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Ninth Circuit readies for Central Florida’s first remote jury trial

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Judge Lisa Taylor MunyonNinth Judicial Circuit Judge Lisa Munyon is eager to conduct Central Florida’s first remote jury trial.

“I’m excited, it will be interesting to see if lawyers are interested, and it will be interesting to see how jurors will react,” she said. “I’ve gotten a lot of questions, but I’ve not gotten any volunteers yet — I’m hopeful.”

The clock began running May 21, when Chief Justice Charles Canady issued an order creating a pilot program that permits the use of remote technology for jury trials in up to five of Florida’s 20 judicial circuits.

Participation is voluntary and the pilot is limited to civil trials.

In addition to the Ninth Circuit, the Supreme Court’s COVID-19 Workgroup selected the Fourth, Seventh, 11th, and 20th circuits to participate in the pilot. The jurisdictions contain a mixture of urban and rural communities with varying levels of technological capability.

The pilot program does not specify the types of civil matters that can be tried remotely. However, under the original order, circuits were required to report results to the Office of State Courts Administrator no later than July 31, making time one of the biggest limiting factors, Judge Munyon said.

Chief Justice Canady has since extended the deadline to October 2.

In the Ninth Circuit, remote jury trials will be limited to two days of testimony.

“You’re not going to be able to do a three-week tobacco case remotely with this kind of pilot,” she said. “I’m hoping that we can do two or three cases in Orange County during the month of July, and maybe one or two in Osceola as well.”

The Ninth will use a “hybrid” model that combines in-person proceedings and remote technology.

Judge Munyon has already set in motion the process for summoning jurors, who will be given four weeks’ notice. The summonses will be the first issued by the Ninth Circuit since jury trials were suspended on March 13 to contain the spread of COVID-19.

Jury selection will be conducted in-person, but not in the same manner as before the pandemic, Judge Munyon said.

“We envision that the jury selection is going to take place in our assembly room, which is huge, which would allow them to really spread out, everybody will have a mask on, so that any exposure would be extremely limited,” Judge Munyon said.

Given the precautions, and use of remote technology, jurors shouldn’t be overly concerned about the risk of infection, Judge Munyon said.

Will a juror’s fear of COVID-19 be a valid excuse for refusing to serve?

“I guess it would depend on whether they are in a vulnerable population or not,” Judge Munyon said. “For that type of juror, this sort of trial would be perfect, because they are going to spend the bulk of the time at their own home.”

Once the jury is selected, jurors will be sent home to view testimony remotely. Jurors who lack a high-speed internet connection, or the proper equipment, will be offered a court computer and a dedicated space at the courthouse, Judge Munyon said.

When the testimony concludes, jurors will return to the courthouse to hear closing arguments and to deliberate in-person, Judge Munyon said. But every precaution will be taken, she said.

“When they come back for closing arguments, it’s our vision that rather than being in the traditional jury box, the jurors are going to be socially distanced in the gallery of the courtroom,” she said. “And then we are all going to leave the courtroom and let them deliberate in a room where it is large enough that nobody needs to get close to anyone else.”

Even if volunteer litigants step forward, Florida won’t be credited with the nation’s first remote jury trial. The National Center for State Courts awarded the distinction in May to Texas, where a one-day “summary” trial was conducted remotely in a Dallas suburb to help resolve an insurance dispute.

However, Munyon notes that the verdict in the Texas case was non-binding, and the proceeding was more akin to an alternative dispute resolution. Most of the Texas proceedings were closed to the public. The Ninth Circuit is determined to grant public access to the pilot proceedings, Judge Munyon said.

“We are still working out the logistics,” she said. “Certainly, in the Ninth, we have a lot of resources for putting things out on the web, and that is one of the things that we are going to be working on.”

If live streaming is not possible, a video recording may be posted after the trial, she said.

No platform has been designated, but Munyon has used Zoom for many civil proceedings during the pandemic, and it has capabilities, such as breakout rooms that accommodate side conferences, that work well for the courts. More than one platform will likely be used for the pilot program, she said.

One of the biggest challenges will be recruiting volunteer litigants, Judge Munyon said.

LaShawnda JacksonLaShawnda K. Jackson, president of the Orange County Bar Association, agrees.

“It’s not necessarily the lawyers, it’s the client side, that’s the big issue,” said Jackson, a partner with RumbergerKirk.

Remote jury trials may have to become more common before clients are comfortable with the idea, Jackson said. Clients may be less skittish after Florida courts reopen and the fallout from a backlog of cases starts to be felt more acutely, Jackson said.

“I think the deference is going to be given to criminal cases because of speedy trial,” she said. “And I believe that judges will probably be pulled from the civil bench to the criminal bench, leaving civil litigants hanging out there wondering when the next trial is going to be scheduled.”

Jackson said she has not yet had time to discuss the pilot with her clients.

“I may have a couple that I have in mind,” she said. “You’re going to save money, potentially, and you’re going to get your case resolved now, instead of waiting months to go to trial.”

Judge Munyon has been at the intersection of the legal profession and technology since she was first appointed to the Florida Courts Technology Commission in 2010, and became chair in 2012.

The commission doesn’t focus on remote technology for jury trials, Munyon said.

“Most of what we’ve dealt with is making sure that the branch has the technology that it needs to move into the future, and to make sure that our court records are accessible, not just to the judges electronically, but to the public.”

But she’s eager to take technology and the legal profession to the next level.

“This is a new era, I think this is exciting, and I am cautiously optimistic,” she said. “Will it be a success? Ask me at the end of July.”

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