Zoom Trials: The Idea Exceeds the Technology

Courts are struggling to find a way to hold proceedings in the safest way possible while still maintaining justice. Many courts have turned to Zoom and other video conferencing services to conduct hearings and other legal proceedings in an attempt to prevent the system from coming to a complete standstill. While bench trials, hearings, and even depositions have been conducted successfully via Zoom, the first binding criminal jury trial was held entirely via Zoom on August 11, 2020. We have now participated in two Zoom jury trials that went from jury selection through verdict. One was a mock trial in a civil case for the American Bar Association’s False Claims Act Virtual Trial seminar. The other was the aforementioned binding criminal trial, which was for a Class C misdemeanor charge. We wanted to embrace this technology as the future route for jury trials, but after participating in both groundbreaking trials, we simply cannot endorse it. Perhaps it can be used for small claims and Class C misdemeanors, but any trial of substance, whether the stakes are substantial damages or the potential for incarceration, it is simply not the vehicle to use to assure litigants of their Sixth and Seventh Amendment rights to a fair trial. We will leave it to the pundits, professors, and scholars to debate the constitutional implications of jury trials via Zoom.  This article is going to address the practical and technological challenges associated with Zoom jury trials, and why it’s not only a bad idea, but a very bad idea.

Inequality of Access to Required Technology

Our first concern is the access, or lack thereof, of all jury-qualified individuals to the technology required to participate in a jury trial via Zoom. Although many knew this technology gap existed, it came to the forefront of everyone’s attention once schools closed and remote learning began. Dallas County, Texas is a prime example: Through a survey conducted by the Dallas Independent School District, it was discovered that 30% of families did not have access to high-speed internet service (Smith, 2020). These households were in the same areas that experience high crime rates, food deserts, and poverty levels. When the adults in these same households receive a jury summons and are asked to report via Zoom, they will experience the same lack of access as their children. When nearly a third of households do not have the same access to reliable internet service as other jury-qualified individuals, it creates a massive participation disparity. Now your jury panel is no longer representative of your jurisdiction. This was never more apparent than at the Travis County criminal jury trial held via Zoom. The table below compares the racial and education demographics of Travis County, Texas with that of the panel of prospective jurors for the Zoom criminal trial:

The divergence in both education and race demographics is substantial. 83% of the Zoom jury panel self-reported having a college or post-graduate degree when U.S. Census data reports only 48.6% of individuals in Travis County have the same. People of color were also underrepresented in this jury pool: 73% of the Zoom jury panel self-reported their race as White when the data shows this percentage as less than 50% for the county. While some differences can certainly be accounted for by the necessity of ensuring individuals are jury-qualified (over 18 years of age, eligible to be registered voter, etc.) as well as the randomness of the jury wheel, the demographics of this Zoom jury panel was just not representative of a traditional Travis County jury pool.

Access, or lack thereof, to the appropriate hardware needed to participate in video conferencing is another facet of the technology gap. Survey results from the Pew Research Center show that 26% of adults in the United States do not own a laptop or desktop computer (Mobile Fact Sheet, 2019). That effectively means a quarter of our jury pool does not own the necessary hardware required to participate in a Zoom jury trial. While some of this is likely due to economic constraints, the technological sophistication of smartphones today means there are also many people who just do not have use for a separate computer. While it is conceivable a juror can participate in a Zoom meeting by smartphone, it is impractical. Because the screen is so small compared to a tablet, laptop, or desktop computer, it decreases the user’s view of the lawyers, witnesses, and the judge, the ability to view evidence is incredibly difficult, and interaction with their fellow jurors is severely limited. Either individuals without access to the appropriate hardware are excluded, or the counties are going to have to send out Sheriffs to hand out tablets, computers, and/or Wi-Fi hotspots if a prospective juror has neither the appropriate hardware nor access to reliable internet service. That is simply not a practical solution to this problem. By contrast, approximately 91% of U.S. households have access to a vehicle (Peterson, 2020), which they can presumably use to report to the courthouse. Simply put, access to the required technology in order to participate in video conferencing should not be a prerequisite of jury service.

Inability to Use the Technology

Access to appropriate technology is still only half of this problem. Jurors (and attorneys, witnesses, court staff, etc.) have to know how to use Zoom. Although a learning curve was expected, the ability of everyone to effectively use the technology was underwhelming. In the criminal Zoom trial, the attorneys had clearly practiced and had a good handle on how to use Zoom, but they even had hiccups along the way, from forgetting they were muted to issues with using Screen Share. For jurors, Zoom lingo cannot be assumed, must be taught prior to the beginning of jury selection, and even then, there is no guarantee the prospective jurors will be able to use Zoom without a hitch. Multiple jurors were unsure how to mute and unmute themselves, turn their video feed on or off, or move to their breakout room when instructed by the court. During jury selection in the criminal Zoom trial, several jurors could not see the defense attorney when he first began his voir dire, so the proceedings had to stop in order for the court to teach the jurors how to switch from Gallery View to Active Speaker. Lots of questions had to be repeated because of bad connections or an audio lag. Poor connectivity caused visual and audio problems multiple times throughout voir dire, which led to people talking over one another. One juror had to move locations during jury selection (for reasons unknown), which was very awkward and caused yet another delay. Some have argued that the solution is simple: Teach prospective jurors how to use Zoom prior to trial. This is much easier said than done. Who will be tasked with this project? Court staff are already being asked to be de facto IT professionals in addition to their existing duties. Offering Zoom training is also not a guarantee. At the 2020 ABA False Claims Act Virtual Trial seminar, the mock jurors received over an hour of Zoom training apiece, and during the seminar experienced many of the same problems as the criminal Zoom trial.

Technology Failures

In the criminal Zoom trial, the court did try to address the technology disparity. Four prospective jurors were given court-issued technology in order to report for jury duty, and two of those individuals were seated as jurors. Out of those two, one was excused during the oath due to connectivity and technology problems with the court-issued device. It began with a frozen screen, and despite the court’s attempts to remedy the situation, the judge eventually decided to excuse the juror. It is worth noting that, at this point, the trial was already grossly behind schedule. This individual was not the only one who was excused due to technical difficulties. A total of five jurors, over 15% of the panel, were excused due to various technology problems. These ranged from computer viruses to an outdated operating system that did not permit one juror to access Zoom at all. While we understand the court’s reasoning, we disagree with it in practice. An inability to use technology, whether caused by user error or equipment failure, should not be a legal reason to excuse any juror.

The juror whose screen froze presents another technology-related problem: What if no one had noticed when his screen froze?  Meaning, someone can look like they are listening intently when their screen is frozen, while in reality they are scrambling to address their connectivity or equipment problems. What if the juror’s audio connection fails, preventing the juror from hearing testimony? How do we ensure that juror saw and heard other evidence? Simple: You cannot. And if the jurors cannot hear and see the evidence, they cannot evaluate the evidence, which means they cannot discharge their duties as jurors.

Right to a Public Trial by Live Stream

Another concern is the Sixth Amendment right to have a public trial. All courts, consistent with Presley (Presley v. Georgia, 558 US 209, 2010), are making reasonable accommodations, which consist of either live streams on the court’s or county’s website, on a public platform such as YouTube, or, in some instances, arranging for a live video feed to an overflow courtroom. Our concern is not the method but the technology: As long as the video feed or stream works, it’s fine, but what happens if the stream or feed fails? This is not a hypothetical scenario, as the live stream went dark during the Zoom criminal trial. An additional concern with live-streaming trial proceedings is there is no guarantee that someone is not recording the trial. Somebody cannot walk into a courtroom and videotape the trial without the court’s authorization. The court does not have that kind of control over the internet. If the case is about a parking ticket or small claims, admittedly this is not much of a concern, but if you have a high-profile case, are discussing a client’s medical condition or injuries, or submitting intellectual property evidence, the concern becomes very real. The difference between public in-person trials and live streams is the court can govern the dissemination of information. Presley says that reasonable measures must be taken to accommodate public attendance at trials, but the presumption is that the courts can maintain some control over that environment.

Another logistical concern with live-streaming is broadcasting prospective jurors’ names and other personal identifying information. In the criminal Zoom trial, the judge asked each prospective juror to rename themselves as, “Juror #[Number]”, prior to voir dire so that their names were not visible. However, most of the juror check-in process was live-streamed, so anyone who logged on potentially saw the jurors’ names before that process was completed. Even if the court chooses to disseminate identifying information of the jury panel to the parties before the stream goes live, the jurors are still potentially answering very personal questions on a very public platform. Any trial lawyer will tell you it is oftentimes difficult to get a jury panel to talk, which is compounded when the lawyer must question prospective jurors on sensitive or hot-button issues. To satisfy Presley, let’s assume a Zoom jury trial in a DWI case is being live-streamed on YouTube. Both the prosecutor and the defense attorney will likely want to question prospective jurors on alcohol use and abuse. Now imagine there’s a prospective juror whose family member was recently killed by a drunk driver. This prospective juror is still grieving their loss, and is now not only on camera, but on YouTube. Yes, there is a way for this person to speak to court privately via a breakout room that is not being live streamed. But this person and their grief, which they may or may not be ready to discuss with strangers, has now been placed on a very public stage. Perhaps this is more an ethical or moral question, but our point is this: If you ask prospective jurors to answer personal questions and actually want answers, you have to make it as safe and comfortable a process as possible, which is difficult enough in open court, and essentially impossible when the trial is being live-streamed.

Evaluation of Evidence by a Zoom Jury

Evaluation of evidence is another consideration. There is plenty of evidence that is not a document or otherwise cannot be shared via a file share program such as Box. Consider a defective product, medical device, or a patent case, where it is typical to allow the jury to hold, touch, and see the product or device. Jurors are sometimes taken to the scene of the crime or the location where the injury occurred – that’s now completely eliminated. Granted, this doesn’t happen often, but it happens at least frequently enough to be a concern if you lose that ability. Photographs are only two dimensional. Video still doesn’t replace the senses that are engaged by holding and interacting with the object yourself. How can we expect the jury to truly and fully evaluate such evidence if they are not in the courtroom?

Judging the Credibility of Witnesses via Zoom

This problem with evaluating evidence also extends to testimony. What happens in the courtroom is not just judging documents, but judging the credibility of the witnesses. In fact, the jury is instructed that they are the SOLE judges of the credibility of the witnesses. What if one or more jurors does not hear a portion of the testimony due to technical problems? Even worse, what if they are not even aware that they missed something? Now there is a portion of testimony that those jurors are not considering, not because they are not giving weight to the testimony, but because they never heard it. We need these protections even more in criminal cases, where the stakes are not a damages amount, but someone’s liberty, or even life.

Body language plays an important part in judging the credibility of the witnesses as well, but nonverbal communication is almost entirely lost on Zoom. For decades, Robert has been saying in his speeches that 80% of communication is nonverbal. Tone of voice, what someone is doing with their hands or legs, at whom or where that person is looking during their testimony – all of that factors into nonverbal communication. In the courtroom, jurors are not only watching the person speaking or testifying. They are watching the parties’ reactions to the testimony and evidence. In focus groups and post-verdict interviews, the authors routinely hear jurors tell them that nonverbal cues were just as important as testimony. In Zoom, the jury can hear the witness, but they only get the benefit of tone of voice, facial expressions, or if the witness is looking down or off camera. But from the neck down the jury has no concept of what the witness is doing. Zoom takes the ability to see nonverbal communication away from the jury.

There are legal implications with regards to witness testimony as well. We mentioned earlier that the jury can see if a witness is looking down or off camera during their testimony. If there is someone off site or off camera feeding the witness information, that is no different than cheating on a test. What if it’s clear the witness is alone, but is obviously looking at notes or other documents? In a courtroom, the first thing the lawyer will ask the witness is, “What are you looking at?” Next, the lawyer asks if they can approach the witness. Then, the lawyer will ask the court reporter to mark the notes as an exhibit. And then, the witness gets cross examined viciously by those notes. And all this plays out in real time in front of the jury. Not so with Zoom jury trials. For example, during the criminal Zoom trial, the prosecution’s witness, the police officer, said at one point he was looking at his notes because he was unable to remember the defendant’s name. While this would have had a huge impact in a courtroom, the significance was entirely lost via Zoom. Even if the witness describes the document or otherwise explains what they are looking at, how is it confirmed by the court? Is the court going to send a Sheriff to each witness’ location? The fact of the matter is that there is no way to police this when a witness testifies via Zoom.

Another consideration for virtual witness testimony is the enforcement of the “Rule”, if invoked. During an in-person trial, the witness is simply asked to remove themselves from the courtroom. If the trial is being broadcast or live streamed, there is no way for the court and the parties to ensure that a witness is not watching the presentation of evidence on a streaming platform. In other words, when a trial is being conducted remotely, there is no guarantee that the witness is honoring the Rule.

Identification of the Accused

In criminal cases, the identification of the accused can be very important. Procedurally it is necessary, and it is often seen as a big moment by the jury. At one point during the criminal Zoom trial, the prosecutor asked their sole witness, the police officer, to identify the defendant. In a courtroom, the officer would have likely gestured towards the defense table and identified the defendant sitting next to her lawyers. In the criminal Zoom trial, however, the court had inadvertently helped the State by requiring that the citizen accused rename herself in Zoom, so the label directly underneath her video window read, “Defendant – [NAME]”. No one had considered that by doing so, the court unintentionally communicated to the jury that the State had the “right” person. While not terribly damaging in a Class C misdemeanor, this could be catastrophic for a criminal defendant in another case. Our point is that necessary legal procedures do not always translate to Zoom, and can be damaging to the parties involved.

Privileged Communication Constraints

Communication, or lack thereof, is an important concern with many legal implications. Not only was it difficult for the court to communicate instructions to jurors, it was almost impossible for the lawyers to communicate with within their own teams. Under regular circumstances, you can pass notes or discreetly whisper to one another. In Zoom, even if you know how to send a message privately using the Chat function, can the Host/Co-Host/etc. see those messages? Are they no longer privileged? You can send each other text messages or set up a separate chat room, but that is an imperfect solution. Not only can the jurors see you using other electronic devices when they have presumably been told not to by the court, but as any trial lawyer knows, trials move quickly, and by the time you text or type a question or recommendation, the moment has passed. In the criminal Zoom trial, this was particularly worrisome when trying to communicate to the lawyer to make an objection. Then, making the objection itself was awkward and caused the lawyers to unintentionally speak over each other, the jurors, and the judge. What if technical problems cause a lawyer’s objection to not be heard by the court at all? Also, in the criminal Zoom trial, the trial teams were not permitted any time to confer in between voir dire panels. Normally, this can be accomplished as the jurors file into the courtroom or during a break, but because the trial teams were required to stay on camera, conferring with one another was impossible.

Even more troublesome was the inability for the client to communicate with her own lawyers. During a regular trial, a client can ask questions, pass notes during prosecution witness testimony, or otherwise communicate with counsel. You absolutely cannot use texting or a chat room: The communications may be privileged, but the jurors will see your client on their phone or similar and punish them for it, as it will be perceived as the client not taking the proceedings seriously. It is too early to know the exact legal implications of this, but no one will deny that clients have the right to speak with their own lawyers during trial proceedings. Zoom makes this impossible.         

Potential for Improper Communication

Another communication-related problem that reared its head during the criminal Zoom trial was the jurors communicating with each other. A few jurors who clearly did know how to use Zoom used the Chat feature to ask other jurors if their screen was blurry or if it was just their connection. Other jurors started responding until the judge intervened. Yes, the Chat function can be disabled, but that is not the point. An honest mistake can create a whole host of problems. If the judge had not addressed the problem as quickly as he did, it would have likely devolved into the jurors commenting on the case itself. This raises other issues as well: While a breakout room can be used as a substitute for a jury room, what happens if whomever is hosting the Zoom meeting lets the jury back into the Zoom courtroom when the parties are addressing something to be handled outside their presence? What if the Chat feature is not disabled in the breakout room, and the jurors start privately discussing the case before jury deliberations? What if, while in the breakout room, one or more jurors looks at the live stream while the judge is handling an issue specifically outside the presence of the jury? The bailiff’s job is already difficult, made more so on Zoom. There is no way for the bailiff to adequately supervise or effectively assist the jury via the Zoom platform in the way they are able during in-person jury trials.

Jury Deliberations

Jury deliberations via Zoom are a huge concern. First off, all the technology-related problems discussed within this article also apply to jury deliberations. The biggest difference between presentation of evidence and jury deliberations is that jury deliberations are supposed to take place privately and confidentially. How do we ensure all of the jurors are able to participate in the deliberations without monitoring their deliberations? If one of the other jurors can’t hear or see their fellow jurors, is it another juror who fixes the problem or do they call someone? Who exactly do they call? Presumably the Zoom Host, but who is the Host? Now the court must arrange for additional training and the associated expense of either training court staff or hiring additional IT professionals to serve as Zoom Hosts.

Here’s the biggest concern: How do we know the jury is not subject to outside influences? They’re already permitted the use of a computer in order to participate in the trial, so what prevents them from searching the internet for answers or additional information? And if they do so, how will we ever know? Back in an in-person jury deliberation room, if someone gets on their phone, one of the other jurors is likely to say something to them. In Zoom, you cannot really tell if someone is looking at their notes or their phone. There is also the very real possibility of family members or others in their homes communicating to the jurors during deliberations, the so-called 13th juror. Of course there’s a problem with this during in-person trials, people talk to their spouse or partners. There’s a number of jurors who do it despite the admonishment not to. The difference is they might bring that person’s view into the jury room during in-person trials, but that person is not actually there. In Zoom, the person might in the same room, out of frame, giving feedback on what they like and dislike. If a juror is muted, they could be having whole discussions and conversations about the evidence with that person. When it comes to jury deliberations, the potential for abuse is profound, with virtually (pun intended) no checks and balances. While we are not suggesting that we be allowed a window into the quality or content of Zoom deliberations, how can the court ensure against these types of outside influence without violating the sanctity of jury deliberations in Zoom? The fact is jurors tend to listen a lot more to a judge when instructions are given in a courtroom setting and are far more likely to heed those instructions. Part of the magic happens when you go through the effort of going to the courthouse, through security, escorted to a courtroom where a judge sits on a bench, and you are told you are the sole judges of the credibility of the evidence. Without this process, the magic is gone. Now you’re just watching a screen.

Distractions at Home

Even if jurors are doing everything as instructed, the reality is they also have distractions at home that would not exist in a courtroom. One seated juror in the criminal Zoom trial had pets running around and jumping on the couch where she was seated, all of which occurred during testimony. Another juror was clearly responding to an email or text on his cell phone during voir dire. This prospective juror was asked to stop and the court again reminded everyone that their full attention should be on the trial, but it begs the question of how many other jurors were doing the same and just didn’t get caught? How do you prevent jurors from passing time on their phones, watching TV, etc., when they are supposed to be giving the court their full attention? The reality is that the court’s reach doesn’t extend into the juror’s homes. There’s no dress code, no assurance electronic devices aren’t being used, and the distractions of other family members, phone calls, pets, packages being delivered, etc., are problems with Zoom that are lessened or eliminated by holding jury trials in-person.

Limitations of Video Conferencing

There are many other limitations of Zoom when you try to use the platform to conduct jury trials. Gallery view can be distracting and even overwhelming, but if you switch to Active Speaker, you are no longer able to see the jury or anyone else. In Gallery View, there is no way to display the jurors in any type of sequential order. In a regular jury selection, there is typically a seating chart to which the lawyers can refer. In Zoom, the order changes as people speak and as people join and leave the meeting, making it very difficult to know who is speaking, especially when a lawyer is asking Yes/No questions or when jurors otherwise answered with a single word. During the criminal Zoom trial, the jury was never “seated” together, and instead the members of the jury were interspersed among the lawyers, defendant, witnesses, and the judge. Not being able to order the meeting attendees also made for some truly awkward visuals. Sometimes the prosecutor was next to the defense attorney, which is not a good look. The optics were even worse was when, at one point, the defendant was next to the prosecutor. For lawyers, you must have two screens at a minimum: One to see the jury (or as much of the jury as possible in one screen) and another to see PowerPoint slides, exhibits, witnesses, etc. Zoom backgrounds need to be equalized. It is unfair for the prosecutors to have an official seal in their background while defense counsel has their office, as this could reduce the defense’s credibility in the jury’s eyes. The backgrounds for the attorneys should be the same, and all the backgrounds for the witnesses should be the same, even if that background is a solid color. Even when they are working perfectly, not all audio devices are created equal. Wearing headphones helps, but that’s a distracting visual for the trial lawyer and witnesses, not to mention yet another device to ensure is working as it should.

We anticipated mental fatigue caused by watching a screen all day long, and the criminal Zoom trial did not disappoint in this respect. While you can have an eight-hour trial day, it is not reasonable or effective for jurors to watch a screen for eight hours. We have all heard stories of jurors falling asleep during voir dire or even in the jury box. If we are being truly honest with ourselves, falling asleep is much more likely if the jurors are comfortably at home, and it will be much harder to wake them virtually. The jurors must be attentive if they are to justly review and judge the evidence presented, and the inherent mental fatigue of watching a screen for several hours prevents this attentiveness.

Practical Problems Unrelated to Video Conferencing

There are practical problems with holding a virtual jury trial that have nothing to do with Zoom or any other video conferencing software. Take the presentation of evidence: A file share program can be set up for the jury, but there is nothing to prevent a juror from downloading that evidence to a personal device or saving a print view. If the jury is permitted to take notes during the trial, how is the bailiff supposed to collect and destroy those notes at the trial’s conclusion? Conversely, what if the jury is instructed not to take any notes and they do? These are issues with any virtual trial setting that do not exist in an in-person jury trial.

Zoom Trials Will Take Longer

Conducting jury trials via Zoom will inevitably prolong trials rather than move them along. In the criminal Zoom trial, the judge estimated that the whole trial, from jury selection to verdict, would be completed by 1:00PM. Instead, the juror check-in process lasted an hour and a half, jury selection was not complete until almost 2:00PM, and it was after 5:30PM before the jury was excused. Most of this was due to the significant technology problems experienced, but it was also much more difficult to ensure the jurors were present and ready to proceed at the beginning, as well as, pausing for and returning from breaks. Remember, this criminal Zoom trial was for a Class C misdemeanor. There were no hot-button issues to tackle during voir dire, each side called one witness each, and the jury was asked to return a verdict on two questions. Now, imagine a catastrophic injury case or a sexual assault trial. Those jury selections oftentimes took all day due to the issues both sides had to cover during voir dire, trials were a week or longer, and the jury is asked to return a verdict on multiple questions or, in some jurisdictions, to determine sentencing in the event of a guilty verdict. The goal might be to get jury trials back up and running, but the result using Zoom is every step taking twice as long.

Conclusion

The biggest legal concern about Zoom trials is that it becomes a slippery slope to eventually losing the right to an in-person jury trial altogether. If Zoom or other video conferencing satisfies the right to a jury trial, what prevents a judge in the future, after we have a vaccine and the worst of the COVID-19 pandemic is over, from deciding against holding an in-person jury trial and announcing all proceedings will be conducted via Zoom? Absent clear and specific laws in place to prevent it, this potentially jeopardizes the right to what is known as a jury trial. This is why you should never agree to a Zoom jury trial – this could spell the end of traditional jury trials forever.

The best argument of all against conducting jury trials via Zoom is that there are some jurisdictions who have already successfully returned to conducting jury trials in-person. There may come a day where holding jury trials by Zoom is the answer, but that day is not today. It probably is not in the near future. Instead, in order to address the backlog of cases rapidly piling up, courts need to take steps to keep jurors, attorneys, judges, and court staff safe. We believe there is no such thing as overcompensating on safety, and that courts are far better off adopting a better-safe-than-sorry approach. It is not only jurors who have underlying medical issues, are pregnant, have partners who are pregnant or have small children at home who are concerned. A recent study discovered that 64 million people, or 20% of the population, lived with multiple generations under one roof (Cohn & Passell, 2018). While most seem receptive to a vaccine, very few individuals want to be the guinea pigs. It is going to take time before most jurors feel safe in public spaces. We can help them feel safe by taking every precaution. 

So what can the courts do to get jury trials back up and running sooner rather than later? First, require everyone, including attorneys and judges, to wear appropriate face masks at all times, and to require they are worn appropriately over the nose and mouth. If someone arrives without a face covering or an inappropriate face covering, the court should be able to provide a suitable face mask. It is worth noting that the CDC does not currently recommend the use of face shields as a substitute for masks (Considerations for Wearing Masks, 2020). Since face coverings do muffle voices, this also means setting up microphones to capture everyone’s voices. In Texas, Harris County has arranged for grand jury proceedings and voir dire to take place at NRG Stadium, where they have installed staggered microphones in-between the socially distanced seats for the jurors. This allows the court to hear everyone without passing around a wireless microphone for everyone to touch. Social distancing must be observed by everyone. It is important to note that face masks and social distancing is not an either/or scenario. The CDC has been very clear that, in public indoor settings, it is highly recommended to wear face coverings as well as observe social distancing whenever possible. This requires everyone’s participation and the court’s enforcement. Additionally, have hand sanitizer readily available and Plexiglas shields should be installed around the bench, witness stand, and jury box, especially in smaller courtrooms where social distancing is difficult or impossible to observe. There are some low-cost to free things than can be done as well, such as limit the number of people in a given area by staggering trials, restricting the number of people can be in the elevator at one time, and setting up socially-distanced lines for the restroom during breaks. It is very troubling to hear of some courts that are not enforcing, or not allowing, the proper safeguards such as masks and social distancing. In order to get trials back on track, we all have a responsibility to be part of the solution, not the problem.

We have truly struggled with deciding whether we oppose or condone virtual jury trials via video conferencing platforms. We believe a line must be drawn. In municipal court cases, small claims, Class C misdemeanors, and similar, it can be a tool in the toolbox. Any case with higher stakes, it’s not only a bad idea, but a very bad idea. Even without the significant technological and practical problems with conducting jury trials by Zoom, you lose the gravity and importance of jury duty when jurors are reporting from their living room instead of to the courtroom.

TCDLA
TCDLA
Jennifer Lapinski
Jennifer Lapinski
Jennifer Lapinski has been a jury and trial consultant since 1999, and closely works with lawyers on criminal and civil cases in both state and federal jurisdictions across the country. Some of her notable cases include [clients are in bold]: Alicea, et al. v. Depuy (Product liability bellwether trial in which the jury found that Depuy’s metal-on-metal hip implants were defective and returned a $247 Million verdict); Ferguson, et al. v. JONAH, et al. (Landmark LGBT civil rights case in which a New Jersey jury unanimously determined that conversion therapy constituted consumer fraud); State of Texas v. Huntley Grichor (Murder trial in which the defendant asserted self defense and the jury found him Not Guilty); and, U.S.A. v. Lawrence Tom (Defendant was charged with Failure to Register as Firearms Dealer, and the jury found him Not Guilty). Jennifer speaks at CLE programs and writes about jury selection and conducting focus groups. She has appeared on KERA’s Think and was a contributing author to the AAJ Trial Guides The Anatomy of a Personal Injury Lawsuit (Fourth Edition). Jennifer has also had the privilege of being the Program Chair for the Center for American and International Law’s Jury Selection & Communicating With Jurors - A Program for the Defense since 2013.
Robert Hirschhorn
Robert Hirschhorn
Robert Hirschhorn is a nationally recognized expert in jury and trial consultation with over 35 years at Cathy Bennett & Associates. He is co-author of Blue’s Guide to Jury Selection, and has appeared on CNN, HLN, Good Morning America, 48 Hours, MSNBC, Dateline, as well as other television and radio programs and podcasts. Robert has had resounding success in all types of civil and criminal cases, with favorable outcomes whether he is assisting the plaintiff or defense. This includes wins in patent, personal injury and contractual disputes, numerous of which have returned multi-billion dollar verdicts. He can be reached at and 972-434-5870.
Lisa Blue
Lisa Blue
Lisa Blue has been recognized as one of the Top 100 Most Influential Lawyers in America, one of the Top 50 Women Litigators in the U.S. by the National Law Journal, and has served as president of the American Association for Justice for 2014-2015, and was inducted into the National Trial Lawyer Hall of Fame in 2015. She earned a Ph.D. in counseling psychology from North Texas State University and her J.D. from South Texas College of Law. After law school, Blue joined the Dallas County District Attorney’s office. In 1985, she moved into defense work at Baron & Budd with her late husband, Fred Baron. She can be reached at and 214-750-6026.
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