Pandemic-Era Jury Trial Innovations May Be Here To Stay

By Stuart Ratzan
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Law360 (May 20, 2021, 2:16 PM EDT) --
Stuart Ratzan
As jurisdictions across the United States return to the courtroom, attorneys, judges and parties engaged in litigation are facing a wide array of logistical modifications intended to keep the citizenry healthy while keeping cases moving forward.

In Miami-Dade County, Florida's most populous county, the Eleventh Judicial Circuit spent a year engaging with the legal community and stakeholders such as the American Board of Trial Advocates' Miami COVID-19 Jury Trial Task Force, which I lead, to create a comprehensive plan for resuming civil jury trials.

Miami-Dade's path back to the courtroom included modifications such as plexiglass barriers around witnesses, mandatory facial coverings, six feet of social distancing, hand sanitizer for everyone in the courtroom, and the use of videoconferencing technology where possible. No tool was off the table when it came to keeping the court's staff, visitors, jurors, litigants and attorneys safe.

Our county's first in-person trial commenced in March, and while judges and clerks of court are going to great lengths to adapt to the realities of the pandemic, trial lawyers and their teams are embracing technologies that facilitate new efficiencies within the court system. Despite moves back into the courthouse, Zoom will likely outlast the public health threat as a method for conducting hearings, pretrial conferences, and out-of-town witness appearances.

Jury selection introduces new complexities and efficiencies.

With Americans getting vaccinated daily, jury pools are growing at a steady pace. The courts have put several safety measures into place designed to keep jurors safe and socially distanced, but attorneys engaged in voir dire are facing new challenges when it comes to evaluating and selecting a jury.

For starters, most jurisdictions allow residents to defer their jury summons for six months to a year. Considering that many people are still reluctant to venture into public places, such as courtrooms, some jurisdictions may find that assembling a jury is a challenge.

Once jury selection begins, trial attorneys in some courts have been stripped of their ability to read the pool's facial expressions due to the presence of mandatory facial coverings. In some instances, potential jurors may be questioned via video while sitting in isolation, which enables them to remove their masks. This method of remote juror questioning through video technology is efficient and safe and may very well remain intact for some time — perhaps even beyond the pandemic.

In Miami-Dade County, we don't expect Zoom to replace live voir dire, but we will likely use it to discern which jurors must be excused because they have hardships, whether that be medical procedures or other issues, prepaid travel or other financial obligations that prohibit jury service at the present time. With this being said, we wonder whether we will be able to lift some restrictions during a trial proceeding if all jurors, lawyers, courtroom personnel, witnesses and the judge are vaccinated.

When it comes to preparing for trial, there is reason to believe remote questioning of jurors will survive the pandemic to the extent we use it to screen candidates who are experiencing hardships or are otherwise unavailable for the trial period. This is distinct from the traditional voir dire experience, where lawyers probe jurors for their preconceived opinions and life experiences to determine whether the jurors hold mindsets that the lawyers feel may affect the case.

Before voir dire commences, judges like to query jurors whether they have prepaid vacations, medical appointments, and other personal or financial difficulties that would make serving onerous or impossible. This is called prequalification, and it can take place remotely.

Before the pandemic, we would bring in dozens of people, up to a hundred in some instances, and ask them one by one whether they were facing such hardships. This required jurors to leave their homes and offices, drive to the courthouse, and forfeit an entire day to answer a simple series of questions.

Now this can be done over video, saving time and energy for the jurors, courthouse staff, and all parties involved. After the prequalification process is complete, jurors who cannot serve may be excused and the remaining jurors can come to the courthouse to partake in voir dire. This format can unlock new efficiencies.

Remote witness testimony and questioning create added convenience in some cases.

One of the most difficult elements of preparing for a trial is scheduling out-of-town witnesses. The embrace of virtual witness testimony in many jurisdictions has opened the door to new possibilities for trial attorneys, enabling appearances by expert witnesses from other locales and alleviating scheduling complications.

These conveniences aside, all witnesses are not created equal and the fact remains that some testimonies — particularly those involving extensive visual evidence or witnesses who are particularly dynamic — may still be best suited for in-person questioning.

Live trial presentations are often preferable to remote presentations, but there are some circumstances where remote presentations can be just as effective — or even more so. For example, I have had jurors comment that video appearances are intriguing because they present a change of pace during a trial.

There can be challenges, however, when a witness needs to conduct a show-and-tell presentation and is limited by the video format. For example, a live presentation where the witness gets off the stand and walks the jury through a demonstrative exhibit can be an irreplaceable tool in proving a point or bolstering a case.

Courtroom impacts may last beyond the pandemic.

After arduous efforts of exploring ways to ensure people are protected, wear their masks, and follow safety protocol, we've figured out how to safely return to the courtroom. As jurisdictions begin to return to in-person trials, concerns remain about the impact of COVID-19 and safety measures on a jury's decision, including not being able to read facial expressions with a mask on.

However, I do not believe wearing a mask is going to affect a juror's decision, and that our ability to read jurors or witnesses based on their facial expressions is highly exaggerated. Most lawyers who have tried cases wearing masks during the pandemic report that soon after starting trial they forget the masks are even there.

Trial lawyers sit there and try to read the jury but can frequently be completely wrong because we cannot tell what the jury is thinking based on facial expressions. Conscientious jurors make decisions based on the evidence and facts presented.

Moving forward, even as more Americans roll up their sleeves for the vaccine, jurisdictions will not be taking any chances and the likelihood is that many of these adaptations — such as required social distancing, health screenings, temperature checks and the use of face masks — will remain in place until community spread ceases to exist.

There has been much speculation about lasting changes in the way pretrial proceedings take place, particularly when it comes to attorneys conducting remote depositions and hearings. There is no doubt those adaptations will unlock new efficiencies, cost savings and conveniences for attorneys and their clients, but at the end of the day, there is no substitute for the emotion and courtroom theater that can unfold in front of a live, in-person jury.

Stuart Ratzan is founder and shareholder at Ratzan Weissman & Boldt, and chair of the American Board of Trial Advocates' Miami COVID-19 Jury Trial Task Force.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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