Zoom Voir Dire - a covid trial diary excerpt
Head over the bridge to Bellevue. Enter the parking garage. The gates are up. A sign is taped over the ticket machine. Free parking. Slide into a spot. Walk a few feet to the entrance. It is all so clean and perfect and sterile as heck. Miss the cracked sidewalks, scores of people, and general dishabille of King County Superior Court at 3rd and Stewart. Even the long and twisty security lines.
We are set up and ready to zoom voir dire. Today will get through 3 panels of 10-11 prospective jurors. Each session one or two people come into the courtroom because they haven’t figured out how to use the technology. It actually works pretty well. An echo here. A gurgle there. But overall there are no technical problems. Still, can’t help but compare it to jury selection pre pandemic. Standing with respect while scores of venire shuffle in with their placards. Backpacks, lunch bags, scruffy, immaculate, the endless variety.
No one gets to see that I am actually not wearing lululemon from the waist down. Our tables are skirted. We sit the whole time. There are two options – look at zoom via our computer screens or look at zoom via the projection screen. Either way we don’t stand.
Voir dire is like the garage. A little too orderly. The chaos factor of working with 70 people at a time is gone. The excitement – the aura of anticipation – everything is as muted as the thick carpet that covers every inch of the floor.
The days of the venire being able to talk at the same time. To riff off each other. Those days are gone. We can still talk to them as a group. They can raise their hands. Shake their heads. But to dig in we have to go one at a time. Even if not always in order.
The jurors attending by zoom are unmasked which helps. Those that show up in person have masks. Both have their pros and cons. Neither set of imperfections prevents us from being able to feel fairly comfortable working with the panel.
My first question pops into my head as the judge reads the neutral statement. I sense the reactions of the jurors. This part of zoom is superior. With fewer you can study them more succinctly. People aren’t wrapped around a column or otherwise out of sight. They are there in Hollywood square fashion and you can see their expressions and head movements.
Say: When you heard her honor say that this incident happened eight years ago, who had concerns that something was not quite right about this case. This pulls an objection from Steve that Judge P overrules. Turns out it bothers a whole lot of people. Some think that the corporation is dragging this out at the expense of the plaintiff. But others think the plaintiffs are to blame. By the third round, the judge pre-empts me and asks it as a general question. She also makes the statement that it is no one’s fault, no one is to blame, sometimes the legal system moves slowly. Indeed.
The unveiling of the panel is always fascinating. Someone marked for removal turns out to be good. Someone who is saying everything that we could wish for, on another topic changes into someone we need off.
120 jurors were summoned. 85 respond. 41 are left after hardship. This is barely enough. Challenges for cause are made on the spot. Judge P does not rehabilitate them. Peremptories are made without the jurors present. Judge P is good with math. Only two people are left over after we are done picking the jury.
Zoom voir dire notes:
don’t torture yourself over making actual eye contact. you are looking at them on the screen of your computer not through the lens of your web cam and they are doing the same. No one actually looks into the eyes of anyone else
at the same time practice not looking at the screen and only looking into the web cam which is going to be the most straight version of you possible.
For tips on talking with masks see prior blog post on Mask etiquette and challenges.
If you have practiced more than 20 years and remember old-style voir dire where you talked to the jurors in the box - perhaps even one at a time. Well, remember those old days and transport them to now.
If you have only done voir dire using the struck method - find some ancient legal tomes on voir dire so you can return to the ancient ways.
instead of talking to 30-70 jurors at a time, you will talk to panels of 8-12 depending on the judge.
If you’ve had the wonderful experience of working the crowd during voir dire, lose that thought. The group synergy is stunted in zoom voir dire. People have to wait their turn to talk or wait to be called on. If people talk too soon, they cut each other off since only one microphone can be used at a time. It is challenging to build group communication and sometimes you need to just let that expectation go altogether.
The process from the juror’s perspective is quite different. It is not as scary. They are not in a foreign environment with a judge looming over them. They are in their kitchen, or living room, or car. This comfortability shields them from understanding the magnitude of responsibility they are going to have.
Several jurors will complete voir dire, then the next day when they are seated, will realize they can’t or don’t want to actually be in trial. It isn’t real until they show up. This can cause major problems as unselected venire are excused and can’t be called back to take a vacant spot.
More one on one in depth conversations occur.
Being monotone will shut things down quickly.
Sit back far enough from the camera so the jurors can see more than your head. That way when you use your hands they can see more of you.
The larger the group of jurors, the more panels of 8-12 to voir dire. Each panel goes through the same process. The judge gives opening instructions. The parties introduce themselves. The same questions to some extent are asked. It is all quite Groundhog Day in nature.
Photo: Trial day 2 October 2020