We needed to finish this jury trial. My last pre-COVID-19 day of work at the courthouse was Friday, March 13, 2020. I was a little over 11 years into my stint as a civil trial judge in Harris County, Texas, which includes Houston. Squeezed into fewer courtrooms than usual after Hurricane Harvey struck in late August 2017, jury trials were already down. That had lasted two and a half years already. So my case began to feel especially urgent and I felt compelled to finish before . . . well, before . . . is “oblivion” too strong?
It was a lease dispute between a large national retail chain and a local shopping center landlord, and I’d already reset the trial multiple times. Now, to speed things up, we cut breaks short. The abbreviated recesses were suffused with gossip about closing the courthouse, social distancing, touching your face (“Don’t!”), and toilet paper shortages. “Maybe just avoid a mistrial, Mike,” I kept thinking. Who knew when we’d get another crack at it? We got a verdict late in the afternoon on Friday, March 13, 2020. Friday the 13th? Exactly. That was my last workday in the courthouse for many months.
Our county administrator, state governor, and supreme court issued a flurry of shutdown orders around that time, which would soon become the stuff of novel, pitched litigation over who could compel whom to do what. Newly minted Texas constitutional Twitter scholars held forth on how Sam Houston or Stephen F. Austin would or wouldn’t have countenanced wearing a face mask or buying hand sanitizer. The net result was that I wasn’t going to conduct live hearings or trials for a while.
Predictably, one of the first things to go was the jury call. No jurors mean no jury trials. Of course, jury trials are not the only thing civil district judges do, but they do fill the time any given week.
Until we could resume jury trials, we were left to figure out how to proceed with oral hearings, cases submitted on the papers, and non-jury trials, and to do so in a way that avoided grossly backlogged dockets. How best to switch to videoconference technology to continue moving cases and parties through the system? Of course, our court’s technical staff landed on Zoom almost from the jump. The now-ubiquitous software quickly became our portal to the bar.
But questions about security surfaced almost immediately. We heard horror stories of internet trolls “bombing” Zoom hearings by entering uninvited and displaying pornography. I’m confident this didn’t occur in one of my hearings because, to paraphrase Justice Potter Stewart, I would have known it had I seen it.
At the same time that we worried about sabotage, we had to figure out how to satisfy our constitutional “open courts” obligations. That is, even in the middle of a global pandemic, the Texas Constitution demanded that we “open” the “courts” to the public. Many of us first turned to YouTube.com, which provided a mechanism to livestream Zoom hearings. We didn’t want the public in our Zoom hearings as participants; we just wanted to open a virtual window for people as though they were sitting on the brick-and-mortar courtroom’s wooden benches.
The first task was to set up new YouTube accounts for our courtrooms. Then we had to remember to turn on the livestream for each individual hearing setting, provide the YouTube links on our court webpages, and manually delete each video hearing upon conclusion to comply with a local rule forbidding the recording of courtroom proceedings. Fortunately, our magnificent tech assistants soon created a locally hosted equivalent to livestreaming on YouTube that didn’t record the hearings, leaving nothing to delete. At the same time, the required access to the courthouse, though now wholly virtual, was preserved.
By the end of March, we were out of the courthouse. Token staff remained, but with only a few (heroic) exceptions, we judges started working remotely. The next hurdles before we could go all-Zoom-all-the-time in jacket, tie, and running shorts were Texas state legal requirements that we sit and rule in Houston, the county seat, and hold court in a “courthouse.” I live in the county but outside Houston, and my dining room isn’t a courtroom. The Texas Supreme Court and our regional presiding judge had to temporarily declare my house just outside city limits a “courthouse.” As Forrest Gump said, “. . . that’s good. One less thing.”
In the early COVID-19 days, though, fixing one problem caused two more. Lawyers in our adversarial system started “adversarying” all over the place. The first theater of the pandemic wars was, naturally, obsessing over how to gain an advantage in Zoom-centric litigation. Attorneys started throwing up traps for the unwary. Several energetic judges and lawyers from the state and local bars met in videoconferences to try to anticipate and eliminate impediments.
Depositions posed a particular problem. Some lawyers were automatically objecting to depositions taken by videoconference. This threatened to grind litigation to a halt. Luckily, lawyers elsewhere in Texas had already sounded the alarm, and soon we entered an order making clear that objection wouldn’t be entertained.
As for hearings, I soon learned that the main obstacle is remembering to unmute yourself. After taking care of that, we’ve had surprisingly few connection problems. When someone freezes or the connection drops, we’ve been patient and muddled through.
Fortunately, this also proved to be the case where the hearing includes witnesses or parties. One staple of our docket is the minor-settlement hearing, where the court has to take evidence about the nature and fairness of a proposed settlement for a minor. Typically, these are routine personal injury matters. Occasionally, they will involve substantial sums and complex trust or annuity setups that require a detailed explanation and evidentiary analysis.
In each, the minor must appear through the minor’s “next friend,” usually a parent or guardian, in whose name the “friendly” or uncontested suit is brought. That now meant the next friend appears via videoconference. And, while most but not all attorneys’ Wi-Fi connections are steady and reliable, not every “civilian” can boast one-gigabit “blowtorch” Wi-Fi on the family-room couch. Nevertheless, I can count on one hand how often it’s been the non-attorney for whom we had to wait to reconnect to the hearing after the signal lapsed. Usually, it’s the non-techie lawyer who, upon reconnection, says sheepishly, “Judge, I don’t know what to say. That’s never happened before.” Sure.
In evidentiary hearings, lawyers have become adept at e-filing and emailing exhibits so that everyone has them before the hearing starts. I’m strict about excluding new exhibits at hearings, setting aside the expected and rare exceptions, and lawyers have been pleasantly proactive about exchanging exhibits and making pre-hearing agreements to avoid exclusions and surmount the technical barriers.
The pandemic has also ballooned our submission docket as we promote it to attorneys in an effort to avoid unnecessary hearings, and I make it even more of a point than usual to rule quickly, thus addressing that gnawing fear that current conditions persist and dockets swell. Overall, our caseload has, happily, held steady.
COVID-19, predictably, did nothing to ameliorate unrepresented litigants’ problems. These pro se parties can’t simply go visit an attorney to talk about their case. Nor can they easily exchange or sign documents or provide evidence. They might also lack the wherewithal to pop into a videoconference hearing on their case, though previously they might have easily shown up in person at the courthouse.
One interesting solution we introduced is “Zoom Rooms”: kiosks in satellite and municipal courthouses where represented and unrepresented litigants can use computers and other audiovisual mechanisms to participate in videoconference hearings they might otherwise have missed. Because clerks diligently post the hyperlinks and meeting ID numbers on our courts’ dockets, any party with the link or meeting number will have every chance to attend and participate without their own computer or high-speed connection.
One interesting side note: Some lawyers for a large business informed the court that they couldn’t participate in Zoom hearings because of the perceived security risks posed by allowing that software platform access to the business’s networks. Was this a real concern or just a delay strategy? No matter. One of my colleagues immediately responded with the Batman-esque “To the Zoom Rooms!” This assuaged the company’s concerns of endangering its networks.
Hearings are well and good, but what about trials? Those without juries are proceeding with a vague sense of normalcy. But the big question is how to conduct a jury trial. Multiple surveys and anecdotal evidence indicate that the bar isn’t keen to try jury cases over Zoom. Nor in person.
Some judges around Texas and the United States have attempted non-binding virtual jury trials. In May, one juror in a case in North Texas reportedly left his seat on a break to make a personal phone call and wasn’t in his seat after the break. The judge was left to shout into the void. It would be hard to police the distractions facing a virtual juror sitting at home: children, pets, biology, work, the refrigerator.
And that’s before more complex issues of finding a representative array of venire members. Some people are more likely than others to have the right computer equipment and a reliable internet connection. Also, there are more practical concerns about the mechanics of such trials: sharing exhibits effectively, tiny faces with indiscernible body language, getting the jurors to fill out and sign the verdict form, among many others. For these reasons, courts have attempted very few and completed even fewer virtual trials, binding or otherwise.
Jury trials are, of course, more pressing in criminal courts and parental rights matters but must nevertheless start again at some point soon for all cases, lest the usual pressures that cause plea bargains and settlements erode. So, if a jury trial isn’t virtual, can it be in person? Perhaps, but not without tremendous difficulty.
Enter the radical concept of jury selection at NRG Arena, an enormous, multi-hall convention center next to the Houston Astrodome. Think giant cattle auctions during the annual Houston Livestock Show and Rodeo and you get the picture.
After nailing down the space, we needed jurors. But would they come? We summoned jurors for a grand jury in late July 2020, and only about 15 percent appeared—about 25 percent fewer than usual, so it could have been worse. Rather than bunching hundreds in a room the size of a lecture hall at the same time—our usual modus operandi—we now stagger their arrivals. Hand sanitizer flows aplenty. They sit in gigantic rooms in arena seating with significant social distancing.
For trials, jurors are summoned for a particular case, so they’re seated as a venire when they arrive. They wear masks and sit far apart. Each has his or her own voice-activated, hands-free microphone. Potential jurors are also given a clear face shield. We call that their “party favor” because we expect them to keep it, clean it, and bring it with them for trial the next day if selected.
Lawyers and the judge sit far apart from each other and from the panel. The sound equipment is excellent and court reporters can take a clean record. Attorneys stay in one place rather than pace around as in a normal voir dire. Staff clean seating areas during breaks.
The first jury trial using these precautions occurred during the third week of August 2020. Our courtrooms have been outfitted with plexiglass barriers in front of the witness box and another between the court reporter and the well. The court reporter’s desk now resembles a National Hockey League penalty box. Counsel tables are spread apart as far as space allows. Jurors no longer sit in the close quarters of the jury box but in the larger gallery seating in the back of the courtroom. Litigants, staff, and jurors come and go one at a time to maintain social distancing.
In this first trial, held in a larger ceremonial courtroom, the judge provided lunch and jurors ate at separate tables in a big conference room across the hall. In a longer case in a regular courtroom with no nearby conference room, jurors may be asked to bring lunch or eat outside.
The judge in our first trial added two alternate jurors for a total of 14. He was glad he did because one juror complained of COVID-19-like symptoms upon arrival at the courthouse at the start of the trial. That juror was immediately excused and an alternate pressed into service.
Jurors deliberated in the courtroom, not the jury room, so bailiffs had to ensure they were safely sequestered as if in the much smaller and lockable rooms. A verdict followed brief deliberations. Jurors didn’t raise COVID-19 concerns and seemed proud to have been some of the first jurors in the state to try a case since the pandemic started.
We learned, therefore, that jury trials are technically possible but are fraught with extra effort, time, expense (to litigants and taxpayers), and there is still little guarantee of fairness. A recent poll by the National Center for State Courts essentially concluded that jurors who would appear would be younger, whiter, and more conservative. National Center for State Courts, State of the State Courts in a (Post) Pandemic World (June 2020). Older people with higher health risks would likely stay away. Hispanic women, African American women, and older White women told pollsters they would be the least likely to appear. This suggests that juries might be less representative. As a result, attorneys will have to think carefully about whether to proceed or, instead, entertain settlements or plea bargains they might previously have spurned.
Simultaneously, another judge in our court was slated to begin a three-week jury trial. The lawsuit concerned property defects allegedly not disclosed in the sale of a large commercial property. Right before commencement, though, the parties balked and requested a continuance. The plaintiffs presented University of Texas epidemiologists’ evidence about COVID-19 safety concerns. Moreover, the attorneys expressed doubt about empaneling a representative jury from those who would show up for voir dire and those willing and able to serve. The judge reset the trial.
In anticipation of resuming jury trials, we emailed the parties in several suitable cases to see who was willing to proceed. The response was underwhelming, if predictable. Though they couched it in lawyerly “brave face,” the reality is that they simply don’t want to try a jury case in person at this time. They expressed concerns about their own or their clients’ underlying health risks, as well as the makeup of the jury. Mostly, they sought to delay trial to the spring or summer of 2021 at the earliest.
I fear speculating about what the coming months and years will bring. I have broken down my dining room Zoom studio and returned to the courthouse to hold my video hearings. I wear my robe in the courtroom with my American and Texas flags as my real-world backdrop. We’ve held only a few in-person hearings. I wear my new American flag mask. The attorneys stay far from the bailiff, who stays away from our court reporter, who is, in turn, distanced from our clerk.
More regularly, it’s just me and our bailiff in the courtroom with a laptop, balanced on two rule books stacked together. I learned early on to keep the laptop camera at head level for the best Zoom presentation. Our court reporter and clerks attend the hearings virtually with everyone else.
If we get the green light, judges on my court may be off to the races empaneling juries in every kind of case. I can also envision some half measure of limiting the number or length of jury trials or requiring preclearance based on certain parameters.
Perhaps the more interesting question is this: What practices and lessons will endure from this crisis? When I first ran for a judgeship in 2008, I campaigned on bringing newer efficiencies to the courthouse through technology. I wanted to save money, jobs, and paper. I invited parties to attend hearings or present witnesses via videoconference.
But no one took me up on that after I was elected—which is why it was a bit of a scramble to get up to speed on Zoom in March. Now, however, it would seem quite foreign to go back to purely in-person hearings.
News reports indicate that law firms and other businesses plan to allow their employees to work remotely at least part time. Videoconference hearings and trials—at least non-jury trials—are likely to be quite routine in the future.
This will affect both courthouse and law firm management. In the short run, as judges and staff return to the courthouse full time, administrators will have to ensure sufficient bandwidth to avoid a mutiny over dropped Zoom connections. Law firms with large leased spaces may find they can no longer justify their square footage with a healthy percentage of remote workers. Hopefully, one result will be fewer miles driven to courthouses, deposition conference rooms, and mediation facilities. Start-ups might arise to fill in the gaps where current technology fails to facilitate the free and reliable e-presentation of evidence at hearings and trials. The Zoom screen-sharing feature is OK, as far as it goes, but not nearly robust enough to handle the detailed work of a lawyer and adverse witness in a heated, document-heavy cross-examination.
It is hard to see a couple of quick tech fixes solving the intricate concerns raised by in-person jury trials or the fairness and practical concerns of virtual jury trials. And these pale in comparison with the more dire consequences of criminal defendants denied their day in court while stuck in county jails. The ponderous machinery of the state legislature (biennial in Texas) or state high courts is equally ill-suited to produce quick solutions. Trial judges, district attorneys, and administrators will have to be given more discretion to experiment to address these dilemmas.
When we get to the point where things seem close to the way they were before March 2020, though, I hope the key impression on litigators and judges is this: We faced a crisis as a profession that could have sent dockets spiraling ever upward. A crisis we could have surrendered to, resulting in the decimation of jobs, law firms, and, more importantly, Sixth and Seventh Amendment rights. But because we came together professionally, keeping our eyes on the ethical and constitutional horizon, we survived, learned, and ultimately improved the practice of law for ourselves and our clients, communities, and maybe even the environment.
Until then, however, as the poet Robert Frost wrote more than a century ago:
“... By good rights I ought not to have so much
Put on me, but there seems no other way.
Len says one steady pull more ought to do it.
He says the best way out is always through.
And I agree to that, or in so far
As that I can see no way out but through— …”
—Robert Frost, “A Servant to Servants” (1915)
After substantially completing and editing this article, I actually tried four cases with juries in October and November 2020. Our clerk brought jury panels to NRG Arena and we conducted voir dire and seated 14-person juries—12 jurors and 2 alternates each.
In the first matter, we conducted voir dire in a 100-foot-by-100-foot area of the arena floor paneled off from the rest of the space. Because we had other panels next door at the same time, we all used headsets with microphones to speak to and hear each other. Interestingly, the only hitch was that, when a juror spoke, you lacked the usual audial cues as to where the sound was coming from. Each juror was just a disembodied voice. So I had to scan the whole room to see who was waving a juror number card. This was kind of funny but also slowed the process a bit. It was otherwise a quick jury selection in a low-dollar automobile accident case, so it went relatively smoothly and, more importantly, normally. We obtained verdicts in that case and the next. The third, a maritime Jones Act case, settled after two weeks of trial.
We learned from each case, naturally. As required by the Texas Constitution’s open courts provision, we livestreamed each trial via Zoom. In the first trial, we had one stationary camera on one side of the room, showing everything but the jurors. We had a couple of microphones around the courtroom, and remote observers universally panned our video and audio presentation. By the second trial, we had multiple iPads set up as cameras around the room—one for each attorney, the witness, and me. Five-star reviews ensued from our video peanut gallery. By the end of the third trial, I was conducting trial and the multiple layers of technology input and output, toggles, video, and audio, like a seasoned . . . well . . . conductor.
But the beast we’d been working to slay caught up with us in the fourth trial. We selected a jury in an alleged drowning case and returned to our normal courtroom for opening statements and evidence the next day. That was a Friday. We were to return to trial the following Tuesday. Late Monday, one of the attorneys came down with symptoms. He tested negative for the flu and strep throat. He alerted us he was being tested for COVID-19 Tuesday morning. We contacted all of the jurors and canceled trial for the day. By mid-afternoon he received the news that he had tested positive. We paused the trial and ordered the parties to mediation but ultimately had to declare a mistrial. The timing doesn’t suggest the attorney was exposed during voir dire, but, of course, I am not a doctor. We are hoping he has a fast and complete recovery.
So far, we expect to continue to select juries and try cases using our safety protocols. Texans need their day in court.
