As pandemic restrictions start to ease up across the country, it is a good time to evaluate the way courts handled trials during the pandemic, and what we can learn from that going forward. While many trials were postponed, a small number of venues (particularly at the state and local level) took the bold step of conducting virtual trials on civil matters during the pandemic. This experiment with virtual trials may feel like a temporary solution to what was a temporary problem. But should it be?

One of the greatest concerns that attorneys, judges, and legal scholars have expressed in transitioning from in-person to virtual or remote trials is that this new medium will undermine our ability to adequately assess jurors during voir dire. More specifically, will virtual voir dire make it harder to evaluate the veracity of prospective jurors' responses as well as their demeanor and body language? For these same reasons, there has been concern over evaluating witness credibility in remote settings or when witnesses testify in-person but are required to wear masks.

This hyper-focus on what is supposedly lost in virtual trials or from pandemic-driven safety modifications to in-person trials makes sense. People are, by their very nature, loss averse (Tversky & Kahneman, 1991), which makes us more sensitive to losses than equivalent gains. It can also mean that we are more likely to see the glass as half empty than half full. For those of us working in the legal field, we are concerned about what we lost from this forced change, instead of what has been gained.