CLAUSEWITZ, LETHAL AUTONOMOUS WEAPONS & ZOOM TRIALS; Yep, there is a link here
Updated: May 14, 2021
The high school academic debate topic for the month of January/February was:
Resolved: States should ban lethal autonomous weapons.
The students have to debate both sides of the issue – affirming or negating the resolution. My kiddo’s “negative” argument was simple: A ban will not be effective because rogue states, including Russia and China, will develop this new lethal technology. It is to be the next revolution in military technology and doctrine. If the Western democracies adhere to a ban and others do not, they will lose the credible deterrence necessary to prevent wars in regional hotspots. The US is currently leading in autonomous weapons technology and strategy, but if there is a ban, others will leapfrog the US and it will lose what military strategist call “the first mover advantage.”
The “negative” argument continues, drawing from Carl von Clausewitz—the famed Russian military strategist. Following the European Napoleonic Wars, he noted that nations need adapt to the circumstances of perish. Harsh, but that is post-Napoleonic Europe for you. He also emphasized the importance of military genius and the art of conflict as it can be applied to particular circumstance—training, adaptation, and application of strategy to the exigencies as the key to victory.
It is with this analogy that I turn to considering the role of Zoom trials and how trial teams can think about preparing for them.
Remote Law: The Wave of the Future (and the Now)
Seattle has been on the forefront of remote jury trials. As of early February, there have been at least six federal jury trials in Seattle’s Western District. There have been over 20 civil jury trials (either full Zoom trials or hybrids) in State Superior Court in Seattle.
So, just like Lethal Autonomous weapons development, your upcoming Zoom trial may be inevitable—the court may not allow you to wait for an in-person trial. We have seen this in several instances recently. We have talked to numerous trial teams that have noted the court denied their motion to avoid a remote jury trial. In a recent CLE regarding Zoom trials, the presenter stated that he has yet to talk to someone whose motion to avoid a Zoom trial has been granted. Even his own litigation team's attempts to oppose a Zoom trial was denied. The operative motive is clear. As Chief Judge Cahan of King County Superior Court, laid it out in an early-February presentation to the community, the “key” goal is “to keep civil litigation moving.”
Second, judges have noted that remote trials may be here to stay. Remote jury selection has gone very well and is quite efficient (more on this later). Superior Court Judge Williams noted that even if some form of in-court jury trials return, as social distancing restrictions lessen, some form of remote jury selection may be here to stay. He suggested that remote trial may simply be the wave of the future—the new terrain of battle, to relate this all back to Clausewitz.
If we are not preparing for the new trial situation while others are, they will have the advantage.
The “Television” of Courtroom Theater
The media of trial has changed. As Judge Pechman of Washington’s Western District notes, if “courtroom is theatre,” your Zoom trial “is television.” This points to the need for a consideration of production—the environment for opening, graphics, and witness examination. You must actively consider and control the lighting, the backgrounds, eye (read: the camera) contact, audio checks, and rehearsal for witnesses, so that you can competitively "tell the truth well" in this new arena.
The new “intimacy” between jurors, attorneys, and witnesses has significant implications. Remote jurors are very comfortable with the remote viewing experience and are now “two to three feet away” from the attorneys and witnesses. Like a microscope, Zoom trials give juries the ability to note the minute details—for good or for bad. Post-trial feedback shows that witnesses who are self-aware, practiced, poised and polished come across as more trustworthy, and those who have not prepared for primetime, so to speak, are flailing and may be failing.
There are a few crucial elements that are important to remember when preparing to succeed in these kinds of trials.
Ethos is a must-have and all-too-often forgotten element of trial advocacy (pathos and logos become dominant). Now ethos has a new up-close and “personal” element. Judge Cahan cautions that when the lawyer is acting in an aggressive manner toward a witness, the lawyer is also, in a sense, looking directly at and speaking directly to the jury. This can be off-putting to say the least and make jurors feel uncomfortable with (or even dislike) an attorney. Likability is central to ethos; pleasantness, poise—even as the trial lawyer is being firm and insistent with witnesses—is critical. And remember, the attorney’s face (expressions and attitude) is always on stage, front and center, close and “intimate.”
Witness First Impressions
The importance of your witnesses’ first impressions may have never been more critical. Jurors are reporting that they are quite tuned in to witness behavior. I have argued elsewhere of the importance of first impressions and the means to control the characterological development of your key witnesses. Jurors report that they can “see” the witnesses better now, which means that the witness’s strengths can be accentuated and their weaknesses magnified.
Witnesses that testify from remote locations may have technological troubles, which jurors are having little patience with. Witnesses may be more comfortable at home or in their office, and so testify in a way that suggests they are too comfortable or dismissive of the case facts in front of the jury. Remember that jurors do not get to see how a witness behaved in a situation at issue in the case. Jurors often infer that the attitude they see “on the stand” and now “on the screen” right in front of them is the attitude and character of the witness as they were during the events in question.
Graphics and Visual Aids
Graphics are another crucial component of the Zoom trial. For one thing, jurors are reporting that they are very dialed into the graphic presentations. Judges who have canvassed Zoom jurors indicates that they have been very focused on the graphics and can see the visual advocacy very well. Some jurors, who have been in courtroom jury trials before, commented that they can see the graphics even better than they could in court. This can be good or bad. This is now more television than theatre, and the visuals can be engaging, entertaining, meaningful, or boring, too complex, or confusing. Production value, the psychology of graphic design, and information presentation is critical.
The Value of Zoom for Jury Selection
As stated above, jury selection may never be the same. The courts have noted how well Zoom jury selection has been going and have pointed out that the costs savings are impressive. Although each court/judge is different, the new methods of jury selection offer opportunities. For one thing, Supplemental Juror Questionnaires are now more common, offering trial teams and consultants much more information. Multiple Zoom “panels” for voir dire offer the chance to ask questions and hear the answers in a more intimate, small group format.
We have also noted how much more responsive potential jurors have been in this format. They are comfortable with Zoom and because they are more comfortable in their location, they are more comfortable expressing their views. Courtrooms can be intimidating and, as the joke goes, fear of public speaking is right above or below the fear of death, depending on the survey you consult. So, the response rate and the earnestness of the respondents seems higher than that of in-court voir dire.
In Conclusion: Get Ahead of the Revolution
We have been involved in six Zoom jury trials and conducted over 20 remote mock jury exercises—with three or four juries per exercise—and we have seen about 70 juries deliberate in a remote environment. These jurors are adapting well. They have been engaged and worked together to understand evidence, assess witness credibility, and apply the jury instructions. The courts have also noted that jurors are responding well to their remote jury obligations, including constructive deliberations to verdicts.
Like my kiddo’s position in the recent academic debate resolution, your remote jury trial may be inevitable, in the short to mid-term. We can adapt and take advantage of the situation, gain your own “first mover advantage” or risk being overwhelmed by the opposition. If you prepare for these kinds of trial situations, this new trial environment, you will be able to utilize all the tools of successful remote jury selection and trial advocacy offers as a means to maximize your clients' chances at trial.