December Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 5 | Issue 12

December - 2020

Opening Statement

Dear Colleagues,

We hope you all had a nice Thanksgiving. Looking back on the past year we are thankful for all of the support you have given us.

We thought December would be a good time to review this past year. We thought it might be helpful to have in one place the resources we assembled for remote trials.

We begin this newsletter with that review and then Michael Pressman will update you on our participation in an important summit that was held in November.

We hope you all have a safe and happy holiday season.

Sincerely,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director

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2020 - The Year in Review

By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project

I am doing a “Year in Review” for a couple of reasons. First, I thought it would be good to have in one place our efforts this year in addressing what the pandemic has done to jury trials. For court systems looking for options, this provides a quick “view from 30,000 feet” of what has transpired over the last year. Clicking on the month will link you to the referenced newsletter.

Second, I want to capture our efforts in one article as a tribute to Steve Susman for his wisdom in redirecting us to remote trials once the pandemic hit. I also want to thank our Academic Director, Professor Samuel Issacharoff, for his support and guidance after Steve’s death, our two Research Fellows, Michael Pressman and Michael Shammas, and our administrative assistant, Kaitlin Villanueva for their hard work in making this Project relevant to what is happening in our world.

Finally, I want to thank all of you who have submitted articles and responded to surveys. We could not do this work without you and your participation is crucial to our efforts. You have freely shared your time, your thoughts and your best suggestions, all of which will assist courts around the country with access to justice issues.

So, without further ado, here we go:

Our January 1^st, 2020, issue included a reprint of an article, by Louis W. Voelker, entitled Where Have All the Jury Trials Gone, Revisited. On January 15 a man arrived at the airport in Seattle after touring in Wuhan, China. Little did we know in January that the rest of 2020 would bring about the disappearance of all jury trials across the country for months to come.

February brought the impeachment trial (seems like a lifetime ago) of the President. Steve and I sent a joint op-ed piece to several newspapers objecting to the news media referring to the Senators as “jurors.” We felt that did a disservice to true jurors.

The end of February brought news of the first death of a person due to Covid-19 in the United States. Our March 1^st newsletter listed our events for March, such as our Federal and State workshops. We also listed upcoming CJP events in Cambridge, Ft. Lauderdale, Boston and Minneapolis.

On March 13 a national emergency was declared. All of our events were put on hold and eventually canceled.

Steve redirected our efforts very quickly and in April we published What Online Jury Trials Could Look Like, authored by one of our Jury Consultant Advisors, Richard Gabriel, and Seating a Civil Jury During a Pandemic by Judge David Keenan, a Judicial Advisor.

Our May newsletter began with sad news of Steve’s accident. Due to his prior direction and leadership we were able to report on one of the first bench trials by videoconference which was heard by one of our Judicial Advisors, Judge Beau Miller, a state-court judge in the 190th District Court in Harris County, Texas.

May also brought the publication of The Permissibility & Constitutionality of Jury Trial by Videoconference by our two Research Fellows, Michael Pressman and Michael Shammas. This memorandum has been reprinted in many publications. We also republished an article, which first appeared in Law 360 (April 22), Predicting the Pandemic’s Impact on Juror Decision-Making by Ross P. Laguzza.

With the combined efforts of many too numerous to list here we were able to conduct our first model remote jury trial at the end of May and reported on that effort, along with suggested remote trial protocols, in our June newsletter. Please see our June newsletter to see all of those who helped make this model mock remote trial a reality.

As the year progressed we identified several issues regarding remote jury trials which we addressed in our July newsletter. The first was whether it made sense to break the trial up into three segments—jury selection, the trial and jury deliberations. Remote jury selection followed by an in-person trial would eliminate the need for perhaps 100 potential jurors traveling to the courthouse.

Two other issues addressed were concerns about judges perhaps reducing the size of the jury from 12 to 6 in light of the pandemic and whether the pandemic would affect the ability to secure a representative cross-section of the community.

Two of our attorneys from our mock remote trial simulation, Stephanie Parker and Jennifer Weizenecker, addressed the first topic in their article, Suggestions for Remote “Zoom” Jury Selection. Judge Lee H. Rosenthal, a Judicial Advisor and one of our remote trial protocol chairs, joined another Judicial Advisor, Judge Patrick E. Higginbotham, and one of our Academic Advisors, Prof. Steven S. Gensler, with their article, Better by the Dozen: Bringing Back the Twelve-Person Civil Jury. Our Research Fellow, Michael Pressman, addressed our last topic with his piece, The Challenge of Achieving a Representative Cross-Section of the Community for Jury Trials During the Pandemic. In July we started working on remote jury selection guidelines with a group of judges and attorneys in Illinois.

We dedicated our August newsletter to Steve Susman, our founder, guiding light and friend, who passed away on July 14. That issue was filled with tributes for Steve, his vision and the Project he created. We miss him.

We published a response, by Oscar Bobrow and Lois Heaney, to Michael Pressman’s piece on achieving a representative cross-section. Their response included nine “practical and achievable steps” to address the issue. The Hon. Jack Tuter, a Judicial Advisor, remote protocol chair and Chief Judge of the 17^th Judicial Circuit of Florida, penned Remote Jury Selection During a Pandemic. This article outlined the remote jury selection conducted by another CJP Judicial Advisor, Judge Patti Henning, and also provided links to all of the work done in the 17^th Circuit of Florida on remote trials.

In August we polled our 345 Judicial Advisors to see what was happening in their courts regarding jury trials and, for those who had restarted jury trials, whether they were seeing any change in jury demographics.

In our September newsletter, Michael Pressman reported on the results from that poll and Michael Shammas submitted his review of where everything stood from his perspective before he left us for his judicial clerkship. One of our Jury Consultant Advisors, Benjamin Perkel, submitted a well-researched article on persuasive strategies for remote communication.

October brought good news from both coasts on efforts to reinstate jury trials. Judicial Advisor, Judge Matthew Williams, submitted his answers to our Q&A with Remote Jury Selection: A Judge’s Report from the Front Lines. Also from the State of Washington, we received from Dr. George B. Hunter and Dr. Andrea Blount Hunter, both Jury Consultant Advisors, their submission, Remote Jury Selection in Seattle: the New, the Improved, and the Familiar. We then went to the east coast for The Dynamic Opportunities and Responsibilities of Virtual Jury Trials, submitted by Mitch Chester, one of our regular contributors and a member of our mock trial working group.

In November we reported on our work in Illinois. On October 27 the Illinois Supreme Court entered an order approving remote jury selection in civil cases. In that issue we addressed how the Illinois Supreme Court order allows judges discretion to order remote selection over objection. Michael Pressman submitted A Report on State Courts’ Actions Regarding Racial Justice and we ended with the announcement of our participation in a 2-day Summit, conceived of by CJP Jury Consultant Advisor, Richard Gabriel, and co-sponsored by the Online Courtroom Project and the National Institute for Trial Advocacy.

So, that is our review of 2020. We hope that next year is better for everyone. Please come back for our January issue. We will detail where we are going from here.

The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial court judge on the Eighth Circuit Court in Illinois for 20 years and he was a trial lawyer for 20 years before serving on the bench.

New Survey Results Regarding Experiences in and Opinions about the Covid Litigation Landscape

By Michael Pressman, Research Fellow

Back in August of this year, we polled our 345 Judicial Advisors to see what was happening in their courts regarding jury trials and, for those who had restarted jury trials, whether they were seeing any change in jury demographics. Our poll also explored a variety of related topics, and the results were reported on in our September newsletter. There were many notable results, but we also learned that many courts had not yet resumed jury trials, so we planned to send out a similar survey at a later date.

Recently, in the weeks leading up to the mid-November summit put on by the Online Courtroom Project and the National Institute for Trial Advocacy (and for which the Civil Jury Project was one of many co-sponsors), entitled Covid, the Court, and the Future of the Jury Trial, the organizers conducted a survey to collect data on the experiences and attitudes of judges, court administrators, and the legal profession in our new Covid litigation landscape. We sent the survey to our Advisors in early November, and we extend our sincere thanks to everyone who took the time to respond.

The responses are from people throughout the country and from people with various roles in the legal industry—with the majority being attorneys, many being judges and trial consultants, and also with some of the respondents being professors, paralegals, and courtroom or law firm support staff, among others. (Do note, however, that the results described here are not the final results. These results reflect 520 responses to the survey questions, but the number of survey responses is now up to approximately 705, though these additional responses have not yet been incorporated into the data.)

Many thanks to our long-time contributor and Jury Consultant Advisor, Richard Gabriel, who conceived of the summit and was the force behind making it a reality, for sharing the data from the survey with us and allowing us to present its results to date.

Here are many of the findings (presented using approximate percentages):

1. To the best of your knowledge, have courts in the jurisdiction where you live (state or federal) resumed jury trials?

Yes, criminal trials only: 18 percent

Yes, civil trials only: 4 percent

Yes, both criminal and civil trials have resumed: 36 percent

No jury trials have resumed yet in my jurisdiction: 24 percent

I’m not sure if trials have restarted yet or not: 17 percent

2. Have you personally participated in any online court hearings, mediations, or arbitrations (via Zoom, Webex, BlueJeans, or other videoconferencing software or platform)?

Yes: 75 percent

No: 25 percent

3. What was your opinion of that process?

Very positive: 31 percent

Somewhat positive: 42 percent

Neutral: 13 percent

Somewhat negative: 9 percent

Very negative: 3 percent

4. Which of the following best describes your opinion about your ability to communicate in ONLINE court hearings, mediations, or arbitrations as opposed to IN-PERSON court hearings, mediations, or arbitrations

I was able to communicate my positions or case more clearly than in an in-person court hearing, mediation, and arbitration: 8 percent

I was able to communicate my positions or case as clearly as in an in-person court hearing, mediation, and arbitration: 61 percent

I was not able to communicate my positions or case as clearly as in an in-person court hearing, mediation, and arbitration: 31 percent

5. Which of the following best describes your opinion about online court hearings, mediations, or arbitrations?

It was very easy to manage the technology needed to communicate: 31 percent

It was somewhat easy to manage the technology needed to communicate: 51 percent

It was somewhat difficult to manage the technology needed to communicate: 17 percent

It was very difficult to manage the technology needed to communicate: 1 percent

6. Have you personally participated in a jury or bench trial that was completely or partially conducted online? (Check all that apply.)

Yes, I have had a jury trial where all of the proceedings were held entirely online: 13 responses

Yes, I have had a jury trial where some of the proceedings (e.g., jury selection) were done online but the rest of the trial was conducted in person: 15 responses

No, I have not participated in any jury or bench trials with online components: 393 responses

Yes, I have had a bench trial where all of the proceedings were held entirely online: 67 responses

Yes, I have had a bench trial where some of the proceedings were done online and some were held in person: 17 responses

7. What was your overall opinion of the online portions of the jury or bench trial(s)?

Very positive: 42 percent

Somewhat positive: 30 percent

Neutral: 11 percent

Somewhat negative: 14 percent

Very negative: 3 percent

8. Which of the following best describes your opinion about your ability to communicate in an online jury or bench trial(s)?

I was able to communicate my positions or case more clearly than an in-person jury or bench trial: 10 percent

I was able to communicate my positions or case as clearly as an in-person jury or bench trial: 61 percent

I was not able to communicate my positions or case as clearly as an in-person jury or bench trial: 29 percent

9. Which of the following best describes your opinion about online jury or bench trial(s)?

It was very easy to manage the technology needed to communicate: 28 percent

It was somewhat easy to manage the technology needed to communicate: 48 percent

It was somewhat difficult to manage the technology needed to communicate: 21 percent

It was very difficult to manage the technology needed to communicate: 4 percent

10. Given these two options, which of these types of proceedings do you think results in better communication?

An in-person proceeding where participants are masked and socially distanced: 61 percent

An online proceeding where participants used a platform such as Zoom, Webex, etc.: 39 percent

11. How personally important or unimportant is it for you that jury trials (either online or in-person) resume as quickly as possible?

Very important: 42 percent

Somewhat important: 37 percent

No opinion: 12 percent

Somewhat unimportant: 6 percent

Very unimportant: 4 percent

12. Would you support a statutory reduction in jury size in your jurisdiction if it meant a quicker return to jury trials?

Yes: 25 percent

No: 59 percent

No opinion: 16 percent

13. Would you support a statutory reduction in the number of peremptory challenges each side gets if it meant a quicker return to jury trials?

Yes: 21 percent

No: 66 percent

No opinion: 13 percent

14. Would you support stricter limits on the amount of time each side has to present their case if it meant a quicker return to jury trials?

Yes: 34 percent

No: 55 percent

No opinion: 10 percent

15. Do you think that online jury trial proceedings violate the rights of the parties involved?

Yes to all parties: 34 percent

Yes but only the rights of criminal defendants: 26 percent

No: 40 percent

* * *

Thank you, again, to all who responded, and thank you, again, to Richard Gabriel for sharing the results to date of the survey with us. We look forward to exploring how experiences and opinions on these matters develop and evolve over the coming months.

Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.

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Summit Panel Recap: Implications of Remote Technology Use During the Pandemic for Post-Pandemic Litigation

By Michael Pressman, Research Fellow

With the possibility of several Covid vaccines being on the way, everyone is hopeful that the worst might be over after a few more months. Even when we collectively emerge from the pandemic, however, there might be various permanent changes to litigation and trials that result from the adjustments that are being made during the pandemic. The use of remote technology for various aspects of litigation during the pandemic has led to the recognition of the substantial benefits that it can provide, and this is increasingly the case as the legal community’s reliance on remote technology continues to grow and as users become more adept and comfortable with it.

But members of the legal community do not all agree about the extent to which remote technology should be used during the time of pandemic. Further, it is not clear to what extent—and in which contexts—remote technology will or should continue to be used post-pandemic and what the various lasting effects will be for litigation and trials.

This very topic was the subject of one of the eight panels during the two-day summit put on last month by the Online Courtroom Project and the National Institute for Trial Advocacy (and for which the Civil Jury Project was one of many co-sponsors), entitled Covid, the Court, and the Future of the Jury Trial. The summit, as a whole, addressed the many issues involved with access to justice during the pandemic, but this newsletter piece recounts what was explored and discussed in the one panel in particular.

This panel, which was the fourth panel on the first day of the summit (November 13^th), was described as follows in the summit’s program:

4:05 – 5:00pm - Panel 4: Implications for Post-Covid Litigation and Trials

Moderator:

Reuben A. Guttman, Founding Member, Guttman, Buschner & Brooks PLLC, Washington, DC

Panel:

William W. Fick, Founding Partner, Fick & Marx LLP, Boston, MA;

Hon. Luis Felipe Restrepo, US Court of Appeals for the Third Circuit, Eastern District, Philadelphia, PA; Professor Scott Dodson, James Edgar Hervey Chair in Litigation and Geoffrey C. Hazard Jr. Distinguished Professor of Law, UC Hastings School of Law, San Francisco, CA

Constitutional challenges imposed by the pandemic – the confrontation clause and the speedy trial act
How remote hearings will change law practices
How remote witness interviews and depositions will change law practices
How technology and remote practice will affect substantive procedural rules
How remote ADR will change resolution practice
How technology will affect litigation costs
Increasing jury trial efficiency and juror satisfaction

The following will sketch notable highlights of the panel’s discussion.

* * *

How remote technology might affect substantive procedural rules

If it’s true that we are seeing successes with remote technology that can translate to more widespread use of it post-pandemic, this would likely affect doctrines such as:

Personal jurisdiction. This is because the burdens on defendants might be dramatically alleviated through the use of remote technology procedures.

The proportionality of discovery, including the burdens of production for sitting for depositions, could be affected by the routine use of remote technology.

Venue transfer, which depends upon “convenience of the parties” and “the interest of justice,” could be affected by remote technology.

Consolidation and MDLs, which also depend upon “convenience of the parties” and “the interest of justice,” could be affected by remote technology.

In sum, many geographic aggregation doctrines and geographic doctrines that exist in civil litigation will likely be affected by how remote technology is alleviating burdens across the country.

Positives and negatives of remote technology when there is an in-person option: contexts in which remote technology is most beneficial and likely to be used versus contexts in which it might not be used and where there might be reasons to exercise caution regarding its use

Positives / contexts in which remote technology is most beneficial and most likely to continue to be used post-pandemic

Remote technology is likely to have a favorable impact on MDLs. If one is an MDL plaintiff, one often is shuffled into a jurisdiction that one is not connected to, and one might feel distant. Remote technology can help the plaintiff call in more and enhance the plaintiff’s participation in his case. The same considerations apply to class actions; class members often feel distant. Remote technology can enhance the identity of the class and also will increase the ability to watch depositions. Remote technology thus could create greater transparency in MDLs and class actions.

Remote platforms put judges in a good position to help cases settle, because attorneys are more available for settlement conferences as a result of remote technology. There will be backlogs on civil dockets in particular, but the greater ease of settlement brought about my remote technology will help alleviate the backlog.

Remote technology saves time, money, and the hassle of travel (even within a city to the courthouse). And scheduling is easier—especially if meetings are interstate and international. The fidelity to in-person events is quite high, and the benefits (especially in cost savings) are particularly great for low-value proceedings on the civil side.

Clients will demand remote proceedings from their attorneys for the cost savings whenever remote proceedings are plausible.

The types of proceedings for which remote technology works best and for which remote technology is most likely to continue to be used post-pandemic might be:

Client meetings where the relationship is already settled

Witness interviews

26f discovery and status conferences with the court

Minor depositions

Non-dispositive motion hearings

Discovery hearings (as long as they are not too document-intensive)

Some bench trials

Hearings not involving witnesses

Trials if they are fairly routine

Civil trials are likely more conducive to remote technology than criminal trials.

Bench trials are likely more conducive to remote technology than jury trials.

Depositions where the witness isn’t overly intractable

Appellate proceedings work well via remote technology

The cost savings are particularly high for short hearings where an attorney might have to wait for a long time (e.g., waiting two hours to ask for a continuance), or perhaps short hearings with police officers for traffic offenses.

There are efficiencies in criminal proceedings, too—especially proceedings involving counsel and judge when the defendant need not be present in person, such as scheduling status dates.

Remote technology is helpful for collaboration among members of a trial team while things are going on in trial in real time.

There are benefits for transnational litigation. In particular, more depositions might be taken that might not otherwise have been taken.

Negatives / concerns / risks / contexts in which remote technology might not be as helpful and in which it is less likely to be used post-pandemic

Some panelists expressed concerns about determining credibility of witnesses over remote technology. Witness proceedings in front of the decision maker are less amenable to proceedings over remote technology. If witness participation is not needed, then a proceeding is more amenable to being carried out over remote technology.

Concerns about document-intensive proceedings, and the benefits of being able to look at and/or hold an original document or exhibit in person

Concerns about jury trials

Concerns about taking away the human element of proceedings; also concerns about not having a criminal defendant present in person for all proceedings, including scheduling; concerns about making the whole criminal process more antiseptic than it should be

It’s important for lawyers to spend time with their clients (and with witnesses), including not just at proceedings, but also before and / or after proceedings. An arraignment, for example, can be an opportunity for an attorney and client to visit with each other and also to meet with the prosecutors to discuss possible agreements. Some argue that this might be harder if proceedings are carried out remotely.

Potential intangible benefits of being in person

Concern about the effects of distancing human beings. Even though there are benefits to remote technology, a balance needs to be struck. And we need to examine this for the specific parties in any particular dispute.

The need for protocols to be made that make clear when remote technology can or cannot be used, what the rules are, and the various procedures that go along with it

Additional notes

Also noted during the panel was the relevance to these issues of Federal Rule of Civil Procedure 1. FRCP 1 states: “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

FRCP 1 thus seemingly could in some contexts perhaps require the use of remote technology—so as to secure the “just, speedy, and inexpensive determination” of the action or proceeding. Or, perhaps in addition to contexts in which remote technology might be required, there might also be contexts in which FRCP 1 might compel the court to encourage the use of remote technology.

* * *

The foregoing insights, thoughts, and points are only some of the many that came out of the discussion in this panel of the summit. The full recording can be accessed at this link: ( https://www.nita.org/summit-register ).

Time will tell how litigation will be permanently affected by the pandemic and by the adjustments we have made in response to it with respect to the use of remote technology. Certain types of proceedings seem to be more conducive to remote technology than others, though, and the potential gains from its use will also likely be greater in some proceedings than others. As a result, the role of remote technology will likely be different in different contexts. What seems clear, though, is that remote technology will continue to play a large role going forward. Further, not only will our practices change, but it seems likely that there will also be corresponding changes to various substantive procedural rules.