PART III OF III: Remote Jury Trials in Florida
PENSACOLA, FL (May 28, 2020)
Jury trials have been suspended in Florida since March 16, 2020, due to the COVID-19 pandemic. We have had several jury trials continued as a result of the suspension delaying justice for many of our clients.
On May 21, 2020, the Florida Supreme Court issued AOSC20-31 acknowledging the need to resume jury trials at the earliest opportunity while also protecting the rights of parties, criminal defendants, crime victims, the public, and the health of participants in the proceedings. The order additionally authorized establishment of a remote civil jury trial pilot program. The Court charged the Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 with developing the requirements for participation in the program. Civil jury trials must and will resume in Florida, and a remote jury trial may be one, if not the best, option for some cases.
Remote jury trials could take place in a variety of ways each with different sets of concerns. In all likelihood, the only way to ensure a jury trial does not result in transmission of the virus would be to require attorneys, parties, witnesses, jurors, the judge, and court personnel to each appear remotely through a device. With proper social distancing and other precautions, a jury may be able to participate from the courthouse, or some other designated facility. Likewise, witnesses may be able to participate from another location with similar safeguards. Each of these possibilities is worth exploring.
If each participant in a jury trial were to appear remotely, it would be incumbent upon the court to ensure everyone in the jury pool has adequate technology and proficiency to participate in jury selection and trial. The court would need to ensure that jurors will not be distracted during the proceeding—paying attention is difficult enough from the jury box, and where a juror is at home with children or even pets, distractions may be difficult to avoid. The court would also need to ensure that jurors were not conducting their own research on the case, and the court would need to be aware if a juror’s technology fails and the proceeding needs to pause.
In a fully remote proceeding, the court and perhaps the attorneys and parties would also need to ensure that witnesses have adequate technology to appear at trial. The court would need to ensure that witnesses were not engaging in improper communication during testimony. The court would need the ability to have sidebar conferences with the attorneys. The attorneys for opposing parties may need to have private conversations during the trial, and attorneys would, of course, need to privately communicate with their clients. The court would also need to ensure that the public had some form of access to the proceeding.
Additionally, in a remote proceeding jurors would not get the experience of being in a courthouse and courtroom. Courthouses and courtrooms are designed to convey the importance of what takes place inside. In a remote trial jurors will not walk up steps or past columns as they enter the courthouse. They will not pass by the deputies providing security or walk through a metal detector. They will not see rows of hard wooden seats or the judge’s perch at the top of the courtroom. They will not feel the silence of the courtroom as they wait for proceedings begin. Jurors will not hear the bailiff announce the judge’s entrance, be made rise when the judge enters, or feel the solemnity when the judge instructs the jury to be seated and pounds the gavel to call the proceeding to order. While the court may use an image of a courtroom or court seal as a virtual background in an effort to emulate the experience of going to court, jurors will not have the benefit of the courthouse experience. The relative lack of decorum during remote proceedings was evident even during an argument before the United States Supreme Court where a participant can be heard flushing a toilet while an attorney was answering a justice’s question—something that would never happen in a solemn courtroom.
Even if all the proper steps are taken by the court, the participants cooperate, and the technology works throughout a remote jury trial, whether a jury can effectively serve its purpose remains uncertain. Juries are tasked with weighing the evidence and determining the facts. Judging the credibility of witnesses is paramount when evaluating testimony and related evidence. Observing and assessing a witness’s demeanor is essential to judging their credibility. Jurors in a courtroom may observe a witness walk to the witness stand, see how the witness sits down, and may perceive more body language than would be visible via remote. The same is true for the juror’s observation of the parties, the attorneys, and the judge. Jurors in a courtroom, however, will typically be anywhere from fifteen to thirty feet from the witness, and there will be a courtroom full of lawyers, parties, and others that may distract the jurors. Jurors participating remotely will have a clear, up-close view of the witness’s face throughout the testimony, and at least no other distractions on the screen before them. It may well be that judging a witness’s credibility can be done more accurately while looking directly at the witness’s face on a screen.
Remote jurors would also only be able to see exhibits and physical evidence on screen. Attorneys will not be able to hand a piece of evidence to a juror so they can hold it, examine it up close, and pass it to the next juror. There are cases where a juror would benefit from holding a piece of evidence and seeing it up close. The rules also provide for site inspections by jurors where appropriate which if possible to do remotely would not be the same as physically inspecting the site by visiting it in-person.
Finally, remote jury deliberations will not be the same. Having a discussion remotely requires patience and cooperation. Vigorous debate among remote jurors may be necessary for a just verdict but could prove so difficult that jurors give up and either give in where they should not or simply hang.
In Texas, what may be the first remote jury trial in the United States took place in mid-May by Zoom, and the jurors each appeared through their own device. It is unclear whether the attorneys and parties were remote from each other. Jury selection was livestreamed on YouTube, but there is no recording posted to review. The case was a summary jury trial in which the parties presented a summary of their cases, the jury issued a nonbinding verdict, and then the parties were required to mediate—perhaps an ideal format to test a remote jury trial. In any event, this case demonstrates that remote jury selection and trial are possible.
The 17th Judicial Circuit conducted a mock remote civil jury trial in partnership with the American Board of Trial Advocates (ABOTA). In the mock trial, the judge, clerk, attorneys, parties, witnesses, and jurors all appeared remotely. All but the witnesses were visible to everyone else throughout the trial. The judge gave a few instructions specific to the remote process, but the jury instructions were otherwise the same as they would have been if the trial were not remote. During the proceedings, there were some missteps displaying exhibits but none that lasted more than a moment or derailed the process. The jury deliberated in a separate remote conference room; the foreman emailed the verdict to the judge, and the verdict was read in the presence of the jury. The judge sua sponte polled the jurors after the verdict was read. While it was a scripted exercise that only lasted ninety minutes, it provided a window into what a remote jury trial could look like.
Requiring all participants to appear remotely through a device may not be the only possible approach, but every step away from a remote process arguably increases the risk for transmission of COVID-19 by the participants. If the jurors are not completely satisfied with the protections implemented by the court, safety concerns could be a distracting problem.
Finally, careful consideration should be paid where there is an imbalance of resources such as with a pro se litigant. If one party has high speed internet, good cameras, and professional lighting their testimony may be viewed more favorably than a witness or party with slow internet, a bad camera, and poor lighting. While courts generally do not intervene because one party’s greater resources enable them to make a better presentation in court, where such an imbalance impacts access to the court itself, a court may well find it necessary to even the playing field.
Authorizing a pilot program to evaluate the practicability and effectiveness of different approaches to remote civil jury trials is an important step toward regaining the necessary access to the courts guaranteed by the Florida Constitution. We will follow the civil jury trial pilot program to ensure we understand how remote jury trials can effectively be conducted, what benefits and challenges they present, and to ensure that we are ready to conduct a remote civil jury trial when necessary to represent our clients.
James (“Jim”) R. Green’s practice focuses on civil litigation. Jim regularly represents clients in estate litigation, trust litigation, personal injury matters, aviation litigation, defamation claims, and insurance coverage disputes. He has tried several cases to a jury verdict in favor of his clients and he has obtained favorable judgments for his clients in bench trials. Jim’s experience enables him to analyze a broad array of cases and provide his clients the advice and insight necessary to successfully navigate their legal disputes. Contact Jim at 850-208-7019 or firstname.lastname@example.org.
About Clark Partington:
Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee. The firm also maintains a presence in South Alabama with an Orange Beach office. Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law. Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom. More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.