Law360 (November 20, 2020, 8:11 PM EST) -- It was something many lawyers predicted at the start of the pandemic would never happen: a federal civil jury trial conducted live over the internet, with the judge, the lawyers and the members of the jury all in different locations.
Judge Marsha Pechman
U.S. District Judge Marsha Pechman presided over two of those trials, one in which a former FedEx Freight employee won damages against the shipping company and one where insurer Integon was ordered to pay nearly $1 million to a policyholder. A different judge presided over the first trial, which ended in early October and saw an elderly cruise ship passenger awarded $1.3 million over a fall.
The district's fourth Zoom jury trial, an excessive-force case against the Tacoma Police Department that is expected to take several weeks, is scheduled to start Nov. 23.
The ability to conduct remote trials seems more urgent now than at any earlier point in the pandemic, as many courts that attempted to reopen over the summer are now closing again in the face of a fearsome third wave of COVID-19 and some courts that stayed open find they have outbreaks on their hands. One, in the Eastern District of Texas, saw a major coronavirus outbreak this month that sickened more than a dozen people and forced a mistrial.
In a conversation with Law360, Judge Pechman emphasized just how meticulous and iterative the work was to get jury trials in her district online. Steps were tried, then tested, discussed and tried again in a process that seemed in some respects to echo the process of software development and validation during the long journey of building the district's now-proven system for trying cases remotely.
This interview has been edited for length and clarity.
Starting broadly, how did your district become what appears to be the first federal court that embraced doing online Zoom jury trials?
What happened in June is I had a bench trial that I thought could be pulled off with a remote trial. We were using the WebEx platform at that time, and the parties said that they were game. So I basically took the testimony, heard the arguments, got the exhibits, and I decided this bench trial.
That basically caused the chief judge in our district, Judge [Ricardo] Martinez, to ask if I would chair a committee that would put together a handbook for doing Zoom bench trials. The handbook would be a handbook for attorneys, but it would be on our public website. And there would be another handbook internally for judges, court staff, of how you would do it, click by click.
I pulled together a committee and we worked on our bench handbook. But it soon became obvious, after we got our bench handbook done, we asked ourselves, "Is there a way we can expand this to jury trials?"
What preparations did you make for the first jury trial?
We knew some of the state courts were experimenting with this. We looked at Florida, who had run a pilot project.
One of the first things was to make a committee. We had IT people. We had courtroom deputies. We had the jury coordinator. We had a magistrate judge. And I chaired the committee.
We started to look at [jury matters]. We have a very large district. We draw people from long distances. Literally some of our jurors come in by train, plane, boat from the islands. And we said, "Is this conceivable that we could get a representative jury if we invited them via Zoom?"
We sent out a questionnaire to 600 potential jurors. We asked them questions about whether they could participate remotely, whether they would be willing to come into the courthouse. We found that the vast majority of jurors did not want to come into the courthouse, travel that far and potentially spend the night overnight to participate.
We started to think about ways to ensure that people could participate, that we wouldn't get a skewed pool and get only those people who were wealthy enough to have the equipment to participate, or because of generational issues.
We asked the question of potential jurors, "Would you participate with us by coming in one day to get the court's equipment or check out the court's equipment and participate in an educational session?" And [we would] let them take the equipment home so they could participate. That's one solution to how we could ensure that everybody who wanted to participate could participate.
The next thing we did is we went through multiple drafts of the order that would serve as a template for all of the things that we thought lawyers needed to do and prepare for in order to put on a Zoom trial.
After we went through that process, we looked for a prototype case. Judge [Thomas] Zilly in my district had an easy-fact-pattern case that we decided that we would use as a mock trial. The lawyers agreed to put on an abbreviated version of their trial, and we actually paid jurors to come in and listen to the trial and debrief with us about things we needed to do in order to make this a good process. That resulted in us putting together protocols. Then Judge Zilly actually tried the real trial.
We also worked on an orientation for our jurors, and we worked on putting together an educational program so that everybody could understand how to use Zoom, how they would move into the virtual jury room, how to log on, all of those things.
Since that time, I've tried two jury trials, both to conclusion. We've debriefed the jurors in both, as well as the lawyers. And much to my amazement, it's gone quite well.
I'm about to go into my third jury trial. It's a three-week excessive-force case against Tacoma police.
Was there anything during the first or even second trial where you were in the trial and realized, "Oh my gosh, we didn't plan for that"?
One of the things that we didn't think about until really the very end was the verdict form. Because the jurors are deliberating in their own virtual room, we needed to have a fillable verdict form so they could answer it online and then transmit it to the judge. So that was one of the things that came about a little last minute, thinking about, "Oh my gosh, how do we get the answer back from the jury?"
Zoom actually has some very nice features to facilitate trial functions. For example, I allow jurors to ask witnesses questions. Zoom's chat feature allows the jurors to basically write questions that I review with the lawyers. We have a record of all the questions that came in, and we have a record in real time that shows what questions were actually asked.
What lessons did you learn from the first trial?
I think it's still important for the judge to have paper documents because sometimes you need to review the document itself before it's shown to the jury. And the monitor is taken up with watching the jury.
The other thing that quite surprised me is how attentive all the jurors were. People were saying, "Oh, they're going to be sleeping in their beds. They're not going to be paying attention." Well, I actually have a better view of them on Zoom [than in court] because they're face-on. And our courtroom deputies were watching them to make sure nobody's left their position, nobody's off doing video games.
I think that perhaps the best lesson learned is that when you have problems or glitches technologically, it takes some time and patience to work them out. But I actually kept a record of how much time we lost with that sort of problem, and it really is not more than you lose with somebody missing their bus or can't get through security or walking the jury into and out of the jury room if you have to have a bench consultation.
Perhaps the most surprising thing for me is I spent 32 years trying to evaluate witnesses by looking at the side of their head. With a virtual trial, I'm shocked to see them face-on.
Can you talk a little bit more about making sure a Zoom jury is representative of the community in the same way a live one would be?
I know that Judge Zilly felt in his trial that he got a jury that looked very much like one that we would normally have. We were worried we would be cutting off a generation from participating, or we would be cutting off minorities, or people who fell below a certain poverty level, because they wouldn't have the equipment. That has not been the case.
My second trial, I actually had a bigger representation of minorities on my jury than I usually do, and part of it is because we've made it easy for people to participate. They don't have to drive from Bellingham, Washington, to come to court and spend the night, or drive an hour and a half in traffic, or run the risk of being exposed to COVID.
You are now the most experienced federal judge in the nation when it comes to Zoom jury trials, and I would imagine people would be breaking down your door for advice. Is that so?
Various districts have contacted our clerk of court, Bill McCool, and he's distributed to them our handbooks. We have one judge in Arizona who's actually volunteered to take a case of mine. My courtroom deputy is actually sitting here and running the case for the judge in Arizona. I assume that the more publicity we get about it, the more people will be asking. I know that the Administrative Office of the Courts has contacted me. And I am going to give a talk to the Federal Bar Association Dec 9.
Let's say theoretically, and depressingly, the pandemic went on for another year the way it is now. Would you be an advocate for starting to use Zoom in criminal jury trials as well?
Well, of course, on the criminal side, you have to deal with constitutional provisions of right to confrontation, and that's something that we don't deal with on the civil side. And we don't have any guidance. There's no law out there about this. So before judges are going to be comfortable doing that, it's going to take some brave soul to say, "I'm going to try it. Let it go up and let the court of appeals tell us whether the circumstances of COVID have justified this methodology and whether that methodology satisfies that need for confrontation."
And of course the other question begging to be asked is: After the pandemic hopefully is well controlled and it's safe to do in-person trials again, would you be in favor of still continuing to do some trials over Zoom?
I think there are certainly going to be some trials that will be more efficient, that witnesses from all over the world will be able to testify without great expense, that expert witnesses will get paid for the time that they actually testify rather than the time they travel to get here. So I see it as a cost savings in some cases. And it might be a perfectly good way for people to resolve their disputes.
I hope that in-person jury trials don't go away, but I do think this gives us another arrow in our quiver of how the federal courts can be responsive.
The real key is training your staff to be adept at moving people around the platform. And for the judge, it's exercising a little patience and humility as you learn it too, and then trying to be a good problem solver because you've got slightly different problems that come up in a trial that require some common goodwill to find the solutions.
There's one other thing that we didn't talk about, and that is public participation. And the chief justice [U.S. Chief Justice John Roberts] does not want us to be broadcasting our trials, so the public can participate by listening to it. But they also can participate by watching when, with us, they get permission from the court to do so. So the trials that I've had, I've probably had about 75 people a day who've been watching and listening, which is certainly more than I've ever had for trials in the flesh. Now, most of those may be lawyers and they're just curious.
Finally, do you think it's critical for courts to have this capability for online trials right now, especially given that there's been at least one COVID-related outbreak connected to a trial recently?
Well, I think it's absolutely critical. I just saw a piece from the Administrative Office of the Courts that courts that had opened are now closing again. And there were two cases in Washington where jurors had become ill, where jurors had become exposed to COVID and had to quarantine. So for the foreseeable future, I think this is the only game in town.
--Editing by Jill Coffey.
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