Is Our Jury Selection Process in Need of a Revamp?

By Tad Thomas | Feb 9, 2021 | Tad's Trial Practice Tips

Join me as I talk tips for upping your trial performance game. I’ll cover all aspects of the trial, including, but not limited to, choosing a jury, opening statements, witness testimony and cross-examination, closing arguments, jury instruction, and verdicts. Discussions are welcome in the comments section.

— Tad Thomas

The COVID-19 pandemic has changed how civil jury trials take place in the United States. Some of these changes have made attorneys and other legal professionals question whether changes need to be made to improve the process. To get an idea if our jury selection process is in need of a revamp, let’s first take a look at how jurors are chosen for a civil trial.

Choosing Jurors for a Civil Trial

When a civil dispute is unable to be settled, the issue can proceed as a lawsuit. While some suits may be heard by only a judge, others involve a jury. The size of the jury is based on a number of factors. For example, state or federal law may require a certain number of jurors to decide a case. For civil trials, that number is usually six. In addition to that, both parties have the option of seeking a trial with a large number of jurors—typically up to 12. A number of alternate jurors are also selected if an original juror is unable to perform their task as a jury member.

Plaintiff and defendant attorneys will participate in the process of jury selection. During voir dire, the lawyers can question the pool of possible jurors. The intention of the process is to keep or eliminate jurors based on strategically appointed factors, including knowledge of the case being tried, any prior bias creating experiences, prejudices, or involvement, any potential relationships to any part or witness in the civil suit, and cursory history and current employment.

Rethinking the Jury Trial During the COVID-19 Pandemic

If you’ve been in the courtroom lately, you’ve likely been wearing a mask. Tape, rope, or another object may be used to mark off areas to ensure proper social distancing for everyone involved in the proceedings. There may even be plexiglass guards to encourage the mitigation of the virus further. Old courthouses too cramped for social distancing were moved to high school gyms and ballrooms. Some courts have even explored the possibility of staging trials outdoors like they did during the flu pandemic of 1918.

While the early days of the virus closed many of the country’s court systems, new safety measures have allowed gradual reopenings. Some courts have embraced technologies like Zoom and YouTube to safely continue with proceedings; however, jury trials are still among the most affected litigation areas.

When Michigan Judge Thomas G. Power was in the middle of his first trial in three months in July 2020, the juror selection process involved 50 people taking seats in the auditorium at Traverse City Central High School. Twelve at a time took turns to be questioned by the lawyers. Essentially, the goal was to change as little as possible while spreading out.

Judges and attorneys face a tricky balancing act of protecting the health of jurors who are compelled by the law to serve while also ensuring plaintiffs and defendants are properly represented in court.

The Future of the Jury Selection Process

The COVID-19 pandemic has expanded how technology is used during the jury selection process. In the future, we will likely continue to see the impact of that expansion. We could see potential jurors receiving a summons in the mail, with information for a link that will connect them to a portal where they answer questions that will determine if they are the right juror for that particular case.

Richard Gabriel, a Los Angeles-based trial consultant, is advocating for the fully remote jury trial. While the court system has been hesitant to fully utilize technology for remote trials, there are concerns about whether asking jurors to perform their duty via the internet is fair, considering not everyone has the same access to home broadband. Courts would need to have alternatives in place, like providing jurors with workstations in government computers and assigning a bailiff to supervise connectivity issues. There’s also the possibility of courts loaning out routers to jurors.

Even with the potential issues, it’s likely future cases could be tried digitally, and jurors would only be present via video chat. It’s crucial to stay up-to-date on all the latest changes to the jury selection process. Only then will you be able to offer your client the best chance of success.