Change is coming to the courts. The discussion at the May 2021 annual Civil Bench Bar meeting in Hunterdon County in western New Jersey, where I sat before my retirement, demonstrates the pervasive impact of the pandemic even in a relatively staid and conservative state court vicinage.
Hunterdon County is one of three counties in New Jersey’s Vicinage 13 along with Somerset and Warren Counties. The state judiciary is a single 21-county unit without judicial districts. For administrative purposes, it is divided by N.J. Supreme Court order into 15 vicinages, each with a supervising judge called the assignment judge. Our vicinage covers three relatively conservative counties in western New Jersey. The total population of the three counties is only about 550,000, out of over 9 million people in New Jersey. The vicinage has three county courthouses and approximately 35 judges.
The whole hour in the May session was spent discussing what we should change in response to the pandemic, and how to transition back to live court proceedings. Two sitting judges gave the presentation.
We first discussed how letters to the court should be handled, especially to avoid “Reply all” when a letter from counsel includes a copy to a client. The Court and counsel must make sure there are no direct communications with clients.
The bulk of time was spent discussing virtual jury trials -- which ones should be prioritized, and how they should be set up and handled.
Live criminal trials will get priority, so in-person complex civil trials will wait a few more months. There have been virtual civil jury trials, but mainly auto negligence cases where observations of witnesses were less critical. As of May 2021, there were no cases with interpreters or complex medical malpractice suits.
Setting up the trials is critically important. The courts are doing practice runs before each trial. Each run takes at least two hours, and some can take up to a day. Courts specially need to check that the software in the lawyers’ offices is working, and that they can easily do screen sharing. It is also critical to check on muting, mic volume, cameras not switching off. Also, some older email systems like AOL and Optonline have been problematic, so some lawyers have had to set up new email accounts to handle things like objections at side bar. To the extent possible, pretrial rulings on evidence are virtual, and are argued online and emailed to the lawyers.
The process is not easy. It takes a lot of courthouse manpower to run the virtual jury trials.
We discussed the juror perspective. The jurors seem to like the online trials. Jurors were questioned after one case settled, and they were happy not to have to trek to the courthouse and wait around for a trial that might not happen.
Going forward, the two presenting judges foresaw the following:
a. Hybrid jury trials will become common, although the degree of mix may vary.
b. Canned testimony from out-of-state witnesses and from experts like doctors works. I note that even in 2013 when I last did jury trials, many doctors appeared via video. The jurors don't seem to think it makes any difference.
c. Jurors can get charges via email. These judges have been sending the jurors their charges in advance.
d. Exhibits can be put in a file and sent to jurors. Even in future products liability cases, there can be a video of the products.
e. Of the two judges involved, both highly experienced, one being my successor, the other having been my supervising civil judge, one in particular foresaw that many civil trials could take place with only the lawyers and the judge in the Courthouse.
Neither judge felt that things would fully revert to normal. As predicted in our Division's May webinar on hybrid court proceedings, it appears there will be a permanent change in how courts do business, even in places like Hunterdon County that would seems to be unlikely avatars of change.