(March 26, 2021) - In-person jury trials are resuming in several states after the COVID-19 pandemic caused a major disruption, but the makeup of juries and the process of selecting jurors are changing, a panel of Barnes & Thornburg LLP attorneys said.
Remote jury trials and proceedings conducted on platforms such as Zoom will continue to some extent, jury consultant Dennis Devine and Barnes & Thornburg partners Trisha Volpe, Dennis Stolle and Kevin Rising said during a March 24 webinar called "Raise the Bar: The COVID Effect — The Pandemic's Impact on Juries and Trials."
'Huge backlog'
According to the National Center for State Courts, 8 million to 10 million citizens report for jury duty across the U.S. each year. But that did not happen in 2020, Stolle said.
Therefore, a "huge backlog of criminal trials" has been accumulating, he said.
He pointed to a Feb. 23 Time magazine article that said Florida has more than 1.1 million stalled cases and New York City alone has about 49,000 pending criminal cases.
There will be a "huge influx in jury trials" within the next year or two, with criminal cases taking priority, Stolle said.
Civil trials are starting back up in some places as well, but things are changing daily, Stolle said. Trials in Cook County, Illinois, recently restarted, but some Michigan courts have had to shut down due to a spike in COVID-19 cases.
The panelists agreed that attorneys need to be ready when trials restart because judges will not be tolerant of unpreparedness.
Nationwide COVID-19 survey
ThemeVision LLC, a trial consulting firm that was spun off from Barnes & Thornburg in 2004, conducted a nationwide COVID-19 impact survey in December 2020 to learn about how jury pools are being shaped by retooled trial formats and procedures made necessary by the pandemic.
More people showed interest in sitting on a remote jury as compared with in person, but not by much, the study showed.
Of the 532 responses, 52% said they would definitely serve as a juror on a remote trial, while 49% said the same for an in-person trial. Other participants indicated they might serve in person if precautions were required.
The survey also showed people are more concerned with civil rights, social justice, illness and personal health since living through the pandemic.
Devine inferred from the survey that future jury pools are more likely to include those who:
•Are cynical toward big companies.
•Endorse using emotion or intuition for legal decisions.
•Feel courts should protect the "have nots."
•Believe courts are a way to fix problems.
•Are more affluent.
•Are more highly educated.
•Are male.
•Have a Democratic Party affiliation.
'It's harder to read a room'
Rising said that in a recent remote civil jury trial conducted on Zoom in Alameda County, California, the jury skewed young, educated and fairly affluent, with hardly any senior citizens.
He said attorneys need to think about self-awareness during remote trials. Walking around and being animated gets lost and can be distracting on screen.
"It's harder to read a room," Rising said.
Stolle agreed, saying the social dynamic is different.
During an in-person trial, attorneys may smirk or use a glance to send a social message, Stolle said.
"All of that is lost in the Zoom context," he added.
Stolle suggested hiring a videographer to move around and get different angles and placing a monitor behind you so you can point to it like a TV meteorologist.
All the panelists agreed that virtual video trials will continue in some form.
Volpe suggested seeing remote trials as an opportunity, not a challenge.
Rising added that witnesses will now be able to appear remotely in a courtroom from anywhere.
"The whole world has gotten more comfortable on video conferencing; I can't imagine going back to the way it was," Devine said.