“Six months into the pandemic, trial-by-video-jury – at least in the civil context – is beginning to morph from experiment to expectation. And while lawyers aren’t totally sold on the concept, a growing chorus of judges is making it clear that it may be the only way to keep their dockets moving” (Law.com).
Clearly, with the Coronavirus continuing to ravage the country, the need to explore and utilize other options for civil trials is necessary. And, while there have been several “successful” Zoom trials, there have also been dozens of legitimate concerns and questions raised about everything from how to handle exhibits to making sure the jury panel is representative of the venire. Despite the problems, some judges are bullish on the idea. The Law.com article quotes Florida Circuit Chief Judge Jack Tuter, “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.”
Tuter went on to say he was unconvinced by the argument that having jurors tune in remotely makes them likely to tune out mentally, and the rationale appeared to be based on the fact that even in live trials, jurors tune out mentally. That is most definitely the case. We’ve all seen the sleeping juror, or watched a juror “taking notes,” but you just knew if you looked at those notes, they would be random lists or doodles. So, while juror attention is and will always be a problem, recent research shows that it’s not as simple as looking for ways to keep jurors engaged, especially since being engaged could be contributing to the problem. The problem is “Zoom fatigue” and while I’ve read several articles about how to deal with the logistics of video trials, the mental impact on jurors specifically related to how they receive, process, and then use the information they receive via the video technology has received little to no attention. Instead, there tends to be a focus on all the “problems” having jurors engage remotely will cause, primarily that they won’t pay attention, or they’ll do their own research. To be clear, those are not new concerns. Instead of focusing on the possible “bad behavior” of jurors, it’s important to ask what are we asking jurors to do and how can we help them do their job via video conferencing?
While using Zoom (or other video conferencing technology) for trials is new, the concept of “Zoom fatigue” isn’t. The basic notions stem from Cognitive Load Theory (CLT), which posits a model for understanding how the brain processes multimedia input (Homer, Plass, Blake, 2008). CLT suggests that the brain has a limited amount of processing power available to handle mixed, multimedia messages, and when you tax that processing by adding the stresses of, let’s say a Zoom meeting, these extraneous cognitive loads reduce our ability to process and retain information. Or, as some research on “Zoom fatigue” puts it simply: “Virtual interactions can be extremely hard on the brain” (Sklar). 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. And, it’s important for the courts, generally, to think about how they can ease juror fatigue. Here are two primary ways jurors are likely to experience Zoom fatigue.
First, video conferencing interferes with one of the strongest and most impactful ways humans interpret and understand verbal messages; as we’ve written and spoken about numerous times, non-verbal communication (body language) can account for as much as 60% of the message received. In other words, what you say is not nearly as important as how you say it. Over Zoom, non-verbal cues are significantly reduced, which means the listener expends more mental energy to try to make sense of what is being said. On video, typically one is watching someone from the waist or mid-chest up – a head shot. This also means that the person speaking is talking straight into the camera, which after a while can also be a little off-putting. As the researchers found, “For somebody who’s really dependent on those non-verbal cues, it can be a big drain not to have them.” And, “Prolonged eye contact has become the strongest facial cue readily available, and it can feel threatening or overly intimate if held too long.” The alternative, though, filming a person walking around and speaking to an empty room, or occasionally addressing the camera, means that rapport building, and persuasive ability, is lessoned.
Second, depending on how the video conferencing is set up, a juror might be navigating several images on the screen at the same time: exhibits, judge, counsel, witnesses, etc. The researchers wrote, “We’re engaged in numerous activities, but never fully devoting ourselves to focus on anything in particular.” Psychologist calls this “continuous partial attention,” which also applies to “real” environments. For example, in court, jurors also have access to all of those “images,” but because of non-verbal cues, it’s easier to understand where one’s focal energy should be, while still taking in micro messages from the other sources. On screen, the brain is having to work harder to figure out which image is the most important and how they all relate to each other. Or, if only one image, but an audio feed is picking up other sources (i.e., perhaps opposing counsel objecting and the judge responding), the juror is having to expend mental energy trying to figure out what is going on, which is especially difficult without the non-verbal cues. The researchers found that having a “prolonged split attention creates a perplexing sense of being drained while having accomplished nothing. The brain becomes overwhelmed by unfamiliar excess stimuli while being hyper-focused on searching for non-verbal cues that it can’t find.”
This doesn’t even begin to address all of the other stimuli and distractions the jurors might be dealing with either accidentally (i.e., their dog begins to bark) or purposefully (i.e., they decide to check a text from a friend). Yes, jurors lose focus during in-person trials, too, but at least in trial there’s the social pressure to remain engaged, while in the privacy of one’s own home that doesn’t exist. In some ways, being at home is also adding to one’s cognitive load as outside forces might also be exerting some pressure for attention (i.e., spouses, children, chores, etc.).
Zoom fatigue can be addressed in a couple of ways: First, there will need to be more breaks. This could mean that a trial will take longer, which ties to a juror pet peeve; but the need for everyone to take a mental break from staring at their screens is important to maintaining attention, which directly relates to the ability to retain information. Or, what it should mean is that you have to streamline your case. If jurors are already mentally fatigued simply by engaging with the technology, then do not make their job harder by including too much information. My colleague, Scott Herndon recently wrote about advice for litigators that he learned from being a debate coach, and one that we should all heed is: Just say it. Whether it’s your opening or a witness examination, now more than ever – just say it.
Second, strategically think about what jurors need to see on the screen. One of the major contributions of CLT is how it helps us understand the dangers of splitting our attention between visual and verbal messages. Again and again, researchers caution that when we split audience attention, no matter how compelling the information may be, they learn less. While during trial, it goes without saying that jurors pick up on non-verbal (sometimes verbal) reactions of all the parties (i.e., how the plaintiff is engaging with his or her attorney, how the attorneys are responding to a witness or the judge, etc.), on Zoom, trying to pay attention to what every party is doing and also actively engaging with the information (i.e., evidence or testimony) will only be draining. On Zoom it might be best to limit the images so jurors can truly focus on one thing at a time. Yes, you might lose the “advantage” of having jurors see the smirks or rolling eyes of the opposition, but they also will miss yours.
Finally, assess your (and your witnesses) communication strengths and weaknesses, and acknowledge that you will have to up your dynamism. Research on limiting and/or balancing cognitive load stresses have found the best strategy to bolster audience retention is to increase the quality of social presence of the presenter (Moreano and Meyer, 2000). Practice in front of a video camera and when you watch it back, listen for how your voice does or does not enhance your message (i.e., your tone, inflection, rate, pitch, style, etc.). With limited body language cues, your vocal cues become even more important. Research shows that language choices designed to make the jurors feel like participants instead of spectators can help to balance cognitive load and increase audience acceptance of information and retention (Moreno and Meyer, 2000). Something as simple as using “I” and “you” increases the sense of participation balancing the impact of high cognitive load. You can also punch up the presentation and engage jurors by using a multi-media approach; make sure you can easily insert graphics, video and audio clips. And, practice your witness examinations, with the witness, just as it will be presented during trial. Assuming that the witness and you will not be in the same room, you must practice the remote examination and your witness should also be run through a remote practice cross examination. You (and the witness) are learning a new skill and it’s not one that can be learned “on the job.”
Here are links to two of the articles referenced in this post: