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ABOTA’s Chester: ‘Ponder the ethical implications’ of refusing to participate in remote jury trials

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Mitchell Chester

Mitchell Chester

Citing the likelihood that COVID-19 will be a threat for the foreseeable future — and Rule 3.2 of the ABA Model Rules of Professional Conduct — a South Florida lawyer is urging Bar members to consider the “ethical implications” of refusing to participate in remote jury trials.

“Now is a good time to ponder the ethical implications of failing to include virtual jury trials in the list of powerful advocacy tools available as the pandemic and its consequences rage on,” writes attorney Mitchell Chester of Davie.

Chester’s recent article, “Confronting the Accelerated Shock of COVID-19 with Virtual Jury Trials: The Ethical Implications,” is being circulated nationally by the Civil Jury Project, an arm of the New York University School of Law.

In the article, Chester notes that ABA Model Rule 3.2, which is nearly identical to Florida Bar Rule 4-3.2 Expediting Litigation, states, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

In a January 4 interview, Chester argued that despite the recent rollout of vaccines, the courts will be dealing with a back log of cases for the foreseeable future.

Prospective jurors won’t lose their fear of COVID-19 easily, and dockets will continue to swell as the need for social distancing severely restricts the ability to conduct in-person jury trials, Chester said.

“It’s like a water hose that has a kink in it, and it’s causing a bulge that is going to explode,” he said. “With all these cases, we have to relieve the pressure on the system.”

Remote jury trials conducted in the 17th, 11th, and Fourth circuits prove the technology works, Chester said.

“Not only are we being more efficient for our clients, reducing legal fees, but for those that are on the billable hour, they can just put more things into their calendar than they could if they were driving around on this race track that we call I-95,” Chester said.

Chester, fellow members of ABOTA Ft. Lauderdale, and 17th Circuit Chief Judge Jack Tuter have been working with the Civil Jury Project to promote greater use of remote technology to speed the resolution of cases.

Judge Tuter was one of three prominent South Florida judges who appeared in an ABOTA Ft. Lauderdale webinar in November to urge lawyers to reconsider their objection to using remote technology for jury selection or jury trials.

“We can’t let this pandemic stop justice and stop our country from functioning,” said 11th Circuit Administrative Judge Beatrice Butchko. “We’re desperate to try cases, we are trial judges, and you guys are trial lawyers, so please . . . consider jury selection on Zoom.”

Judge Tuter warned that if the health crisis lingers much longer, Florida could follow the lead of the Illinois Supreme Court and require the use of remote jury selection.

A November 3, 2020, Illinois Supreme Court order mandated that all parties must consent to remote jury selection, “unless the judge finds, after weighing the factors of public safety and the parties’ right to access to justice, that the case presents a compelling circumstance to proceed with remote jury selection absent parties’ consent.”

In his article, Chester proposes that lawyers be required to obtain a client waiver or consent to a remote jury trial. The article links to a model form that explains the advantages and drawbacks.

“In cases where one, some, or all of the parties have demanded their Seventh Amendment rights to a civil jury trial, attorneys should be required, during the pandemic, to certify to the court that they have at least discussed the virtual option with their respective clients,” Chester wrote.

If parties agree to proceed with a remote jury trial, Chester recommends that they enter a joint stipulation “to provide the court with specified technical details to assist the Judge and Clerk.” The article also links to a proposed joint stipulation.

ABOTA Ft. Lauderdale developed the model forms with the help of the 17th Circuit, Chester said.

“It’s a check list, and all they have to do is discuss it with their clients, and then say, we agree, or we disagree, and then date it and everybody signs,” Chester said. “And then the judge says, in their division instructions, if you don’t want to do this, then you’re going to have to . . . certify to us that you’ve done this.”

Chester considers Judge Tuter a visionary when it comes to adapting remote technology to the legal profession.

“He really is probably the nation’s leader in helping people understand what can be done with remote jury trials,” Chester said.

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