With the late Fall surge in COVID-19 around the country, many courts are again having to consider the option of conducting remote trials through a videoconferencing provider. Notably, some venues around the country have already conducted remote trials, with many touting them as tremendous successes during these difficult pandemic times. For example, Florida Circuit Chief Judge Jack Tuter said in a recent Law.com article, “You never could have convinced me back in March that we could have a jury trial on the internet….I would just think there’s just so many limitations, but it seems like for every limitation we had we found a solution…I’m a believer.”
In every instance that I am aware of when a remote trial was a possibility, the parties on each side were given the option and both had to agree to forgo an in-person trial. Many of our clients wonder whether a remote trial is right for them, and more specifically, what the advantages and drawbacks might be. It is a difficult decision to make, but here are a few things to consider as you decide whether to proceed with a remote trial.
First and foremost, if you choose to proceed with a remote trial, it is important to invest in the technology to get it right. In short, do not go cheap on the technology (i.e. microphones, cameras, lights, backgrounds, etc.). This is true for the you and for your key witnesses. You want to put on the best presentation possible for both you and your witnesses. Poor quality microphones, cameras, or lighting can have a significant spillover effect that undermines the effectiveness of your presentation. In addition to investing in technology, you also need to invest your time in practicing with the technology. It does no good to invest in the right technology if you lack the experience to competently and credibly operate it when the time comes to do so. In short, practice, practice, practice!
Second, you should consider how videoconferencing mediates the role of emotional moments and appeals at trial. Emotional appeals will be much more muted in a Zoom trial. Zoom simply cannot replicate the effects of being in the same room as an emotional witness testifying about the profound impact a devastating injury or death has had on them. Consequently, the side with the more emotional case is at a bit of a disadvantage in remote trials compared to in-person trials. However, the complexity of the case could offset this. If jurors struggle to understand the issues in the case or suffer significant Zoom fatigue (as discussed below), they could resort to shortcut thinking driven by their emotional views of the case.
Third, attorneys should consider how their own and their witnesses’ styles and routines are impacted by Zoom trials. If you tend to be very animated and like to move around the room, it is a lot harder to do that in a remote trial. This is not only true for opening and closing statements, but also for cross examination. If you have a particular style that relies on things such as a rapid-fire style of questioning or nonverbal intimidation tactics, it is going to be a lot more difficult to rely on those styles effectively in a Zoom trial.
For witnesses, a strong, dynamic witness will be more muted online. However, if you have some key witnesses that are weaker and more susceptible to brow-beating, the fact that Zoom trials make those attorney tactics more difficult could be a benefit to your case.
Fourth, regardless of your style, you are going to have to work a lot harder to be dynamic in the online format and you are going to have to do many things to increase juror attention and retention. Zoom fatigue is real. As my colleague Jill Schmid stated in a recent blog post, “In a trial setting where jurors are already having to learn a whole new language related to the law, then process and retain information related to the case facts, adding Zoom fatigue on top of that is asking an awful lot from people. Now, more than ever, it’s important to think about how you will need to modify your case if presented via video conferencing.” You need to find ways to engage jurors and keep their attention on the case while going above and beyond to repetitively highlight what you believe are the most important parts of your case theory.
If your case is particularly complicated or document and witness heavy, it will be much more difficult to present the information not only in a compelling manner, but in a manner that sticks. In an in-person trial, juror retention is a problem, but in a video conferencing setting, it is an even greater problem. Repetition will be key as will the use of more visual tools. While we typically would argue against over-reliance bullet point lists, in a Zoom situation, they could be used as summary lists that jurors could easily write down to capture the most important aspects of your opening or the testimony they just heard.
Finally, you should consider how videoconferencing impacts the deliberation style of the jurors. Deliberations over Zoom require more moderation or facilitation than in-person. We have seen this over and over again in our online mock trials during the pandemic. It is much more difficult to have a free-for-all discussion on Zoom with large groups. This has two implications: 1) Opinion leaders are more important than ever because they will likely exert even greater influence over how the issues are discussed since it is sometimes easier to dominate an online discussion (if motivated to do so) than an in-person discussion; and 2) Jurors will be more likely to adopt a process that simplifies the discussion, which likely means going straight to the verdict form.
This is important because there is a significant difference between an open-ended, emotionally-led free-for-all and a structured discussion that begins with the first verdict form question. The latter, procedural orientation will make the verdict form and jury instructions much more central to the deliberations. This might sound absurd as you might think that they always are, but it is very common for jurors to use the bulk of their deliberation time having a wide-ranging discussion of their views of the case before they even look at the verdict form and jury instructions. This type of deliberation often means they have made up their mind before they reach the verdict form, and they simply reverse engineer the verdict form and jury instructions to fit what they have already decided.
There are certainly a variety of other considerations, but these are the factors that have stood out to us so far in our experiences with both online trials and online mock trials.