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Lessons learned: Nine virtual jury trial tips

By NJSBA Staff posted 03-11-2021 04:09 PM

  

This is the second installment in a series. The webcast of “Tackling Virtual Jury Trials During COVID-19” is available in the NJICLE on-demand library.

As the state ramps up virtual jury trials, judges and attorneys at a recent New Jersey Institute for Continuing Legal Education program, “Tackling Virtual Jury Trials During COVID-19,” shared insights about what works in that format—and what should be avoided.

The program’s panelists included Monmouth County Assignment Judge Lisa P. Thornton and Judge Andrea Marshall, who participated in a recent mock virtual trial, and Sarah Gilson, of Maune Raichle Hartley French & Mudd in Oakland, Calif., who last fall tried one of the country’s first virtual civil jury trials to go from jury selection to verdict.

Additional panelists included Judge David H. Ironson; Judge Sohail Mohammed; New Jersey State Bar Association Treasurer William H. Mergner Jr., of Leary Bride Mergner & Bongiovanni in Cedar Knolls; and Christopher M. Placitella, of Cohen Placitella & Roth in Red Bank.

Whether a trial is completely virtual or a hybrid of in-person and virtual appearances, Thornton said the goal is “to try to make everybody as comfortable as they can be and [to] present the case the way they want to present it.”

The panelists provided the following recommendations:

  1. Check the template pre-trial order that will be uploaded on the Judiciary website.

“It’s a combination of a pretrial order and a trial checklist to make sure you cover all of the things you should cover,” Thornton said.
       2.  The walk-through is one of the most critical parts of the process, whether you’re proceeding totally virtual or in a hybrid form.

It’s important to know what the jury sees and that what’s replicated in the courtroom is replicated in the virtual form as much as possible. Work with the court staff to find out what is shown, what the jury can see and where you should stand.

Run through everything. See how it looks. Take the time, because it will pay off. The jury notices these things.

“You never want to go into a trial and say, ‘Oh, this is not what I wanted.’ Because guess what? It’s already broadcast out to the jury,” Thornton said. 

  1. Attorneys should mark where they need to stand with an X. For instance, if they have a witness, they may not want their back to the jury, or if they want to be seen together, they need to mark it that way. Make sure you are standing or seated at a socially distanced six feet. 
  1. Get a tech person to onboard a large group of jurors before the jury selection starts so they know how to use Zoom, raise their hand or any other technical process they may need to use. 
  1. Dedicate at least one person to sit at a computer screen to monitor jurors for distracted behavior, such as checking email or leaving the room. In a pretrial conference, the judge and lawyer should discuss how they will correct the juror’s behavior, such as notifying the judge through a text message.

“If someone comes in the room and the juror says, ‘Not right now, I’m doing something.’ That is not a cause for ending the trial.” Gilson said. “You have to be a little bit more reasonable. There are other people in the house.” 

  1. Discuss mask protocol with the judge and jurors. Jurors are likely extremely concerned about it and will have questions.

“The lawyers should keep their masks on when they’re not actually speaking. And they should ask the judge for permission to take them off, and the same thing goes for the witnesses,” Marshall said. 

  1. Jurors cannot sit too long without a break, but make sure breaks are precisely timed. Jurors in the ­Monmouth County mock virtual trial found it difficult to sit through 90 minutes of testimony, Marshall said.

If you’re going to have a 10-minute break every hour, let the jury know it will be exactly 10 minutes long, because a 10-minute break in court often becomes a 15-minute break or a 20-minute break. Also, be prepared that jury selection may take much longer than the trial itself.

Gilson said they had half days and took breaks every hour. “I think that’s critical,” she said. 

  1. Make sure your computer doesn’t run automatic updates during the trial because they will disrupt your session, said Judge Sohail Mohammed. 
  1. Use a power bank so if there’s a glitch, your computer won’t be kicked off, he said.

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