Florida lawyers intrigued by the prospect of remote jury trials
Facing a pandemic with no easily discernible end, Chief Justice Charles Canady has authorized the use of remote technology in civil jury trials.
Bar leaders are fascinated, but also see challenges that will need to be overcome.
In a May 21 order, the chief justice calls for a pilot program “to establish the framework and identify the logistics of trying cases remotely.”
The pilot program is limited to civil cases and will be authorized in only up to five of the state’s 20 judicial circuits.
AOSC20-31 reads, in part: “…the selection of case(s) by the circuits should be based upon the case being conducive to a remote proceeding, and all parties must consent to participate in the pilot program.”
A special COVID-19 workgroup that the chief justice appointed in April will select the circuits and develop requirements. Circuits must report their findings and recommendations to the State Courts Administrator no later than July 31.
In a May 15 address to the Board of Governors, Chief Justice Canady acknowledged that concern has been growing since the pandemic forced him to suspend jury trials in a March 13 order.
“I recognize that a lot of things can’t get decided until we have jury trials,” he said. “Even things that aren’t going to actually go to trial won’t get determined until there is an immediate prospect of a jury trial…that’s just the way our system works.”
The chief justice told board members that it was too early to predict when the suspension will be lifted, and that he wants to be certain that the courts are prepared if there is a resurgence of the virus after COVID-19 cases level off.
On the same day he authorized the pilot program, the chief justice ordered courts to begin implementing the workgroup’s comprehensive recommendations for preparing to transition to “Phase 2” of reopening.
Murray Silverstein, a member of the Florida Courts Technology Commission, said remote technology has worked well in his commercial litigation practice.
“We have mostly bench trials, which should continue to go well based on having had several hearings remotely (some evidentiary) via Zoom over the last two months,” he said. “The enhanced benefits of technology actually make these non-jury proceedings more productive.”
But when it comes to jury trials, Silverstein sees more challenges.
The added expense and effort of connecting with jurors remotely would make settling more attractive to plaintiffs, Silverstein predicts.
“From a defendant’s perspective, I’d see the same difficulties, and would worry that the ‘remoteness’ would lessen a juror’s reluctance to punish an otherwise nameless/faceless corporation — meaning a company would get whacked with even more impunity.”
Keeping jurors focused would be a bigger challenge in a virtual setting, Silverstein predicts, regardless of whether they are socially distanced in a large room or are participating from remote locations.
“If they’re using tablets or desktop computers, they may be tempted to scroll to the other sites, or attempt to multi-task,” he said. “Whereas, when sitting in the jury box in the public forum of a courtroom, there’s a greater incentive (and pressure) to pay attention.”
Jacksonville attorney Jacob “Jay” Brown, chair of the Business Law Section, mostly sees potential in remote jury trials. The COVID-19 pandemic is likely to create an avalanche of business disputes, and the courts may need every tool at their disposal, Brown said.
“It’s great to see the courts trying to be proactive and trying to find solutions,” he said. “I think we have to be looking at all kinds of different solutions, not just for this pandemic, but it may be helpful in the future.”
Brown cautions that remote jury trials “might not be a good fit in every single case,” but “for a civil bench trial, for sure, or relatively simple civil jury trials, this may be a very viable solution.”
Brown participated in a recent bankruptcy proceeding in which some witnesses and attorneys appeared remotely from London, Chicago, and Luxembourg, saving thousands of dollars in travel expenses.
“There’s all kinds of items surrounding a trial, you have witnesses coming from long distances, logistics can be difficult, and being able to do something virtual may be viable in certain circumstances,” he said, adding, “I do like that it’s voluntary and I hope that some people are able to use it, and that it comes across as a successful alternative,” Brown said.
When it comes to virtual jury trials, veteran Board of Governors member Wayne Smith, a Key West attorney who represents the 16th Circuit, sees potential challenges.
“I’ve tried cases my whole career in a courtroom and I’m both fascinated and I’m concerned,” he said.
Smith said he was expecting Florida to experiment after he read about a Texas jury trial that was conducted remotely.
A so-called “summary” trial, a non-binding, one-day civil procedure, was conducted May 18 in Collin County, a Dallas suburb, according to the AP. The National Center for State Courts labeled it the first remote jury trial in the nation.
The trial centered on a disputed insurance claim and was conducted to give the parties more information before deciding to settle or go to trial.
In the Texas case, potential jurors appeared from their homes via laptops, iPhones, and tablets. For deliberations, jurors were divided into two groups of six and put into separate virtual rooms, where they could speak privately and review evidence in Dropbox folders.
Participants gave the process generally high marks, but also expressed a reluctance to use remote jury trials for criminal cases.
Smith sees several potential challenges.
When he participated in a recent practice session for oral arguments before the Supreme Court, there were a “surprising number” of technical glitches, Smith said, adding that they were eventually ironed out.
He also participated in a virtual deposition that didn’t go as smoothly as everyone had hoped.
“The person taking the deposition, or doing the initial questioning, didn’t want to provide the exhibits to all of the participants in advance, I think, because he wanted to get some element of surprise,” Smith said. “And that was really cumbersome and difficult, so there are some limitations on the technology.”
Smith said “two-dimensional” technology may not give jurors the full picture, Smith said.
“Traditionally, it’s incredibly important for decision makers, in the case of a jury trial, the jurors, to have the opportunity to not only get the testimony of a witness, but to experience the witnesses’ entire presentation of their testimony, their demeanor, their facial expressions,” he said.
Smith said mediations via videoconference don’t seem to be as productive.
“My own experience in the last couple of months is that it’s harder to get a case settled when we’re not all in the same building with the opportunity, if necessary, for a couple of lawyers to go out in the hallway to do some horse trading,” he said.
Smith stressed that it’s too soon to know whether remote mediations are less successful, and he’s eager to see the results of any studies.
Criminal Law Section Chair Jennifer Zedalis, a University of Florida law professor, gives the chief justice high marks for his willingness to experiment.
“We have to think outside the box, we can’t just hunker down,” she said. “Absolutely I give him credit.”
But Zedalis is also concerned about a juror’s ability to gauge witness demeanor, or how a court will gauge a juror’s proficiency with videoconferencing platforms.
“When you go to pick a jury, I don’t usually look for their technology qualifications,” she said.
Zedalis also wonders how clients will be able to confer with their attorneys during the trial, or how well an expert will be able to present and explain evidence.
“Lots of times, they use charts, they use diagrams, they use physical items,” she said.
Zedalis participated in a recent ABA seminar, “From Jury Summons to Jury Trials: Preparing for the Return of Juries to Courthouses During COVID-19.”
After hearing a federal judge in Texas describe his district’s plans to resume in-person jury trials in June, with the use of protective equipment and social distancing, Zedalis wonders if the experiment is necessary.
Jury trials are key to a judicial system that sets the United States apart from any other country, Zedalis said.
“My title is director of trial practice, so I’m biased,” she said. “But there’s a reason why I devoted my entire professional life to this kind of law practice, and teaching it, because it’s precious to our democracy.”
Despite his concerns, Smith said he’s excited by the prospect of remote jury trials.
“As a kid who wouldn’t miss an episode of the ‘Jetsons’ when I was a boy, it’s all very exciting to see it coming to fruition — real, and in the hour of my lifetime.”