly and in simple language, including:
a. requiring jurors, judges, and lawyers wear a mask inside the courthouse at all times;
b. staggering reporting times to minimize the number of citizens in the Jury Assembly Room and courtroom, while also marking and distancing juror seating;
c. ensuring that every hearing or proceeding that can be done virtually is done virtually, including jury orientation and hardship hearings;
d. creating a technological “Jury Service Staff” available to answer questions by phone or email. (This ties into the importance of ensuring that the less technologically literate have an equal chance to serve.); and, most importantly,
e. acknowledging the “challenging times” we live in—therefore making jurors feel appreciated and implicitly acknowledging the risk they’ve taken via potential COVID-19 exposure—and thanking citizens for their “willingness to serve as a juror.”
The only language I was initially concerned about was a stipulation that “[m]embers of the public may be precluded from attending jury trials in person, to ensure social distancing.” Although I understand the need to sometimes limit access to courtrooms—especially now—I also understand the need for a government to allow public access to trials in order to hold judges, jurors, and attorneys accountable for the decisions they make about civic life. That said, so long as Yolo County has a non-discriminatory mechanism to limit access to courtrooms, the balance between the ideal and the practical likely weighs in favor of its decision to reserve this power.
Conclusion
As the Orange County Superior Court writes, few institutions are as central to democracy as juries. By developing “a plan that … puts … health and safety [as a juror] at the center”—what it calls “safe access to justice”—the Orange County Superior Court, the Yolo County Superior Court, and other California courts have safeguarded the Seventh Amendment. As this crisis continues, it is essential that more jurisdictions quickly examine how they can restart their jury trials as expeditiously and safely as possible.
In a time of such social unrest, juries are more fundamental than ever. While we must guard against COVID-19’s risks, we also must ensure—like California—that fundamental institutions continue operating. This is especially true with regard to the civil jury system, for history teaches that emergencies can be used as pretexts, by not only governments but also private institutions, to suppress individual liberty. As Thomas Jefferson knew, trial by jury is “the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”
Personal Addendum
I write this from Memphis, TN, where I find myself preparing for a clerkship with the Sixth Circuit Court of Appeals. Although this year has been strange for us all, for me it was a good one. I especially want to thank:
· The Honorable D. Brock Hornby—for whom I clerked—for notifying me of the opportunity, encouraging me to apply, and being a constant source of sound advice and mentorship.
· The late Steve Susman for taking me onboard and teaching me the ropes.
· Judicial Director Mark Drummond for giving me the time, space, and advice to practice law on my own this year (plaintiff-side and pro bono) when I was not engaged in research.
· Research Fellow Michael Pressman for his advice on how to go about pursuing a career as a law professor.
· Professor Sam Issacharoff for suggesting what is and is not appropriate for inclusion in a newsletter published by an academic institution.
· Kaitlin Villanueva for coordinating travel (and … everything else) for the Civil Jury Project.
· Rachel Jones, for invaluable conversations and for taking care of my precious puppy, Grace, when I had to leave the faculty building; and
· Sabrina Rambert, our beloved security guard at NYU Law’s Wilf Hall, who was and is a ray of sunshine to all lucky enough to be touched by her light.
I will end on a slightly unconventional note. On August 4, a massive explosion shook Beirut, Lebanon, the past home of my parents and the current home of my extended family. Likely due to negligence bordering on recklessness by the Lebanese government and port authorities, the explosion killed hundreds and left more than 300,000 homeless. If these bereaved, injured, and homeless people lived in the United States, they could have utilized our system of civil law to have a chance at recompense. Instead, with a corrupt judiciary and a jury-less (and justice-less) legal system, Beirut’s citizens must rebuild on their own, with unanswered questions and no ability at all to be made whole by their negligent government.
We Americans sometimes take things for granted. The Bill of Rights—especially the Seventh Amendment—is a great treasure. It is a treasure that many living in countries without functioning judiciaries, places like Lebanon, desperately desire. So, though I now leave the Civil Jury Project, I hope the project continues its important mission—to protect the most important safeguard of individual liberty ever conceived: The civil jury.
Thank you,
Michael Shammas
[3] As the Civil Jury Project noted when we created protocols for online civil jury trials, it will be impossible to safeguard the confidentiality of jury trials in an online trial. Even if software is installed by federal or state courts to guard against recording, and even with the threat of criminal penalties, jurors or their associates could—especially in pivotal or controversial cases—use a smart phone to record the proceedings, either via video or audio.
[4] I surveyed multiple court websites west of the Mississippi, and the vast majority did not include protocols of the same depth. (Exceptions included states like Washington which, like California, were hit hard and early by COVID-19).
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Michael Shammas is a Research Fellow at the Civil Jury Project. |
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Look out for the October 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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Michael Pressman
Research Fellow
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Samuel Issacharoff
Faculty Director
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Michael Shammas
Research Fellow
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Mark Drummond
Executive/Judicial Director
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Kaitlin Villanueva
Admin. Assistant
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