A version of this piece was originally published in the January 2021 edition of the Civil Jury Project at NYU School of Law Newsletter.
As the U.S. legal community has adapted to online hearings and non-jury trials with all deliberate speed, the almost singular focus has been on the technical aspects of this dramatic shift.
Now is a good time to ponder the ethical implications of failing to include virtual jury trials and other creative strategies in the list of powerful advocacy and case management tools available as the pandemic, with uncertain viral variants, and their consequences, rage on.
This is especially true as courts across the nation start, with limited capacities, to open their doors to litigants while at the same time confronting massive backlogs in pending caseloads. Over 51 years ago, visionary Alvin Toffler penned the astute book, Future Shock. He wrote about “the roaring current of change” and its “accelerated thrust” that has personal psychological and sociological consequences. In March 2020, America’s storied legal institutions, shocked by sudden change and a microscopic virus that burdened and attacked our justice system, were presented with historic challenges. Since then, courts and their officers have adapted by successfully embracing unparalleled efforts by harnessing digital strategies and a willingness to reject and modify sometimes archaic perceptions about courthouse systems and procedures.
This process continues to evolve daily in venues from coast to coast. Understanding tools to fight COVID’s attack on courthouses is but one dimension. Comprehending our personal responsibilities to move the justice system forward in 2021 and beyond is the next element of our fight to deliver legal services.
Lawyers have a duty to educate their respective clients on the availability of Zoom jury trials and the ramifications of waiting until things “get back to normal.” “Normal” means much more than just physically trying cases in traditional courtroom settings, it also means reducing pending litigation numbers to pre-COVID-19 growth projections.
As we enter the second quarter of 2021, and as courthouses open for limited in-person proceedings that often take up more than one courtroom per jury trial, we all have a part in employing creativity and hard work to reduce the staggering backlog pressuring the legal system.
Law 360, on March 11, 2021, reported, “The [Florida] state court system is projecting that as of July 1, there will be 1.1 million more cases pending than normal.” Calmatters.org, on February 24, 2021, reported that California Courts are “overwhelmed by pandemic backlog.” According to the Austin American-Statesman website on February 11, 2021, “Texas judges painted a grim picture of the pandemic’s impact on justice, warning state senators on Thursday that there will be a high price to pay—in money and time—to deal with a still growing backlog of cases.”
Many courtroom advocates have expressed sincere doubts about jury trials using online platforms. They worry about the lack of physical presence in the formal courtroom atmosphere and the inability to stand before jurors and witnesses to directly assess body language.
Their concerns, however, do not justify trial lawyers acting as “gatekeepers” when it comes to presenting options to their clients during courthouse lockdowns or limited openings. As officers of the court, we can take on the mounting challenge of pending litigation inventories, a problem that will continue to deny justice well after there is widespread vaccine distribution and Normal 2.0 takes hold. We all have a duty to educate our respective clients on ways civil justice can be restarted at the trial stage, with jurors focused on the proceedings remotely.
Rule 3.2 of the American Bar Association (ABA) Model Rules of Professional Conduct states, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
Employing digital trials in the time of this exceptionally dangerous and distracting pandemic is more than justifiable and should not be overlooked because such methods are atypical.
Speeding up litigation does not mean waiting until there is enough health and security for courthouses to start traditional jury proceedings. As vaccinations are deployed and accepted, physical trial presence, in most jurisdictions, may not happen safely, equitably, and consistently on a wide scale for at least another four to six months from the date of this publication, if we are fortunate.
In the meantime, the psychological and sociological interests of clients need to be in our collective focus. The elderly involved in personal injury litigation, important product liability disputes affecting the welfare of the public, contract actions impacting the daily business operations of small businesses, and a host of other controversies require swift attention. Parties often do not want to live under the cloud of litigation for protracted periods with prolonged expenses with lengthened emotional stress.
Lawyers who have decided to wait COVID-19 out until courtrooms reopen are facing a set of uncomfortable realizations. Post-pandemic courthouse procedures and layouts are developing as significantly different from those we knew back as recently as February 2020. One can reasonably expect social distancing with facial coverings to be the norm, along with restrictive plexiglass architecture dividing trial participants for the next several years.
For example, health experts have warned that just being a recipient of a COVID-19 vaccine may not insure the end of dangerous viral transmission capabilities. The New York Times, on December 9, 2020, posted an article entitled, “Here’s Why Vaccinated People Still Need to Wear a Mask.” Michael Tai, an immunologist at Stanford University, was quoted as saying, “A lot of people are thinking that once they get vaccinated, they’re not going to have to wear masks anymore. It’s really going to be critical for them to know if they have to keep wearing masks, because they could still be contagious.”
On December 11, 2020, the Atlantic published, “The Next Six Months Will be Vaccine Purgatory.” In her article, Sarah Zhang reminds us, “. . . vaccines are not an off switch. It will take several months to vaccinate enough Americans to resume normal life, and this interim could prove long, confusing, and chaotic.” Her warning is particularly insightful as new mutations reach from Europe, Africa, and South America to our shores and while scientists react by adapting vaccination strategies to meet variations of evolving COVID threats.
Each week, we learn more about this pandemic, and as medical experts absorb accelerated information, new and compelling questions arise. How long will the vaccines last? What age groups and populations will be most protected? Will individual levels of predisposing medical conditions result in different classifications of long-term vaccine efficacy? When will booster shots be recommended? What portion of the public will take different vaccine solutions, and if so, when and to what degree? Will the properties of COVID-19 continue to mutate over time in its deliberate race to outpace herd immunity? Which of the three main vaccines (mRNA, protein subunit, and vector) will be best?
Juror pools come from all segments of society. With complex plans to make vaccines available to certain groups before others, will only verified and vaccinated individuals be required to perform their public duty? Will potential jurors brought into courthouses no longer represent a cross-section of society as we work through the intricate process of stabilizing public health across our multitude of urban and rural jurisdictions to achieve herd immunity? Will requirements to be physically present ignore concerns about asymptomatic transmissibility?
Clearly, seeing subtle facial expressions is crucial in the trial process. Given that our reality is apparent for much of the coming year, we do not know when unobstructed in-person perception will happen. Can your client wait until late 2021 or 2022?
Trial lawyers who think that masks will soon be eliminated from the jury trial process seem to assume that jurors will patiently sit for hours and days without some sort of facial protection after vaccines are accepted by hundreds of millions domestically. Even the use of “safe” clear shields can be distracting, not to mention the likely undermining concern of jurors pertaining to proper courtroom filtration and ventilation systems.
As advocates for our clients, we all want maximized juror focus. During COVID-19, in-person jury trials may dilute that expected concentration with nagging and distracting concerns by jurors about their own health as they are simultaneously asked to focus on the problems of the litigants, pay proper attention to jury instructions, and render a fair verdict.
As we comprehend more about the planet’s medical crisis and its post-traumatic effects, judicial stakeholders need to evolve their thinking and services to act in the best interests of our clients, not only from a legal and technological standpoint, but from informed and current emotional and ethical perspectives.
Considering the above, here are some rational tools to help practitioners focus on the ethical implications and opportunities posed by video technology and innovative judicial strategies when considering jury proceedings in 2021.
Adoption of a hybrid jury trial approach to gain control over accumulated pending cases. Consideration should be given to a two-track approach targeted to reducing docket congestion. Courts that promote in-person and virtual jury trials can compensate for socially distant and expanded space demands of traditional sessions while at the same time permitting less time-consuming cases to proceed electronically without requiring mutual consent. This approach moves cases at a faster pace than just waiting for courthouse space to open and commence proceedings. It also allows judges to move cases to conclusion at a velocity that will not be achieved by relying solely on traditional physical jury trials that require multiple courtrooms.
Reconsideration of the bifurcation procedure. Judges and trial lawyers can consider bifurcating liability from causation and damage issues in appropriate cases to promote settlements, or alternatively, expedite the trial process. Litigants can benefit from a virtual jury trial on liability issues, and in-person proceedings can be conducted for causation and damage claims.
Use of non-traditional trial settings to compensate for lack of adequate courthouse space to safely conduct in-person proceedings. Until courthouses can safely return to trying cases in one courtroom, movie theatres and auditoriums can be used for in-person proceedings.
Elimination of the jury assembly room by using remote video technology. As has already been done in some jurisdictions, there is no need for prospective jurors to assemble in crowded assembly areas while awaiting the voir dire process in assigned matters. Whether jury trials are done remotely or three-dimensionally in judicial complexes, virtual jury assembly techniques adopted by clerks of the court and chief judges are a way to continue to promote public safety while at the same time making juror processing more efficient.
Informed consent by clients. By employing administrative orders or division requirements for mandatory client consent or waiver, courts can consider ordering attorneys to disclose the advantages and disadvantages of full or partial virtual jury trials before cases are scheduled. This can be done with a standardized form, where parties can accept or reject the electronic platform after informed consent.
In cooperation with the Seventeenth Judicial Circuit in and for Broward County, Florida, the local American Board of Trial Advocates chapter has developed such a form for potential use, which can be seen and downloaded at ABOTAFTL.org.
Parties may reject the opportunities of virtual jury trials, but they should, at the very least, be fully informed about the benefits and ramifications of such digital proceedings. In cases where one, some, or all the parties have demanded their Seventh Amendment rights to a civil jury trial, attorneys should be required, during the pandemic and its aftermath, to certify to the court that they have at least discussed the virtual option with their respective clients.
Joint stipulation. Once parties agree to virtual jury trials, they can enter into a mutual agreement to provide the court with specified technical details to assist the judge and clerk. A model form is also available at ABOTAFTL.org and has been developed with feedback from Florida’s Seventeenth Judicial Circuit.
Posting video orientations. Judges and court clerks can promote virtual jury trials by way of informational videos posted on their division websites to help explain the advantages of proceeding remotely during and after the pandemic.
Technical reliability and proficiency. To meet the spirit and intent of the ABA’s Model Rule 3.2, trial practitioners need to make sure they have, as much as practicable, optimal audio and video equipment with reliable internet connections to facilitate smooth and technologically secure communication methods. Backup digital strategies, in case of unanticipated disruptions, should also be practiced. Counsel should recognize that their ethical duties include technological proficiency.
Our justice system is flexible, and the legal profession must not be myopic when cases are ready for trial. We, as trial lawyers, need to adapt to the difficult circumstances of our day, and not retreat from challenges by rejecting the technological options of the present based upon personal convenience. We can meet Toffler’s warning about a “roaring current of change” by summoning our collective talents in this time of continued extreme crisis and overwhelming opportunity.
Virtual jury trials and innovative approaches are needed today, but there is always tomorrow. While this will not be the last pandemic, we can create the technical and psychological architecture now to be ready for the future shocks of tomorrow.
Mitchell A. Chester is with the Law Office of Mitchell A. Chester, P.A. in Plantation, Florida.
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