As some of our readers may already know, King County Superior Courts in Seattle, Washington have resumed civil jury trials with a novel strategy for minimizing potential COVID exposure: jury selection over Zoom, followed by an in-person trial with a variety of social distancing and other protective measures in place. The King County judges and court staff deserve a great deal of credit for what they have accomplished. I was an early skeptic due to all of the potential complications, but the process they have put in place works incredibly well, with only a few minor bumps in the road. In fact, I just finished up another round of Zoom jury selection this week with great success and prefer it to the pre-COVID process. In this week’s blog, I want to highlight some key considerations for attorneys conducting jury selection over zoom. While the process was great in so many ways, there are a few things attorneys should be aware of.
First, attorneys should take advantage of the fact that the judges are allowing the expanded use of supplemental juror questionnaires. This was incredibly helpful. We received the questionnaire responses from every venire member the Friday before jury selection was scheduled to start. This gave us the whole weekend to look over the responses and narrow our voir dire questions. By the time voir dire began, we had a pretty good picture of the venire and where we wanted to focus our attention during voir dire. Consequently, attorneys should take advantage of the questionnaire and devote time to developing questionnaire items that will help them identify the high-risk jurors for their case.
Second, attorneys need to make sure they have a good system in place for tracking information about their venire members. This is probably the biggest difference with jury selection over Zoom: it is a lot more difficult to track all of the venire information, so you need to have a good system in place, or at least have a jury consultant there in the courtroom or your conference room helping you manage all of that information. In our situation this week, the attorneys and their team were physically present in the courtroom and the Zoom groups were projected onto a screen with a few venire members choosing to show up in-person at the courthouse for voir dire.
It is really easy to lose track of information about your venire members and I witnessed this repeatedly with opposing counsel. For example, there were several times where opposing counsel had clearly confused some of the venire members in her notetaking, which was easy to do when you are dealing with a lot more information and groups of jurors on the screen rather than in person. In fact, the process can seem chaotic at times, with venire members getting moved around to different Zoom sessions. Generally, the court is doing voir dire over Zoom with 8 -12 venire members at a time, taking the first 8-12, followed by the next 8-12 in numerical order. However, any time a venire member was having difficulty with Zoom, the court just bumped that member to a later panel depending on that venire member’s availability, which meant you might have juror #6 thrown into the voir dire for jurors #34 through #42. Even worse, the venire members appear in different places on the screen in Zoom on different screens, so it does not really work to just remember where on the screen they appeared. For example, in our voir dire, there were two attorneys on each side who were logged into Zoom. On our side, the venire members appeared in different places on the screens of our two attorneys, which can complicate the discussion.
Third, the court is giving venire members a lot of latitude when it comes to being excused from jury duty. The judges are understandably very sensitive to the difficult realities that the pandemic has created for everyone. This worked out well for us because we were able to convince several problematic venire members (through some subtle questioning) that their service on our case might actually create some significant work, home, or health concerns for them. They just needed a little nudging to reach these conclusions, and our judge was generally hesitant to question any of their health or work concerns.
Fourth, it is important to spend time in advance talking to your judge to fully understand exactly what the process will be. While the general process for jury selection is somewhat straightforward, there are nuances that vary from judge to judge. For example, in my experiences so far, the judges have varied in whether or not the attorneys need to physically appear at the courthouse for voir dire and how much time they get for each Zoom panel for voir dire.
Another less obvious, but very important issues is how the jury box will be filled as jurors are excused for hardship, cause, and peremptory challenges. With almost all jurors appearing over Zoom for voir dire and no mention by the court of filling empty seats, we initially thought in our case that the final jury would be the top 15 remaining jurors (12 jurors plus 3 alternates) in numerical order after all of the peremptory strikes were exercised. Thank god we asked the court for clarification about this because it turned out the court had been filling seats the whole time without telling us. This was easy to miss because the court never said anything like, “juror #6 is excused and juror #17 will now step into seat #6.” Also, since the venire members were on Zoom, we did not have the opportunity to see them physically filling any seats. This is important because it changes who the alternates are. If seat #12 is an alternate seat and the court is just seating the remaining top 15 in numerical order after all peremptories have been exercised, that gives you one juror in seat #12, but if the court is replacing jurors by seat number (i.e. juror #16 steps into seat #12) as they are dismissed for hardships, cause, or peremptories, it gives you a different juror in that same alternate seat. This may not seem like a big deal, but it is important to have a clear understanding of who will be placed in the alternate seats because it impacts your selection strategy.
Fifth, it is important to discuss the appropriate number of alternate juror with your judge as we head into flu season. Normally, flu season might not be a big deal, but because of COVID-19, simple cold symptoms are not that simple anymore. Before COVID-19, a juror might not have any concern about showing up at the courthouse with some cold symptoms, but all of that has now changed, which means you might lose jurors at higher rates than before COVID-19. Consequently, you might want to request more alternate jurors to avoid a mistrial or having to agree to a smaller number of jurors on the panel.
Finally, attorneys should practice Zoom voir dire. Try to get some colleagues, office staff, or family and friends on Zoom and give it a try. It is not difficult, but it is certainly different and takes some getting used to. The style that you are used to may not necessarily translate to Zoom and it is important to know that in advance so you can adjust. Our opposing counsel appeared to struggle with this at times and the end result was that it really impeded their ability at times to get the information they needed from the venire members.