Litigators must adjust their preparation and performance to be “TV Ready,” and learn to use technology to enhance the presentation of evidence, combat and overcome new types of distractions, and adapt to the technological challenges presented to the courts, witnesses, and jurors.

As courts across the country continue to adapt procedures to conform with social distancing guidelines amid the COVID-19 pandemic, the idea of a remote jury trial is rapidly moving beyond the hypothetical. On May 21, 2020, Florida Supreme Court Chief Justice Charles T. Canady announced the creation of a pilot program to test the feasibility of conducting civil jury trials remotely. The group in charge of the Florida pilot program will develop requirements for the participation in remote civil jury trials and will select five judicial circuits to participate in the program. Other states, such as Michigan, Indiana, and Texas, have also taken similar steps toward remote jury trials.

A virtual jury trial will undoubtedly affect every aspect of conventional trials that attorneys and judges have come to know and appreciate. In response, litigators must adjust their preparation and performance to be “TV Ready,” and learn to use technology to enhance the presentation of evidence, combat and overcome new types of distractions, adapt to the technological challenges presented to the courts, witnesses, and jurors, and work to safeguard the validity of a remote jury’s verdict.

Get Ready for Your Close-Up

When preparing for a remote jury trial, attorneys should not simply substitute video cameras, microphones and speakers for their presentation. The camera lens and audio microphones provide an altered point-of-view, and lawyers need to adjust to better their appearance through the camera. Practice with lighting options, camera angles and the distance to and from the camera lens so the jury, judge, and witnesses can clearly see you. It may be necessary to raise or lower the camera so as to achieve the best camera angle. Accessories such as the Lume Cube provide professional illumination when using video conferencing and may become a necessary accessory for litigators. The background seen by the camera lens is also important. The choice of background should be professional and be mindful that your clothes do not blend into the background.

You want your client to know that you have command and familiarity with the remote jury, and that requires increased preparation and practice with the technology. Instead of relying on the microphone and speakers on the computer, it may be necessary to use headphones or earbuds which have better sound quality for both the speaker and the listener. The litigator preparing for a remote trial should also listen to and review any practice rounds to get a better understanding of your volume and tone when using earbuds.

Other practical and common place trial procedures will change. It is possible that a remote trial will make the podium obsolete. If attorneys are suddenly conducting the entire trial from a seated position, then switch to a non-swiveling chair with a low back. A chair that swivels and has a high back may distract the jury or witnesses from what is being presented.

Use Technology to Develop Rapport and Enhance Case

The greatest hurdle will be the ability to develop a rapport with the jury and witnesses through a camera lens. Jury trials are personal. Whether it is a one-day or a multiple-week trial, there is time spent getting to know the jurors, opposing counsel, judge, and courtroom personnel. A remote trial takes that away. The camera lens does not allow either the attorneys, jury, or the judge to develop a complete picture for the person that is before them. Instead, we see only the limited picture that is on the screen.

Litigators want to develop a relationship with the jurors in order to build trust in their argument. The limited interaction through a camera lens will make it more difficult to evaluate a witness’s reactions to questions, view non-verbal mannerisms, and see how see how jurors react to questions and testimony. To that end, you may want to consider using more exhibits, and demonstrative aids which can be shared and presented. This will not only break-up the visual of seeing only a face on a computer screen, but also may serve to highlight and supplement a witness’s testimony and increase a juror’s participation.

Court services such as Veritext Exhibit Share is an easy-to-use tool that allows for the electronic production of documents and exhibits during a trial. It is currently being used successfully in virtual depositions. While the costs for this service may be seen as an extravagance at this moment, it could soon become a necessary expense. In that same vein, some exhibits and demonstrative aids may not have the same desired effect as they would during an in-person trial, and therefore must be screened from the jury’s point of view prior to their use.

New Distractions from Remote Jury Trials

It will also likely become more difficult to hold the jury’s attention during a remote trial. The only true distractions during a live in-person trial is boredom and fatigue usually brought on by dry testimony or argument. In a remote jury trial, the court and attorneys must now also compete with the additional distractions that come with home life and the temptation for jurors to research the case on their home computer.

Recently, a Texas District Court conducted an entire Summary Jury Trial remotely, and a Michigan court held an entire mock criminal jury selection remotely. Both courts experienced a new wave of distractions. In the Texas trial, a prospective juror walked away from his computer during a bench conference to take a phone call. When he returned, he did not plug-in his headphones and could not hear the proceedings. In the Michigan mock jury selection, the experiment was interrupted by a juror’s “giant dog” walking into the room.

Such new distractions have even invaded oral argument in the United States Supreme Court. Earlier this month, the audible sound of a toilet flushing was heard during oral arguments held via telephone. Although appellate trial courts will experience different growing pains, it would be naïve to believe that either venue is immune from the new and varied distractions that will invade the courtroom. Attorneys and courts must expect these new distractions and develop strategies and recommendations for when they occur.

Overcoming Technological Limitations

It is incumbent that courts have the technological capabilities to conduct a remote jury trial. The access to high-speed internet is essential for the connectivity requirements of a remote trial. Even in today’s electronic era, courts in rural areas may have limited access to such services. The issue of connectivity will also affect witnesses and jurors that reside in areas with limited access to high speed internet.

It will also be pivotal for attorneys to know the set-up and capabilities of the court conducting the remote trial. Who is in the courtroom and who is appearing from a remote location? What assurances have been made that witnesses are sequestered? Does the court have the ability to conduct break-out rooms, hold remote bench conferences, and share demonstrative aids and exhibits with the jury? If the court is simply acting as a server and hosting the remote trial, then lawyers might consider providing their witnesses with laptops that are already equipped with the necessary software for their testimony.

In addition, there could be added administrative costs for court houses which are older and in need of renovations in order to host a remote jury trial. This would include the ability to make the trial open to the public and allow access to the court proceedings.

Safeguarding the Validity of the Verdict

While the trial itself is open, a jury’s deliberations are closed, sacrosanct, and must be protected. Remote jury deliberations will undoubtedly provide an opportunity to hack into and eavesdrop on a jury’s deliberations and thus invade the province of jury. Such an action could call into question the entire validity of a verdict. The courts will likely bear the costs of the necessary safeguards to ensure remote deliberations are not hacked, nevertheless, attorneys must be ever vigilant for a new type of impropriety and work with courts to protect the jury and its verdict.

Practice, Practice, Practice

Regardless of the nature of the new challenges and distractions brought on by remote jury trials, it will be necessary for the attorneys presenting their case to develop new procedures, strategies, and presentations in order to best serve their clients’ interests. Clients are likely to be open to a remote trial because of the immediate benefit in decreased travel costs for their counsel, support staff, and witnesses. However, it is likely that at the present time, the convenience and security from communicable diseases that a remote trial provides will also require greater preparation and practice from their counsel to ensure the proper presentation of their case. It will also become compulsory and common place for trial attorneys to test their connectivity with the trial court and ensure that any program or software they intend to use is compatible.

The reaction from the courts to the COVID-19 pandemic has been swift. Courts in 39 states and the District of Columbia undertook measures to protect the public, and its officers, from a global pandemic. The next step will be striking a balance between maintaining the public safety and ensuring the continued operation of all court functions. At the beginning of 2020, the idea of conducting an entire civil jury trial remotely would likely have been dismissed outright. Yet, less than 60 days into the social distancing guidelines issued by the Center for Disease Control, courts and states across the country began testing the idea of a remote civil jury trial.

When a witness is finished testifying, the familiar phrase we hear from the judge is “you may now step down;” however, once courts implement remote jury trials we will start hearing “the witness may now log-off.”

Reprinted with permission from the June 8, 2020 edition of Legaltech News © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.