Most jury consultants agree that voir dire is the trickiest part of a trial, for many reasons. First, it’s tricky because the seated jury will ultimately decide the outcome of the case (even though the judge sets strict parameters on that decision). Second, jurors’ behaviors are difficult to understand and predict within the limits placed on voir dire. Third, the communication process involves interviewing, assessing, charming and persuading jurors to disclose personal information to strangers and, sometimes, even deliberately attempting to get jurors to disqualify themselves. That is why so many attorneys want to understand the secrets of the process and of the jurors. As remote trials become a more frequent reality and attorneys cannot interview jurors in person, how will this work? How can you conduct the questioning with only a video screen looking back at you? How can voir dire and the jury selection process best be conducted effectively in this new medium? Having seen remote voir dire, I can say that it is possible to select a jury in this way and to succeed at it. Here are a few reminders about what you are really trying to accomplish in voir dire and why the most important goals are still able to be achieved in a remote setting.
First, a caveat: How much information you get depends on the court
The voir dire process varies significantly from court to court and these differences make it difficult to talk about how a remote setting will differ from the courtroom in a comprehensive way. Some courts allow for lengthy questioning, some for individual questioning and some for lengthy individual questioning (has anyone been in Texas or Connecticut where the process can take days?). Some voir dire takes place in a couple of hours or, as the judges proudly say, “we’ll have a jury by lunch.” And they say that proudly because in those courts, the point is to simply ensure that there are jurors in the jury box when the trial commences, not to vet them thoroughly. Similarly, the “strike” process can vary, too, from using cause strikes and/or peremptory strikes immediately after questioning individual jurors, to exercising strikes at the end of the questioning of the entire panel, to allowing “back strikes” which involves striking previously seated jurors. Since this process varies so widely, from state to state, from county to county, from Federal to State Court, and even among judges within the same courthouse, we will offer general considerations about how voir dire conducted remotely will differ from in-person voir dire.
Voir dire is not the only source of information about jurors
Jurors often fill out a questionnaire from the state or federal government that provides minimal information about them; depending on the circumstances, jury consultants and attorneys are sometimes permitted to provide case-specific Supplemental Jury Questionnaires that jurors fill out in advance of jury selection. This information will inform the questioning and is often used to begin to screen for hardships (for example, caregiver issues or medical problems that would preclude sitting as a juror). They are also especially helpful in identifying jurors who should be struck for cause; for example, they know one of the parties personally, they have strong feelings about the type of case, or say that they cannot follow the law. Ideally, these questionnaires also ask about relevant attitudes, experiences and even types of media the juror follows. These questionnaires prompt live questioning that will inform peremptory strikes.
Social media is part of the process
The jury selection process is now more likely to include conducting some social media research of potential jurors before and/or during the jury selection process, the results of which can influence the voir dire process. Online voir dire generally requires getting the list of jurors in advance, either that morning (not optimal) to a few days in advance (much more optimal for searching). Jurors are searched on Google, Facebook, Instagram, Twitter and other sources such as Westlaw and local court records for information that is relevant to their attitudes and experiences before jury selection. This knowledge gained pre-voir dire is used to make initial decisions about who to strike or to keep based on possible predispositions toward the case. This information is more useful in developing first impressions and not final decisions, however, since jurors will often post information about themselves that is not censored, there is a lot to glean from personal posts that are offered freely in the public domain. Thus, there are sources of information that contribute to attorneys’ impressions during voir dire (in person or remote).
The most important thing to remember: Jury selection is de-selection
Though the most frequent question attorneys ask me is “Who do I want?” the most important question is, “Who don’t I want?” Jury selection is “de-selection;” that is, the most important goal in jury selection is to eliminate your worst jurors, so voir dire should focus on getting information that will help you to do that. The second most important goal is assessing leadership potential – who are the leaders going to be versus who will go with the flow? There are other goals, of course: rolling out themes, creating an impression for the jury, and even creating a “connection” with potential jurors that will last into trial. Some attorneys worry that remote voir dire will impair their ability to make connections with jurors when they are not in the same room, and they also worry about jurors’ abilities to maintain attention and focus on the process when at home as opposed to in the courtroom. Although these concerns have some validity, we believe they are far less important than the goal of getting jurors to give answers to questions that would reveal that they are biased about your case.
What attorneys want to gain from voir dire:
- Seeing the jurors and their body language: Most lawyers (and jury consultants) who “pick juries” believe that they can assess a great deal from the body language, facial expressions, and clothing of jurors. They see themselves as experts in reading people. While there is a lot to be gleaned from jurors’ non-verbal behavior, there are some cautions. Interpretations of various types of body language clues such as any apparent negativity or discomfort are, at least in part, due to the fact that jurors are in a unique environment, in an unknown role and they have limited knowledge about what will be required of them. Jurors may be nervous, angry about serving, or even trying to put on a particular face in this very strange and novel environment. This is not the best situation to judge what jurors’ real personalities and attitudes are from body language alone.
- Interest in jury service affects body language. Jurors generally fall into three categories, as follows:
- Those who want to serve: Some jurors want to serve because it is a new and different experience. They want to feel special by participating, or they have a strong sense of civic duty. After all, if someone is retired, bored with their job, or wants to play their role in our justice system, jury service appeals. These jurors may remain quiet or offer answers that speak to their fairness and neutrality
- Those who don’t want to serve: Some jurors do not want to serve because it will pose a disruption to their income, childcare situation or they feel it is a waste of time. They will find ways to look disgruntled or to express their distaste for the process. Some jurors feel that they cannot judge others because of a personal “who am I to judge another” or religious views that prevent them from judging others
- Stealth jurors: Some jurors really want to serve because they believe that they can express their beliefs or deliver a societal message. In the now-classic movie The Runaway Jury, the jurors were asked questions about their attitudes about guns. Some were reluctant to express opinions while others were very willing to lie about their attitudes to make it seem that they were neutral. We often call these jurors stealth jurors; they want to be on the jury to make a point (sometimes simply to express a strong opinion about the issues in the case) or to write about this experience on their blog. If they simply want to have post-trial bragging rights, “I was the foreperson” that can be relatively harmless compared to someone who has an agenda. True stealth jurors are relatively rare, but they do exist.
Thus, with these kinds of motives, a jurors’ non-verbal and verbal behavior is suspect. What does it mean if they are terribly attentive? Bored and dismayed? Or answer every question that is posed to the group? This is an artificial situation and should be regarded as such whether the experience is in-person or remote.
- Getting to know jurors’ backgrounds and experiences: One of the main goals of voir dire is to understand how a jurors’ background or experiences predispose them to dislike your client or your case. Jurors often come to a case with various types of backgrounds and life experiences that can lead them to be predisposed to have attitudes about your client; for example, they have worked for a big company or are entrepreneurs, they are lower middle class or wealthy, they have never been hospitalized or have had many medical experiences. These are just examples of background and life experiences that could influence how jurors assess the evidence, witnesses, concepts like fairness, etc.
- Experiences relevant to the case at hand are the most important juror characteristics to consider when evaluating potential jurors. For example, in an employment case, most people have been employed at some point in time and have had a variety of experiences with their supervisors, subordinates and co-workers. Those experiences often, based on our mock trial research, have been shown to color their perceptions of employment cases, but are unlikely to affect perceptions in an IP case. Someone who has experienced discrimination often feels the experience of the plaintiff in a gender discrimination case to be valid before even hearing the evidence. Similarly, someone who has had to fire someone often identifies with the person who is the manager in a wrongful termination case. This is true in numerous other types of matters, such as medical malpractice, commercial cases, civil rights disputes, etc. Experiences in similar situations often, though not always, indicate potential biases relevant to the upcoming case and require adequate follow up. It is important to remember that an experience can be related to cases in counterintuitive ways. For example, a juror who has been discriminated against may view the plaintiff’s complaint in the instant case as being not as bad as something they experienced. It is the relationship of the attitude or experience to the facts and themes of that particular case that matter.
- Other current attitudes may be important in predicting reactions to case facts. As reported in our other articles, fears of COVID-19 are having and will continue to have a big impact on who will serve on a jury, at least in person, because judges are granting requests to postpone jury duty or excusing jurors who appear for jury duty but are afraid to be there. Our research indicates that heightened fears of COVID-19 are correlated with attitudes towards litigation, such that those more afraid of infection, and therefore more apt to request postponement or to be excused, also tend to hold more pro-Plaintiff attitudes (for example, tend to favor employees over employers and insureds over insurers). The result is that those jurors who are likely to survive jury selection for an in-person trial (regardless of method of jury selection) may be more likely to hold generally pro-Defense attitudes although there is a group of Plaintiff jurors who do not hold the same fears as their counterparts. As such, understanding attitudes about COVID-19 as well as case-specific attitudes can be very important.
What will be different in a remote voir dire situation?
There is not one version of remote voir dire at this point. As noted at the beginning of this blog , there may be combinations of remote and in-person (socially distanced) voir dire. Some judges, court personnel and attorneys may be in the courtroom, In the following description of what it might look like, jurors are in their homes, and the court officers and attorneys are all remote.
- View of the jurors: Jurors may be seen in a small square, similar to other jurors, often likened to the opening credits of Brady Bunch, unless they are the only juror being questioned. They will be at home or at an office with a background that they determined (or failed to care about). They will be wearing what they wear at home and are not likely to be dressed up.
- Benefits: Your potential jurors will be seen up close and personal in their own environment. You most likely will see them clearly from the shoulders up and their facial expressions will be apparent. They may have their books in the background, artwork or decorations. They are typically instructed to be in room that is secured from children, spouses, animals, or others. However, they may even be sitting on their bed if that’s the only quiet place in the house. Their pets may crawl on their laps periodically (cats seem to like to get into the act more than dogs). The fact is that you can often see jurors better in a remote jury selection than in a courtroom in which they are sitting right next to others, only visible from the waist up, in four or five rows in the courtroom, at a distance that can be quite considerable. The jurors may be interviewed in groups to make it easier to see them, usually in groups of 12 to 15 at a time. The attorneys must be more aware of facial expressions, as they are there for all to see.
- Considerations: The jurors are not often seen in full because counsel does not observe them walking into the room. If the courtroom allows for someone to walk up to the jury box or the judge’s bench, there is more of a chance to catch their overall demeanor and body language. Do they slouch or cower on the way up to the bench? Do they find it confusing to get into the jury box? Do they seem belligerent about their hardship excuse? Are they crossing their arms, clearly annoyed at being there in the first place? And, although many attorneys might deny it, they have their share of side glances and knowing looks that pass between them and potential jurors. One former attorney who was an officer in the Marines looked at a veteran in the box and they each knew there was a bond. Not that that this connection could not happen in a remote trial, but it was certainly more palpable in court.. It is possible this unspoken understanding is more likely in a courtroom.
- Questioning: Asking questions and getting straight answers is of vital importance to attorneys and is likely to be accomplished equally in either forum. The need for preparation, good questions, the ability to follow up appropriately and rehabilitation of appropriate jurors does not change in a remote format.
- Benefits: This up close and personal format of the remote shot may allow attorneys to see the sweat on someone’s brow or their sideways glance as they say, “yes, I can be fair.” This can be a real advantage. In court, sometimes jurors are so far away that you cannot see their true expressions. An attorney fumbling for notes or looking at the seating chart can still happen in front of remote juries, but they may not be able to see your hands or papers depending on the camera view. A remote format may also allow for experimentation and demand more drama. In a recent case, an attorney in one of the first virtual summary trials used more warm-up questions than she might have used in a more traditional setting. She sensed that jurors were nervous, at and she asked, “How many of you would like to be jurors in this trial?” They all raised their hands. She made it clear they didn’t have to serve if they didn’t want to because this was a summary trial. They seemed shocked at her honesty. She admitted she felt the need to be more open or creative in this situation than in court, since participating in one of the first virtual summary trials in the country is a new world. In contrast, the opposing attorney who asked questions in a rather rote, by the book approach, did not appear to make the same connection with the jurors.
- Considerations: The ability to see how jurors will react to other jurors’ answers will depend on the view of the jury. If there is only one juror on screen, then it is not possible to get this information. If there are 12 to 15 jurors on the screen, you can gauge their reactions to each other. In one pre-COVID-19 trial, one juror in the second of seven rows of jurors was asked the question, “Can you be as fair to my corporate client as to the plaintiff in this case?” While those in the first six rows said they could, a woman in the last row just shook her head, looking down and almost scoffing at such a silly question. This kind of inadvertent sharing of sentiment was not noticed by counsel in the front, but sitting back a little further I noted it. This broad view of 30 or 40 jurors at a time will not be available to anyone in remote jury selections.
- Attorney style and demeanor: Attorneys often feel that they are one of the weapons used at trial: their ability to persuade comes not just from the content of their openings, but from their delivery, their style, even their chutzpa. In addition, some attorneys feel that their physical presence is a part of their persuasive abilities. Attorneys who pride themselves on their impeccable attire and professional appearance might feel they lose that opportunity to bolster their credibility. However, in the remote era, judges have sometimes cautioned attorneys to not be too casual or sloppy in their appearances at bench trials or hearings, so the contrast between a professional look and a very informal look could give one attorney an advantage over another.
- Benefits: Delivery and communication styles are important, though, according to our research, not as important, as the themes of the case and the clarity of the material. The same applies to voir dire. Remember the most important goal is to get the information to get rid of jurors, moreso than to make them like you or your case. You can still engender liking by smiling when appropriate, having a sense of humor and being warm and accepting of answers as jurors open up. This kind of connection can and should be made to ease jurors’ anxieties and to elicit candid answers. Further, in the remote world, the height or physical stature of an individual is not as important. We might suggest that more diminutive lawyers might like to even the playing field by being on camera.
- Considerations: A larger stature will not be as impressive during voir dire in a remote setting, so some lawyers will lose this speculative advantage. The camera might show the larger size of a particular individual if the shot is a wide shot with the person walking on screen. However, most shots of voir dire will be a static head shot with the individual asking questions of the jurors. Other personality factors, as noted above, can be displayed and used to connect with jurors and to encourage them. Importantly, even the most experienced attorney might have to get used to speaking directly to the camera.
Given the above, here is a summary of hints:
Manage the logistics and technology effectively
Clearly, the biggest impediment to a good remote voir dire session is the technology. It is about time courthouses address antiquated courtroom technology and obviously the technology the jurors have is essential to evaluate. One key is a great deal of pre-voir dire testing to make sure that the jurors have the right equipment and internet connections (and that goes for the court and lawyers as well if the process is entirely remote.) Some courts are providing hotspots and laptops or tablets to jurors with inadequate broadband or devices. Make sure that there are multiple ways to contact the potential jurors (cell phone numbers, for example, for jurors in case of dropping off). Also make sure that the jurors know precisely when to log in and when breaks are to end so as to not inconvenience their fellow jurors — they are much more responsive to peer pressure than you think. The kinds of early mishaps reported can be managed and are the same kinds of delays which happen in the courthouse when jurors do not return promptly from lunch or breaks.
Manage attention spans
Remember the last jury selection you did — was every juror attentive? Probably not, and based on the descriptions offered above, there are reasons they are not all equally engaged. However, you can lay out the requirements for reasonable level of attention by limiting phone or other electronic use, instructing them to turn off TVs, limiting access by others (and pets) to their room. Take frequent breaks so jurors can refresh themselves. Jurors should know how to use remote platform, Zoom, including how to mute and unmute themselves . It is best to require that they always leave their cameras on and go off video only on specified breaks. These kinds of rules up front, communicated by court personnel who emphasize the seriousness of the process (added to the typical cautions like not using your phone for independent investigations) will ensure that most jurors are paying attention. Remind them they can be seen at all times!
Remember that getting jurors to answer is most important
You get to be you but, even more importantly, they get them to be themselves. The jurors in a remote setting may actually be more forthcoming than they would be if in person at trial. There is a certain safety in opening up in your own home and not in an impressive government building, not next to a person with whom you totally disagree, or face-to-face with a lawyer who is aggressively asking questions. Similar to in-person voir dire, encourage honesty over saying what they think you want to hear, and avoid asking if they can be impartial or fair. After hearing the description of the case, ask potential jurors if one party or the other has any advantage at all in their mind. Use open-ended questions rather than questions that elicit a simple yes or no when allowed, unless you are trying to select a certain group for questioning. Ask the judge if you can ask questions both to the whole group, with individual follow-up. There are many techniques for questioning that may help you to elicit more honest answers.
Watch for jurors’ facial expressions
Seeing jurors on video, up close and personal, actually makes viewing jurors’ faces easier. As many authors have suggested, it is possible to get better at detecting micro-expressions or interpreting gestures through reading about these phenomena and practicing watching people — either on zoom calls or just watching people on television (Lerner, 2020). Further, it is important to utilize the view function of Zoom, such that you can move to a single frame of the juror speaking (while others on your team my choose to watch the entire group). Remember jurors do have various rationales for their looks and may be trying to persuade you while you are persuading them. Realize that the disadvantage of an in-person trial in most courts, for the foreseeable future, is that jurors (and just about everyone else with the exception of witnesses behind plexiglass) will have masks on and you will only see their eyes.
You can be a dynamic speaker on video. Remember to look at the camera as the ONLY person in the room. Speak to the screen and act as if you are in the same room. No one I know has seen Martin Luther King or John Kennedy in person, but they remember their speeches. Yes, they were looking at real people, but you will be looking at real people, too—just on the other side of your screen. Further, jurors will remember your questions more than anything that day—they are too nervous to take in all the details. Make sure the questions are asked in a polite, open way, consider explaining why you need to ask all these questions and do not badger or belittle in any way. Know which attitudes are better and worse for you and find ways to explore those experiences and attitudes with the jurors.
In one recent trial in Alameda County, the defense tried to overturn an unfavorable verdict by opining that the remote jury selection was “riddled with various problems” such as jurors using other electronic devices and lounging on beds or sofas. In response, the opposing attorney said, “The jury is engaged, there have been only a few minor technical glitches and there has been nothing to indicate that the parties will not receive a fair trial. The parade of ‘horribles’ that defendants claimed would occur if trials proceeded have not materialized, and their due process rights have not been infringed.”
From our online mock trial experiences, we know that jurors are paying attention to online proceedings, even if they don’t always look like they are, and this is very much what real jurors look like in the actual jury box. As we adapt to a new system, some of these problems can be handled by providing structure, such as telling jurors what you need from them and gently correcting them if they are not following the rules. Glitches are not unique to online voir dire; they happened every week in courtrooms around the country before this pandemic. The fact is that we now know virtual voir dire is not only possible, but it can be quite similar to in-person voir dire if we give it a chance.
Lerner, I.E. Effective voir dire in a virtual world. Law.com, November 5, 2020.
Norris, R. 5 Tips for overcoming online jury selection challenges.Law360.com October 22, 2020