Books, Zoom Backgrounds, and the Art of Jury Selection

By Clayton T. Robertson (Criminal Defense & Civil Litigation Attorney)

I've always enjoyed looking at the books people own on their bookshelves. I'm an avid reader. My father encouraged this life-long passion in me. What a person reads is a way to understand their passions and interests, and what makes them tick.

This has been particularly true during COVID with Zoom (or other video) calls and presentations when you can see what is in the person's background. I've even gone so far as to freeze the video on a cable news program interview to scan the books on the bookshelf behind the speaker. Are the books heavily skewed towards one topic? Could that give you any insight into that person's cognitive filters, prejudices, or biases? How does that information contextualize what they are saying? (Of course, you need to make sure it's their real background, not a generic Zoom background. There are ways to detect this.)

You can also apply this technique in litigation to focus groups or jury selection, which sometimes makes Zoom or video more (not less) insightful. Not only books, but what else is on a person's bookshelf or table (or elsewhere) in the background? This same technique likewise applies to business when you also prefer to understand a customer's or client's personality and interests.

Of course, there are concerns with using video, particularly in a criminal case, where a person's liberty is at stake. I've recently spoken to law enforcement who candidly concede that the questioning at a preliminary examination (in felony cases) can be less useful for the defense attorney because with video it's easier and more comfortable for the officer to answer questions without being put on the spot in person in a courtroom during cross-examination. For example, having a lawyer approach you with a document or physical piece of evidence that contradicts your version of events has immediate shock value, even to a judge. Officers can also have other materials available to them at home or at the office when on Zoom or video that they wouldn't have in the courtroom. A less effective examination of a witness is obviously a concern for defense counsel, who needs to extract vital information on cross-examination to fight your case. I've discussed several other issues related to Zoom in a separate blog on this site ("To Zoom or Not to Zoom"): https://www.robertsonlitigation.com/post/to-zoom-or-not-to-zoom-that-is-the-question.

Human behavior can be observed either in-person or via video. The key is to understand how different mediums or forms of communication affect your ability to perceive some details versus others, and to weigh the benefits and risks to your client and the case.