STRATEGICALLY APPROACHING NEW COVID-19 JURY SELECTION PROCEDURES

The priority of social distancing in the age of COVID-19 has led to innovations in trial practices, including substantial changes to how jury selection is conducted. Jury selection is one of the most people and space-intensive elements of a trial. Typically, a large pool of potential jurors is brought in, stacked next to each other in a closed space, sharing a microphone, and/or vocally projecting their answers to voir dire questions. In response to the risk such conventional practices pose, courts have sought to use larger venues – armories, gyms, or convention centers – in order to allow socially-distanced indoor gatherings. But it should come as no surprise in the COVID-19 Zoom age that courts have turned to Zoom as a means to conduct elements of the jury selection process.

For example, King County, Washington courts presented a CLE to describe the new jury selection procedures for civil trials, trials that will begin in earnest this very August. This practical solution involves a more elongated process than those practiced in the past, and it offers additional opportunities for trial teams to understand their potential jurors. These new practices offer trial teams the ability to enhance the quality and execution of sound jury selection methods.

For one thing, the recent innovation allows for a more sophisticated and deeper scientific approach to jury deselection to complement the important art of qualitative assessments of the relative risks potential individual jurors would pose to you and your client. The court announced that case-specific juror questionnaires, what we refer to traditionally as Supplemental Juror Questionnaires – will be used in every case and administered days before the actual voir dire is scheduled to commence. Questionnaires, as we have argued, provide much more depth and breadth to the analysis of a juror’s relative risk. The questionnaires allow the trial team the ability to understand a particular juror’s attitudes and experiences germane to your case and to employ social-scientific “scoring” methods that allow a trial team to understand an “overall” or general risk, risk by degree within specific areas related to the type of litigation, case claims, strategic themes, witnesses, etc. The extensive panel “scoring” also allows a very useful “birds-eye” view of the entire panel and based on juror order, the trial team can understand where not only individual risks lie but where there may be “patches” of “good” or “risky” jurors in the overall group. Tsongas has been employing these sophisticated “scoring” methods for decades, but now the approach can be used in a much more widespread fashion because SJQs were the exception rather than the rule to jury selection.

According to the court, after the jury questionnaires are received, the parties will meet with the court on Zoom and address both Hardship claims and any obvious Cause concerns. This is the first of two times where Cause challenges will be addressed. From those screened, approximately 36-45 potential jurors comprise the pool. A series of voir dire Zoom panels are then arranged where six potential jurors are interviewed by counsel, one-by-one, with both parties having time to question each panelist. Private voir dire can be conducted by moving the potential juror to a breakout room, where more discrete issues may be addressed.

The small group Zoom panels offer additional opportunities to gain insight and make more informed choices on Cause and Peremptory strikes. The questionnaires allow very targeted and specific follow-up questions to pursue Cause challenges or to rehabilitate potential jurors. The small groups also allow one to focus more attention on the nonverbal reactions and expressions related to the courts and the parties’ questions. It is much easier to see the facial expressions of six panelists right on the big screen whereas we used to have to make such evaluations from a much longer distance. The subtleties of reactions are now more readily available for those involved in the jury selection process.

What is clear is that this new process will advantage those who are more organized, more sophisticated, and more prepared for the opportunities. For example, the Courts expressed reluctance to allow recordings of the voir dire or even screenshots (although the request can be made) in order to protect the privacy of potential jurors. The Cause and Peremptory Strike process will take place at the conclusion of all the panel-by-panel voir dire. No longer is there a visual “box” where jurors are seated, which used to be a key visual organizational element of the strike process.

The CLE on the new jury selection procedures was informative and well done. Trial teams will still need to ask some key questions in order to be able to conduct the best jury selection for the client. For example, will Peremptory Strikes be limited to those in the “hypothetical box” or can they be used on anyone? The answer may have significant implications for the strategy a trial team employs. Will potential jurors have to confirm their availability before strikes? It is not uncommon for a potential juror to simply not show up after a break or lunch or for day two and in this day and age, jurors are likely facing more challenges than they traditionally have faced. Will there be any face-to-face voir dire for the jurors who may want to come into the court and may be uncomfortable with technology or too limited in their access to it? Will the Peremptory Strike process be after that, in court, or reserved for another Zoom meeting? How will follow-ups related to Cause challenges be handled? Traditionally, there is a back-and-forth process by counsel and the court related to Cause inquiries. These are just a few of the important questions to be addressed, but we share with many the excitement of getting trials back on track and allowing plaintiffs and defendants their opportunity to have their case evaluated by jurors, such a critical component of our wonderful civil society. The courts, clerks, bailiffs, jury coordinators, and attorneys have been working very diligently to get our jury trials back on track and we want to thank them for their efforts.

All of these important innovations to jury trials institutionalize several approaches to jury selection that we have been working with our clients to advocate for in their cases, but the success of such efforts was limited in most instances to highly sensitive cases involving sex abuse, #MeToo cases, race discrimination, stalking, and/or high profile community and media-saturated cases. Now, these approaches, methods, insights, and operations are much more available to be used to get the best jury possible for your case and client. So, we wish you well as you forge ahead and trial on!