By Michael Shammas, Research Fellow & Attorney
By some estimates, a COVID-19 vaccine may be delayed until mid-2021. I’ve previously examined the logistical difficulties affecting virtual trials and hearings. Two as-yet unexamined aspects involve technology’s impact on (1) judicial time management and (2) juror and attorney attention. These questions, however, could not be more important, especially in the case of crucial monologues like a judge’s reading of jury instructions (the focus of this essay).
Given the brain’s tendency to wander, what about their usual style should judges alter when conducting trials and hearings over platforms like Zoom? How can judges account for the differences between online and physical interaction?
Psychological Considerations
Someone at home—reclined comfortably on his couch in front of his laptop—may well feel less tension than someone stuck inside an intimidating-looking courthouse before an intimidating-looking judge. Does this reduced tension make a juror’s mind more likely to wander?
There’s no easy answer. I suspect, however that jury instructions will be less effective virtually unless the length is substantially shortened to account for the lack of gravity and tension a juror may feel outside a courthouse. While many assume that more stress lowers performance, this is true only to a degree. As the Harvard Business Review reports:
According to what is known as ‘The Yerkes-Dodson law,’ performance increases with physiological or mental arousal (stress) but only up to a point. When the level of stress becomes too high, performance decreases.[1]
The Yerkes-Dodson effect suggests that, if judges are not to artificially shorten their jury instructions in virtual trials, they must take extra care to impart—in clear, plain, jargon-free language—the gravity of their task to jurors: To ensure justice is done for a fellow citizen.
Another commonsense safeguard for crucial monologues like jury instructions—aside from being especially concise and clear—includes making trial video available so that daydreaming jurors can fill in gaps in their knowledge and sending each juror a transcript of monologues like jury instructions.
Lessons from Education
Like lawyers and judges, teachers have begun acclimating to online work environments. Their experiences are transferable—especially with regard to jury instructions. What follows comes from helpful comments provided by students and teachers I spoke with while preparing this piece.
First, one student mentioned she pays more attention when unable to access the Internet (aside from her online lesson). Any mechanism used for digital trials should therefore, if possible, prevent jurors from surfing the web. This can be accomplished by asking jurors to temporarily install software that tracks Internet usage. (Such software includes keystroke logging software as well as spyware like Net Nanny.) To protect juror privacy, IT professionals should carefully explain how to uninstall such software after a trial or hearing ends.[2]
Second, judges may want to alert jurors of research suggesting that taking notes by hand is more effective than taking notes by keyboard. Taking notes forces students—or jurors—to translate what they hear into their own shorthand, which sharpens attention by forcing jurors to actively translate what is being said (instead of passively typing what is being said verbatim).
Finally, learning techniques like the popular Pomodoro Method[3] suggest the ideal attention span is twenty-five minutes, with five-minute breaks interspersed throughout to allow the brain time to recharge and consolidate information.[4] While courts are unlikely to make sessions that short, judges should consider using time periods of less than an hour, with frequent breaks, during online hearings in order to avoid “Zoom fatigue.”[5]
In addition to the liberal use of breaks, courts should ensure that the total trial or hearing time each day does not exceed four hours. In addition to optimizing attention, this change could help secure a more representative jury, something that is especially important in online hearings; if jurors know the court day has been shortened to something less than a full one, a larger and more diverse cross-section of the community will be willing and able to serve.
Conclusion
This topic—technology’s effect on human attention—is not new. The Honorable Mark Drummond (ret.) of the Civil Jury Project at NYU Law School has written on the effect of technology on the brain, noting that even having a cell phone available negatively impacts attention. Nicholas G. Carr, author of The Shallows, wrote more than ten years ago about the dangers of Internet overuse, finding that the Internet furnishes wider engagement with knowledge at the expense of deeper engagement with knowledge—the sort of engagement required to read a book or pay close attention to dueling attorneys.
In the face of COVID-19, questions related to technology and attention possess greater urgency than ever before. Elementary, middle, and high school teachers; professors; scientists; politicians; and judges will all need to think—hard—about how they should alter their presentation styles when using technological instead of physical communication.
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[1] Francesca Gino, The Harvard Business Review, Are You Too Stressed to Be Productive? Or Not Stressed Enough? (Apr. 4, 2016), available at https://hbr.org/2016/04/are-you-too-stressed-to-be-productive-or-not-stressed-enough.
[2] The best solution, provided funds are available, would be for the court to supply low-cost tablets to each juror. The tablets would only have videoconferencing capability. Uniform tablets would have the added benefit of each juror having the same size screen and audio experience.
[3] See Michael Shammas, Why a Simple Time Management System Can Revolutionize How You Work—And Live (Aug. 15, 2018), available at https://medium.com/@mshammas/why-a-simple-time-management-system-can-revolutionize-how-you-work-and-live-2dea7ed3b01d.
[4] See Alan Henry, Productivity 101: A Primer to the Pomodoro Technique (Jul. 12, 2019), available at https://lifehacker.com/productivity-101-a-primer-to-the-pomodoro-technique-1598992730.
[5] Liz Fosslien and Mollie West Duffy, The Harvard Business Review, How to Combat Zoom Fatigue (Apr. 29, 2020), available at https://hbr.org/2020/04/how-to-combat-zoom-fatigue.