Court is in session.
Though the COVID-19 pandemic continues to wreak havoc across the country, courtrooms are seeking ways to reopen their (at least figurative) doors.
Some jurisdictions are back to holding trials in-person, in a reimagined socially distanced courtroom. Some are taking jury trials online. Still, others are employing a hybrid approach, conducting some parts of the trial remotely and some in the courthouse.
As with much else in the world as it grapples with COVID, all of these waters are uncharted – and all warrant careful consideration and preparation. In particular, compelling trial team communication becomes notably more challenging in these unique settings.
What are the considerations to improve communication effectiveness for in-person trials in a socially distant world?
With all players in the courtroom wearing masks, the ability to see reactions and emotions is limited in a way unlike ever before. Mask-wearing attorneys must leverage novel means of communicating expression and emotion to connect with jurors. The trial team is tasked with tracking jurors’ reactions to arguments without relying on facial expressions. Jury selection must be done with only a partial view of the juror. Witness testimony must be evaluated on word alone, without the usual facial emotional cues. Attorney and witness preparation is critical to ensure connection, as is research to understand the juror in advance.
As courtrooms (or, for that matter, hotels posing as courtrooms) become creative with socially distant set-ups, trial teams must be mindful of how to reach everyone in the room. Jurors no longer share the same physical view of proceedings – with both emotional and practical implications. Attorneys and witnesses may need to be projected on video, and speakers and screens may need to be placed around the room to ensure those in the “back row” can see and hear. And, importantly, attorneys must find a way to connect with every juror, physical distance notwithstanding.
The Jury Makeup.
Of course, COVID will impact those who are able and likely to show up for in-person duty –reducing both the size and representativeness of the juror pool. It is more important than ever to conduct research to understand how case arguments play out amongst a population clearly representing demographics and attitudes of the COVID in-person jury.
The Jury Experience.
Socially distanced in-person jury duty is a different experience and more isolating than it has been historically. Jurors have limited opportunity to connect with each other during the trial and are tasked with coming to a more physically distant consensus. This separation should be mimicked in pre-trial research to assess its impact on investment in deliberations and group decision making.
What are the considerations to improve communication effectiveness for virtual trials?
It is critical for trial teams to understand the virtual platform technology inside and out, and to have an experienced tech team that can lead both the trial team and the jurors through the experience. Presenting documents and video evidence are now an exercise in file sharing, with considerations such as file size, internet connections, and encryption; sidebar chats are now an exercise in navigating Zoom breakout rooms. A strong tech team can ensure that proceedings yield seamless, impactful communications.
Practice Makes Perfect.
Trial prep takes on a different dimension in the virtual courtroom. Attorneys and witnesses are now tasked with picking the appropriate Zoom background, finding a compelling camera angle, and figuring out backroom channels for communicating with others on the team, all of which can impact how jurors perceive them. Trial consultants can help to test and identify the optimal stage for success.
Screen Real Estate.
Graphics must be created to fit an online setting. What works on a large poster board in the actual courtroom needs to be modified to fit a personal computer; colors, font size and layout must all be taken into consideration. This too is something that should be tested in advance to ensure ease of visibility and optimal impact.
With jurors deliberating from the comfort – and distraction – of their own home, keeping their attention requires new strategies. Attorneys have to think about their presentations differently, relying on a variety of techniques to keep jurors engaged through the screen. Again, it’s important to mimic this juror setting in mock trial research to understand what is most effective through the screen.
The Jury Experience.
The virtual juror sits even farther than six feet from their fellow juror, and their only opportunity to interact is through webcam. As in the in-person socially distanced jury, this physical and emotional distance can impact group decision making dynamics; testing case arguments before a virtual mock jury can help to replicate this reality.
The carefully crafted laptop-sized trial provides the benefit of more control over the jurors’ view. All jurors get the same view of attorneys and witnesses and the same view of any physical evidence, and at the same time, any courtroom distractions and sidebar conversations are kept out of their view.
Finally, the virtual setting offers the trial team (and particularly those behind the scenes) a clear view of individual juror reactions during the voir dire and proceedings – a rare ability to live-monitor the jury not afforded by the back row of a courtroom.
"As with much else in the world as it grapples with COVID, all of these waters are uncharted – and all warrant careful consideration and preparation. In particular, compelling trial team communication becomes notably more challenging in these unique settings."
The COVID era trial must balance protecting the constitutional elements of a jury trial while protecting the nation’s health in a pandemic. Both a socially distanced in-person approach and a virtual approach allow for that – but also pose challenges that trial teams have never encountered.
More than ever, the COVID trial requires careful preparation and strategy to ensure success, whether virtual or in-person. Pre-trial research can help to identify arguments and an approach that will resonate through a mask or computer screen. Trial and tech consultants can ensure that graphics and attorney behaviors translate across an expanse of a nearly empty room or over the internet. A carefully recruited mock trial in the appropriate venue can ensure that case facts resonate among “COVID-likely jurors” and not just the jury of the past.
There’s a new order in the courtroom.