Many courts have opted to use Zoom or other video conferencing platforms to conduct their courtrooms since the pandemic hit in March. For most status dates and procedural issues, these conferencing platforms work fine. In my experience, they are a bit slower than in-person court, but they generally get the job done.
However, I do not think they should be used for trials, especially jury trials. There are numerous reports of Zoom fatigue and the inability to develop trust via video conferencing. Trials are already marathons for the attorneys, judges, and jurors. Considering what we know about Zoom fatigue I can’t imagine how everyone is going to manage an entire trial via conferencing software, let alone how effective the trial will be at doing justice. It’s hard enough to convince people while arguing in-person, arguing via Zoom will make our jobs that much harder.
Zoom fatigue is real. Participating in a video conference takes more energy and is more taxing than an in-person conversation. The primary reason for this is that we rely on nonverbal cues constantly during an interaction, and video conferencing simply does not convey all of those cues.
When we don’t get the cues we are used to, our brains have to work harder to figure out what’s going on. We don’t necessarily notice the extra work happening, but it takes a toll on us in the way of fatigue. When your brain is working overtime, it’s hard to relax into the conversation.
Further, when we don’t have all of the information we are used to, we become more insecure about our place in the conversation. For example, delays in response from people we are communicating with can shape our opinion of those people in a negative way. A 2014 study showed that even a delay of 1.2 seconds over conferencing systems made people perceive the responder as less friendly or focused.
There is also the added pressure of having a camera, and potentially 12 other people, staring at you the entire time. During a normal meeting or trial, the spotlight isn’t on one person the entire day. That’s not to say that people don’t pay attention to you, but you’re not as aware of their gaze. Having everyone see you all the time forces you to perform constantly, which can be exhausting. (“The Reason Zoom Calls Drain Your Energy”, Manyu Jiang)
Science Supports my Position
A study was conducted in 2011 where researchers compared how trust was developed via telephone, video conferencing, and face-to-face interactions. They discovered, unsurprisingly, that trust was built much faster via in-person communication as compared to the other two forms.
Face-to-face > video conferencing > telephone
The reason face-to-face was better at building trust had to do with the information we get by communicating in-person. Specifically, researchers tied trust to eye contact and other body language. Video conferencing does not allow for eye contact, which can reduce participants’ trust levels significantly.
However, that’s not the end of the story. The researchers found that groups communicating via video conferencing could reach the same levels of cooperation as the face-to-face groups, but that it took several more rounds of the experiment to accomplish. They found that deception was high in early meetings, not because of a lack of desire to cooperate, but due to a lack of knowledge of the other participants’ intentions. We read intentions via physical clues like mutual gaze and posture, which can’t be experienced over a conferencing platform. (“Video Conferencing and Trust”, VSee; “Being There versus Seeing There: Trust via Video”, University of Michigan)
Zoom Trials are a Bad Idea
Convincing people to do anything requires trust. As attorneys, we develop trust with a judge or a jury over specific amounts of time that have been established over hundreds of years. I might see a judge a couple of times a week on various cases so I can develop trust with him or her over time. But juries are different. Our relationship is heavily regulated by the court. My concern is that the above studies show that we will need more time to build trust with a jury via video conferencing than we would have in-person. However, I doubt that any changes will be made to courtroom procedure to take this lack of trust from the jury into consideration.
That, coupled with the fatigue that naturally occurs via video conferencing, will make jury trials extremely challenging. There is doubt that our world will adapt to our changing times, especially as more research is done into the use of video conferencing software. But until then, I don’t want my clients to be the test cases for this new form of lawyering.
Personally, I am recommending to all of my clients that we don’t conduct any trials via Zoom until we understand how to better argue our cases via this new medium.