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By: Stacey Bavafa
In March of 2020, the United States judicial court system experienced an unprecedented disruption when most courts decided to close their doors and suspend jury trials due to the COVID-19 pandemic. Now, approximately 6 months into the pandemic, California courts have yet to resume in-person civil jury trials.
One can say that the use of technology during the coronavirus pandemic has had a positive impact on the legal community and brought an ancient, prestigious profession up to speed in 2020. With more attorneys leaning towards Zoom conferences in order to conduct client interviews, depositions, and even attend court mandated conferences and hearings, lawyers are saving time and money for their firms and the clients who hire them.
But what about when it comes to conducting a “virtual” civil jury trial? At first glance, a virtual trial seems more convenient to all involved. Jurors, witnesses, parties to a lawsuit, and their attorneys can merely sign on from the comfort of their homes instead of being burdened by the need to travel, find parking, and wait in long security lines to enter the courthouse. This is especially of benefit to defense attorneys who no longer have to worry about sympathetic jurors seeing a plaintiff exaggerate a limp while walking in courthouse hallways.
Additionally, with a virtual trial, attorneys can shorten their presentation of the evidence by using catchy sound bites throughout to keep the attention of the virtual jurors who are tuning in from their homes.
However, when looked at in greater detail, it becomes apparent that a remote jury trial actually imposes an array of challenges that may be of detriment to defense attorneys and their clients alike.
For starters, there are a host of technological issues that are inevitable. First, there’s the issue of ensuring that all witnesses, parties, and jurors have access to a computer and high-speed internet.
Then come the inescapable technical video and audio issues associated with a remote jury trial. Video can be choppy, delayed and distorted. A juror’s evaluation of a witness or party to a case may be affected by how the individual is framed in the video stream. Bad lighting or a poor camera angle can also affect the presentation of evidence. An accidentally muted microphone or a delayed audio feed also diminishes a juror’s ability to analyze the testimony being presented.
Aside from the technical complications, there is also the issue of the court’s inability to maintain and manage decorum in a “virtual courtroom.” Generally, courtroom staff and judges work together to safeguard a trial from outside world distractions. For example, jurors are told to turn off their cellphones prior to entering the courtroom and are told not to discuss the case with anyone until its completion.
The management and control of virtual jurors is almost impossible. There is no way to ensure that remote jurors are present, alone, and attentive throughout all aspects of the remote trial. There is no way to ascertain remote jurors are in an isolated environment by themselves, or whether there are other individuals present, off-camera, that are tuning into the trial testimony. It is also much easier for remote jurors to use their cellphone to send texts or scroll through social media in a remote setting than if they were within the confines of a courtroom.
Since no one knows the trajectory of the coronavirus and when traditional jury trials will resume, trial attorneys need to think of creative and alternative approaches that do not impose the challenges of a virtual jury trial, all while keeping their client’s best interest in mind.
In the face of the pandemic, alternative dispute resolution (“ADR”) appears to be the most viable method for the resolution of civil disputes. “Virtual ADR”, such as remote mediations or arbitrations, allow cases to be resolved expeditiously and in a far more cost-effective manner.
Another option would be for attorneys to opt for bench trials in lieu of a traditional jury trial. Considering how backlogged the court dockets are, a bench trial will allow parties to present their case before a judge and obtain a resolution in a shorter duration than a traditional jury trial. Bench trials are extremely beneficial in cases involving complex legal issues because a judge is better able to decipher the facts of the case than a jury who may confuse the issues and legal concepts. Furthermore, bench trials may result in a more pragmatic award compared to an award determined by a traditional jury.
While it is difficult to predict the long-term effects of the coronavirus on the civil justice system, what is certain are the lessons members of the legal community have drawn and will continue to draw from this experience. One being that the alternative route to a traditional jury trial, by way of alternative dispute resolution or a bench trial, appears to be the more practical approach to pushing litigated files to resolution as opposed to the idea of the “virtual jury trial.” However, attorneys must prepare themselves. If the COVID-19 pandemic continues, many courts and attorneys may inevitably be forced to embrace the idea of the virtual jury trial.
If you have questions or would like more information, please contact Stacey Bavafa at [email protected].