COVID-19 Pandemic Recovery Task Force asked to promote remote jury selection
The Florida Bar should promote remote jury selection as a potential tool for easing the backlog of cases that has been building since March.
That’s the advice Fourth Judicial Circuit Judge Bruce Anderson gave the COVID-19 Pandemic Recovery Task Force at an October 5 meeting.
“Some people are very resistant to change,” Judge Anderson said. “Where the Bar could probably provide the most help is to be willing and open to have the discussions begin.”
Anderson described the Fourth Circuit’s remote jury trial pilot program that Chief Justice Charles Canady authorized in five circuits in May. After two months of planning and more than six mock trials, Judge Anderson in August presided over Florida’s first fully remote, binding civil jury trial.
“We came a long way in a very short period of time,” Judge Anderson said.
The trial featured a single plaintiff’s attorney — the defense opted not to participate — and a jury that was asked to award damages to a Jacksonville woman who was badly beaten by two nightclub bouncers in 2018.
Anderson presided over a second remote jury trial, involving a more complex business dispute, that concluded October 1.
Judge Anderson said he was worried at first that remote jury selection would resemble a bad rerun of the “Brady Bunch” or devolve into a “Zoom happy hour.”
But he said his court IT team designed a virtual courtroom background that dignified the proceedings, and the trials, although not completely glitch-free, were a resounding success.
Chair Michael Tanner told Judge Anderson that the task force was studying potential recommendations for easing the backlog of cases.
“Is it feasible to conduct a [remote] jury trial in a way that is scalable to the number of cases that are set for jury trials,” Tanner asked.
“It depends on the [available] resources,” Judge Anderson said.
Judge Anderson is recommending the use of “hybrid” trials similar to one the 11th Circuit conducted in July that blended remote jury selection with the use of social distancing and protective gear for in-person proceedings.
In its report to the Supreme Court, the 11th Circuit estimated that its hybrid trial required the work of more than 40 personnel.
But Judge Anderson said he could save money by training “civilians” to replace the court IT technicians who were designated “remote bailiffs” in his pilot. The remote bailiffs served as gatekeepers for the videoconferencing platform and as a communication link between jurors and the court. An ABOTA volunteer was also assigned by the court to serve as a special master.
Remote jury selection has drawbacks, Judge Anderson acknowledged, but the advantages can’t be ignored during a pandemic.
“We had a very positive spirit among the jurors…they can take care of their pets, they can take care of their kids, their laundry, they can put a pot roast in the oven,” Judge Anderson said. “I think they were more candid in their responses because they were at home. There are many positives.”
Remote jury selection dramatically reduces courthouse pedestrian traffic, Judge Anderson said, and it would allow judges to set more trial dates.
“If it’s ordered, and they know it’s going to be ordered, we’re going to have lots of cases settle,” Judge Anderson said.
Tanner said the task force would work with Judge Anderson. Tanner offered to post videos of the Fourth Circuit’s remote jury trials on the Bar’s newly redesigned COVID-19 Information and Resources website.
Tanner noted that the website, one of the task force’s first projects, is updated daily, sometimes hourly, with the latest pandemic-related health news, court orders, employment opportunities, and other important information.
Meanwhile, the task force will wait for the Supreme Court to review reports from the pilot programs before deciding whether to act on a series of proposed rule changes the Fourth Circuit is recommending accommodating remote trials.
In other action, Board Technology Committee Chair Jay Kim updated the task force on a series of projects that are designed to help Bar members deal with the pandemic.
“We’re moving with all deliberate speed,” Kim said.
Kim said a subcommittee is close to completing a series of guidelines or best practices for using remote technology in legal proceedings.
The committee is conducting a survey to determine which features lawyers would like to see added to videoconferencing platforms, such as MS Teams or Zoom, that would better serve the legal profession, Kim said.
The committee is considering the development of a technology hotline for lawyers, Kim said.
After studying the potential ethical challenges that lawyers face when their clients communicate with them via free email services, the committee has decided not to seek a Bar ethics opinion, Kim said.
In other action, the panel accepted a report from task force member Jacob “Jay” Brown, titled, “Future Issues Facing the Legal Profession.”
The report is a compilation of recent articles from legal experts who explore the pandemic’s impact on the profession and future trends.
“Attorneys must be able to embrace the current quickly evolving circumstances surrounding practicing law during COVID-19,” the report states. “While much is still unknown about the future, is it possible that America never returns to pre-COVID-19 normalcy.”
The report touches on everything from the importance of IT security and changing law firm culture to legal market trends.
“In anticipation of defaults, forbearances, and alterations of short-term payment plans, business owners are likely to ramp up collection efforts,” the report states. “This means that some law firms can expect to see an uptick in non-compete litigation as laid off or furloughed professionals are seeking out new employment opportunities like startups, similar to what was seen after the 2008 recession.”
As the task force turns its attention to a post-pandemic future, Brown suggested that the panel consider hiring a consultant to conduct a seminar on “design-thinking.”
“To me the future of practicing law, and how The Florida Bar might respond to that,” are subjects that deserve a more creative approach, Brown said.
“I think it has a lot of merit,” Tanner said. “I think it’s something we should explore.”
Tanner assigned Brown to research the potential cost.