Virtual Trial Practice

Serving nearby areas by Palm Beach and West Palm Beach, Florida

Virtual Trial Practice

The most recent Florida Supreme Court Order addressing jury trials during COVID-19 has suspended all in-person trials through July 2, 2020.  We aren’t quite sure what is going to happen beyond that. The reason being is courts cannot conduct jury trials and maintain proper social distancing at the same time under current procedures. The same problem comes up in mock trials and focus groups where the bulk of the session involves a group of participants sitting in close proximity to one another listening to live arguments.

There will no doubt be post-Covid-19 issues that will need to be solved once we get people back into the courtroom. In the meantime, short term hurdles will pop up when we try to take what was normally done live, to the virtual world.

ENTER: Virtual Mock Trials

Virtual mock trials are done by presenting taped or streamed legal arguments to online participants through their at-home computers. Rather than having an attorney present their case to live subjects, attorneys present to people remotely. Virtual mock trials are certainly practical and more cost effective than live mock trials, but they come with their own issues:

How do we know the remote juror is even paying attention?

               There is no real way to ensure that each juror will have the proper equipment or bandwidth to continuously and reliably participate in the program. We can advertise that prospective jurors have certain requirements on their computer equipment, but then we are certainly shutting off a certain percentage of that population that would otherwise be a likely member of the jury pool. Further, it has been shown that a live speaker is able to captivate an audience more so than a video. I’ve seen this in court when, due to scheduling issues or otherwise, we are forced to play a videotaped deposition at trial. The three dimensional connection jurors have with the witness or lawyer undoubtedly plays a role in comprehension.

Perhaps a response to this is a post-presentation pop quiz about the content of the presentation. A good score could add validity to their verdict if it means they retained more of the information. Or perhaps adding a small code at timed intervals similar to the way online CLE’s are done.

A pop quiz might seem novel, but online testing schemes for everything from driver’s ed courses to school entrance exams include some form of remote signaling, if only to answer the question “Are you still there?”.  Autopilot systems in modern airplanes take it further and require a pilot to respond within a specified time frame, or, to solve a simple math problem on the keyboard or else the plane’s computer forces the plane to a lower altitude to protect the possibly hypoxic pilot. Such a legal quiz might be nothing more than simple questions about the case to ensure consideration of relevant facts.

How can you maintain security?

               Normally, mock jurors would sign a confidentiality waiver protecting the information of the case. While there is risk that they may take that information and disseminate it, they would be going solely based on their memory. At-home jurors have the potential to capture the video played on their screen and replay it to anyone they want. Even though products like Zoom claim to have capabilities to defeat screen recording, they cannot prevent participants from taping the sound or video from another device.

One fix is to abandon the specific facts of your case. I taped a presentation last week for a case involving a driver and a pedestrian. Usually, I’d say “Mr. Peterson was crossing 7th Ave.” In this exercise, I simply said something along the lines of “the pedestrian was crossing the road” in order to protect the unique information of our case.

The bottom line is our court procedures might be changed forever, and we need to come up with ways to adapt.  The steps we take to advance virtual mock trials could end up paving the way for virtual real trials, which may be the way of the future. Technology will advance, people will come up with new ideas, and we will progress just like we have throughout history. Whatever the future holds, it will be different than yesterday.

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Andrew Moore focuses his practice on representing plaintiffs in catastrophic injury matters, including wrongful death, negligence, medical malpractice, premises liability, and product liability litigation.

Mr. Moore graduated from Florida Southern College in Lakeland, Florida with a Bachelor of Science in Psychology. He then attended Case Western Reserve University School of Law in Cleveland, Ohio where he earned his Juris Doctor in 2015.

Virtual Trial Practice

The most recent Florida Supreme Court Order addressing jury trials during COVID-19 has suspended all in-person trials through July 2, 2020.  We aren’t quite sure what is going to happen beyond that. The reason being is courts cannot conduct jury trials and maintain proper social distancing at the same time under current procedures. The same problem comes up in mock trials and focus groups where the bulk of the session involves a group of participants sitting in close proximity to one another listening to live arguments.

There will no doubt be post-Covid-19 issues that will need to be solved once we get people back into the courtroom. In the meantime, short term hurdles will pop up when we try to take what was normally done live, to the virtual world.

ENTER: Virtual Mock Trials

Virtual mock trials are done by presenting taped or streamed legal arguments to online participants through their at-home computers. Rather than having an attorney present their case to live subjects, attorneys present to people remotely. Virtual mock trials are certainly practical and more cost effective than live mock trials, but they come with their own issues:

How do we know the remote juror is even paying attention?

               There is no real way to ensure that each juror will have the proper equipment or bandwidth to continuously and reliably participate in the program. We can advertise that prospective jurors have certain requirements on their computer equipment, but then we are certainly shutting off a certain percentage of that population that would otherwise be a likely member of the jury pool. Further, it has been shown that a live speaker is able to captivate an audience more so than a video. I’ve seen this in court when, due to scheduling issues or otherwise, we are forced to play a videotaped deposition at trial. The three dimensional connection jurors have with the witness or lawyer undoubtedly plays a role in comprehension.

Perhaps a response to this is a post-presentation pop quiz about the content of the presentation. A good score could add validity to their verdict if it means they retained more of the information. Or perhaps adding a small code at timed intervals similar to the way online CLE’s are done.

A pop quiz might seem novel, but online testing schemes for everything from driver’s ed courses to school entrance exams include some form of remote signaling, if only to answer the question “Are you still there?”.  Autopilot systems in modern airplanes take it further and require a pilot to respond within a specified time frame, or, to solve a simple math problem on the keyboard or else the plane’s computer forces the plane to a lower altitude to protect the possibly hypoxic pilot. Such a legal quiz might be nothing more than simple questions about the case to ensure consideration of relevant facts.

How can you maintain security?

               Normally, mock jurors would sign a confidentiality waiver protecting the information of the case. While there is risk that they may take that information and disseminate it, they would be going solely based on their memory. At-home jurors have the potential to capture the video played on their screen and replay it to anyone they want. Even though products like Zoom claim to have capabilities to defeat screen recording, they cannot prevent participants from taping the sound or video from another device.

One fix is to abandon the specific facts of your case. I taped a presentation last week for a case involving a driver and a pedestrian. Usually, I’d say “Mr. Peterson was crossing 7th Ave.” In this exercise, I simply said something along the lines of “the pedestrian was crossing the road” in order to protect the unique information of our case.

The bottom line is our court procedures might be changed forever, and we need to come up with ways to adapt.  The steps we take to advance virtual mock trials could end up paving the way for virtual real trials, which may be the way of the future. Technology will advance, people will come up with new ideas, and we will progress just like we have throughout history. Whatever the future holds, it will be different than yesterday.

==========

Andrew Moore focuses his practice on representing plaintiffs in catastrophic injury matters, including wrongful death, negligence, medical malpractice, premises liability, and product liability litigation.

Mr. Moore graduated from Florida Southern College in Lakeland, Florida with a Bachelor of Science in Psychology. He then attended Case Western Reserve University School of Law in Cleveland, Ohio where he earned his Juris Doctor in 2015.