In-person trial gone remote: What do jurors need?

Once the decision was made for my recent trial trial to become fully remote, there were a host of important questions that needed to be asked and answered. First, what technology do the jurors need to engage in a remote proceeding? Both sides agreed that each juror should have the same visual experience as each other. We felt it was best to provide each juror with a computer.

So that was the first question: What hardware? To my good fortune, a colleague was in the process of completing the first fully remote eight-week jury trial in California. Joe Satterly, a partner with the Kazan firm in Oakland had just delivered closing arguments in his mesothelioma action when Judge Gilbert Ochoa made the decision for us to go fully remote. Joe was kind enough to take my call while his remote jury was in the process of deliberating the case. My question to Joe: What computers did you use? I had already determined that the Chromebook was the most cost-effective device, but was not sure which model to consider. Joe gladly told me they had used a Chromebook with a 14-inch monitor but he was recommending we consider one with a larger screen, perhaps 15.6 inches.

Now, the “hardware” is not just the computer but also the listening experience. We all felt that obtaining good quality “over the ear” headsets was the best way to provide an immersive juror experience that minimized potential distractions. With respect to hardware, that was the full checklist: computer and headset. However, that was nowhere near the end of the checklist of items to be considered before determining how to go remote.

Next question: Do the jurors have a quiet, private place to view the trial? Obviously, if a juror did not have a conducive environment another option needed to be considered. Recall our trial began as a traditional trial with jurors simply responding to their juror summonses without regard to any questions of their living/working environment, transportation or access to the internet. Jurors need fast internet access to participate in this trial, right?. Judge Ochoa wondered whether we should send our jurors a questionnaire asking about their ability to access the trial remotely, as well as the environment they would be in should we go remote.

Again, Joe’s experience in Alameda proved helpful when he was able to share an “Alameda technology” questionnaire that asked many of these questions. The Alameda questionnaire wasn’t perfect since that was sent to all prospective jurors even prior to jury selection since they were never in person during their eight-week trial. Lee Popkin, the partner from the Proskauer firm, was my counterpart from the defense team to coordinate with the court on these issues. We completed an agreed upon questionnaire and the COVID response team from the court proceeded to contact each of the jurors. The purpose of the contact was to both advise the jurors that there had been several positive cases in the courtroom, inform the jurors of our need to potentially opt for a remote trial, and advise them that the court would be sending them a questionnaire to find out the feasibility of converting this in-person proceeding to a “distant” proceeding.

Through the court, each of the jurors was contacted, their email addresses were collected, and they were advised we would be placing the trial on suspension for the following week. Not long after this contact, Juror No. 1 tested positive, was hospitalized and returned home terribly symptomatic. That sealed the question of whether to go or not go remote. This trial, for public health and safety reasons, was going fully digital.

We made this decision even before we knew whether or not our jurors could continue with the trial remotely. Assuming this needed to be done, the parties agreed we would share the cost of the Chromebooks and the jurors would not be told from whom the Chromebooks were coming from. We decided to select the Samsung 15.6-inch Chromebook with headsets for an approximate total cost of $5,500. Quite frankly given what each side was spending on the trial this cost was a rounding error on the balance sheet.

That said, there were still many questions to be answered before trial could resume. The jurors’ questionnaire responses came in and to our pleasant surprise 13 of our jurors had a quiet place from which they could view the trial and internet access that would allow them to remain out of the courthouse for the duration of the trial. There were two jurors who did not have these capabilities. One of our jurors didn’t have an email address. Juror No. 1, who had come down with COVID, did not want to withdraw as a juror but wanted to remain on the trial. In the meantime, I reached out to the tech team that helped coordinate the Alameda trial with some very specific questions I needed answers to.

What remote platform were they using? Zoom, Teams, BlueJeans? Zoom came back as the answer.

OK, how did you recreate the courtroom experience with Zoom so the jurors had as close to a traditional trial experience as possible?

And of course, how did it work?

Here is where learning from someone else’s mistakes is very helpful. And, to be clear, there will be missteps along the way in our process that I have no doubt those of you doing remote trials in the future will learn from as well. The best inside advice we would never have known about was this: While Chromebooks are inexpensive, in order for video play back to work smoothly, the jurors should be accessing Zoom from the application instead of on a web browser for the best user/juror experience. What an amazing piece of advice we would never have known until it became a big problem. In our case there are hours of witness video testimony to be shown.

We ordered 21 laptops. 15 for the jurors, three for the court, and some for us to test. Having been a Zoom user since 2013 I am fortunate enough to have the direct dials of several senior engineers I was able to contact directly to ask the important questions about replicating the court experience for a remote trial. We certainly didn’t want the jurors watching gallery view while witnesses were testifying, but wanted them to be focused on the attorney asking the questions and the witness answering. I learned that the host just has to spotlight those two “boxes” and that is the view the jury will see.

There is much more to share but it’s 5:30 a.m. and I have to get back to the trial. Next week I will address, among other things, how we configured the Chromebooks, how we got the laptops to the jurors, how we trained the jurors and what about public access to a remote proceeding? More to come.

Paul R. Kiesel is founder of Kiesel Law LLP.