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Lawyers involved in socially distanced jury trial cite the challenges

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Witnesses were separated by plexiglass shielding. All participants wore PPE and were temperature checked and required to fill out a questionnaire before entering the building. IT specialists abounded

Socially distanced jury trialCondensation was so thick on his face shield that navigating the Miami courtroom was sometimes treacherous.

Projecting his voice through a surgical mask eventually made breathing a chore.

“I was more or less fine with it, but I would find, that at the end of the afternoon, I was in ready to rip the thing off,” said Miami attorney Brandon Waas. “I’ve got to give a lot of credit to doctors.”

Opposing counsel Matthew Baldwin of Coral Gables also struggled with the PPE. But he said one the biggest challenges of trying a case in a socially distanced courtroom was balancing his laptop and binder on a four-inch handrail.

“I didn’t even have a desk,” Baldwin said. “Mr. Waas and I were sitting on the first row of the gallery.”

Both attorneys, volunteered — as did their clients — to participate in Florida’s first remote jury trial.

Waas and Baldwin pronounced the trial — which concluded July 14 with a non-binding verdict for the defense — a qualified success.

“The only reason that we were able to have the success that we did is that there was a veritable army in the background,” Baldwin said. “We had three judges and all their support staff all helping.”

The case, People’s Trust Insurance Company v. Yusem Corchero, et al., was tried before 11th Circuit Judge Beatrice Butchko.

Waas represented the plaintiff, People’s Trust. Baldwin represented the defendants, a South Florida couple whose home was damaged by Hurricane Irma in November 2017.

Also watching closely were the principle architects, 11th Circuit Chief Judge Bertila Soto and 11th Circuit Administrative Judge Jennifer Bailey.

The jurists spent months working with the court clerk, the local chapter of the American Board of Trial Advocates, information technology experts, court staff and a large contingent of doctors, epidemiologists, and infectious disease specialists to make the process work.

Chief Justice Charles Canady authorized a voluntary pilot program for remote jury trials, limited to civil disputes, in five of Florida’s 20 judicial circuits after the COVID-19 pandemic forced him to suspend jury trials in March.

Part of the goal is to find innovative ways to use technology that minimize the risk of exposure.

Waas said he agreed to participate after being approached by his ABOTA colleagues. He reached out to Baldwin, a frequent courtroom opponent whom he respects. Given the low stakes — it was a non-binding proceeding — both attorneys said they had little trouble convincing their clients to volunteer.

Baldwin said his client was eager to resolve the matter and trusted the elaborate planning.

“She wasn’t really bothered by the prospect of doing it, especially when the court made clear the number of precautions that were being taken,” he said.

The 11th Circuit designed a hybrid model for its pilot, one that mixed remote technology for jury selection with heavy use of social distancing, protective gear, and strict protocols.

Witnesses were separated by plexiglass shielding. All participants wore PPE and were temperature checked and required to fill out a questionnaire before entering the building. IT specialists abounded.

But there were tradeoffs — both attorneys said they had trouble reading the juror’s expressions behind the surgical masks.

“There were a lot of those practical difficulties, especially when you’re trying to look at somebody in the eye,” Baldwin said. “It takes away a lot of the trial lawyer’s instinct.”

Both attorneys said the remote jury selection was successful because it greatly reduced the number of people who had to come to the courthouse. But both attorneys found the technology limiting.

Waas said Zoom made it difficult to monitor the entire panel.

“If I’m looking at a jury panel in person, I can use my peripheral vision,” he said. “If I’m questioning one juror, I can see out of the corner of my eye if the juror two seats over is making faces, or shrugging their shoulders or rolling their eyes.”

Waas said one juror, who eventually became the foreman, looked very different in person than he did on Zoom.

“He was much more mature, much more well put together, well dressed,” he said. “I would have never thought that he would be the foreman.”

Both attorneys said the courts will face a major challenge trying to replicate the experiment on a larger scale. But both said they found the experience worthwhile.

“I’m just glad to have been able to play my part to try to help everyone get back to whatever sense of normalcy we can get back to,” Waas said.

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