It is taking a while to get back to normal, isn’t it? As states and businesses are starting to re-engage after the coronavirus isolation, courts are taking their time. The chances for routine scheduling, particularly for civil cases, seems like it might be a ways off. That reality has pushed thoughts of alternatives to in-person trials, and initiatives such as the Online Courtroom Project (that I’m a part of) have sprung up to focus on ways that the trial process, in whole or in part, might move to the now-familiar medium of web-conferencing. One presumptive obstacle to that has been voir dire, as I’ve heard some attorneys say that, while Webex or Zoom feels like a good fit for a hearing, a bench trial, or an appeal, “surely, we could not select jurors that way.”
And, without a doubt, there are obstacles to clear communication via online videoconferencing. The more interactive the communication is, there greater the obstacles. But as we have all gained greater experience with these tools over the past couple of months, I do believe effective interviewing in that situation is possible. Whether it is part of a real voir dire, or part of an online mock trial or focus group, I think good communication can still happen. For one thing, potential or mock jurors on camera won’t have to wear a mask. The communication differences in that medium, however, demand some adaptation. In this post, I will share seven rules that I think should govern juror interviewing in a web-conferencing setting.
1. Build on the Foundation of a Survey
Here’s one thing that’s clear: When you have potential jurors or mock jurors in front of you on the computer screen, that should not be the first time you are asking them questions. That is because there are much more efficient ways to collect basic information in advance. They can fill out an online survey in order to provide not only their background information, but also information about relevant experiences and attitudes. Some media even allow participants to record spoken responses using their web cameras, so you can start the “conversation” with them that way, as well. And the bonus is that, based on studies, respondents are likely to be more candid when answering a survey than when responding to live questioning.
2. Follow a Plan
Experienced attorneys often rely on their own ability to improvise and adapt in front of a group of potential jurors. They value their ability to “read the room,” for good reason in most cases. That leads some attorneys to start voir dire with a list of issues, but without a firm plan for executing the questions. That kind of improvised communication relies on a close reading of nonverbals and quick flexibility, but that give-and-take is a lot harder in an online medium. When you question potential jurors on-screen, expect that it will be less of a true conversation, and more of a sequence of planned questions. So prepare and practice that plan before you go live.
3. Balance Group and Individual Questions
Part of the plan should involve a balance of group versus individual questions. Some of the group questions have, ideally, already been asked on the questionnaire, so don’t try jurors’ patience by asking them again. There are reasons, however, to ask novel questions to the live group. For example, finding out how many in the group agree or disagree with something that another juror has just said is a useful way of dividing the group into higher and lower risk pools. But the group questions need to be balanced with targeted individual questions, or some of your potential jurors just won’t participate. As easy as it is to hide in a live group panel, it is even easier to hide in an online setting. Don’t rely too much on volunteerism. Instead, ask a general question, then follow up with targeted individual questions.
4. Rely on Hand-Raising
Here’s one thing that is actually easier in an online panel: Seeing who is raising their hands. That is not always true in live settings, as panelists will sometimes just give a quick wave, with their hand too low or blocked by someone else. On the screen, however, it is easily visible and obvious when someone is raising a hand. In the larger group calls that I have been on, I have noticed that it is an effective way to manage turn-taking. At the start of an interview, it will help to give the group a little coaching: “When the answer applies to you, go ahead and raise your hand, making sure it is visible to your camera, and keeping it up for at least five seconds, just in case there is a momentary freeze in your video.”
5. Create a “Follow-Up Rule”
When compared to a live setting, the online videoconference might be lacking in immediate and quick interaction. You will need a practical way for people to let you know when they have additional information on whatever is currently being discussed. Because the web-conference can only carry one person’s audio at a time, it is best for that to be a visual cue: Again, a hand-raise can let you know to finish with the person you were talking with, and then move to the hand-raiser. Establish this rule at the beginning of the interview: “If I’m talking with someone else, and you have a reaction to either what I am saying or what they are saying, then give me a visual signal, like a hand raise. I will see that and follow up with you next.“
6. Manage the Number
There are some technological limits to the number of people you can question at once. That limit varies by platform, but I believe that you will probably see diminishing returns if you try to interview more than about twelve to twenty people. Personally, I think that tends to be true in both the physical and the virtual world. In the virtual world, exceeding the limits is more likely to shut down the whole process. So if you have a larger panel, it will help to divide it into smaller segments, passing each for cause and then exercising strikes from the whole group.
7. Manage the Time
There is an exhaustion factor to web-conferencing that I have written about recently. Something about the visual field or the more obvious factors of self-presentation make it harder to maintain attention for long periods of time on a web-conference. That is one of the reasons why you want to get as much information as possible in advance through a questionnaire. Then you can put your time live with the group to good use based on your plan. You want to keep the overall time short, and if it is more than 20 or 30 minutes, you are pushing it, and should probably further divide the group.
The fact that there are concessions to be made, just makes the web-conference interview different, not necessarily worse. There are concessions to be made in all communication settings. Considering the possibilities to collect information in advance and check-in jurors online, and potentially even reassign venire members from one “courtroom” to another with the click of a mouse, it is easy to imagine that virtual presence could actually streamline the process.
A Quick Request: I am a member of a working group called the Online Courtroom Project, looking into best practices for moving jury trials online — either some aspects or the whole shebang. We would love it if you would take this 3-minute survey. Thanks!
Image credit: 123rf.com, used under license