(March 17, 2021) - When the COVID-19 pandemic hit the U.S., courtrooms across the country were quickly thrown into a virtual environment. Hearings, trials and other procedures moved from the predictable confines of the courtroom to homes and offices.

In Seattle, King County Superior Court Assistant Presiding Judge Patrick Oishi has ordered the suspension of in-person civil jury trials through March 29.

King County Superior Court Judge Sean P. O'Donnell has been conducting hearings and jury trials remotely on Zoom or other digital platforms for several months now.

Thomson Reuters spoke with Judge O'Donnell about his experience adjudicating during the pandemic. Responses have been edited for clarity.

Thomson Reuters: What have been some advantages and disadvantages of conducting jury trials via Zoom? What do you like about the remote trials and what do you miss about in-person trials?

Judge Sean O'Donnell: The main advantage for an all-Zoom jury trial is safety. The jurors, lawyers, witnesses and court staff can all appear remotely and avoid unnecessary exposure to COVID. I still come to the courthouse, but it's a relative ghost town down here. So we are able to minimize that risk.

Another significant advantage is the convenience for jurors. Pre-COVID, jurors would come to the courthouse in downtown Seattle and they could stay a day or two before knowing whether they had been called out to a court for jury selection, let alone whether they would be selected for the jury. With video voir dire, we send them the questionnaire via email, have them watch an orientation video, and then book them for about an hour at a specific time to participate in voir dire. It saves them hours and hours, is much more predictable, and allows them to attend to the other important things in life (kids, work, school, etc.) while still doing their civic duty.

I do miss having the jurors and witnesses in the courtroom. There is a certain gravity to the proceedings that is harder to replicate over video. That being said, I'll sacrifice that gravity for doing trials versus the alternative of not doing them. We've got to keep moving, and doing a Zoom trial lets us do that.

TR: How have parties such as attorneys, jurors and judges adapted to the changes of having jury trials being held remotely? What had to be changed?

SO: There is a slight generational advantage for attorneys who are comfortable with computers, programs like Microsoft Forms and Excel, and visual presentations via PowerPoint. I've seen junior associates really deliver the goods for more senior attorneys because they are adept at the mechanics of these types of programs. It's not to say veteran attorneys can't do this — they absolutely can and some do it exceptionally well.

One of the main adjustments attorney have had to make is to engage in pretrial IT work. They check with their witnesses and clients on internet bandwidth, lighting, sounds, etc. and what the features of their background will look like when they testify. In the old days (that is, pre-COVID) lawyers could remind their clients to wear their Sunday best to trial. Now it's a bit more involved. That being said — it's a small time investment that has significant payoff.

Judges have had to adjust to many of the similar challenges lawyers are facing: learning to use new computer programs like Zoom, being comfortable with their features, and recognizing that it is OK to make mistakes. Judges have also had to increase their IT skills. I had one instance where I was explaining to a juror whose iPad battery died how they could go to the Apple App store (a first for them), download an app (another first) and log on to Zoom over their phone. It took maybe 15 minutes, but we got through it. Pre-COVID, if a juror had a flat tire and was having trouble getting to court, they'd be on their own other than me suggesting they might try the bus. These are interesting times for sure!

TR: How is the court handling situations where parties do not have access to technology or do not want to participate in remote jury trials?

SO: The good news on this front is about 96% of all Americans have access to some internet-connected device. They're ubiquitous in 2021. [However], not everyone has a great Wi-Fi signal or has sufficient data minutes on their plans.

Here in King County, we're trying to work with the small number of jurors with these challenges and who still want to serve. Because the courthouse is essentially vacant, what we've been able to do is tell those jurors they can still participate by coming down for jury selection. We've also set up computer stations for jurors in the law library at the courthouse should they be selected.

This is an important issue that we need to be constantly evaluating and reassessing.

TR: What kind of feedback have you heard from people who have participated in remote jury trials? Have jurors been focused on the trial?

SO: The jurors have been fantastic. In the trials I've presided over, the jurors have been focused. I'm watching them constantly throughout the trial to make sure they're not distracted. I talk to them (repeatedly) about turning off their phones, disabling other applications, and giving their full attention to the witnesses and lawyers.

It is inevitable that some part of "life" will make an appearance during a juror's service — their partner walking by, a child asking their parent for help, a cat on the keyboard. All of the interruptions I've seen have been fleeting, and the lawyers and other jurors have taken it in stride. This is, in my estimation, both a reality and small price for being able to move forward with cases. The alternative is doing nothing, at least during this part of COVID.

TR: What do you feel needs to be changed about the process?

SO: I am hopeful that brilliant programmers out there — whether at Microsoft, Google, Amazon or startup entrepreneurs — will design a more court-friendly interface for the videoconferences. I know some are working on this, and I'm really excited to see what that will look like a year from now.

TR: Do you see remote jury trials becoming a permanent option?

SO: Yes.

TR: Do remote proceedings offer greater access to justice or encumber it for some populations?

SO: Anecdotally, I think the answer to this question is yes. Here in King County, our summons response rate is up about 5% (so, 25% response rate versus 20%) and judges are seeing more diverse jury pools. I don't have official numbers to back this up — it's from what I've seen in my own cases and from what I've learned from colleagues.

TR: Are some lawyers more persuasive in person compared to virtually? Are others more comfortable behind the screen than in a courtroom?

SO: I don't see much a difference for lawyers who present argument to the bench in person versus online (for example, at a summary judgment hearing).

Trial may be different, but that is an X-factor that is almost impossible to measure. I think as a profession, we probably overestimate our own persuasiveness being in front of a jury. I've seen cross-examination, for example, over Zoom that has all of the hallmarks and outcomes of an outstanding cross in the courtroom.

The ability to use media, like PowerPoint, on Zoom can make more of a difference I think than in person. In other words, the outstanding PowerPoint that a lawyer screen shares on a Zoom call may actually be more persuasive than the in-court video screen. But this is an almost impossible metric to quantify and I will end up giving you a familiar answer: It just really depends.

TR: Are there ways for lawyers to prepare for virtual proceedings?

SO: Yes. Practice. Then practice again. Get on Zoom, make sure you know how to use the "mute" function. Make sure you know how to screen share. Make sure your clients and witnesses practice and that you test their connection, audio and video. This is a small investment with a huge payoff. If you don't know how to do these things, find that younger associate or your veteran colleague with computer chops and ask them to help. Or, if you can afford it, hire a video trial IT team. They're wonderful and can make a difference for your case.