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Justice Couriel urges ‘flexibility’ in dealing with the pandemic

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Justice Couriel

Justice John Couriel

Calling a lack of jury trials an unwelcome “surprise” of COVID-19, Justice John Couriel recently urged South Florida trial lawyers to “consider and capitalize upon what we did not expect.”

Through the “special aging influence of trial preparation,” trial lawyers are “the masters” of the unexpected, Justice Couriel said.

“Trial lawyers prepare to avoid certain surprises that are avoidable, but also, and really more importantly, to make the most of surprises that aren’t,” he said.

In a January 15 keynote address to ABOTA Ft. Lauderdale’s annual awards ceremony, Justice Couriel praised the chapter for working with 17th Circuit Chief Judge Jack Tuter — a champion of remote technology — to implement a “flexible” response to the crisis.

“In this trying year, I give a lot of credit to people who, like Chief Judge Tuter and Chief Justice [Charles] Canady, have attended to the needs of litigants, and reacted with careful preparation and flexibility,” he said.

A former federal prosecutor in the Southern District of Florida, Justice Couriel is the second-newest member of the court. The son of Cuban immigrants and a native Spanish speaker, Justice Couriel earned his A.B. magna cum laude from Harvard in 2000, and his J.D. from Harvard in 2003. Gov. Ron DeSantis appointed him on June 1, 2020.

Referring to “tactics that we’ve been forced to develop,” Justice Couriel predicted that the courts will “retain some of those” after vaccines and new treatments bring COVID-19 “into a more manageable balance with life as we used to know it.”

“So, if a deposition, or scheduling conference, or even meatier contested proceeding can, with the parties’ consent, be conducted without travel, I expect we’ll see lawyers at least wanting to explore the permanent feasibility of those alternatives.”

In an ABOTA Ft. Lauderdale webinar earlier this year, Judge Tuter and his counterparts from the 11th and 15th circuits urged South Florida trial lawyers to reconsider their objection to remote jury trials, or remote jury selection.

During the same webinar, Judge Tuter warned that if the pandemic lingers much longer, Florida could follow the lead of the Illinois Supreme Court, which recently gave judges the authority to mandate remote jury selection under certain circumstances.

Couriel opened his remarks by congratulating 17th Circuit Administrative Judge Lisa-Carol Phillips, and ABOTA Ft. Lauderdale member Mitchell Chester, who were being honored as judge and trial lawyer of the year, respectively.

Judge Phillips praised “our chief for standing tall” when the pandemic struck, and recounted how she and her fellow judges adopted telephone conferencing, and then Zoom videoconferences, to avoid missing a single scheduled hearing.

“I’m so honored and humble to be here, and I’m so honored and humbled to receive this award,” she said. “I stand on the shoulders of my wonderful colleagues…they were immediately agreeable and stood up to the challenge.”

In his acceptance speech, Chester described how he and fellow chapter members worked with Judge Tuter, other judges, and 17th Circuit IT manager Orlando Garcia to develop procedures for remote proceedings, including virtual jury trials.

Chester recounted how Judge Tuter, early in the pandemic, contacted Zoom CEO Eric Yuan and convinced him to modify the video conferencing platform so that participants in legal proceedings could control the order of on-screen “tiles” that depict individual speakers.

“The jury trial is a fabric of society, it holds us together,” Chester said. “We can’t let it be diminished by COVID or anything else.”

Bar leaders have recently been building on the Zoom relationship.

Florida Bar Board Technology Committee Chair Jay Kim, who represents the 17th Circuit, recently reported that the Bar is in negotiations with Zoom to add more lawyer-friendly features. The committee first solicited suggestions from other Bar members.

Chester recently wrote an article, “Confronting the Accelerated Shock of COVID-19 with Virtual Jury Trials: The Ethical Implications,” that argues lawyers have an ethical responsibility to consider remote jury trials during the pandemic.

The article was circulated nationally by the Civil Jury Project, an arm of the New York University School of Law. Mark Drummond, a retired New York judge who serves as executive and judicial director of the Civil Jury Project, attended the awards ceremony.

Also logging in to the virtual ceremony was a throng of South Florida’s judges and trial lawyers, including Florida Bar board member Diana Santa Maria, a former ABOTA Ft. Lauderdale president, and newly installed ABOTA National president, Grace Weatherly.

In his farewell speech, outgoing ABOTA Ft. Lauderdale president Jeffrey Adelman called his year at the helm, “the honor of my professional career.”

“We’re going to keep pushing for virtual trials and remote proceedings, because of the consequences of not doing so will hurt our clients,” he said.

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