Post COVID Voir Dire – Selecting a Winning Jury

We keep hearing the term “the new normal,” but many people don’t realize how much that has already affected and will continue to impact the legal industry going forward.  The COVID-19 pandemic is reshaping the world of law in profound ways. 

The Old Way – In Person
Just yesterday, I had to handle a parking ticket that I wanted to contest.  In the past, that meant going down to the local Municipal Court, taking a number, waiting for my number to be called, talking to a desk attendant, and then being sent into a court room.  Once you were in the court room, you were heard by a judge on a first come first serve basis.  That meant more waiting around.  I live less than 2 minutes from the Downtown Austin Municipal Court, and it still ended up being a 2+ hour ordeal.

The New Way – Online
COVID has drastically changed the way things work.  It has forced an antiquated, inefficient judicial system to reinvent itself and its processes using technology.  Yesterday, I went online to www.austintexas.gov/court and in less then 5 minutes, I was able to contest the ticket, submit evidence supporting my position, and provide my preferred day of week and time of day for a pre-scheduled Zoom hearing.  The entire process took me just under 5 minutes, and within 2 minutes of finishing it, I received a confirmation email stating that I would be contacted by a hearing officer in the next three business days.

The Technology Challenge
Technology is great in many ways – it streamlines processes, it creates consistency, it reduces costs, it saves time . . . everything that is clearly seen in my example from yesterday’s parking ticket.  However, technology also creates a huge challenge in the legal industry – it is impersonal in a world where much of interactions need to be intimate.  Parking tickets and traffic tickets are mechanical.  They should have been refined a long time ago. Areas like Family Law, Criminal Law, Personal Injury, and many others are centered around our humanity.  When you are talking about someone spending their life in prison, fighting for their child, or sustaining a life changing injury it is very personal.

Jury Trials – The Importance
The pinnacle of our judicial/legal system is the jury trial.  It is one of the most important rights we have in our country. Afforded by the Sixth Amendment in the US Bill of Rights for federal courts, the right was considered so important and so fundamental that it was also extended to state level courts through the Due Process Clause of the Fourteenth Amendment.  Jury trials are widely understood as important components of criminal proceedings, but they have great importance in civil cases too.  I have personally lived through it in my own Family Law proceedings.

My Jury Trial
After a 5-year long child custody battle, I ended up in a week long jury trial in November of 2019.  I was a 50/50 parent with my children’s mother up to that point, but her new husband wanted to have geographical restrictions lifted and my parental rights shifted to less than standard possession, so that they could move 1,400 miles away for his job.  We were going to trial, and the only way it was going to be decided was by a jury of 12 impartial citizens.

Voir Dire – Pre Pandemic
I not only witnessed voir dire as it used to be, I lived it.  I was going to trial to protect the most important thing in the world to me – my children.  I needed to put my best foot forward.  I had a great legal team, but I needed to learn how it worked as best I could before it started.  I went in prepared through a lot of studying, and had the privilege of watching my truly gifted attorney work her magic as she questioned the jury.  She captured their attention, she disarmed them, they felt safe with her.  And as they interacted with her, she used her gift for reading people to assess each of the forty-five potential jurors within the limited time she had to do so.  It was impressive to see her work live.  She not only has incredible knowledge of the law, but is also extremely skilled in human interaction.

Voir Dire – Post Pandemic
Jury trials are just getting restarted in many states, and the stage has changed greatly.  Trials are now being held via Zoom and other video conferencing solutions.  It is a fact that people do not connect the same way over screens, and the effects are already being seen in the court room.  An article was released today by New Jersey Law Journal litigation writer Charles Toutant titled “Jury Selection Via Zoom is So Thorny, a New Jersey Court Lawyered Up – and Beat a Challenge.” He talks about some of the challenges of the post pandemic jury selection process.  The very foundation of it is currently in question, and that doesn’t even get to the point of the voir dire component. 

Watching my attorney live highlighted the importance of in-person voir dire to me.  You don’t catch all the nuances of body language over a screen.  You don’t get the same level of connection with people no matter how charming you are over a screen.  You don’t see facial expressions of the people sitting next to the juror that is talking, because there is no one next to them on a screen.  The list goes on. 

The simple matter of it all is that there is going to be a normalization in the jury selection process.  The on-screen limitations of non-live proceedings means that the ability to read people and make connections with people is going to be hampered.  This is a real problem.  Litigators only have three opportunities to speak to the jury and to figure out how to best sway jurors in their favor – voir dire, opening statements, and closing statements.

Jury Selection – Data is the Key to Winning in the “New Normal”
In my personal research for my jury trial, I learned what every great litigator knows – that voir dire is critical to winning jury trials. Unfortunately, online trials have added a layer of complexity to the selection process. You don’t get to “feel” out jurors. That is where data comes in. The more you know about the potential jurors, the more precise and deliberate you can be as you address the panel. During my trial, I used our lunch break, a seating chart with nothing but the names of the jurors, and my memory about each juror to run a FindMyWitness name search on every one in the jury pool. It paid off. I was sitting with four highly respected Family Law attorneys in Central Texas, as we waded through the pool of jurors assessing who we wanted to keep, who we wanted to try to strike for cause, and who we wanted to strike with our preemptory challenges. The data from my searches paid dividends. It changed one of the key jurors that we selected, and I ultimately won the jury, taking primary custody of my children.

Data proved to be a game changer in live, in-person voir dire, and will be exceedingly important in online trials. Voir dire master Jeffery T. Frederick, director of the Jury Research Services National Legal Research Group, Inc, says “attorneys (or paralegals, trial consultants, etc.) need to conduct internet searches on potential jurors. ‘There is a lot to be gained from such searches and all parties are moving toward making this a common practice. However, properly conducting these searches, while seemingly simple, is more challenging than simply doing a search through the Facebook search tool bar.'”

We used Discovery+ on FindMyWitness.com because it made challenging internet searches simple and fast.

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