The Empathy Deficit in Pajama-Clad Online Jurors

Originally posted on June 27, 2022 on Texas Lawyer Magazine. Written by Attorney Quentin Brogdon.

Online jurors, some presumably wearing pajama bottoms not visible on-screen, have begun dispensing justice in the wake of COVID-19 and the near shutdown of traditional jury trials. The weight of commentary about online trials appears to favor online jurors. Proponents argue that the unprecedented nature of the pandemic and the resulting clogged trial dockets require bold new steps to get cases tried. Proponents of online trials also argue that online jury trials have some benefits over traditional jury trials and that opponents of online trials reflexively oppose them because of a fear of the unfamiliar and the non-traditional.

Critics of online trials take issue with the idea that the goal of unclogging trial dockets necessarily trumps the imperative to ensure that disputes are resolved fairly and justly. Critics also bemoan the loss of a diverse jury of the litigants’ peers in online trials, the loss of the ability to ensure that the court and the litigants keep online jurors’ undivided attention, and the loss of the solemnity of traditional jury trials in online trials. Some critics also worry about the potential loss of juror empathy in online trials. The loss of juror empathy is no small, peripheral issue. Juror empathy is at the heart of the magic of the traditional jury trial, and juror empathy affects defendants every bit as much as it affects plaintiffs.

What is empathy, and why would the potential loss of juror empathy in a jury trial be a cause for concern? Merriam-Webster’s Dictionary defines empathy as “the action (or capacity) of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another … without having the feelings, thoughts, and experience fully communicated in an objective manner.” Empathy often is confused with sympathy, but they are distinct concepts. Sympathy is when someone shares the feelings of another, but empathy is when someone understands the feelings of another but does not necessarily share those feelings. Videoconferencing platforms on the internet have existed only for about 25 years. Over thousands of years before the appearance of these platforms, our brains evolved to process in-person communications within shared three-dimensional environments, instead of within closed-off, two-dimensional videoconferencing environments that hamper perception and processing of non-verbal clues. Research consistently confirms that interacting through computers decreases the ability to form accurate assessments of people and decreases the ability to form meaningful bonds. Anything that interferes with the ability to assess and bond with others has the potential to negatively affect the ability of online jurors to empathize with witnesses and parties.

Pre-Covid studies of the effects of remote proceedings on the empathy of decisionmakers reveal a disturbing trend: decisionmakers demonstrate less empathy for those appearing remotely than for those appearing

in-person. For example, a study of Cook County, Illinois judges found that judges set higher bails for defendants appearing in court via video than defendants appearing in person. The Cook County study suggested that one possible explanation for the difference in bail amounts was the “dehumanization” of defendants appearing remotely. Studies also show that petitioners in immigration removal proceedings are more likely to be deported after video hearings than after in-person hearings. Other studies demonstrate that witnesses who appear by video are viewed as less likeable than witnesses who appear inperson. Although likeability is not the same as empathy, likeability certainly may affect the ability to empathize.

Two commentators who highlight the potential loss of empathy in online jury trials are law school professors Susan Bandes and Neal Feigenson. In “Empathy and Remote Legal Proceedings,” a draft law review article made available online in July 2021, Bandes and Feigenson conclude that “there is thus far no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.” They nevertheless caution that “there are ample grounds for concern that remote proceedings may further disadvantage litigants who are already burdened by empathy deficits based on race, social class, gender, ethnicity, or other factors that may differentiate them from decision makers.”

Bandes and Feigenson hypothesize that empathy may be lost in online trials for eight key reasons. First, reducing the appearance of a party or witness into a small, headandshoulders video image renders the appearance less salient, and “the less vivid the stimulus, the less intense the response, empathic or otherwise.” Second, the compression and distortion of online views of participants “limit the opportunities for unconscious mimicry of others’ facial expressions of emotion, a recognized implicit path for empathy.” Third, studies show that the inability of videotaped participants, such as online trial participants, to make mutual eye contact renders them less likeable and less intelligent in the view of observers, which may, in turn, affect jurors’ abilities to empathize with witnesses and parties appearing online. Fourth, the array of video frames on Zoom or similar platforms diminishes the participants in a sense by reducing them to mere squares in a larger grid, without any larger context. This interferes with jurors’ abilities to interact and adapt to subtle changes in the participants’ body language and facial expressions. Fifth, the inevitable lags and glitches in internet connectivity occurring in an online trial decrease empathy because of a recognized tendency in decision-makers to misattribute the negative qualities of video technology to the person they are observing. Sixth, so-called “Zoom fatigue,” the physical and mental exhaustion created by participating in online video interfaces, may also impede and distort empathy in online trials. Seventh, the absence of proceedings occurring in a physical courtroom may reduce empathy because “the arrangement of the physical courtroom frames and heightens participants’ performances of emotion.” Finally, the absence of “an offstage” – an area for the litigants’ family and friends – may also affect juror empathy. In a traditional jury trial, the plaintiffs’ family members or the nuns who are a part of the religious medical institution being sued, for example, may be in the courtroom. How will their absence from the online courtroom affect juror empathy? Negatively, no doubt. In early 2021, Dallas County District Judge Dale Tillery tried an online jury trial and followed the trial with interviews of the online jurors. The answers given by Judge Tillery’s jurors support the idea that there may indeed be an empathy deficit in pajama-clad online jurors. Although the interviewed jurors were quite comfortable appearing as online jurors in a case in which they were serving as jurors, they preferred an in-person jury in a hypothetical case in which they were a party. For example, one juror stated that the online trial “was easier for the juror,” but “if it was me on trial, I wouldn’t want it.” Even jurors who appeared to have no reservations about online trials sometimes qualified their

endorsements of such trials by making observations such as a statement that an online trial might not be appropriate for longer trials because “your mind might wander.”

Judge Tillery’s jurors who had served on previous in-person juries also noted important differences between the online trial and a traditional jury trial. The differences noted by the jurors certainly have the potential to negatively impact the ability of jurors to empathize with witnesses and parties. Judge Tillery’s jurors stated there were “more deliberations” in their in-person juries, and the online experience was “less formal” and “more casual.” Jurors noted the online experience had more distractions than an inperson trial, and a real trial “causes you to pay closer attention to what people are saying.” Deliberations changed as well. One juror observed that online deliberations were different than in-person deliberations because online, “you waited to see if anybody else wasn’t going to jump in and say something,” and the online jurors waited to “make sure nobody was over-speaking one another.”

The jury is still out on online jury trials, but we now know enough to pause before rushing headlong toward an unqualified embrace of online trials. The probable empathy deficit in pajama-clad online jurors, standing alone, should be enough to cause us to hold back. Online hearings and trials admittedly have earned a new place at the table in our system of dispute resolution, but we should not force online trials on parties in criminal cases or large-stakes civil cases when the parties do not agree to their use.