Many on the path to become trial lawyers came into the profession during COVID-19 and experienced a distorted view of the traditional jury trial. But is the "traditional" jury trial an endangered or nearly extinct species as some have suggested, or is it merely evolving with the challenging times we live in, impacted by new technologies?
Pre-COVID-19, jury trials were highly interactive affairs, and the art of witness examination and cross-examination was on full display under the watchful eyes of a jury charged with deciding the credibility of the parties and a judge acting as a referee from the bench. One of the best tools in a trial lawyer's arsenal was feeling comfortable in a courtroom setting even though we had to think on our feet quickly and often. This is perhaps the single most important difference between pre-COVID and COVID trials as COVID restrictions made that extremely challenging.
In this article, we will examine several key ways in which COVID-19 has changed trial proceedings, strategy and preparation and how mentoring programs can make a difference.
Jury selection or voire dire
Jury selection is the most important part of a trial. Be aware that a fair jury is always optimal but may not be the number-one choice. Pick jurors you believe may be predisposed in your client's favor or can, at least, be open-minded, and "prime" them to favor your themes. Going in, know what juror profiles you want and what characteristics favor your facts and presentation before you enter the courtroom.
During COVID-19, everyone in the courtroom wore a mask or a face shield, possibly in smaller jury pools due to social distancing requirements, or voir dire may have been conducted off-site. If live, potential jurors also may have been behind plexiglass barriers. But how do you get to know prospective jurors when they are behind plexiglass or a good distance away or on a computer screen?
The answer is to pay close attention to each potential juror. Watch for their attentiveness, body language and facial expressions in response to certain questions, facts or statements. Look at their surroundings if it's not a virtual background — do they have particular artwork, posters or books in the background? How are they dressed? These are clues that could be important.
Whether virtual or in person, you also will want a team standing by to assist with social media searches once you have your list of prospective jurors.
Use of demonstrative exhibits
During COVID-19, it was difficult to use demonstrative exhibits effectively because lawyers were unable to move around and interact with witnesses, judges and juries. The trial lawyers even may have been in the back of the courtroom during their presentations.
In the courtroom, animations, slide decks and documents should be uploaded and shown on a large monitor or screen. Regardless of the setting, the more eye-popping they are, the more effective and helpful they will be in keeping the jurors' attention and keeping them engaged.
Witnesses
Many witnesses were presented virtually during COVID-19 trials, and this will likely continue. However, now there is a new element to consider in the potential use of a discovery deposition as trial testimony — in some instances it will be played before a jury and the witnesses will not be presented live. This brings a new level of deposition preparation into play; for example, consider asking questions you may once have reserved for trial, because the witness may not be there. This means bringing the deposition testimony into your strategy and considering early on various issues you once had the luxury of deferring until trial.
Cross-examine effectively and strategically. If you're making an important point and your jurors are viewing the witness remotely, make sure the camera has an unobstructed view of the witness's face and body language. If you have especially bad facts or liability, consider concessions regarding fault and make them.
Humanize the defendant corporation
If presenting live, at trial, it is more important than ever to choose a corporate representative carefully— make sure the representative is likeable, empathetic and relatable when addressing the key issues in the case or projects an authoritative presence "at the table" throughout the trial.
Be certain such witnesses are mindful of their significance whether they are on or off the record and thoroughly prepared in case they are called as an adverse or defense witness at trial.
Law firm mentoring programs
Many law firms, including the authors' own, have institutionalized mentoring for trial lawyers. These programs are more important than ever to help trial lawyers learn or relearn their way around the courtroom. Our firm has established a CLE program where teams of our most experienced trial lawyers reenact selected trials as instruction to our junior lawyers.
The reenacted trials are divided into modules (opening statements, for example) and the presenting lawyers explain their strategy and what they were attempting to accomplish. This and other in-house programs allow junior attorneys to benefit from the instruction of the most experienced attorneys. Mentoring should also include the preparations for post-COVID trials discussed here.
The rise of the virtual jury trial
To cope with the pandemic, courts had to restrict, end or make jury trials virtual. The future trial may well contain these elements, and the next generation of trial lawyers must prepare for this hybrid environment.
The virtual trial presents the problem of missed body language and facial cues seen during voir dire or testimony. However, when parties are required to wear a mask that hides their expressions — one of the biggest indicators of credibility — the virtual trial makes better sense.
While in-person jury trials are the preferred method, virtual jury trials allow the judicial system to go forward by promoting the safety of all involved. Some courts are contemplating keeping aspects of the virtual trial where they have proved effective.
The virtual trial presents a technological hurdle for all parties involved, but the more commonplace they become, the more practiced and efficient they will become. Trial lawyers must keep up with the technology in and out of the courtroom.
Conclusion
COVID-19 has shaken up the jury trial experience for both new and experienced attorneys. For those whose only trials have been conducted during COVID-19 restrictions and for everyone easing back into the in-person trials, these are key elements to keep in mind practicing forward. Firm mentoring programs should be considered to prepare the future generation of trial lawyers for both live and virtual trials.
Originally Published by Westlaw Today and Reuters
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
