Civil Trial Bar Section

How to pick a jury when you’re not in the same room

By NJSBA Staff posted 02-19-2021 10:39


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


With the first of a two-phase rollout for virtual civil jury trials underway this month in several New Jersey counties—expanding to all counties on or after April 5—attorneys need to know how to remotely empanel a jury.

While there are challenges to remotely picking a jury and to trying a virtual case, there are practices that can help set up an attorney for success, said Michael G. Donahue, a managing shareholder and civil trial attorney at Stark & Stark in Lawrenceville, who moderated the New Jersey Institute for Continuing Legal Education’s (NJICLE) recent program, “Tackling Virtual Jury Trials During COVID-19.”

Panelists included Monmouth County Assignment Judge Lisa P. Thornton; Superior Court Judge David H. Ironson; Superior Court Judge Andrea I. Marshall; Superior Court Judge Sohail Mohammed; Sara Gilson, of Maune Raichle Hartley French & Mudd in Oakland, Calif.; 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.

Some of Donahue’s tips include:

  • Use at least two desktop computer monitors.

    “You are at a disadvantage without them,” he said. A single laptop screen is too small. “You are going to be sharing things with jurors, with witnesses. You need to have what you’re using on a separate screen, clear and ready to go before the presentation starts.”

  • Use a separate webcam.

    “It makes a world of difference in terms of how you look on camera,” Donahue said. “Most of the sophisticated webcams do a very good job of mimicking you looking at the camera when you’re actually looking down at your screen.”

  • Make sure you have good audio.

    “Audio is the most important thing. If a jury can’t hear you, if they can’t make out your words, you will lose,” Donahue said.

  • Use a separate microphone.

    Don’t rely on the microphone in your computer. Make sure, when you use the microphone in the trial setting, it doesn’t rely on a wireless or Bluetooth connection.

  • Use a wired connection, not wireless.

    There is no substitute for a wired connection. You will find you have fewer drop-offs and other problems.

  • Eliminate extraneous noise, i.e. a heater or air conditioner.
  • Test audio.

    Sensitive microphones can pick up sounds you may be unaware of.

  • Consider standing.

    “It’s very important to convey the best image that you can,” Donahue said. Also, consider using a podium. Most importantly, set the webcam at the right level—about eye level or a little bit above. Don’t look down at the webcam.

  • Use good lighting.

    Make sure the light is coming from behind the webcam or work in a room without windows or outside light, where you control the light source. Consider using a ring light or panel lights.

  • Consider using a large monitor on a wall to monitor the jury.
  • Dedicate someone on your trial team to watch the jurors.
  • Learn how to move jurors’ faces around on the screen.
  • Close open programs in your system that you are not using.

    If you are using Zoom, close Microsoft Teams, or vice versa.

  • Turn off notification sounds for emails and pop-ups.
  • Consider using a laptop or iPad that is not connected to the trial setup.

    You may need to email someone on your trial team or look up something. You don’t want to mistakenly bring something up in front of the jury or judge in a remote hearing.

Donahue noted a judge who began doing virtual trials last year observed that after spending 32 years trying to evaluate witnesses by looking at the side of their heads, she was now shocked to see them head on.

“I think that’s something we’re all going to find that’s going to be somewhat unique,” Donahue said, “… being able to observe them very closely, their faces, their tics, their moves, their reactions, staring at them, in fact, when they can’t see us…and to some extent it may be very liberating to many of us as trial lawyers.”