Navigating Jury Selection Over Zoom
By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D.
King County Superior Courts recently announced that voir dire will mostly be conducted over Zoom as part of the effort to resume civil jury trials during the COVID-19 pandemic. This move allows trials to resume without the need for large groups of people to be in the same place in order to conduct jury selection. It is an important step in balancing the public health with the need for the justice system to move forward. However, this also represents new and uncharted territory, so in this month’s column, we take a close look at the research on communication over videoconferencing and what it means for attorney strategy in a world of virtual jury selection.
We examined a variety of academic research where empirical research was conducted to examine the effects of video-conferencing on communication, engagement, self-disclosure, and a variety of other factors. This research focused on the use of videoconferencing in both academic learning and in the workplace. To no surprise, there is very little existing research on the effect of videoconferencing on jury decision-making or the voir dire process.
Overall, the results are mixed on the relationship between videoconferencing and self-disclosure. There is a presumption in a lot of the literature that there is more self-disclosure over videoconferencing than face-to-face interviews and some research supports this. For example, in one research study, the participants reported that it made them much more comfortable talking about sensitive topics in a comfortable and familiar environment such as the living room in their home. However, there is also a lot of research out of academia that shows that there is less engagement and consequently, less self-disclosure with videoconferencing than with face-to-face communication.
The lack of agreement in the research on this issue of self-disclosure makes it difficult to predict what this will mean for voir dire over Zoom, but regardless of the findings on self-disclosure, there is research on how to increase engagement over video conferencing to overcome this potential barrier, which is what we will focus on for the remainder of this column.
1. Model Good Behavior.
First, the research shows that social cues for self-disclosure are much more important over videoconferencing than they are with face-to-face communication. In other words, in group videoconferencing, which will be the case for Zoom voir dire in King County civil cases, the venire members will look to the behaviors of others on the Zoom conference as cues for the social norms of communication in that setting. This means it is important for attorneys to establish a favorable norm for disclosure early in the process. There are a variety of ways to accomplish this.
Sequence wisely. First, the attorneys should select initial questions that are easy to answer and discuss, and ideally create a more talkative environment. For example, a plaintiff attorney might want to start with questions that elicit tort reformer attitudes, since jurors often have very little hesitation offering their general views of lawsuits during jury selection.
Select good volunteers. Alternatively, the attorneys might try to identify a venire member who they think will be talkative for their first question or two, so that talkative venire member establishes the social norm of full disclosure. When successful with this approach, the attorneys should immediately reinforce the venire member’s self-disclosure by thanking them and explaining that those are exactly the kind of answers that they are looking for from venire members.
2. Cue With Questionnaires.
Some research, particularly that focused on HR and the workplace, suggests that interviewees perform better and are more engaged when they are provided the questions in advance. While it is unclear whether or not King County judges would be open to allowing the venire to see the voir dire questions in advance, the court has made it clear that it intends to rely on expanded use of supplemental juror questionnaires. In other words, while the questionnaires in the past have generally been limited to the standard short forms (with some exceptions), the court intends to allow attorneys to submit additional, case-specific questions for the venire members to answer on questionnaires in advance of voir dire.
These questionnaires, when well-written, could have the same effect as providing the questions in advance. In other words, attorneys can use the questions on the questionnaire to cue the venire members into the topics that they are most interested in discussing in voir dire.
3. Promote Engagement.
Research focused on online learning has also found that there is often less engagement over videoconferencing that there is with face-to-face communication in the classroom. Specifically, students tend to withdraw more from online discussion, which leads to poor retention rates, less successful outcomes, and weaker relationships with the teacher. Consequently, it is important for attorneys to look for ways to promote engagement during Zoom voir dire.
Know your style. This may require significant changes in communication styles. For example, research shows that nonverbal cues are less effective over videoconferencing. They are less likely to be perceived, in part because non-verbal cues come from the whole body of the speaker (i.e. gesturing), not just the face, the latter of which is all the venire members see in the screen in front of them. There is also a weakened effect of tone and similar verbal cues. Consequently, attorneys who rely on this interpersonal style to make venire members comfortable during voir dire may need to reassess their approach to voir dire.
Use your eyes. There are some suggestions, though little research to support it, that it is helpful for speakers to look at their camera rather than the screen. This is a difficult habit to create, but the goal is to create a sense of eye contact with the people they are communicating with over Zoom. This makes some sense since we know audience members are more likely to tune out if a speaker never makes eye contact with them. This appearance of eye contact may lead to better engagement by venire members.
Deploy demonstratives. Attorneys might also want to consider incorporating a visual component to their voir dire, though it will be important to discuss this strategy with the judge in advance. While rare, we have seen some attorneys project their voir dire questions onto a screen in the courtroom. Attorneys might consider doing something similar by sharing their screen. Even better, attorneys should consider putting some voir dire questions onto a PowerPoint slide where they can incorporate color and some other simple design factors that make the slide visually appealing to look at. This kind of variety might create more engagement, particularly since it requires jurors to actually focus on their screen and read something in front of them.
4. Prioritize De-Selection.
Finally, research shows that it is much more difficult to build rapport when videoconferencing, particularly when the participants cannot exchange emails in advance and there is generally little or no interaction between the participants outside of the videoconference. To be clear, rapport is different than engagement. Rapport is about building a relationship with your audience, while engagement refers to making them more active participants in the process. This is important to note because many attorneys have strong beliefs about devoting voir dire time to building rapport with their potential jurors. The research suggests such strategies will likely prove ineffective over Zoom. Consequently, Zoom voir dire may force attorneys to focus on what is most important in jury selection: de-selection. Rather than wasting valuable time talking about subjects that provide little meaningful information about the potential juror, attorneys should focus on questions about the jurors’ attitudes and experiences and whether or not those attitudes and experiences make it difficult for a particular venire member to be fair and impartial.
5. Do a Dry-Run!
Perhaps the most important lesson in all of this is that attorneys should practice voir dire over Zoom ahead of their actual trial. Even the most experienced litigators have little to no experience with conducting voir dire over Zoom and the research clearly shows it is different than face-to-face voir dire, with a variety of potential limitations that could make tried and true jury selection strategies less effective.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting. Kevin Boully, Ph.D. is a senior litigation consultant at Persuasion Strategies.
Republished with author Thomas M. O’Toole’s permission. Mr. O'Toole is the co-author of Jury Selection Handbook which was published by Carolina Academic Press in 2018. This article was originally published in the King County Bar Association Bar Bulletin