Three Reasons Why Virtual Jury Research Is as Robust and Effective as In-Person 

Article by Taylor Lyden
Originally published in MA LAWYERS WEEKLY 2020 

In this new age of regional lockdowns and social distancing, counsel have had to adjust trial preparation significantly.     While some jurisdictions are slowly opening and attempting to safely hold trials, many places are still in the early phases of re-opening and still prohibiting gatherings of more than 25 people or requiring quarantine upon entering from certain states.  This has forced people to consider alternate forms of jury research to stay on track for trials scheduled for this fall and winter.   Enter online, or virtual, jury research. For those unaccustomed to online jury research, the prospect can be daunting, to say the least.  You may worry that you won’t get a representative jury, jurors won’t pay close attention, they’ll struggle with technology, or they won’t be able to have meaningful discussions of the evidence.  As a leader in the field of jury research, Magna pioneered virtual jury research.  For over a decade Magna Legal Services has utilized a virtual courtroom for online jury research in addition to the more traditional in-person mock trials, and our experience has taught us that online deliberations are every bit as robust and effective as their in-person counterparts.  With thousands of mock trials to draw from, below are three reasons why we have concluded that there is no substantive difference between virtual and in-person deliberations for jury research.   

• Jurors “get to the point” more quickly online because they are less inhibited. Online videoconferencing has a way of leveling the playing field for jurors.  Each juror deliberates from the comfort of their own home (whatever that environment may be), and each is provided with the same amount of virtual real estate on the other jurors’ screens.  Because jurors cannot be physically large or animated, loud and dominant jurors tend to be less aggressive to others online than in-person, and wallflowers tend to be more confident in speaking up in the group.  Additionally, through years of both online and in-person jury research, we have found that psychologically, there is a feeling of protection afforded by a computer screen for jurors, and this protection allows them to speak their minds openly.  Online jurors tend to benefit from an anonymity effect whereby jurors don’t know each other and don’t have to spend time sizing each other up.  Because of the reduced inhibitions online, jurors more quickly express and advocate for positions that may be seen as unpopular among the other jurors.  In an in-person exercise, jurors have spent the day together and have formed some early impressions of others from eating together and taking breaks together.  When they sit in their smaller groups in deliberations there is more [perceived] pressure to perform a certain way.  Peer pressure can be an exceptionally strong force in the deliberation room.  In virtual research, the metaphorical shield of a computer screen goes a long way in staving off these pressures.  This can be instrumental in avoiding jurors “giving in” to those around them because they are nervous or anxious about speaking up. The added layer of comfort and protection provided by remaining in one’s own home also helps overcome any initial hesitation a juror may have for the online format.  This is not to say that the sociology involved in an in-person deliberation hinders the discussion or changes the outcome; it can simply take longer to get where they are going. 
  

• Modern webcam and voice technology allow for easy access for a cross-section of the community.  Since the world turned virtual in a matter of weeks in the Spring of 2020, technology companies have scrambled to keep pace with the demand of the throngs of people suddenly telecommuting.  The result has been considerable advances in videoconferencing that allow for near seamless interactions among participants in multiple locations.  According to the FCC, only 6% of Americans don’t have access to high-speed internet in their homes, and the majority of this 6% is comprised of Americans living in very rural areas1.  Gone are the days of dial-up internet and “Can you hear me now?” voice connections.  Though Magna uses its own proprietary software and courtroom design, recent advances in technology and vast accessibility of high-speed internet have allowed for a number of options for online jury research.  Whatever the platform, jurors can converse smoothly, as if they were in-person, and the prevalence of webcams (now standard on nearly every phone, computer, and tablet) have provided an experience where jurors “feel” like they are together.  Our experience using Magna’s patented JuryConfirm technology has taught us that even when jurors are using technology they have never encountered, they are able to become proficient in its use very quickly and it is not the distraction many fear it will be.  Finally, many jurors have reported that viewing the evidence virtually is as easy or even preferable to in-person as they are able to view the materials more closely and clearly.   The combination of all these factors has meant that virtual trials are accessible to almost all Americans and jurors are able to effectively communicate and discuss the substance of the evidence and argument, rather than worrying about technological concerns.   
  
• Jurors are now just as comfortable talking online as they are in person.  Because working, schooling, and socializing from home became the norm for so many so quickly, jurors have recently racked up countless hours in front of their screens communicating on video.  These days just about everyone has used Zoom Meetings, GoToMeeting, Adobe Connect, FaceTime, Skype (or similar online meeting platforms) for either work or social purposes, and indeed have come to find videoconferencing to be the “new normal.”  The novelty of transforming “real life” into a virtual setting has worn off as online formats have proved successful in countless situations.  The technology advances outlined above have meant that even the most self-described “technology illiterate” jurors are able to join in the conversation with ease, and the initial learning curve of getting used to talking on a conference call line has already passed for most.  Finally, special features such as “follow-the-speaker” technology have provided a more natural feel in online group settings, allowing for increased ease in following the conversation as it bounces quickly between participants.   

PUBLISHED IN MA LAWYERS WEEKLY FEB. 2021

By: Courtney Collins and Meagan Donohoe

The legal profession’s transition into the online sphere in 2020 was abrupt, disconcerting, and sometimes painful, but it is finally official:  we continue forward, but [mostly] virtually. Hearings, mediations, arbitrations, and most commonly, depositions have vacated their more traditional law office settings and imposing courtrooms in favor of bedrooms, closets, and even vehicles. Mercifully, after months of forced practice, it’s safe to say that most of us in the legal profession have a pretty firm grasp on the technological side of things (even if we still forget to unmute ourselves from time to time). But while everyone was focused on learning the online platforms and adjusting to the new reality, something was lost, and that was decorum. Although there is a certain comfort associated with appearing for a deposition from home—which can alleviate some anxiety a witness might experience in a less familiar and more formal setting—the pendulum seems to have swung wildly in the other direction over the past several months, with some virtual depositions looking more like a cocktail party of friends and acquaintances.  Legal proceedings should not fall prey to the new world of t-shirts and flip flops and other work from home habits.

Tips for Supporting Witnesses in Virtual Depositions & Proceedings

It is critical that witnesses are afforded the same level of support and guidance from counsel while appearing virtually as they would be if they were present in the same room. In fact, in some ways, these witnesses require an even higher degree of support to be successful.  Sprinkled with cautionary tales from real depositions over the past nine months, this article offers tips and best practices for supporting your witnesses in a virtual world.    

Be Present – In Mind and Virtual Body 

It’s no secret that many deponents, especially first-timers, can have a difficult time shedding those pesky deposition-jitters. Although being deposed from a familiar place affords a certain sense of security for many, there is also a reassurance that comes with sitting in arms reach of your attorney at that long wooden table that is just not attainable in the online space.   The witness knows counsel is on her side when she is right next to her—everyone is “in it together.”  However, just because you can’t be physically present for your witness, doesn’t mean that you can’t provide that same level of support in other ways; it simply must be more intentional.  

All witnesses, especially inexperienced ones, like to feel safe and protected – and that can only happen virtually with a present and attentive counsel. Far too often we see defending attorneys fail to appear on camera, leaving their witness feeling alone and exposed in the virtual space. Of course, no one can control if their computer decides to act up on deposition day, and sometimes calling in off-camera is the only option; however, when possible, counsel should be on camera and engaged, supporting their witness. This entails more than just showing up on screen.  It also means not appearing visibly distracted with other work during questioning, not eating lunch, and not jumping on and off camera or walking around. Witnesses, especially nervous ones, pick up on these subtle cues more than one might think. To put it simply, your virtual witnesses should receive the same level of attention as your in-person witnesses would—if you wouldn’t bring other work, snacks, or take calls in a pre-pandemic deposition room, you shouldn’t do it in the online setting, either.  

Lead by Example 

Since depositions have moved online, we’ve also witnessed a steady decline in general respect for what a deposition actually is.  We have seen: a witness smoking a cigarette while providing testimony, another witness appearing shirtless from bed, one witness answering questions while driving his semi-truck for work (cue an accident?), and a plaintiff unable to complete his own deposition after smoking marijuana on a break. It goes without saying that behavior like this, even if not recorded on video, often results in less than optimal witness performance and would have never been deemed acceptable in the pre-pandemic era. To combat this witness mentality that virtual is synonymous with “anything goes,” it is important to remember that even in the online space, witnesses look to their counsel for cues and guidance. Attire is one example where counsel can set the tone. We have regularly seen attorneys appear sprawled out on their couch (we are not kidding), wearing backwards hats, and even well-worn t-shirts, thus setting a low standard for others. It all starts with the lawyer, and clients/witnesses will quite literally, follow suit. This is not to say that attorneys need to show up to a virtual deposition in a tailored three-piece ensemble, but the nature and seriousness of a deposition should not be minimized simply because it is occurring online.  At the very least, it is worth a pre-deposition conversation with the witness to note that proper attire is required: clean, decent, and not revealing.  

Additionally, don’t be afraid to nip any negative behaviors in the bud. Remaining quiet while your witness lights up a cigarette only serves as affirmation that this action is acceptable. While an initial moment of silence may be an understandable consequence of shock or surprise, failing to address these types of behaviors in a timely fashion is a mistake, and will likely just lead to additional bad conduct down the line. Simply request a break, get on the phone with the client, and remind them that this is a legal proceeding.   

Create a Focused Environment for Online Depositions  

Simply because technology enables participation from almost anywhere, does not mean that should be encouraged.  Failing to address the location and environment with your witness often results in witnesses connecting from unusual or even public places. We have seen witnesses participate in depositions while serving customers at work, walking down a noisy street, working out on the treadmill, and even while riding a crowded city bus. These types of environments not only disrupt the flow of a deposition, but also make it nearly impossible for a witness to bring their “A-game,” as the chance of distraction is ever-present.  

At the end of the day, most fact witnesses have never participated in a deposition before, much less a virtual one. Simply instructing a witness to download Zoom on their mobile phone and click a link a certain time leaves too much up to chance. Take the same measures when scheduling a deponent for a virtual deposition as you would for an in-person meeting. Pre-pandemic, a witness would only be put on the calendar for a date/time that they were free to come sit in an office; similarly, a virtual deposition should only be scheduled for a time where the witness can be in a quiet space, free from distractions.