A Juror’s Perspective on Zoom Trials
Jun 13, 2022
While using a kitten filter is still not generally acceptable for a legal proceeding, the Zoom platform does offer substantial advantages which cannot be replicated in a courtroom. This begs the question: are pants-optional legal presentations from the comfort of one’s office the best way forward. My vote is, resoundingly, yes.
Having tried two cases remotely this year—first to a judge and then to a jury of twelve—I have very strong opinions on the merits of Zoom. But I am aware of my bias, rooted in my personal successes and failures, and I realize my opinions are far from representative. Thus, I sought feedback from a Juror who was particularly engaged throughout my second trial, to see which opinions we shared and where we were divided. She graciously allowed me to interview her.
For us both, appearing over Zoom was a far more comfortable experience than appearing in person. She did not have to leave her home, battle traffic, and endure a day in downtown Seattle—a prospect that sparks fear in even the longest-term residents of the area. I did not have to cart stacks of binders all over town. More profoundly, I did not have to start each day with the fear and anxiety that overcomes me when—even after a decade of practice—I enter a courtroom.
The luxuries of comfort and convenience allowed us both—and counsel and jurors at large—to be more thoughtful than we might have been were we not in the safety of our own space. Not only were we able to be ourselves, but our gaffes were shared. We took turns on accidental mute, as blank screens, and in the wrong “Zoom room.” The remote appearance of every participant in the trial—save for our Judge—gave the process a collaborative air which offset the fact that we were spending every day of those two-weeks doing something that would not have been our first choice.
The differences between the Juror’s perception and mine, with respect to certain components of trial, were largely superficial. While I noticed the backgrounds behind each speaker, she and her colleagues largely did not. My children’s extraordinary artistic talent—evident from the masterpieces hanging in my office—did not come up even once in the deliberations room. None of the jurors found a key fact witness highly suspect as a result of her choice in wallpaper (as I had). Nor did they care whether the medical experts testified from anything remotely resembling a medical facility. Meanwhile, I cringed at the disheveled setting from which our doctor provided his case-breaking (or so I thought) opinions.
There were two exceptions to the jurors’ indifference in this regard. First, they thought it odd that opposing counsel was appearing from a courtroom (he wasn’t; it was an elaborate background prepared in his office). Second, they were distracted by the blurry background that his co-counsel chose. The spaces from which counsel and witnesses participated—our homes, our offices, and everything in between—highlighted our humanity and vulnerability, and put us on common ground with the jurors (as many of them were sharing a glimpse into their own lives through the screen). Blurring or presenting this as anything other than it was—a group of people recalibrating from an event that has affected us all—created a slight disconnect.
The backgrounds had little impact on the jury, as it turns out, because they were listening intently to what each witness said. In this regard, there was little lost over Zoom that would have been captured in person. Amazingly, the Juror reported that she and her colleagues picked up on Plaintiff’s traits, including those essential to our defense theme, even before we cross-examined her. They immediately recognized her tendency to prolong and exaggerate certain aspects of her life, a habit that was later corroborated by our neuropsychologist. Similarly, they picked up on the unfavorable traits afflicting my client, despite my best efforts to question around them. Simply put, regardless of the separation and highly technologized presentation, the jurors saw the key witnesses for exactly who they were.
Consistent with their surprising ability to discern authenticity in the witnesses, any attempt at “folksiness” (e.g. self-deprecation, slang, references to the “Cougs” versus the “Huskies,” etc.) was unappreciated over Zoom. This suited me well as I inadvertently adopt the personality of a raisin when confronted with a camera. But for my more experienced opposing counsel, the techniques he employed to engage “the room” fell flat. Rather than appearing relatable, he came off as inexpensive and desperate. Without the benefits of direct eye contact and targeted gestures, he seemed unpolished, in a way more tragic than delightful. In short, don’t try this move over Zoom.
On the more technical side, a number of the experts for both parties presented by perpetuated testimony. While this is suboptimal in a live trial setting, the disparity was far less apparent when the entire proceeding was viewed on a screen. The Juror felt there was no inherent benefit to “live” testimony. Regardless of whether the doctors were testifying contemporaneously or by pre-recorded and edited video, the jury stayed equally engaged (or equally disengaged, which became apparent when our Judge interrupted the testimony for a “two-minute stretch break.”). This was a surprise to me. Unlike the Juror’s perception, I found the live testimony far more riveting; perhaps the product of knowing exactly which cringe-worthy moments loomed in the recordings.
The most validating commonality I found with the Juror was the revelation that the tedium I felt while listening to hours (and hours) of questioning from opposing counsel to endear Plaintiff to the jury was not mine alone. I feared at times I had been too concise, setting only the most spartan stage for my questioning and perhaps not building enough context for the punches that I hoped to land. And while I did not land them all, my interview confirmed that I gained more than I lost by being brief. Several of the jurors had been through murder trials with less character-building despite there being far more at stake. At the end of the day (or in this case, the two weeks), the jury was resentful of the time taken from them for a trip-and-fall accident and, as I had heard can happen, this worked against Plaintiff.
Finally, though not unique to Zoom, it is worth mentioning the facts most impactful to the jury in assessing the brain injury claim central to the trial. Most notably, the jurors were unconcerned that the defense medical doctors had never personally examined or treated Plaintiff. The many quips by Plaintiff’s counsel to discredit them on this basis were more alienating than inspiring. Similarly, their fees for providing forensic services were a non-issue (although the matter was in King County, where high professional fees are not uncommon). In fact, it was not the expert opinions at all—on either side—that influenced the jury’s evaluation. The Juror with whom I spoke noted that the experts simply contradicted one another, leaving it to her and her colleagues to weigh the facts and draw conclusions.
In this regard, what was missing had more impact than what was there. Plaintiff had not reported symptoms of a brain injury in the first hours, days, or weeks after the accident. She sought treatment from a variety of providers in a variety of fields, with no communication or continuity (such that there was no one, aside from her, quarterbacking her care). Her testimony as to her past and present limitations was inconsistent with the testimony provided by her friends. And her reports of lasting symptomology simply made no sense. It was what was missing—in terms of consistency and logic—that resonated with the jurors. In the end, the jury responded to the seven-figure plea from Plaintiff’s counsel, with a split liability finding and a verdict well below six figures.
In sum, if given the choice, I will choose a Zoom trial over a live trial every time. I was more relaxed; the jury was more relaxed; the witnesses were more relaxed. Because of this, the presentation seemed more authentic, the playing field was more even, and the result—shoving my keen bias aside—was absolutely the right one.