Your personal injury client is 87 years old, in poor health, and the jury trial that was to start in March 2020 was postponed indefinitely. You go out and purchase a $29.99 ring light for the remote mediation. That is the extent of your expenditures for your entry into the virtual world. The mediation goes nowhere. Delay favors the defendant.
Your judge says that, if you waive a jury, she can give you a bench trial in two months. If you want a jury trial, she can offer a virtual jury trial in six months and an in-person socially distanced trial in the last half of 2022, at the earliest.
However, she adds that the date in 2022 may be a moving target depending on whether the state supreme court approves remote jury selection in criminal cases. Criminal cases will go to the head of the line. How do you advise your client? What is your professional responsibility?
This scenario touches many of the ABA Model Rules of Professional Conduct. To save space, I will cite the rule number and will italicize the pertinent language. The main three categories to consider are time, disclosure to the client, and your competence in the virtual world. With regard to time, Rule 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Rule 3.2 adds, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”
For plaintiff’s counsel representing an elderly person, or perhaps defense counsel whose client is wary of operating a business under the cloud of litigation, a quick resolution is needed. However, the pandemic has created multiple, valid grounds for parties to argue for delay such as (1) legitimate fear of infection from an in-person trial; (2) the deficiency of any aspect of the remote trial as compared with an in-person trial; and (3) arguments that a remote trial verdict may be reversed if granted over objection.
The pandemic has created multiple, valid grounds for parties to argue for delay. No doubt some parties will seek delay only for the sake of delay. Courts will have to sort out whether the objections are valid.
Fortunately, some courts are offering guidance to counsel. The Supreme Court of New Jersey entered an order authorizing virtual civil jury trials without the consent of the parties beginning April 5, 2021. No doubt some parties will seek delay only for the sake of delay. Courts will have to sort out whether the objections are valid.
“If one side is prepared to go virtual and the other side is not, what’s a judge to do?” questions John M. Barkett, Miami, FL, cochair of the ABA Litigation Section’s Ethics & Professionalism Committee. “Diligent representation of your client may involve seeking delay. I am not taking sides on this, but candor to the court under Rule 3.3 does override client confidentiality under Rule 1.6,” he adds.
Rule 1.4(a)(2) requires counsel to “. . . reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” This rule dictates that the attorney gives the client all of the options offered by the judge in our scenario. The consultation should also include counsel outlining the pros and cons of each alternative so the client is fully informed.
If counsel has various venues where a case may be brought, perhaps an overriding concern is when you can get to trial. The pandemic has made the justice system throughout the country even more of a patchwork. A recent article in the New York Times reported, “One local courthouse in Orange County, Calif., has completed 114 criminal trials since May, while the federal courthouse across the street has determined it is unsafe to hold any trials at all.”
If plaintiff’s counsel has venue options, then the client should be told which courts are available and whether they can hold in-person trials, hybrid remote trials, or fully remote trials. This is also true for defense counsel.
A valuable checklist for these issues has been assembled by the Ft. Lauderdale Chapter of the American Board of Trial Advocates (ABOTA) with feedback from the 17th Judicial Circuit of Florida. The checklist reviews the advantages and disadvantages of remote trials in addition to attaching a model order for a remote trial.
Finally, we end by going back to the beginning with Rule 1.1, which requires counsel to have the “. . . legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Barkett notes, “In 2012, comment section (8) to this rule was amended to include that counsel ‘. . . should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.’”
Do you have the technology should your client opt for a virtual trial? This may involve costs for equipment, including high-speed internet and adequate lighting, and ensuring that your client and your witnesses have all the equipment necessary to participate remotely.
Next, do you have the skills, or do you have the time to learn the skills necessary to try a case remotely? At a minimum, counsel must learn how to use whatever platform the court has approved. On that platform, they must know how to handle exhibits, annotate those exhibits, and preserve them for the record.
Competent witness preparation will involve decisions on virtual versus real backgrounds and ensuring adequate bandwidth for participation. The attorneys, clients, and witnesses must know and be trained on the fact that the judge or the jury are not the faces on the screen. The small camera at the top of the computer screen is the judge or the jury. You and your witnesses must be trained to look at that camera in order to have eye contact with those who are deciding the case.
Attorneys must familiarize themselves with breakout rooms and caution clients about talking when their microphone should be muted. Wise advice from the media is the caution that the camera is always “on” and the microphones are always “hot.” The staging of a remote trial is very different than that of an in-person trial. The “staging” of an in-person trial in a COVID-modified courtroom is also different.
In a COVID-modified courtroom trial counsel may find themselves very far away from the socially distanced jury. The jurors may or may not be wearing masks and there may be panes of plexiglass between everyone in the courtroom. Some counsel may decide that seeing the jurors’ faces on a computer screen in a remote trial is the better option.
It is safe to say that the pandemic has added to the trial lawyer’s burden of providing competent representation to the client. The Model Rules will require trial counsel to delve deeper into issues of time, the pros and cons of virtual trials, and whether counsel is equipped to venture into that world.
- ABA Model Rules of Professional Conduct.
- Mitchell A. Chester, “Confronting the Accelerated Shock of COVID-19 with Virtual Jury Trials: The Ethical Implications,” Jury Matters (Jan. 2021).
- ABOTA Ft. Lauderdale, Proposed Model Consent and Joint Stipulation Forms for Virtual Jury Trials (Jan. 2, 2021).
- Nicole Hong & Jan Ransom, “Only 9 Trials in 9 Months: Virus Wreaks Havoc on N.Y.C. Courts,” N.Y. Times (Dec. 2, 2020).
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