In the fall of 2020, King County Superior Court (Seattle) Judge David Keenan presided over a 15-day Zoom jury trial, making him one of only a small number of judges across the United States to have done so. The length of the trial is particularly notable given that most remote jury trials reported in news have been shorter in length by comparison. Judge Keenan now provides guidance to other judges as they order remote jury trials to help keep the wheels of justice moving during the pandemic.
However, many trial attorneys remain anxious and uncertain about remote jury trials, viewing them as a radical departure from the norm. These feelings are understandable given the fact that remote jury trials are so new and most attorneys simply do not know what to expect. To help provide some clarity, Judge Keenan was kind enough to take the time to answer some questions for us with the goal of providing a glimpse into the process and logistics of a remote jury trial.
You have the unique experience of having presided over a 15-day remote, civil jury trial. Can you tell us a little bit about what you thought about that experience and how it went?
Overall, I found it to be a good experience. Sixty-five+ hours is a lot of time to spend on Zoom, but I enjoy the fact that we can still get parties to trial and have jurors during this public health crisis.
What do you think is the most difficult part of holding a Zoom trial?
As a judge, I’ve found the most difficult part is the choreography, i.e., all of the moving parts. In the morning, I’m checking in jurors on Zoom, changing their screen names to juror numbers, moving them in and out of the Zoom breakout room (i.e., the Zoom jury room), and then I’m watching for counsel, parties, and witnesses in the waiting room, looking at electronic exhibits on a second screen, watching the jurors to make sure they’re not distracted or (literally) disconnected, and just generally figuring out how we replicate in-person procedures over Zoom. It works fine, but it’s a fair amount to keep track of.
What does the Zoom screen layout look like for the attorneys and court? For example, can all of the jurors be seen on screen at the same time as a witness is being questioned or an attorney is giving an opening statement?
I change all of the juror screen names to juror numbers. The latest version of Zoom allows the host to arrange the tiles and have viewers follow the host’s order, so I arrange all of the jurors in rows in order of juror number and send that same tile order to all participants. I leave it to the participants (parties, counsel, jurors) whether they want to use gallery or speaker view, for example. By arranging the jurors by number and hiding non-video participants, I keep the screen relatively uncluttered.
One of the common concerns I have heard from many attorneys relates to juror attentiveness during remote trials. Some are concerned that it could be easy for jurors to multitask and that simply seeing jurors’ faces pointed at the camera does not necessarily mean they are paying attention. What has been your experience with this and what steps (if any) does the court take to address this issue?
In addition to that recent long, all-Zoom jury trial, I’ve picked several juries over Zoom. I’ve found that jurors do a good job remaining engaged. I’m watching for signs of multitasking, e.g., jurors appearing to look at a device, type, or scroll on a device. I watch for physical distractions, such as someone or something (e.g., a pet) in a juror’s space. Apart from observing, I look for other signs of engagement, e.g., whether jurors are actively participating in voir dire and whether they’re asking questions of witnesses that indicate they’re following the issues.
Is the daily schedule for a remote trial different in any way from the typical daily schedule of an in-person trial (i.e. 9 a.m. to noon and 1:30 p.m. to 4 p.m. with 15 minute breaks)?
The schedule will vary from judge to judge, but there’s a tension between wanting to spend more time in trial each day, because participants don’t have to travel to court, and not wanting to get too fatigued on Zoom. So I keep a pretty similar schedule with Zoom as I did with in-person. I asked jurors to check in on Zoom by 8:45 a.m. for a 9:00 a.m. trial start, and we still generally took lunch from 12:00 to 1:30 and recessed for the day at 4:00. It’s tempting to want to have longer days (maybe 8:30 a.m. start and 4:30 p.m. finish), given that parties don’t have to come in person, but I think that ends up maybe being too much time on Zoom.
How is the court handling exhibits in remote trials, including original deposition transcripts?
At least in King County, using the ShareFile application from the Clerk’s Office seems to work pretty well. Jurors have said that, at least in document-intensive cases, it would be nice to have an index when they’re provided electronic access to the exhibits; jurors have said they would like something that simulates a notebook; indexes help. The deposition practices probably vary. I’m fine accepting an electronic copy sent to the clerk to publish; other judges might want a sealed hard copy.
How are sidebars handled?
I just send the jurors to the Zoom breakout room for sidebars. Once I set the Zoom jury breakout room up in the morning, it’s just one button push to send the jurors there and bring them back.
Are there any guidelines or general rules regarding the Zoom set-up for attorneys and witnesses? For example, could an attorney set up their mic and camera to speak from a podium rather than a desk or table?
My only request is that everyone can see and hear everyone else. I’ve seen counsel stand up and use lecterns; as long I can see and hear you, I’m fine with whatever set up you’re comfortable with.
Beyond the general fact that the trial takes place over Zoom, are there other important differences that have not been discussed so far that you think attorneys should be aware of as they prepare for a remote trial?
Be patient. I estimate that Zoom might add about 10 percent to the time most things take; that’s just my estimate based on my experience so far. Understand that people will sometimes get disconnected or have problems with technology access (e.g., equipment and bandwidth) and technology fluency (i.e., knowing how to use the tech). A Zoom hearing or Zoom trial is really just a Zoom meeting; it works, and I urge folks to embrace this and help us get better.
What advice would you give to attorneys preparing for their first remote jury trial?
Practice your different skill sets and your own choreography. Often with in-person trials, counsel would come early to test out the tech; Zoom is no different. Find a colleague and do some practice runs.
I think counsel should put a lot of thought into how their exhibits will be received on screen. You might need more illustratives. You might need to break up larger documents. You might need to enlarge the text on some documents.
Test your mic and camera out. A good mic and a good camera make a big difference.
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This is some of the most helpful content available to Zoom litigators. Of course, this reflects the high powered credentials of the SJC team. I am very appreciative that you have made available such highly valuable content on the up-to-date and cutting edge trends (like them or not) now being pioneered by both the state and federal judiciary in Seattle. As your materials cite the orders of federal judge Marsha Peckman, Zoom civil jury trials are now being ordered even when the parties withhold consent. And as goes the applied technology sciences in the courts of the Emerald City, so shall go the entire Ninth Circuit and beyond.
SJC’s free pdf download for Litigation in 2021 (which I have converted into a word audio file I can listen to like a podcast) is a major contribution for Zoom litigators in going forward. As you point out, lawyers can’t wait until their Zoom trial is upon them to study these issues of justice technology end juror cognition. In my Zoom litigators library, SJC material will have the spotlight. Thank you for your very civic minded contributions to help advance but still protect civil jury trials in this brave new world of streaming justice.
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