VOIR DIRE THROUGH VERDICT--VIRTUALLY!

Jennifer Crow of Scheer.Law talks with Shari Belitz Communications About Trying One of the First 100% Virtual Trials 

As we Zoom into 2021, I had the privilege and pleasure of talking with Jennifer Crow a partner at Scheer.Law PLLC, who is fresh off a victory from one of the few fully virtual trials in the United States. From jury selection through verdict, Jennifer tried this groundbreaking case in King County, Washington along with her partners, Mark Scheer, and Joe Hogan. After nine days of virtual trial in an admitted liability case, the jury deliberated entirely via Zoom and returned a verdict less than the final settlement offer. As a trial consultant, I was curious to explore not only the logistical issues raised by virtual jury trials, but also ask Jennifer about more theoretical and psychological aspects inherent to conducting a jury trial virtually.

SHARI: Jennifer, thanks so much for taking the time to talk about your experience trying this case. As we make our way through the COVID-19 pandemic, I remain in awe that by trying this case virtually, you have become a part of our legal system’s history. I can go on about the historical significance for hours! Let’s however, start with the basics. Can you tell me a little about this case, and whether there was a trial date set pre-COVID?

JENNIFER: This was an admitted liability case regarding a rear end accident involving multiple vehicles in Seattle in the summer of 2016. We represented the company that employed the driver at the time of the accident. At one point, a driver of another vehicle was also named but he was dismissed just before trial. The claimed injuries included a cervical disc herniation requiring a double level surgery, and permanent disabling post-traumatic headaches that rendered the Plaintiff unable to work. Before the pandemic started, there was a trial date that we had to push back due to the courts still being closed. Starting in the fall, King County began renting out a nearby conference center where it could hold trials with social distancing measures in place. We were originally set to start trial, in person, on November 16th. Our trial judge unfortunately got food poisoning the night before we were supposed to begin, and so our trial date got bumped out two weeks until November 30th. 

SHARI: This case is a bit different than a few of the virtual cases, we have heard about proceeding across the country, as every aspect of this trial was tried virtually. Is that correct? At what point did it become clear that this was a case that may be tried virtually?

JENNIFER: Every part of the trial was done virtually. In the two-week period between our original trial date and November 30th, Seattle had a spike in COVID cases. The week before our trial, our assigned trial judge stated he was considering holding the trial via Zoom. 

SHARI: Was there ever any reservation from either side?

JENNIFER: We had a pre-trial conference a couple court days before trial was to begin, and at that time our judge asked if anyone objected to a Zoom trial. Plaintiff did not, but we absolutely objected.

SHARI: What were your immediate concerns from a logistical perspective?

JENNIFER: Our immediate concern was how could the jury accurately evaluate Plaintiff not being able to see her in person. Plaintiff withdrew the claim about a brain injury the first day of trial, but we had huge concerns about how could a jury determine whether or not someone had a brain injury when they could only see them in a two dimensional medium. Plaintiff’s neuropsychologist had evaluated her in person, and we did not believe a jury would get a fair view of Plaintiff over Zoom. We also wanted to be in person with the jury to better connect with them throughout the course of this case. We also felt confident in the credibility of our experts, something we felt would be harder to judge virtually.

SHARI: Did you ever have any concerns about which issues which could possibly be appealed?

JENNIFER: We actually filed an emergency motion to stay with the Washington Court of Appeals, and argued a couple of issues. First, we argued that a jury couldn’t accurately evaluate the brain injury issue virtually. We also made arguments regarding the potential jurors. In order to sit for a case via Zoom, a person has to have reliable internet – in our case for over a week, as well as understand how to use the technology. We felt that this would weed out certain portions of the population, namely, older individuals and lower income individuals. Our motion was ultimately denied, but we felt that these were both key issues to preserve for a potential appeal. 

SHARI: I know we talked a little bit about jury selection and the fact that the jurors did not have “neutral” backgrounds, they were in fact in their own homes and everything from décor, books, and their electronic equipment could be observed. Did this give you additional insight into your prospective jurors? If so, how were you able to use that during jury selection?

 JENNIFER: It did. The jurors were not permitted to have “virtual backgrounds” during jury selection or trial. My understanding was that this was to ensure you couldn’t see someone else in the room, as jurors were supposed to be alone in a room during the pendency of the trial. It did give us insight as to the hobbies of potential jurors and which ones had invested into more professional looking setups likely for their jobs with nice headsets and microphones. Being able to see someone’s hobbies gave you insights that you didn’t have to spend time asking questions to get to during voir dire.

SHARI: Can you tell us how you prepared differently than you would prepare for a jury trial proceeding under normal conditions?

 JENNIFER: Normally I don’t have to play with the lighting in the room before a trial. Being virtual, we knew that we needed to have a background and lighting set up that would be professional but not distracting for the whole trial. We purchased a few different ring lights to test out as lighting behind the laptop and moved my partner’s standing desk into the conference room where we were holding the trial. You also can’t see the jurors as well in small Zoom boxes, so we logged into trial from a laptop connected to a large TV in the conference room as well just to see everyone better.

Exhibits were obviously quite different as well. Exhibits were to be uploaded to a sharefile site with the court. In a regular trial, you could hand the witness a document and ask your questions to lay a foundation for the exhibit’s admission. Here, you had to make sure the witness had an electronic copy of the exhibit and then once it was admitted, you could share screen to show it to the jury. Similarly, you couldn’t hand a witness a deposition transcript – you had to email it to them if you were going to use it for impeachment.

SHARI: Did you find you had to use different body language, voice intonation, or other communication techniques in order to more effectively present your case to jurors?

JENNIFER: Definitely. I don’t like to stand in the same place when I’m speaking. If someone gives me a podium when I’m giving a presentation, I spend almost no time at it. I would rather move around, as would my partners. Being forced to essentially stand in the same place was very different and if you were going to gesture or move your hands, you had to make sure it was in the frame of the camera. Voice intonation was very important to keep the jurors interested as well.

SHARI: I know there is a lot of ground to cover and I could probably ask (and maybe will someday in person walk through each step of the trial), but for purposes of brevity, and your time, what differed the most and how in a virtual v. in-person trial? Voir dire? Opening? Direct? Cross? Closings?

JENNIFER: Voir dire was very different. We could only voir dire fifteen potential jurors at a time, so we had to do our full voir dire three times. That’s obviously not ideal, as opposing counsel learns some of the things you’re doing to be asking and can attempt to alter their own voir dire accordingly. Given that we had to do it multiple times, and the length of our trial, we did three rounds of voir dire. Picking the jury ended up taking almost an entire day, when I think it would have taken a half day under normal circumstances. Trying to make direct and cross flow as definitely harder. There’s just something missing when you aren’t able to do it in person. I think that was harder on cross than it was on direct. All of my witnesses were experts because it was a damages case, which made things easier in terms of preparation on direct as all of my experts had been doing multiple depositions via Zoom. Had I had lay witnesses, I’m sure I would have had to do more preparation with them than usual. 

SHARI: How did you prepare?

JENNIFER: The one benefit of doing voir dire multiple times is that you also get to tweak it based on the responses you’ve gotten during the earlier panels. We did make small adjustments to what we asked the prospective jurors in the later panels. We also had to really plan out our questions as we were more limited on time than we had been in a typical trial. Overall, we spent more time on voir dire and working on connecting with those jurors than we would in a typical case. We also did some practice in terms of how we would incorporate exhibits and when we would want to share screen. Exhibits were more difficult because you didn’t have a physical set you could just pull out and use with a witness, so there was more logistical preparation of how to do that. Like I said, my witnesses were probably easier to prepare because they’ve all done virtual depositions, but we did request they all testify “virtually” from my office so that we could have control over things like lighting, background, and internet connection.

SHARI: What are some pointers you would offer to other lawyers trying cases virtually?

JENNIFER: We did not use a slide deck for opening, but we did for closing, which I think was very helpful. With not being able to emphasize points to the jury in person, I felt it was important to throw up a few points I wanted to make for each of the witnesses. That helped keep the jurors engaged with something to look at while I made sure to change the tone of my voice at different points to keep their attention in terms of what I was saying. My damages calculations were fairly simple – while Plaintiff’s were very complex. I think that simplicity in numbers is even more important for virtual trials. The jury isn’t watching you write out figures on an easel while you talk – they have to be looking at a slide, and it’s easy to have too many numbers or calculations on a slide. Also practice how you will do exhibits. While I was asking questions, one of my partners would be dealing with sending the judge transcripts we were about to use for impeachment, or getting an exhibit up and sharing screen. Consistently having those ready to go helped keep trial moving. We did not use a trial tech, but I certainly wasn’t alone and couldn’t have done it alone. Be cognizant of your lighting and background and make sure that your witnesses are cognizant of theirs as well. 

 SHARI: Thank you so much for your time Jennifer. This was interesting, informative, and as I pointed out in the beginning, historical! Congratulations to you and Scheer.Law.