By Dr. Ken Broda Bahm:
Arizona may not be the model when it comes to partisan post-election audits. But when it comes to online or virtual trials, the “Cyber Ninjas” in that context seem to be doing much better. In the Grand Canyon state’s most populous jurisdiction, Maricopa County, civil parties can choose virtual juries in order to expedite the process. Leaders in the Superior Court for that venue did not simply default to that option, they studied it carefully. The current edition of the ABA’s Litigation publication features an article, “Virtual Juries: We Can, But Should We? And If So, How?” by Hon. Pamela Gates, the civil presiding judge of the Superior Court of Arizona in Maricopa County, and trial consultants Jeffrey Frederick and Karen Lisko. The article briefly covers the efforts by the court to research and conduct a number of simulations of online trials.
In Maricopa County, parties can in some situations choose virtual juries to expedite the trial process. Using jurors who were summoned for traditional jury duty but released before serving on any trials, the Superior Court enlisted some help from a group of attorneys and trial consultants to comprehensively assess the experience, while also conducting a head-to-head test of in-person versus online jury selection and trial. In this post, I will highlight some of the main takeaways from the project and end with some of my own suggestions.
Online Questionnaires Are a Keeper
In May 2020, the court created a portal to provide an expanded online questionnaire. To test the venue, they asked nearly 40,000 potential jurors a number of qualifying questions for online participation. The questionnaire focuses on availability of camera, internet, private space, physical ability to serve from home, and other factors, and a copy of that questionnaire is available here. While 62 percent responded that they could presently serve from home, others (i.e. those lacking space or technology (who were disproportionately female, Hispanic, and older) would need some accommodations. All participants (judge, attorneys, trial consultants) appreciated the use of online questionnaires, seeing them as helpful and easy to use.
Virtual Voir Dire May Be a Keeper
The court conducted two virtual jury selections, engaging 34 potential jurors in a simulation. Portions of the video from that simulation are available here, including parts of the voir dire and parts of the judge’s discussion with counsel on cause challenges.
Participants believed that the voir dire was generally smooth and effective. According to David Rosenbaum, one of the participating attorneys, it may have some advantages:
Voir dire questioning conducted face-to-face on a video platform is in some ways more intimate and personal than in-court examination conducted from six to ten feet away. And, unlike the traditional courtroom setting, jurors see their fellow jurors’ expressions and reactions head-on. That introduces an entirely new and, I think, helpful dynamic.
The other attorney participating agreed. Lance Broberg noted:
I came away from the process preferring virtual voir dire. First, the jurors appeared more comfortable and therefore more candid. Second, everyone was right in front of me so I could easily monitor the group, no scanning the room. Third, there is something to be said about seeing the prospective jurors in their own homes. You just feel like you better understand who they are. And you can’t get that in a sterile courtroom setting.
As far as the jurors go, they also said the experience was positive, some saying that it felt easier to be candid in an environment less intimidating than a courtroom. There is also the advantage of no face coverings. The common sentiment was that, in at least some cases, online voir dire is a feature that should persist post-pandemic (if, indeed, the pandemic ever passes).
Virtual Trial Has Some Advantages
The court also conducted an in-person simulation, with some views of that available here, in order to compare how the same content would be received in-person versus online. Jurors generally saw the attorneys as effective in both contexts. For the attorneys, though, there were some ups and downs. Lance Broberg noted that some of the communication felt constrained, noting that when it comes to showmanship, “that magic is lost when you are removed to a conference room, seated, and find yourself staring at a screen and camera.” He continues, however, noting that for jurors, this can be an advantage: “a number of jurors expressed appreciation for the limit to the courtroom theatrics.” The other attorney, David Rosenbaum, noted that even as witness examination could be constrained, the benefits may outweigh: “Particularly for a two- to three-day civil trial, the advantages of a mask-free virtual trial, in my view, will often outweigh the perceived benefits of in-person witness confrontation.”
Another advantage is that the jurors were more active participants. While there were a few questions from jurors during the in-person trial, during the virtual trial, based apparently on the ease and perceived anonymity, “jurors flooded the judge’s private chat with questions” according to the authors. In the case tested, the medium also made no real difference in the verdict, with the decision going to the plaintiff in both cases and the damages being just $10,000 apart. With near uniformity, the jurors participating preferred the online setting for both jury selection and trial.
My Recommendation
Arizona is just one of the states making active and purposeful moves toward expanding the courtroom in the current public health emergency. But in my view, too many courts and too many parties seem to be still waiting for the pandemic to blow over, without realizing that there could be some benefits to evolution. Here’s what I suggest.
Attorneys Need to Ask
Courts respond to pressure, and if parties are content to wait through the crisis and the backlog, nothing will happen. Instead, ask the court: Is there a way we could use technology for all or parts of this trial in order to get moving sooner and more safely?
Courts Need to Try
One advantage in having 50 state court systems and 10 federal judicial district courts is that they can act as laboratories. At this stage, courts entering the online space are no longer fumbling in the dark: There are plenty of guides, with one useful clearinghouse being the Online Courtroom Project.
Everyone Needs an Open Mind
Last month, I assisted on an in-person jury selection. It was conducted in a large sports stadium, with jurors masked and spread out so far that participants — jurors, attorneys, judge, and court staff alike — all needed to use individual microphones and headphones to hear and to be heard. At that point, it was the worst of both worlds: totally reliant on technology to communicate, but still unable to see faces, and still at risk of spreading the virus. Remembering that a court is a function and not necessarily a place, the question with online access needs to be, “Why not?”
Other Posts on Online Trials:
- Treat Online Trials as an Access-to-Justice Issue
- Expect Attorney Resistance to Online Trial Innovations
- Online Trials: Expect Both Challenges and Opportunities