Remote Jury Selection: A New User’s Guide
On July 30, King County Superior Court conducted a Zoom webinar describing its plan for its new remote jury selection protocols. A few weeks later, we assisted with a jury selection following the new remote procedures. As jury consultants, we work closely with our trial attorney clients throughout the jury selection process to help them identify the highest risk jurors for their case – beginning with advising on which questions to ask of the venire to advising on strike strategy. With over 35 years’ combined experience assisting with jury selection across the country, but more recently focused in the Pacific Northwest, we offer our observations on what trial attorneys can expect as they return to court and selecting juries, at least in King County, Washington.
The overall flow of jury selection follows a familiar pattern: jurors fill out questionnaires, hardship and potential cause challenges are addressed, attorneys conduct voir dire, and then the parties make their peremptory strikes to narrow down the venire to create a jury. However, to protect the potential jurors, court staff, and trial teams these steps are conducted remotely, with everyone in their separate locations. Naturally, this changes the dynamic and strategy considerably.
Supplemental Juror Questionnaires
Before 2020, use of written supplemental juror questionnaires in Washington varied by the Court’s preference, case type, and negotiations among the parties. At least for the cases we were involved in, the trend was to limit juror questionnaires as much as possible to aid in the logistics of getting them copied and distributed to the trial teams quickly enough to make them useful during voir dire. Courts would also voice concern about how to secure confidential information from hundreds of potential jurors. Now, however, the Court sends potential jurors links to two questionnaires to complete online – the first is a brief questionnaire to determine jury eligibility and the second questionnaire includes case-specific questions. These case-specific supplemental juror questionnaires (SJQ) are now considered to be an essential part of the process, and they are used in every case.
As suggested in the Court’s webinar, development of the SJQ should begin several weeks in advance of the trial date so the parties can come to an agreement. Unlike the paper questionnaires in the past, the online version allows for much more extensive questioning about individual backgrounds, case-related experiences, attitudes, and potentially biased perceptions. Additionally, the Court includes questions assessing access to technology, hardships, and COVID-19 risk levels. It would be feasible to have 75-100 or more questions for these SJQs, especially since voir dire time is limited. The Bailiff assembles the SJQ responses into a spreadsheet, which is updated as jurors submit their completed questionnaires, and distributes to the parties.
The overall length of the online questionnaires could exceed 100 responses per person, so with approximately 200 jurors the spreadsheet can contain around 20,000 data points. Having someone skilled in organizing and processing this volume of data is critical, particularly because the spreadsheets’ data changes day-to-day as jurors send in their responses at different times or are dismissed for hardship, cause, or other reasons. As before, jurors will have pre-assigned numbers signifying their placement in the venire sequence, but they do not submit their responses in order. It takes time, potentially a couple of days, before a complete spreadsheet is available to the trial teams. Although it gets complicated, the overall system works well once everything comes together.
As always, the challenge in successfully using the SJQ responses to inform a jury selection strategy rests with organizing the information efficiently and knowing how to separate out the “noise” from the factors that matter to you or to your client. Expertise in understanding and manipulating data within a spreadsheet is a new must-have skill to conduct remote jury selection effectively. Extrapolating the information for each juror into a physical document that can be printed helps keep everyone on a trial team organized, focused, and on the same page once voir dire gets underway.
While it is still too soon to understand how our collective and individual experiences of surviving this pandemic will change jurors’ attitudes and decision-making, we are already seeing differences in which individuals are even willing to answer the call to jury service. Of course, the goal is to have a venire of randomly selected citizens that represents equal and fair representation of the venue’s population. The pandemic has made this illusive goal even more challenging. Positively, people are showing up to serve their duty as jurors, even if in smaller numbers than before.
The exact number of jurors summoned for each case will likely vary, but it would not be unusual for the Court to summon 1,000 citizens for civil trial expected to last a few weeks. Of those, approximately only 200 people respond and meet qualifying criteria. This self-selection process skews the venire toward younger jurors and those who are more comfortable with technology. While jurors at high risk for COVID-19 are not automatically excluded from the remote jury selection process, jurors are given the opportunity to explain any health concerns they have related to COVID-19 and whether that impact their ability to serve as a juror.
When the SJQ responses have come in and after a hearing to exclude those jurors with clear and obvious hardship and/or cause challenges, the remote voir dire process begins. In King County, voir dire is conducted through Zoom in a series of small panels ranging from 10-20 jurors (at the Court’s discretion), which is designated and set up by the Bailiff. This changes the voir dire dynamic from talking to the venire all at once in a large court to a Brady-Bunch method where attorneys are addressing a small group of jurors on screen. Conducted in this manner, voir dire takes at least two days, perhaps more depending on the number of jurors remaining after some are removed for hardships.
Everyone is in their own location and responsible for their own technology set-up. Depending upon resources and comfort levels, trial teams may choose to set up in a large conference room and show the video feed on a large screen. The attorney conducting voir dire would be in front of his or her own computer, but other members of the trial team could still be in the same room allowing for easier communication.
Voir dire begins with the Judge providing instructions and then attorneys using their allotted time to question the jurors. Just as in court, attorneys can question jurors as a panel or individually but there should be a clear plan in how one wants to proceed. With a limited amount of time available to question each panel, remote voir dire must be targeted and efficient. As before, having jurors’ SJQ responses organized and in a user-friendly format makes the process much easier, effective, and provides a starting point for questioning jurors – getting the SJQs organized, however, takes more time and effort than photocopying and collating a stack of paper.
The process of how one keeps track of jurors in the venire remains both familiar and different. Jurors are still identified by their court-assigned number, but depending on how the schedules work out they may not necessarily be voir dired in order. For example, individuals who are not willing or able to participate in the video voir dire are given the option of attending court in person to be questioned in a setting where social distancing is possible. Furthermore, it is not possible to look out over the courtroom to get a complete visual of the venire as a whole. Judges generally prohibit anyone taking screenshots of the voir dire videoconference to protect jurors’ privacy. However, for the purpose of preserving information for Batson-type challenges, judges may opt take a single screen shot of the voir dire panels after each juror has given consent.
Exercising Peremptory Challenges
Except for happening through a videoconference with the Court and the other parties, exercising peremptory challenges follows the usual pattern. The size of the jury to be seated remains the same (12), with the number of alternate jurors determined by the Court. Following these new procedures, trial teams have more time to review their notes and consider their strike strategy than was the case when everything happened all at once.
Each party takes turns informing the court of its strike and when the last peremptory challenge is exercised, the process is complete. Previously, the jury would be sworn in and given preliminary instructions by the Court and opening statements might even begin. Now, strikes are exercised without any jurors present. After days of hearing from jurors, some of whom share deeply personal experiences and concerns, the process of striking numbers off a spreadsheet feels surreally impersonal.
Impact on Jury Selection Strategy
In many ways, preparing for and engaging in remote jury selection remains familiar to the “typical” way things had been done, but there are new factors as well as benefits trial teams should consider.
To begin with, the most obvious change is the introduction of videoconferencing and the accompanying technology challenges. At a minimum, everyone must have a Zoom account, computer or device with a webcam and a strong internet signal. Individual comfort levels with technology, however, will vary greatly among litigators and jurors themselves. In addition to setting up their device(s), trial teams also need to consider and plan for the impression they want to provide their potential jurors through their presence on video. Just as in court, jurors’ perceptions of the case and the parties involved begins with the first interaction. The same is true on video, but it will be repeated multiple times as voir dire is conducted with different jury panels.
When setting up your videoconferencing environment, attorneys should pay attention to setting a scene that promotes a positive impression of you, your team, and your client. For instance:
- Position the webcam so that it is at or above your eye level. This may require raising a laptop up on a stack of books or purchasing a separate webcam that can be mounted above your screen. If the camera is not properly positioned, jurors could wind up looking up your nose, at the top of your head, or your profile – none of which provide a positive impression.
- Unless your device has a high-quality microphone, consider using a separate microphone so your voice can be clearly heard by all participants on the videoconference. Having someone need to continually repeat themselves because others cannot hear them is annoying and wastes valuable time.
- Pay attention to the lighting so that most of the light is behind the camera, not behind you. Turn on the webcam and test a variety of lighting solutions to determine what looks the best. You may need to adjust window blinds, reposition the camera, or bring in additional lamps.
- Consider your background and the message it would convey. Simple backgrounds with few distractions are best. Think about how you can use your setting to begin connecting with jurors and creating the image that fits with your case themes.
Perhaps the greatest benefit to the remote jury selection process is that it grants much more information about potential jurors through the comprehensive and case-specific juror questionnaires and having the opportunity to observe them via videoconferencing. Following the traditional jury selection methods, it would not be unusual to have some jurors in the venire who were blank slates – they would not volunteer information during group voir dire and may not have revealed anything personal on a written questionnaire, if one was even allowed. Now, all jurors must complete the extensive SJQ and appear on screen in small group panels. No one will be a complete mystery. Videoconferencing allows a glimpse into jurors’ personal spaces and how they live their lives in their homes, offices, or cars. Moreover, when the trial attorney is actively involved in voir dire, consultants and/or other members of the trial team can observe the jury panel for their reactions, or lack of reactions. After a few minutes, most people forget about being on camera and begin to let their guard down, revealing their personal reactions to whatever is being discussed.
King County Superior Court officials began working on potential solutions for the COVID-19 shutdown in March, when the Seattle area was the first U.S. epicenter of the pandemic. The protocols KCSC created work very well for the Puget Sound region, but we are a unique population and it is unclear how well this model would work in other areas, especially those with limited access to technology and internet service. Additionally, once the jury is selected through this new process, jurors must then report to the designated location to observe the trial while wearing face masks and maintaining social distancing. A majority of King County residents follow such guidelines willingly, but that might not be the case in other venues. With the politicization of the coronavirus, many other venues will likely face resistance to the establishing alternatives to the traditional court system.
At least for this venue, the newly established remote jury selection method keeps significant aspects of the jury selection process familiar while introducing improvements such as the online juror questionnaires. Even though jury selection participants are physically distant from one another, the process remains authentic and dynamic. There is nothing “virtual” about the experience.
 To provide for adequate social distancing, King County has moved some of its civil trials to the Meydenbauer Center in Bellevue, WA. It is a 36,000 square foot convention space that has been divided into courtrooms designed to keep parties, court staff, jurors, and observers safely distant from each other.
A version of this article was published in the October 2020 Newsletter of The Civil Jury Project.