By Bill Wichert

Law360 (February 5, 2021, 6:49 PM EST) -- Litigants will soon be forced to bring their suits before Garden State juries in virtual settings fraught with potential distractions, technical glitches and challenges to presenting evidence, raising concerns about them getting a fair day in court as state judiciary officials strive to move cases amid the coronavirus outbreak.

With cases piling up as trials were suspended, restarted and then postponed again due to the pandemic, the court system this month launched a two-phase initiative to hold virtual civil trials in light of ongoing concerns about the spread of COVID-19. The first batch are expected to be held on a voluntary basis in certain vicinages.

In the second phase, however, the effort is set to expand statewide in April and the consent of the parties will no longer be required.

"If you have a choice and your case is suited to it, great," said Betsy G. Ramos of Capehart Scatchard PA. "If you have no choice, then you're stuck doing it virtually, regardless of whether that's prejudicial to your client or not and regardless of the expense."

"I understand the rationale," Ramos later added. "I just wish that they could come up with some kind of alternative other than a mandatory virtual jury trial."

John V. Mallon of Chasan Lamparello Mallon & Cappuzzo PC noted that a virtual trial may be an appropriate forum to resolve some cases, but lawyers and litigants are concerned "about how that's going to work and whether or not they actually get their fair day in court under that system."

The mandatory nature of the system means the court can choose any case to be tried virtually, and "the more complex your case gets and the greater number of witnesses and evidence that's necessary in those more complex cases, it does present a concern," said Mallon, president of the New Jersey Defense Association.

"Everyone wants to prevail in their cases, but at the end of the day, we all want to know that our client got ... their fair trial," Mallon said, adding that "the overriding concern for everyone is: 'Can this be fair to the person I represent?'"

The prospect of a virtual trial could lead parties to resolve their differences outside of court, said William A. Krais of Porzio Bromberg & Newman PC, noting that the "pressure" of facing in-person trials frequently leads to settlements.

"Similarly, if you are assigned out to a virtual trial, that pressure's going to be on and maybe that pressure is going to motivate settlement," Krais said. "I think it probably will and that's a good byproduct — perhaps it was the goal — but at least a good byproduct of the virtual trial in the court's order."

The virtual civil jury trials mark the latest step by judiciary officials to keep the system running through a public health crisis that has forced court proceedings to mostly occur remotely for nearly a year — and largely paused jury trials.

Criminal and civil jury trials were suspended for several months before officials in September launched a hybrid system that combined remote jury selection with in-person proceedings. About two months later, the state Supreme Court reinstituted a suspension of jury trials amid surging coronavirus cases in New Jersey.

In a Jan. 7 order, the Supreme Court laid out the plans for virtual civil jury trials, saying all types of civil cases will be eligible for the format and that consent would not be required in the second phase "because of the expected length of the continued dire public health threat posed by COVID-19."

The justices also indicated that trial judges would have discretion to forgo holding a virtual trial for a particular case.

"Operational concerns will be considered in determining if a case is not suited for a virtual civil jury trial," the order states. "Among other factors, cases involving evidence that will be difficult to present in a virtual format (e.g., physical objects that cannot be shown to jurors using an Elmo visual presenter or other technical solution), or matters that will require multiple interpreters for parties and witnesses, may be difficult to conduct in a virtual format."

Emily A. Kaller of Greenbaum Rowe Smith & Davis LLP said she didn't think the absence of a consent requirement in the second phase meant "a court would not take into consideration if you raised to the court that there is a trial that is particularly complex or not suited to a virtual trial at this time." Courts are not "going to turn a blind eye to difficulties," she said.

But "if there is a trial that seems simple and well-suited and there's no factor that can be raised to the court to show why this particular trial is not suited ... the court is going to push people to try those cases virtually," said Kaller, president of Trial Attorneys of New Jersey.

"I think it's going to be a learning curve for everyone," Kaller added.

As New Jersey practitioners brace for virtual trials, the concept has fostered a range of concerns, from technical problems that could prevent a juror from hearing testimony to the difficulties associated with presenting certain evidence. Some lawyers also have greater resources than others in meeting the technological demands of the format, attorneys noted.

Attorneys are also worried about jurors getting distracted — and even reaching for their cell phones — as they sit inside their homes instead of being a captive audience in a courtroom.

While a jury sitting in court "does not necessarily guarantee that the jury is clinging to your every word, we know for a fact that jurors are not checking their cell phones, for example, in an in-person trial or we know that they're not being distracted by a member of their family who's walking through the bedroom or a child who's had an issue with online school or something along those lines," Krais said.

"We're less certain of that, of course, with a virtual trial," Krais said. "It's hard to imagine that a juror who is sitting at home won't take the opportunity during a less compelling part of the trial to look down and check an email or a text message on his or her phone and becoming distracted from the trial presentation."

Given such concerns, litigants may feel they're not getting "the fair shake" if they have one chance to bring their case and want an in-person jury to decide the matter, and "now you're telling me I'm not going to have that right" and the trial will "go forward on this novel and untested platform," Krais said.

But Keith J. Roberts of Brach Eichler LLC stressed the need to balance concerns about health and safety amid the pandemic with the need "to have our judicial system not at a grinding halt forever." He pointed to the large number of pending civil matters in the state and said "it's unfair" to the plaintiffs who "need resolution."

The mandatory nature of the virtual civil jury trials does not concern Roberts.

I trust the system, I think that the jurors will get it right, I trust the technology, there's a lot of upside for efficiency," he said. He added he had "complete confidence in jurors."

"It doesn't matter that they're not in the courtroom. They'll listen to the evidence. They'll listen to the arguments of counsel and, most of the time, they get it right," Roberts said. "We've had a year of the pandemic for people to get pretty saturated with the use of these platforms that I have confidence that ... the results will be OK."

Retired state Supreme Court Justice and former state Attorney General Peter G. Verniero, now with Sills Cummis & Gross PC, echoed that point about the balancing act at work with virtual trials.

"There's a point in time where you have to move forward, if you can, if it's appropriate, because ... the system has to continue," he said. "Otherwise, there'll be such a backlog of cases. That in and of itself will then create problems."

The virtual format can provide for fair adjudications and "a lot will depend on the professionalism of the lawyers and the ... gatekeeping function of the judge," the ex-justice said.

"Those two elements — professionalism of the bar and the gatekeeping function of the bench, of the judiciary — those have always been important functions in our system and even more so perhaps in a virtual format," he added.

--Editing by Emily Kokoll and Marygrace Murphy.

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