The practice of law has been forced to stretch, grow, and morph at light speed due to the COVID-19 pandemic. Technology and computer applications that had never been utilized are now the mainstay for litigation. In-person hearings and depositions are a faint memory. This presents a major problem for the traditional jury trial, which relies so heavily on human interaction.
Jury selection is arguably the most important part of a trial. Trial lawyers have limited time during voir dire to identify panelists who must be challenged or removed. Coaxing the jury panel to share their views is difficult enough without interference of strict COVID-19 protocols. With masks and social distancing being mandated in courtrooms, trial lawyers must adapt to the new guidelines during jury selection and be cognizant of communication barriers while also making sure to include adjusters at trial.
Behind the Mask
The trial lawyer’s greatest tool is her voice. Imagine the great orators of our time having their voices muffled by a mask. In today’s courtroom, there must be constant awareness of volume and enunciation when speaking to the jury. A good way to connect with the panel is to spend a moment commiserating about COVID-19, and to ask the jurors to kindly alert the attorney should they be unable to understand (and reassure that you will do the same for them). Anticipate that you will not be able to understand some jurors who do not enunciate behind their masks, and be prepared, with light-hearted ways, to ask them to repeat themselves. Finally, be sure to wear a mask that fits. This seems obvious, but any focus diverted to fixing your mask is focus wasted in picking the jury. Plus, the more you adjust your mask, the more the jury will adjust their masks, and the less attention they will pay to what you are saying.
All About Body Language
Trial lawyers can no longer read juror’s facial expressions during voir dire. This is a tremendous hinderance to accurately diagnosing a juror’s feelings on an issue. However, body language is still on display for all to see, and it is a significant form of communication.
The body language of the jury panel should be evaluated from the second they enter the courtroom, including jurors’ posture, walking style, clothing, grooming, and jewelry, all before the jurors take their seats. From there, take note of who leans back in their chairs and crosses their arms over their chests (rebellious action); who fiddles with their masks or clothing (unsure); who shifts in their seats (physical discomfort); and who leans forward with hands crossed (eager to please). Jurors tend to convey their feelings on specific issues as well as their general willingness or reluctance to serve on the jury through body language alone.
Six Feet of Separation
COVID-19 protocols mandate that jurors sit six feet apart from each other during jury selection. Extra physical distance between jurors reduces the chance of the jury adopting a “collective brain.” In other words, when the jurors are seated closely together in a clump, they are more likely to blindly agree with one another when the attorney is asking general questions of them. The more physical space between them, the greater likelihood of independent thought amongst jurors, which can be viewed as a positive result of the COVID-19 protocols. Conversely, greater distances between the panelists make it more difficult for the attorney to observe each juror during questioning.
Work COVID-19 Into Questioning
Every human being is biased and, as such, each has generally held opinions and viewpoints developed over time through education, experience, and relationships. However, COVID-19 has resulted in a collective shift in Americans’ perspectives on varying issues over a short period of time. According to “The Pandemic Juror,” published by Washington and Lee Law Review Online in 2020, more than 75% of Americans surveyed believed that they now experience more personal stress and anxiety since the pandemic. Additionally, more than half reported feeling emotionally depressed, and two-thirds believed that their emotional health and well-being worsened through the pandemic.
The pandemic has affected Americans’ perception of their financial situations, as well their perception toward governmental entities, medical professionals, and scientists. This shift in perception will affect how much credence they give to testifying experts, medical experts, and financially unstable plaintiffs. It’s been reported that many jurors feel a sense of resentment at the parties for forcing their attendance. Considering this, it is important for litigators to utilize careful questioning in order to draw out these viewpoints. The failure to do so may result in a nuclear verdict.
The key to voir dire is to identify viewpoints and then determine if they are too rigid to be set aside in the interest of fairness. In the pursuit of identifying such viewpoints, COVID-19-related questions can be utilized. While discussing COVID-19 with a juror, attorneys can draw many impressions about them. Do they abide by rules? Do they respect data and trust scientific reports? Are they open to alternative theories? Are they rebellious? Have they experienced an avoidable loss? One or more of the answers to these questions could be very important to the case at hand. The necessary questioning about COVID-19—and the jurors’ comfort sitting in the courtroom while the virus is still a threat—will provide the panel with a simple method to get excused from service.
Role of the Adjuster
Adjusters are a critical part of the trial team. When dealing with the various COVID-19 issues, the adjuster in attendance should be listening closely to every juror response. Some helpful tips for adjusters include bringing a notepad to chart out the jurors by creating a numbered grid. The adjuster should include notes on jurors’ verbal and nonverbal responses to the attorneys conducting the questioning. When allowable, and out of view of the jury, the adjuster should bring those findings to the trial defense. The adjuster should continue this throughout the life of the trial, keeping noted observations and reporting to the defense team.
It is important for the adjuster not only to provide critical feedback as the trial progresses, but also sit in the audience as opposed to the defense table, if possible. This can avoid the perception that the defense has a team of combined forces against the plaintiff. Communications between the adjuster and counsel should take place out of view of the jury. Jurors are observing everyone, too, and might misconstrue the feedback loops as negative connotations about themselves.
As time has passed and vaccinations become available, people have become more at ease with COVID-19 protocols, making jury selection a smoother process than it was earlier in the pandemic. This will also aid the juries to become more diversified and representative of the community. However, as challenges remain, the prepared trial lawyer will consider and plan for every obstacle presented by COVID-19 before stepping into the courtroom to conduct jury selection.