Texas Lawyers Not Keen On Virtual Jury Trials, Survey Finds

By Daniel Siegal
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Law360 (August 20, 2020, 10:28 PM EDT) -- Fewer than 20% of Texas lawyers are ready to conduct a remote jury trial, according to nearly 2,800 lawyers' responses to a wide-ranging survey conducted by the Texas Office of Court Administration.

The survey, the results of which were provided to Law360 on Thursday, reached over 3,700 attorneys across the Lone Star State and asked a range of questions about the use of teleconferencing technology for court proceedings. Roughly 2,800 attorneys responded to the question asking if they would be open to "any portion of a jury trial being conducted through a virtual platform," with 18% saying "yes," 57% saying "no" and 24% saying "maybe."

Of 2,456 attorneys who answered a follow-up question about whether they'd be willing to try portions of a jury trial remotely, 33% said they would do a remote juror qualification and 23% said they would do a remote jury selection. Only 15% were interested in parties appearing remotely and fractionally fewer were on board with jurors appearing remotely.

That doesn't mean the surveyed attorneys are looking to head back into the courtroom right now, as only 13% of 2,782 attorneys said in-person jury trials should resume this summer.

Just 22% of surveyed lawyers voted for in-person jury trials to resume in the fall, while another 24% said the proceedings should return in early 2021. The largest slice of respondents, 31%, chose "after a vaccine is widely available."

The top concerns about conducting a jury trial during the pandemic were the health and safety of trial participants and the ability to judge the credibility of witnesses who are wearing a face covering, with 82% and 78% of attorneys respectively selecting those options.

The 3,744 total attorneys surveyed reported practicing all over the state, with the largest portion, 21%, hailing from Harris County, which includes Houston. Dallas County drew 15% of responses and Travis County, home of Austin, saw 8%.

Civil attorneys made up 42% of the respondents, while 23% were criminal attorneys and 20% were family law attorneys. Appellate, probate, juvenile and "other" lawyers made up the remainder.

The Office of Court Administration did not say exactly when the survey had been conducted or what the office plans to use the data for.

The survey results do, however, contain thousands of custom responses submitted by attorneys on dates in mid-June responding to some of the questions. The attorneys' names are not listed in the results.

When asked for further feedback on remote hearings since March 30, attorneys offered a range of responses, from asking for more guidance on criminal cases to saying judges were providing good information about how to conduct virtual hearings.

Certain attorneys raised bigger concerns, however, with one comment saying the attorney has a young child who is at a high risk if she is exposed to COVID-19, and that the attorney is concerned the courts will not take this into consideration.

"As much as I hate to say it as a trial lawyer, I am concerned that a jury trial could endanger my child," the attorney wrote. "I am concerned that I will have to choose between my child and my career."

Another attorney wrote about having "a Judge that thinks we should be having in person hearings and that COVID-19 is like the flu."

And over 900 attorneys left responses about problems they have had during remote hearings in the pandemic, including comments such as "the judge and court reporter could not hear me on Zoom" or that some attorneys were not able to connect to the hearing.

The Office of Court Administration released the survey results a day after what was supposed to be Texas' first remote civil jury trial fell flat.

The proceeding in the 57th Civil District ended up being a dry-run for the jurors that Zoomed in, as the San Antonio court could not find parties willing to volunteer their case.

Judge Antonia "Toni" Arteaga told Law360 on Thursday that she swore in the jurors via Zoom but then told them they would be coming back on Sept. 21 for the actual trial — by which time she hopes the court will be able to find a suitable civil case.

Judge Arteaga said that although the court is hoping to find parties that agree to try the case to a binding verdict, the committee overseeing the trial is now willing to consider holding a trial to a nonbinding verdict in hopes of enticing some attorneys or their clients to take the plunge.

The judge said that two different possible cases were selected and that planning was underway when the proposed participants decided not to go forward. She said that attorneys had told her they wanted to try out the remote trial — but only if she mandated it via court order, because they were worried about possibly being the subject of a grievance or complaint after the fact. Judge Arteaga said this wasn't a step the court was considering yet.

Judge Arteaga said that the court is seeking a case with "two strong litigators" with "at least a very basic understanding of Zoom," and a case that can be tried in less than a week.

She said she was reenergized to find a case to try after seeing the positive attitudes of the jurors who appeared remotely on Wednesday.

"We have a full month to get the San Antonio bar more comfortable with Zoom," she said.

--Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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