By Taylor Lyden
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 hold trials safely, 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 the 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.
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.
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.
According to the FCC, only 6 percent of Americans don’t have access to high-speed internet in their homes, and the majority of this 6 percent is comprised of Americans living in very rural areas. Gone are the days of dial-up internet and “Can you hear me now?” voice connections.
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) has provided an experience in which jurors “feel” like they are together.
Our experience 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.
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 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.
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 that are 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.
Taylor Lyden is a litigation consultant at Magna Legal Services and can be contacted at [email protected].