Virtual Reality: Jury Trials in a Pandemic
Planning for use of technology is critical to ensuring the finished product looks and sounds professional.On April 5, 2021, virtual trials became a reality for personal injury claims in New Jersey. In the past two weeks, I completed my first two virtual trials in Mercer County. The first was an expedited trial involving a verbal threshold case in which I represented the plaintiff, which ended in a (virtual) hung jury. The second virtual trial was also a verbal threshold case, however I represented the defendant in a full trial. While each trial would have been unique given the posture of my client, in hindsight the virtual environment proved to be a welcome challenge, and a chance to reflect on the experience and instinct necessary to win at any type of trial.
Our firm’s preparation for virtual trials began with a significant investment in equipment in order to create a semi-professional studio complete with a higher end camera, microphone, green screen, lighting, and the like. Aesthetically, this allowed video that was bright, crisp and clear. A technical run through with the Mercer County court staff helped ensure we were ready for trial from the technical side. Evidence issues were addressed, but not fully resolved. There is no magical way of sharing exhibits with a witness but not the jury. Collaboration with your adversary is necessary to exchange documents that may be used in cross examination.
We felt great about our technical capabilities, but as all trial attorneys know, presentation is really about how well you communicate your message to a jury. No matter how great your studio is, virtual presentations are incredibly different from in person trials. In this regard, the technical challenges proved easy compared to the challenge of actually speaking to a remote jury.
I have always prepared for trial by memorizing the facts and knowing what I want to communicate to the jury. I have never relied on notes for opening statements or summations. However, something felt different when staring at a camera lens instead of 8 faces in the jury box. Against everything I had done in 25 years of trials, I began my first virtual trial by relying on notes on the 3 computer screens in front of me. Unfortunately, my opening statement was perfunctory and dull as I vacillated between staring at the camera lens and glancing at my notes.
I found witness testimony to be far easier, with the screen locked on the witness, using notes and easily conversing was a breeze.
As my first trial was on behalf of the plaintiff, I had the advantage of going last in summation. I watched as my adversary spent the majority of his closing argument with a PowerPoint presentation on screen. Although I had planned a similar strategy, it felt impersonal and the graphics, while clear on a big screen, would be difficult to see for jurors using an iPad or other tablet. When the floor was mine, I was determined to act naturally. I still used a PowerPoint, but shared it for a brief period before pulling it down and talking to the jury directly. Within a few minutes it began to feel normal, and my arguments flowed naturally without the use of notes. Although the end result of a virtually hung jury was less than satisfying, I believe the jury was able to connect with my arguments once I relaxed and became conversational.
In my second virtual trial, I again struggled with my opening statement after relying on notes on my screen. There is just something different about sitting in a chair in your office, as opposed to the courtroom. When I enter a courtroom and pass the bar, something changes. We all know that feeling of standing in front of the jury, connecting through, hopefully, brilliant and heartfelt persuasion. The adrenaline works magic and words just flow. I found it exceedingly hard to get that feeling when staring at a camera. Trying to force it only makes it worse. Realizing this, by the time I got to my summation I was determined to have fun, to be myself. I made a very short PowerPoint to use at the end of summation simply to diffuse counsel’s attempt to use the time unit rule. The rest of the summation was devoted to simply talking to my jury. It wasn’t as natural and fun as a courtroom, but it got close. In the end, we prevailed on behalf of our client.
Although I now feel like a veteran of virtual trials (after just two), with a little luck, the rest of my trials will be back in the court room in person. This experience will be just another war story told to the unfortunate new attorneys who are subjected to old trial attorney’s tales of moments big and small. But for a moment in these two virtual trials, I felt like one of those new attorneys faced with their first trial and the jitters that come with it - absent the sleepless nights. If I could offer advice to the virtual rookies, especially those with decades of trial experience, it would be just this: be yourself. You are not reinventing trials; you are just doing it remotely. Talk to the jury, convey your personality and your power of persuasion. Treat it just like a courtroom. Dress the part, act the part and have fun.
John Weir is managing partner at Weir Attorneys in Ewing, NJ. He has 25 years of trial experience in personal injury claims on behalf of defendants and plaintiffs as well as general civil litigation. Feel free to contact him at (609) 281-5308 or by email, jweir@weirattorneys.com.