Jury selection via Zoom…Does it matter?

Orange County Superior Court administrators recently announced that attorneys in civil trials now have the option to engage in jury selection via video conferencing. The procedure is a departure from other courts in California that currently mandate remote jury selection in response to COVID-19.

After more than a year of having our lives turned upside down by a worldwide pandemic, the announcement that people called for jury duty may now be seated at home wearing shorts as they stare into a computer screen at other, probably similarly attired, prospective jurors may warrant nothing more than a disinterested shrug. However, attorneys and litigants participating in civil trials with something critical at stake may want to take a hard look at what video-conferencing selection of jurors and, perhaps, trials without jurors seated in the courtroom could mean to them.

How remote selection of jurors works

According to the announcement, attorneys and pro se litigants may stipulate to conducting jury selection via Zoom. Jurors would continue to be required to report to the courthouse as they did in pre-pandemic times to await having their name chosen to head to a courtroom for jury selection. However, now the panel of prospective jurors will be sent home instead of to a courtroom with a date and time for jury selection.

On the start date, potential jurors will log into a Zoom video conference from their homes while the judge presiding over the case and the attorneys for the parties will be together in a courtroom. Once the jurors for the trial are selected by the attorneys and sworn in by the court, they will be told when to report to an assigned courtroom for the in-person jury trial.

Making it difficult to fulfill the purpose behind jury selection

All parties in a civil lawsuit are entitled to have the dispute fairly decided by an impartial panel of jurors. The attorneys have an opportunity to question prospective jurors to learn about each of them in an effort to weed out any who may have a strong bias toward or against any of the parties or issues in the case. This questioning process, which is referred to as “voir dire,” allows lawyers to identify and exclude individuals who may allow prejudices to affect their ability to fairly decide the case.

During voir dire (jury selection), attorneys, and even highly paid jury consultants, routinely evaluate nonverbal cues of prospective jurors to form an impression of them. How a person is dressed, body positioning and movement, and other nonverbal signals may offer an attorney information that can be as telling as the verbal responses to questions. A good deal of nonverbal communication is lost in a video conference.

Instead of seeing an entire person in a courtroom, attorneys opting for remote jury selection will see only the face of each person. Lost will be the ability to observe and evaluate nonverbal cues.

To get an idea of how attorneys may lose through video conferencing, take a look at the results of a study conducted by Microsoft. The company set out to learn what its employees working remotely during the pandemic were doing during work-related video conferences. It revealed that an alarming number of them were engaging in multitasking, which is actually a polite way of saying they were not paying attention. Distracting activities included watching videos, playing video games and reading.

In-person trials continue in California

As of the moment, jury trials continue to take place in state courtrooms throughout California, but jury trials remain suspended in federal courts. Absent another surge of new cases forcing new measures in response to the virus, jury trials should continue to be held in courtrooms in state courts.

For more information about this topic, contact the business and succession planning attorneys at NM Law. Call them today at (949) 253-0000 to schedule an appointment.

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