Zooming In on the Impact Florida’s Remote Civil Jury Trials May Have on Appellate Standards of Review
Appellate standards of review are the lenses through which an appellate court reviews a trial court’s decisions. Based on a paradigm that recognizes the institutional advantages of trial courts and appellate courts, they define how much deference an appellate court must pay to a trial court’s ruling. The institutional advantage most often cited as the basis for appellate deference is the “superior vantage point” of the trial court; meaning the trial court has a better perspective because it personally observed the parties, argument, and presentation of evidence.
This paradigm has endured, in part, because the judicial branch is entrusted with great responsibility and, as a result, proceeds with an abundance of caution before it implements change. The right to a jury trial, for example, is one of the most basic, fundamental rights, and, as such, has been executed in much the same way for over 175 years, in-person. The record, too, has been prepared in the same way, by written transcript. Therefore, the trial court’s superior vantage point persists because the appellate court’s review is limited to cold transcripts.
That is, until now. After the coronavirus (COVID-19) global pandemic brought civil jury trials to a grinding halt, the Florida Supreme Court implemented an unprecedented pilot program to determine the viability of remote civil jury trials. These remote trials are conducted through a videoconferencing platform that also records the proceedings, and the recordings are archived online for public access. This article examines how those recordings might eliminate a trial court’s superior vantage point and impact the standards of review as they exist today.
Courts, Technology, and Florida’s Remote Civil Jury Trial Pilot Program
The judicial branch is steeped in time-honored tradition, in part because it is tasked with great responsibility, including to interpret and apply the Constitution and law, and administer justice. Inherent in its attempts to accomplish its aims is its reluctance to change. For example, although video-recording capabilities surfaced in the early 20th century, it wasn’t until the 1970s that any court permitted broadcasts of its cases. Markedly, Florida courts were the first. Even still, half-a-century later, the U.S. Supreme Court continues to impose a complete ban on cameras. Justice David H. Souter memorably remarked that “the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Though general judicial attitudes about technology are shifting, Chief Justice John Roberts has explained the Court’s “concern about the impact of television on the functioning of the institution. We’re going to be very careful before we do anything that might have an adverse impact.”
Notably, Florida has relied on an in-person jury system since 1845. However, on March 9, 2020, the governor was forced to declare a state of emergency for the entire state of Florida due to concerns caused by the COVID-19 pandemic. Just days later, the Florida Supreme Court was forced to suspend jury trials due to public health and safety concerns caused by COVID-19. Although necessary, these actions brought civil jury trials in Florida to a grinding halt and disrupted the judiciary’s ability to administer justice, forcing the court to consider alternative ways to conduct jury trials while protecting the rights of the parties and the health and safety of the public.
To counteract the pandemic’s impact, the court authorized the Remote Civil Jury Trial Pilot Program, through which trials are conducted via a videoconferencing platform “to establish the framework and identify the logistics of trying a case remotely.” This decision was not reached lightly — it was made months after jury trials had been suspended, with court backlog growing and no end to the pandemic in sight — but it is not the first time Florida’s judiciary has led the way for judicial transparency or the use of technology.
On July 14, 2020, 175 years of precedent changed when Miami-Dade County conducted the state’s first (partial) remote jury trial, and again, in August, when the first-ever civil jury trial conducted entirely by Zoom was tried to verdict in Duval County. The remote proceedings are recorded, and their recordings are archived online for the public to access. It follows that these video recordings could one day become part of the record and, if so, may eliminate the need for appellate deference when based on the presumption that the trial court is entitled to deference because of its superior vantage point.
Standards of Review
Standards of review “reflect an accommodation of the respective institutional advantages of trial and appellate courts.” Traditionally, those institutional advantages have been clear: trial courts have a “superior vantage point,” because “the trial judge is there” and “see[s] and hear[s] the witnesses presenting the conflicting testimony.”  On the other hand, “[t]he cold record on appeal does not give appellate judges that type of perspective”; instead, they “are structurally suited to the collaborative judicial process that promotes decisional accuracy.”
Florida’s appellate courts review: 1) conclusions of law de novo; 2) discretionary decisions for an abuse of discretion; and 3) findings of fact for competent, substantial evidence. The standards are legislative or judicial constructs designed to judiciously address harmful error and they correlate the amount of deference paid by an appellate court to the amount of discretion permissibly exercised by the trial court.
Conclusions of law are reviewed de novo, which is Latin for “anew, afresh, a second time,” meaning an appellate court pays no deference to a trial court’s legal conclusions. Appellate deference is not required because a trial court does not sit in a superior vantage point when rendering a legal conclusion or deciding a pure question of law. The appellate court is equally capable of rendering a sound decision, and the answer should be the same, regardless of the deciding court, conduct of the parties, or the evidence. This standard serves to promote the orderly and uniform application of the law. It “prevent[s] unacceptably varied results based on the interpretation of similar facts by different trial judges,” facilitates an appellate court’s ability to “maintain control of, and to clarify, the pertinent legal rules,” and “tend[s] to unify precedent.”
Discretionary decisions are reviewed for an abuse of discretion. This standard requires the appellate court to pay significant deference to a discretionary decision because it presumes the trial court was the best-situated court to decide the issue. “In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his [or her] discretion.” Reversal of a discretionary ruling must overcome a difficult standard:
[i]f reasonable [people] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his [or her] decision fails to satisfy this test of reasonableness.
Factual findings are reviewed for competent, substantial evidence and are presumed correct. The Florida Supreme Court has explained:
The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the trial court is in a superior position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses. When sitting as the trier of fact, the trial judge has the superior vantage point to see and hear the witnesses and judge their credibility. Appellate courts do not have this same opportunity.
This standard precludes an appellate court from finding error where there are two permissible views of the evidence, re-weighing the evidence, or finding error merely because it would have decided differently. Remarkably, where a trial court’s determination is based on a written record, an appellate court pays no deference because the trial court was in no better position; again, justification turns on the trial court’s superior vantage point.
A “New” Normal
Florida state courts tried over 700 civil jury cases to verdict between 2018 and 2019. When civil jury trials were suspended in March 2020, that number was drastically reduced, which is why the remote trial pilot program was authorized. Today, nearly eight months after civil trials were suspended, Florida’s court system reports a backlog of over 900,000 cases. As health and safety concerns persist, there is speculation that remote proceedings, and now trials, will become the “new” normal. If so, it is only a matter of time before the archived recordings become a source of interest for appellate courts and litigants, alike.
As discussed above, well-settled precedent focuses on the trial court’s superior vantage point to support appellate deference. But even before remote proceedings were a reality, that rationale was criticized as “one of those common-sense propositions that may well be false.” One that survived only “because nothing in the culture of the law encouraged its insiders to be skeptical of oft-repeated propositions accepted as the age-old wisdom,” and “because appellate judges (indeed all judges) usually are happy to hand off responsibility for deciding to another adjudicator” even though they are “[n]o longer…technologically constrained to do so.” Now, with the implementation of such drastic changes, detractors of the current standards may gain more traction. Deliberate adherence to a paradigm that limits an appellate court’s ability to review the proceedings could be antithetical to the administration of justice; particularly when the impediment can be easily removed.
Aside from a trial court’s superior vantage point, there are a number of reasons why appellate deference is important: It helps define roles of the courts, fosters respect between courts, provides judicial finality, and achieves the dual goals of doctrinal coherence and economy of judicial administration. Because “the primary job of appellate courts is to repeat, restate, correct, and maintain uniformity of legal doctrines; correcting erroneous factual determinations is incidental to that primary responsibility. That is a good reason for deference.” From a practical standpoint, “the trier of fact spends much more time on a case than the appeals court does [and] may have a better feel for the facts.” Its absence would lead to the “[d]uplication of the trial judge’s efforts in the court of appeals” but “contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.”
Other important considerations are that appellate courts address legal error and a cold transcript neutralizes any effect of improper emotional appeals. Reliability, infallibility, authenticity, and the time to review transcript versus video footage are other practical concerns; though certainly issues present in both transcripts and video for different reasons and to different degrees. Further, there are privacy issues, such as data sharing, other concerns surrounding witness and juror tampering, as well as possible effects video-recorded proceedings may have on judicial conduct, to be considered. A belt-and-suspenders solution may be to use both video recordings and transcripts, in which case the standards may evolve as critical differences between the transcripts and recordings reveal themselves through practical application over time.
Moreover, if the standards are revised, how much deference should be paid to rulings that conflict with or contradict the recorded record? Or can be interpreted differently? Currently, the appellate record “consist[s] of all documents filed in the lower tribunal, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal.” It does not authorize, at this time, the inclusion of any recording of the proceedings. Although Florida’s rules of judicial administration and appellate procedure contemplate inclusion of videotapes, it is with respect to evidence or exhibits in the record, they do not authorize a video recording of the proceedings as part of the record.  Even videotaped evidence, such as deposition testimony, must be transcribed.
While a recording of a trial proceeding would not be evidence, two lines of cases that discuss the significance given to videotaped evidence when in conflict with testimony may provide guidance about how much deference an appellate court would pay to a trial court ruling, if the ruling was contradicted by a video record. In one line, paramount significance has been placed on video evidence. The U.S. Supreme Court deemed summary judgment proper when an unaltered “videotape capturing the events” “contradict[ed] the version told by respondent and adopted by the court of appeals.” There is no genuine issue of material fact, the Court explained, “[w]hen the parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it.” Inherent in that reversal, however, was a judicial dispute over how to interpret the events shown on the video.
The Florida Supreme Court similarly held that a circuit court conducting first-tier certiorari review “applies the correct law by rejecting officer testimony as competent, substantial evidence when that testimony is contrary to video evidence.” It reasoned that “an officer’s human recollection and report may be contrary to that which actually happened as evinced in the real time video” and made clear “a judge who has the benefit of reviewing objective and neutral video evidence…cannot be expected to ignore that video evidence simply because it totally contradicts the officer’s recollection. Such a standard would produce an absurd result.”
In contrast, Florida’s Fifth District Court of Appeal focused less on the video evidence and instead questioned proper procedure. The court reasoned that a trial court should not reject testimony contradicted by a video because in doing so, the court improperly weighs the evidence. The Fifth District recognized “technological advancements” like “video and digital evidence” will appear “more frequently…in both trial and pretrial proceedings” and asked the Florida Supreme Court to decide whether there should be an exception that would allow for the entry of judgment “when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party…?” The Florida Supreme Court accepted the certified question and also asked the parties to address whether Florida should adopt the federal summary judgment standard.
It remains to be seen whether Florida will make remote civil jury trials permanent, and if so, whether video recordings of those trials would be included in the record on appeal. Assuming it does and they are, it is conceivable that the judiciary will be called upon to consider whether standards of review should be revised to identify and correct harmful error through its new lens, or perhaps, whether the new lens lends itself to the adoption of a different review process altogether.
 Nothing in this article should be construed to suggest that the appellate standards of review or rules of procedure are no longer applicable. This article considers whether “standards of review may one day change as new technological advances provide appellate courts with the…same vantage point as the trial court.” Rachel A. Canfield, Raise Your Standards: A Practitioner’s Guide to the Effective Use of Appellate Standards of Review, 92 Fla. B. J. 39, n.3 (Nov. 2018).
 Rachel A. Canfield, Brave New Appellate E-World, 90 Fla. B. J. 75 (Jan. 2016) (Florida’s e-filing was implemented after years of deliberation, development, and results).
 See U.S. Const. art. III, §2, amends. VI & VII; Fla. Const. art. I, §22.
 See, e.g., U.S. Const. art. III; Fla. Const. art. V.
 Florida Supreme Court to begin Facebook Live broadcasts, Florida Supreme Court Press Release (Jan. 23, 2018) (“In the 1970s, Florida became the first state to allow broadcasts of its court cases at a time when every other court in the nation refused it,” said Chief Justice Jorge Labarga).
 On Cameras in Supreme Court, Souter Says, “Over My Dead Body,” N.Y. Times 24 (Mar. 30, 1996) (internal quotation marks omitted).
 Justices Sonia Sotomayor and Elena Kagan have openly expressed approval of the use of cameras in the courtroom. See C-span, Cameras in the Court, https://sites.c-span.org/camerasInTheCourt/index.html#sotomayor; https://sites.c-span.org/camerasInTheCourt/index.html#elenakagan.
 Cameras in the Court, Chief Justice Roberts’ remarks at the Ninth U.S. Circuit Court of Appeals’ Annual Conference (July 13, 2006), https://sites.c-span.org/camerasInTheCourt/index.html.
 Comp. COVID-19 Emerg. Measures for Fla. State Courts, Fla. Admin. Order No. AOSC20-23 (Amend. No. 2 May 21, 2020).
 In re: COVID-19 Emergency Procedures, Fla. Admin. Order No. AOSC20-13 (Mar. 13, 2020).
 Fla. Const. art. V, §22 (“The right of trial by jury shall be secure to all and remain inviolate.”); AOSC20-13 (suspending jury trials); COVID-19 Emergency Procedures, AOSC20-17 (Mar. 24, 2020) (extending suspension of all jury trials); AOSC20-23 (Amends 1-6 Aug. 12, 2020); COVID-19 Public Health and Safety Precautions Phase 2, Fla. Admin. Order No. AOSC20-32 (Amends. 1-3, Aug. 12, 2020).
 In re: Remote Civil Jury Trial Pilot Prog., Fla. Admin. Order No. AOSC20-31 (May 21, 2020).
 Pilot Program, AOSC20-31. Five judicial circuits were chosen, including the Fourth, Seventh, Ninth, 11th, and 20th. Fla. Admin. Order No. AOSC20-28 (Apr. 21, 2020); Florida Supreme Court, Five Trial Court Circuits Chosen for “Virtual” Civil Jury Trial Pilot Program Due to Pandemic (June 3, 2020), https://www.floridasupremecourt.org/News-Media/Court-News/Five-trial-court-circuits-chosen-for-virtual-civil-jury-trial-pilot-program-due-to-pandemic.
 Florida maintains “Gavel to Gavel,” where the public may live stream or access archived oral arguments. See Florida Supreme Court, Gavel to Gavel Video Portal, https://wfsu.org/gavel2gavel/. It was one of the first to implement e-filing. See Gary Blankenship, Florida Is “Far Ahead of the Curve” When it Comes to E-filing Systems, Fla. Bar News (Sept. 1, 2014). It was also among the first to livestream its court proceedings. See note 5. The court has a Facebook page, produces podcasts, and engages in social media. Courtroom View Network, a private publishing company, also curates video footage of live courtroom proceedings and now offers a secure Zoom-based platform for streaming trials. See Courtroom View Network, https://cvn.com/.
 People’s Tr. Ins. Co. v. Corchero, Case No. 2019-18363-CA-01 (Fla. 11th Cir. 2020) (Jury selection held via Zoom, but trial held in-person pursuant to social distancing protocols).
 Griffin v. Albanese Enters., Inc, Case No. 16-2019-CA-001555 (Fla. 4th Cir. 2020), was the first fully remote binding civil jury trial tried to verdict in the United States. On August 11, 2020, a Texas state court conducted the first binding remote criminal jury trial in State v. Kornblau, Case No. J2-CR-18-003208 (Tex. J.P. Precinct 5 2020).
 This article addresses only the most common standards of review applied in civil cases in Florida. This article does not address the different standards of review that may apply to legal issues in criminal proceedings, domestic proceedings, administrative matters, or the tests applied to writ petitions in original jurisdiction proceedings.
 Salve Regina College v. Russell, 499 U.S. 225, 233 (1991).
 Stephens v. State, 748 So. 2d 1028, 1033-34 (Fla. 1999); Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998).
 Sweet v. State, 248 So. 3d 1060, 1066 (Fla. 2018) (quoting Spann v. State, 91 So. 3d 812, 816 (Fla. 2012)).
 Sweet, 248 So. 3d at 1066 (quoting Spann, 91 So. 3d at 816).
 Salve Regina, 499 U.S. at 232.
 A trial court’s ruling that involves a mixed question of law and fact is subject to a mixed standard of review. The ultimate legal ruling is reviewed de novo, and factual findings are reviewed for competent, substantial evidence. See Corona v. State, 929 So. 2d 588 (Fla. 5th DCA 2009); Osterback v. Agwunobi, 873 So. 2d 437 (Fla. 1st DCA 2004).
 Florida’s appellate courts must disregard errors that are harmless. Fla. Stat. §59.041 (“No judgment shall be…reversed” unless the error “resulted in a miscarriage of justice.”); Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (holding error harmless if “the beneficiary of the error [is able] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict”); see, e.g., Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999) (The court has “inherent authority to determine when an error is harmless.”).
 See Judge Harry T. Edwards & Linda A. Elliot, Federal Courts Standards of Review 3-8 (ThomsonWest 2007).
 Black’s Law Dictionary 392 (5th ed. 1979).
 Florida Dep’t of Rev. v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 957 (Fla. 2005); Florida Power & Light Co. v. Hayes, 122 So. 3d 408, 411 (Fla. 4th DCA 2013).
 See Gerald Kogan, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 65 n.327, 80-101 (2005) (discussing the court’s role in resolving conflict and ensuring uniformity). Florida’s district courts of appeal also contribute to the development, clarity, and consistency of the law. See Florida Courts, District Courts of Appeal, https://www.flcourts.gov/Florida-Courts/District-Courts-of-Appeal.
 Ornelas v. United States, 517 U.S. 690, 690 (1996) (quoting Brinegar v. United States, 338 U.S. 160, 171 (1949)).
 Ornelas, 517 U.S. at 697 (citing Miller v. Fenton, 474 U.S. 104, 114 (1985)).
 Id. at 698 (citing New York v. Belton, 453 U.S. 454, 458 (1981)).
 Mercer v. Raine, 443 So. 2d 944, 945-46 (Fla. 1983).
 Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
 Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855-56 (1982) (The presumption “rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence.”).
 Stephens, 748 So. 2d at 1033-34 (quoting Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976)); Guzman, 721 So. 2d at 1159.
 Wigley v. Hares, 82 So. 3d 932, 946 (Fla. 4th DCA 2011) (citing Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)).
 Savage-Hawk v. Premier Outdoor Products, Inc., 474 So. 2d 1242, 1244 (Fla. 2d DCA 1985); W. Shore Rest. Corp. v. Turk, 101 So. 2d 123, 126 (Fla. 1958).
 Smith v. State, 59 So. 3d 1107 (Fla. 2011) (Polston, J., dissenting) (quoting Anderson, 470 U.S. at 575) (“[O]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.”).
 Florida Office of the State Courts Administrator, Florida Trial Court Statistical Reference Guide, Circuit and County Civil Statistics for 2018-2019, https://www.flcourts.gov/Publications-Statistics/Statistics/Trial-Court-Statistical-Reference-Guide.
 Jim Ash, Courts Ask for $16 Million to Clear Pandemic Backlog, Fla. Bar News 1, 9 (Oct. 22, 2020).
 Jim Ash, Remote Hearings for Civil Cases May Be the Norm Going Forward, Fla. Bar News 1, 10 (Oct. 21, 2020).
 Richard A. Posner, Reflections on Judging 123-125 (Harvard Univ. Press 2013).
 See Silvestrone v. Edell, 721 So. 2d 1173, 1175 & n.2 (Fla. 1998) (explaining a judgment becomes final when time to appeal expires or appellate process is concluded); Salve Regina, 499 U.S. at 231 (independent review achieves “dual goals of doctrinal coherence and economy of judicial administration”); Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986) (“A trial judge is deprived of jurisdiction…by the sheer finality of the act….”); Kippy Corp. v. Colburn, 177 So. 2d 193, 196 (Fla. 1965) (an important aspect of the judicial process includes finality); Mary E. Adkins, The Unblinking Eye Turns to Appellate Law: Cameras in Trial Courtrooms and Their Effect on Appellate Law, 15 U.F. J. Tech. L. & Pol’y 65, 74-75, 83 (2010).
 Posner, Reflections on Judging at 123-125.
 Anderson, 470 U.S. at 574-75.
 Posner, Reflections on Judging at 123-125 (“[V]ideo may eventually provide useful supplements to a written record, efficient use of appellate court time requires the submission of a written transcript of trial proceedings.”).
 Fla. R. App. P. 9.200(a)(1) (emphasis added).
 See Fla. R. Jud. Admin. 2.530(a)-(d); Fla. R. App. P. 9.200; see, e.g., Olsten Health Servs., Inc. v. Cody, 979 So. 2d 1221, 1226 (Fla. 3d DCA 2008) (“Photographs are admissible if relevant to establish a material fact in the lawsuit.”).
 Fla. R. App. P. 9.200(a)(1); see Travieso v. Golden, 643 So. 2d 1134, 1136 (Fla. 4th DCA 1994) (“Appellant submitted nine videotapes of deposition testimony as part of the record without any accompanying transcripts. We note our disapproval” because “[t]he use of videotapes on appeal in lieu of a written transcript is not authorized by any rule.”); Matson v. Wilco Office Supply & Equip. Co., 541 So. 2d 767, 769 (Fla. 1st DCA 1989) (“When a videotaped deposition is played in the trial court, it is evidence adduced at trial. What the jury saw and heard should be made a part of the record on appeal…when a videotape is played in the trial court, the court reporter should not cease reporting but continue so that a stenographic record is made….”); Bei v. Harper, 475 So. 2d 912, 913-15 (Fla. 2d DCA 1985) (opining that any case in which an appeal may be had should be transcribed).
 Scott v. Harris, 550 U.S. 372, 379 (2007).
 Id. at 380.
 Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014) (“[J]ust like any other type of evidence, video is subject to conflicting interpretations.”).
 Wiggins v. Fla. Dep’t Hwy. Safety, 209 So. 3d 1165 (Fla. 2017); see also Brookie v. Winn-Dixie Stores, 213 So. 3d 1129 (Fla. 1st DCA 2017) (affirming trial court’s grant of summary judgment based upon a surveillance video that contradicted the plaintiff’s version of the accident).
 Wiggins, 209 So. 3d at 1172.
 Lopez v. Wilsonart, LLC, 275 So. 3d 831, 834 (Fla. 5th DCA 2019), rev. granted, 2019 WL 5188546 (Fla. 2019).
 Id.; Florida Supreme Court, Oral Argument Broadcasts and Ceremonial Sessions, https://www.floridasupremecourt.org/Oral-Arguments/Oral-Argument-Broadcasts. Oral argument was held on October 8, 2020. The court had not rendered a decision by the date of this article’s completion.
 In Wilsonart, LLC, et al. v. Lopez, Case No. SC19-1336 (Fla.) (The court asked the parties to address whether it should “adopt the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317…?”).
This column is submitted on behalf of the Appellate Practice Section, Christopher Dale Donovan, chair, and Heather Kolinsky, editor.