O’Brien & Levine Court Reporting Solutions Joins Magna Legal Services

Magna Legal Services Enhances Services With the Resources of O’Brien & Levine Court Reporting Solutions

PHILADELPHIA, Aug. 23, 2021—Magna Legal Services (Magna LS), an ALM award-winning court reporting, medical record retrieval and litigation consulting industry leader, and O’Brien & Levine Court Reporting Solutions announced today the combination of their firms. Boston-based O’Brien & Levine has been independently operated by President Kenneth Zais since 1992. The two companies combined operations on August 18, 2021.

With more than 500 employees, 3,500 court reporters, 5,000 interpreters and 40 litigation consultants in 22 locations across the U.S., together Magna LS and O’Brien & Levine will be one of the largest litigation support and consulting firms both in size and services offered.

O’Brien & Levine clients will now have access to medical record retrieval, document translation, interpreting, social media surveillance, visual communications, and jury consulting services.

“Our firms’ complementary industry strengths, similar collaborative culture and focus on exceptional service will be valued by clients in New England and throughout the U.S.,” said O’Brien & Levine President Kenny Zais. “We will continue to introduce and support real-world technologies for litigation practices, such as virtual depositions and paperless exhibits, that have now become a mainstay. I am enthusiastic about the next chapter for our clients, court reporters and team.”

Founding Partner and Executive Vice President of Sales at Magna LS, Peter Hecht, added, “We have tremendous respect for O’Brien & Levine and are excited that our clients will be able to take advantage of their services in New England. We are equally excited about the opportunity to offer new, powerful litigation support tools for their clients.” The merging of these companies will further enable Magna LS to continue to be the industry leader in court reporting nationwide.

Magna Legal Services CEO Mark Williams said, “We are delighted to welcome the O’Brien & Levine team to the Magna family. Kenny and his team built a well-known, respected brand over 30 successful years. Together, our capabilities will expand opportunities to shape the future of court reporting.”

Virtual vs. In-Person Jury Research

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.   

Conclusion

In sum, as more and more attorneys and parties find themselves faced with virtual jury selection, trial, and/or deliberations, we look back at our experience over the years to help allay any fears that online deliberations are less effective than those in-person.  While there are some unavoidable limitations, we feel that benefits of online deliberations can, in many instances, outweigh any drawbacks.  In other words, you can rest assured that jurors will still take your case seriously, carefully evaluate evidence and arguments, and have thoughtful and meaningful deliberations to a verdict.  Additionally, if you find yourself headed back into the courtroom (virtually or in person), remember that online mock trials and jury research can be a great and cost-effective way to test the waters and may just help draw open the curtains on a key to your case that you may have missed.   

Click to Read Article on MassLawyersWeekly.com >>

“Can I smoke in here?” and Other Virtual Deposition Fails

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. 

Hosting a Successful Virtual Deposition

Although anything can derail a deposition or legal proceeding, virtual or not, the above tips help to move cases forward without sacrificing quality.  Virtual does not equate to casual.  Recommitting to the seriousness of a deposition under oath and guiding your clients through how to best handle this will ensure an easier path forward, as virtual has likely made a permanent imprint on the legal community.   

Click to Read Article on MassLawyersWeekly.com >>

Focus on Peter Hecht, Partner at Magna Legal Services

Magna’s Peter Hecht went one-on-one with Haleh Riabizadeh Resnick from Jewish Community Voice.


 

Peter Hecht

Tell me about your connection to the South Jersey Jewish Community?
I actually grew up in East Brunswick, Exit 9 off the Turnpike. But we’ve been in South Jersey for 17-18 years and are members of Adath Emanu-El in Mount Laurel. As a matter of fact, my youngest son just celebrated his bar mitzvah Covid-style in our backyard! I was a NY City fan as a teen–loved the NY Jets; my boys are Knicks fans. But my wife is a Sixers junkie–so South Jersey is seeping into our blood.

What was your first job?
I worked in the pre-paid calling card business. Back when pay phones were still all over the place, a calling card was incredibly useful. Businesses would provide them to customers as promotional items; personalize the card itself and have a promotional message when you made a call. The cards were popular in Europe too and some cards are considered collectibles! Didn’t get paid much at first; my dad would actually give me the train money I needed just to get to work! I worked in the telecom industry for about 8 years.

How did you go from a telecom job to founding Magna Legal Services? 
Well, I wanted to make a career change, but I was very much typecast as a telecom guy. So, my father-in-law suggested that I work with him in the court reporting business. I figured it would be a resume filler that would allow me to switch gears and get into a Fortune 500 Company. So, I went to work for him; fell in love with the work, and before we knew it, we became partners and created Magna.

Can you give us an elevator pitch on Magna Legal Services? 
Magna is 14 years young and headquartered in Philadelphia with offices in all the major NFL cities. We are an end-to-end litigation support provider, helping with everything from litigation to discovery, language services, medical services, social media surveillances including a graphics team that will help you tell your story in court. We will even sit 2nd or 3rd chair in trials to manage the technological presentation! We are also a virtual service provider for arbitration, depositions and conferences, which was a big help to everyone in the last year. And if you ever need a mock trial to help with preparation, we can do that too.

That’s a lot! So, are you an attorney now? 
Actually, no.  My dad is a tax attorney and CPA, so when I was at Rutgers for undergrad, I thought about being a lawyer, but in the early ’90s there was an over-abundance of attorneys–many out of work–so I just didn’t do it. My work at Magna is focused on the sales, marketing, and management of the business.

What’s it like working with your father-in-law?  
Family events are interesting. You can never turn off the business–at a family dinner or bar mitzvah, conversation always loops back to Magna.  Now, my father-in-law’s youngest son is also a partner in Magna.

Did you find your psychology and sociology background helpful in what you do at Magna? 
I’ve always been a people person, and my college experience gave me depth in understanding what motivates people.

Can you share a fun fact about yourself? 
Who doesn’t like to spend time with their family? My wife and kids are everything. I enjoy my kids; they are so different from me. My daughter and both sons are all athletic. I like to ski but honestly don’t have many hobbies. My hobby is Magna! It’s my sport. I want to win in selling. It’s my passion. The secret to happiness is finding a job that you love.

 

This article was originally published in the Jewish Community Voice paper on June 21st, 2021.

 

Click to Read Article on JewishVoicesNJ.org

Jury Selection Begins in Newspaper Shooting Case

Jury Selection Begins in Capital Gazette Newspaper Case Against Jarrod Ramos

Jury selection began on this week for part two of a trial for a man charged with killing five employees at a Maryland newspaper in 2018. As Magna’s Ross Suter told the Associated Press, attorneys have their work cut out for them choosing a jury in a high-profile case in a small community during a pandemic.


A Maryland judge carefully focused on asking potential jurors whether they believed they could be fair and impartial in weighing the plea of guilty but not criminally responsible by a man who killed five people at the Capital Gazette newspaper nearly three years ago.

Judge Michael Wachs emphasized that Jarrod Ramos already pleaded guilty to all 23 counts against him in 2019, but he has pleaded not criminally responsible due to his mental health.

Jurors in the second phase of his trial will be asked to determine whether Ramos lacked substantial capacity to appreciate the criminality of his conduct in a case that will be based largely on testimony from mental health experts.

After delays in a case that will be three years old next week, an initial pool of 300 potential jurors was chosen for consideration to fill 12 seats on the jury and several alternates. About 50 of them were already dismissed, based on their responses to a questionnaire.

The court ended up with about 20 qualified jurors after the first round of questioning at the Anne Arundel County Circuit Courthouse in Annapolis, just a few miles from where the attack happened.

Many of the potential jurors who were dismissed said they would have a difficult time being impartial. Some cited the trouble they would have viewing a video recording of the attack that is expected to be shown.

Ross Suter, senior vice president of litigation solutions for Magna Legal Services, described it as a unique case during a pandemic.

“They’re really going to be looking for people that are impartial, that are reasonable — that are going to be able to listen and make up their minds,” Suter said.

Under Maryland’s insanity defense law, a defendant has the burden to show by a preponderance of the evidence that he is not criminally responsible for his actions. State law says a defendant is not criminally responsible for criminal conduct if, because of a mental disorder or developmental disabilities, he lacked substantial capacity to appreciate the criminality of his conduct.

“My understanding is it’s a difficult defense to make and to have success with,” Suter said.

Click below to read the full article on APNews.com

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‘COVID Glow’ May Bring Benefits in Malpractice Litigation

‘COVID Glow’ May Bring Benefits in Malpractice Litigation

In the July issue of Healthcare Risk Management, Dr. Rachel York Colangelo shows how Magna’s pandemic-era jury research points to a ‘COVID glow’ that could last for years:


Hospitals and other healthcare organizations could benefit from a COVID-19 “glow” or “halo effect” in which medical malpractice juries look more favorably on defendants because of the public’s positive perception of healthcare workers. The portrayal of doctors and nurses as heroes might leave a lasting impression that affects how jurors perceive defense arguments.

COVID-19-era jury perception surveys conducted by Magna Legal Services, a national jury consulting firm, revealed healthcare is one of the industries likely to benefit from a “halo effect” in litigation that goes to trial. Survey data indicates that 81% of respondents reported a greater sense of compassion for healthcare workers since before COVID-19, says Rachel York Colangelo, PhD, Magna’s national managing director of jury consulting.

Twenty-three percent of potential jurors surveyed knew a COVID-19 healthcare worker. Sixty percent of respondents said they would be “less critical of healthcare workers post-COVID.” Eighty percent said they were “very concerned” about COVID-19 healthcare workers, and 81% said they would have a greater sense of compassion for healthcare workers after the pandemic.

Click for more information on this survey

“What we’re seeing is not surprising, given the publicity that frontline healthcare workers dealing with COVID have received,” Colangelo says. “Because of the goodwill they have garnered as a result of their tireless work, we are seeing what we call a ‘halo effect’ for not only frontline healthcare workers but the healthcare industry in general.”

There is a greater awareness of the work done by healthcare professionals, the conditions in which they work, the long hours, lack of resources, overcrowding, and the sacrifice of personal time.

“With that appreciation and understanding also comes a less critical view in the minds of the public who are potential jurors,” she says.

The effect also benefits pharmaceutical companies because of the public’s appreciation for the quick development of COVID-19 vaccines, she notes.

Click below to read the full article on reliasmedia.com.

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Capital Gazette Shooter: Defense Attorney Claims Delusions & Mental Disorders

In choosing a jury for the Jarrod Ramos newspaper shooting trial, prosecutors will have to battle the notion that only a crazy person would do what he did. Magna’s Mark Calzaretta points out in Baltimore Sun that there’s a difference between crazy and criminally insane.


Capital Gazette case jury selection to be defined by biases on mental health, media and insanity defense, experts say

When jury selection in the Capital Gazette shooting case begins, attorneys and the judge will try to tease out biases about mental health, the insanity defense and even the media, experts say.

In this case more than any other, half a dozen legal experts said, prosecutors and defense attorneys will seek to find open-minded jurors to ensure a fair trial for the shooter.

Ramos’ defense attorneys likely will look for people who know “mental illness is a reality” and that it could potentially explain “horrific behavior,” said attorney Andrew Jezic. Perhaps that person had a family member or friend who’s afflicted by a condition.

“You just need people that are sympathetic to the inherent failings of human nature,” Jezic said.

Lawyers for both sides will try to eliminate anyone who works in the mental health field, experts said, so that jurors can concentrate on the evidence presented. There are already three sets of psychiatrists and psychologists set to testify in the case.

On the other side, experts said, prosecutors will hope for someone who’s rigid in their thinking, skeptical of the insanity defense. They’ll want to exclude anyone who they perceive as overly sympathetic to mental health issues or who believes the criminal justice system is biased.

Prosecutors also will have to battle the reflex that someone who commits mass murder has to be crazy. It’s not uncommon for that word to be used colloquially following yet another shooting in America.

“There’s some level of crazy with all of this — it has to be; it’s just nuts to do it,” said Mark Calzaretta of Magna Legal Services, “But that doesn’t mean that they’re criminally insane.”

In this already unique case, another unusual element could factor into jury selection: A person’s perception of the press.

Click below to read the full article on baltimoresun.com

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COVID-19 Fears and the Juror Experience During This Time

COVID and the Juror Experience

Measures to address COVID safety while resuming jury trials will evolve based on what the courts and litigants learn in the early days, and on the surge and decrease of COVID rates in different venues.

Article By Hiliary Remick

PUBLISHED IN THE LEGAL INTELLIGENCER ON 2/16/2021

Without question, COVID-19 has overturned familiar patterns in every field including the legal system. When it comes to jury trials, courts around the country are trying to adapt to conduct fair and effective trials while keeping jurors, litigants and court staff safe from infection. As U.S. District Judge Karen Caldwell of Eastern District of Kentucky described her efforts to conduct a COVID-era trial, the process can be “like building an airplane while you’re flying it.” Measures to address COVID safety while resuming jury trials will evolve based on what the courts and litigants learn in the early days, and on the surge and decrease of COVID rates in different venues.

What are the practical implications for litigants of bringing jurors to the courtroom for in-person trials? And perhaps more important, what are the psychological effects on jurors, not just because of the COVID-19 pandemic, but because of the safety measures that are changing how trials work?

Jurors will see firsthand the practical safety precautions at every point of contact with the court, starting with the summons for jury duty and initial letters addressing new rules and possible hardship issues. Jurors might be vetted differently, for example receiving a questionnaire from the court addressing COVID-related risk or hardship. Likely screening measures include temperature checks and questioning at entry, mask and social distancing requirements, barriers, additional cleaning and special handling of exhibits and other materials. Many courts have also reworked outdoor air access and air exchange systems in addition to reconfiguring courtrooms by relocating juror seats and witness boxes and adding plexiglass barriers. For jury selection, trial courts may deploy jurors in smaller groups across separate, larger rooms, and often confine them to the first floor of the courthouse.

Every new decision made about how to organize prospective jurors and any information jurors receive from the court system about COVID-19, including  summons or initial questionnaires, could influence jurors’ trial reactions—reassuring some and rattling others.

This means that lawyers will face subtle but critical problems as they try to communicate with jurors during a civil trial weighed down with COVID-19 safety measures in place. Consider some of the other possible changes in the juror experience:

  • Jurors might object outright to being summoned for jury duty at all if their COVID-19 anxiety level is high. Jurors already tepid toward the idea of jury service might now have new doubts and questions about their health risks. Depending on their social and political views, jurors might feel resentful that the safety measures they do see are either excessive or inadequate.
  • Witnesses, including experts, may be more likely to be presented via live video feed instead of testifying in person. In addition to reducing both COVID-19 exposure and travel costs, jurors in both virtual and in-person trials conducted during the pandemic have reported that this format—as opposed to observing in-person witness testimony given through a mask and on the opposite end of the courtroom—often enhances their ability to visually assess a witness’s facial expressions and other nonverbal cues, which allows them to more easily and accurately evaluate a witness’s overall communication effectiveness and credibility. Some jurors may speculate as to why a particular witness was not physically present in court when jurors are required to be there. To address this speculation and to ameliorate any associated resentment jurors may harbor, litigants might request a  judicial admonishment at the outset of trial regarding the fact that some witnesses will testify remotely in order to reduce the number of individuals allowed in the courtroom and thereby minimize COVID-19 exposure for all.
  • Jurors could also be frustrated by their inability to see and gauge facial expressions of masked lawyers and witnesses as to credibility and demeanor. They might fail to develop a rapport with masked witnesses or attorneys, for example.
  • Where the court allows counsel to unmask at certain points (e.g., during oral argument) in the trial, jurors might question why the attorneys don’t have to follow the same rules and face the same dangers as them. As with remote witnesses, this could raise juror concerns about inconsistency and unfairness in the courtroom.


What can lawyers do to defuse juror concern or anxiety as we feel our way forward? Reassure jurors. Communicate with the court, counsel and jurors about the special measures in place. Acknowledge juror fears or doubts and honor their service in an exceptional time.

  • In pretrial conferences, encourage the court to make clear how voir dire and all courtroom contact will go for the sake of predictability for everyone in the courtroom, including jurors.
  • Recognize that courts are exploring creative solutions to reduce risk to all trial participants, and litigants must be ready to adapt. For example, in several jurisdictions, courts have required virtual jury selection followed by an in-person trial in the courtroom or an alternative space. While virtual jury selection is not a first choice when it comes to getting a feel for juror demeanor, it may be unavoidable in some jurisdictions.
  • Capitalize on any opportunity to include a COVID-related question or two in any pretrial questionnaire your judge might present to jurors. Learn what you can about individual jurors’ COVID-19 issues and concerns that need to be uncovered. Do highlight any special health concerns or vulnerabilities unique to a particular juror’s risk. Do any of the answers telegraph a reluctance to serve?
  • Look for opportunities during voir dire to ask one or two COVID-related questions. For example, how much personal impact has COVID-19 had on you? Has COVID-19 raised more concerns for you related to the economy, or related to your health or your family’s health?
  • Reinforce the judge’s guidance about jury service. Talk about the right to a jury trial, which is an integral part of our legal system, and about how important their service is, especially during a time of challenge for our jurors. Jurors can be compared to essential workers and reminded that the special measures in the courtroom are designed to keep jurors safe.
  • Prepare to hear more jurors request excusals on the basis of COVID-related hardship for themselves or their families. This can result in a lower yield from the pool and may require a larger pool as well as more time for the jury selection process. You should also allow for a higher risk of losing jurors during the trial and perhaps consider seating more alternates.
  • Reassure jurors by showing that you and your client take seriously—and follow—the rules, and that your team appreciates and champions the efforts of everyone in the courtroom to stay safe.
  • Recognize that some people just may not be able to get past their fears based on their psychological makeup or personal challenges and obligations at home—and that they should be excused for hardship.
  • Let jurors know you recognize their experience and realize it is not easy. Acknowledge their extra challenges of seeing, hearing, and feeling safe. Consider a clear face shield that at least allows jurors to see your expressions, even if you can’t see theirs.
  • Ask the court to explain any special arrangements whereby witnesses are remote, or counsel is unmasked, at certain points in the trial. Suggest a  specific instruction for jurors along these lines: “The special COVID-19 measures you have seen in the courtroom, including for example remote witnesses and counsel addressing jurors without masks during certain times in the trial, are measures the court has required, are necessary for the smooth administration of the trial, and are not the fault of any litigant in the case. You are not to consider those measures in evaluating your verdict in this case. The court has asked the parties to assist in reducing exposure for everyone in the courtroom, including for you as jurors, by encouraging remote testimony. This helps reduce exposure to witnesses who may otherwise have to travel in airplanes and through large airports, which could put all people inside the courtroom at greater risk.”

Conclusion

Showing jurors that you mean to work with the court and other parties to make the trial run smoothly through a combination of sacrifice and creativity will help build trust for jurors that they are participating in a fair process. Above all, make sure that your case is one that jurors can believe is consequential and plausible, so they know that their sacrifice in coming to the courthouse during the pandemic was made for a good reason.

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