November Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 5 | Issue 11

November - 2020

Opening Statement

“We cannot direct the wind, but we can adjust the sails.”

-original author unknown; attributed to many

Dear Colleague,

We begin with the quote above since many courts are "adjusting their sails." In this edition I will report on the results of our working with the courts in my home state of Illinois with a special focus on whether remote jury selection may be ordered by a judge over objection.

Our research fellow, Michael Pressman, will report on his review of what various states are doing to address racial inequities in the justice system. As we reported in our last newsletter, we are encouraged by the reports from the field that remote jury selection may result in achieving a more representative cross-section of the community.

As we go to press, we are facing the bad news of the pandemic getting worse. However, we are glad to be involved as a sponsor for a 2-day summit, Covid, the Court, and the Future of the Jury Trial (November 13 and 20), organized by the Online Courtroom Project and the National Institute for Trial Advocacy (NITA).

The summit will address the many issues involved with access to justice during this pandemic. Our long-time contributor and Jury Consultant Advisor, Richard Gabriel, conceived of the summit and is the force behind making this a reality. In this edition, we will give you an overview of the summit. In our December issue we will report on the summit. You may register for the summit here on NITA’s website.

I will end this introduction with some great news. Many of you know, and have worked with, our administrative assistant, Kaitlin Villanueva. She has been with the Project from the beginning. We are thrilled to report that Katja Maria Villanueva was born at 7:00 p.m. on October 18 and we wish Kaitlin, her husband and the new baby our very best.

Sincerely,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director

Upcoming Events

Due to the ongoing COVID-19 pandemic, all in-person events are canceled for the remainder of 2020.

View All Events

Remote Jury Selection for Civil Trials Approved in Illinois

Should Consent by All Be Required?

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

In July of this year we started working in an advisory role with the Covid-19 Task Force in Illinois. On October 27 the Illinois Supreme Court entered an order approving remote jury selection for civil cases. The order provides:

Remote jury selection by video conference…in civil cases is permissible to reduce the risk of COVID-19

exposure so that litigants can access justice in a timely fashion while keeping all jurors, court personnel,

litigants, and the public safe.

Illinois Supreme Court Chief Justice Anne M. Burke said, “The Task Force continues to find ways to help the courts adapt during the COVID-19 pandemic. The Supreme Court greatly appreciates the work they have done and continue to do.” Illinois Trial Lawyers Association President Larry Rogers, Jr., said in a phone interview (quoted by many media sources in Illinois) that the order is a step in the right direction. “I applaud the court for taking steps to get us back to returning to the courtroom,” said Rogers.

One issue courts must face is whether all parties must consent to remote jury selection. Should a court order remote jury selection if any party objects? We cautioned against giving any party veto power over remote jury selection.

Most civil suits involve one party having something that the other party wants. The party who has the thing the other side wants usually benefits from delay unless, of course, defense costs counteract that consideration. Remote jury selection is safer for all concerned and will assist in getting more cases heard since it reduces the amount of people coming to the courthouse. And, as we all know, some cases settle right after jury selection.

The Illinois provision provides:

Remote jury selection in a given case requires the consent of all parties, unless the judge finds, after weighing the factors

of public safety and the parties’ rights to access to justice, that the case presents a compelling circumstance to proceed

with remote jury selection absent parties’ consent.

Our position on this was that you should let judges be judges and not take away their discretion. In addition, this allows lawyers to be lawyers so they can make their argument for remote selection in the appropriate case. The Illinois provision provides guidance for the aspirational desire of consent by all, but still allows for court discretion and attorney advocacy.

We were honored that the guidelines adopted by the Supreme Court cited The Permissibility & Constitutionality of Jury Trial by Videoconference, a memorandum written by our two Research Fellows, Michael Pressman and Michael Shammas.

After the Court entered the remote jury selection order, we received this kind message from Sarah Song, Senior Program Manager: Legal Technology Initiatives in the Access to Justice Division of the Administrative Office of the Illinois Courts:

Due in large part to [the Civil Jury Project’s] assistance and expertise, the Illinois Supreme Court adopted our

subcommittee’s proposed order and guidelines on remote jury selection in civil matters. We are so excited to see this

order go in effect and further the goals of access to justice and safety during these difficult times. We cannot thank you

enough for all your time and efforts. We could not have accomplished this without you.

With many civil jury trials on pause we are honored to be involved in work like this. Please forgive me for tooting our own horn, but if any of our readers would like our assistance in research, drafting or planning regarding any aspect of restarting jury trials, please let us know. We would love to help.

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.

A Report on State Courts' Actions Regarding Racial Justice

By Michael Pressman, Research Fellow

Following the death of George Floyd, the United States has seen a nationwide social justice movement and renewed discussions about how to bring about racial and social justice. These discussions have occurred in various contexts, and the country’s courts are no exception. Courts have been grappling with what they can do and how they should do it.

As a follow up to our September newsletter article on what we learned about current juror demographics from our survey of our Judicial Advisors, we have begun to explore what state courts have been doing regarding racial and social justice. We surveyed eight states--New Jersey, New York, Maryland, North Carolina, Utah, New Mexico, Tennessee, and Rhode Island--to see what measures they were taking, but here we report only about specific changes proposed for jury trials (in New Jersey and New York). Accordingly, this is an interim piece on what is an ongoing work in progress--as we track (probably with a second poll early next year) whether remote trials have any effect on jury demographics.

* * *

1. New Jersey

After promising in June to do more to ensure that New Jersey courts administer justice, the New Jersey Supreme Court recently announced “specific interim goals that the New Jersey Judiciary will strive to achieve within the next year, while continuing ongoing efforts, including working internally and with our interbranch partners to identify, confront, and seek to remedy institutional bias and inequality.” The whole statement put out by the New Jersey Supreme Court (entitled “New Jersey Judiciary -- Commitment to Eliminating Barriers to Equal Justice: Immediate Action Items and Ongoing Efforts”) can be found here. The following includes a key excerpt from the New Jersey Supreme Court’s statement that includes one of its nine new interim goals that specifically applies to jury trials:

The Supreme Court’s One-Year Action Plan

The New Jersey Judiciary has not yet identified all areas of disparity in our justice system and commits to redoubling our efforts to uncover those obstacles to equality while at the same time taking steps to address known barriers to access and justice.

In furtherance of the principles articulated in its June 5, 2020, statement, the New Jersey Supreme Court will work to accomplish the following reforms within the next year while expanding additional longer-term efforts:

1. Supporting Juror Impartiality. The Judiciary will work to implement policies and protocols to support juror impartiality, including: (a) expanded juror orientation content regarding implicit and explicit bias; (b) model jury charges on impartiality and implicit bias; (c) new and revised mandatory model jury selection questions on recognizing and counteracting bias in the jury process; and (d) examining options for changes to the Court Rules relating to impartiality in the juror selection process. Internally and in collaboration with stakeholders, we also will respond to the results of the “Peremptory Challenge Impact Study,” a forthcoming analysis by external experts of the effects of the exercise of peremptory challenges on the racial composition of jury venires and seated juries.

2. New York

An independent commission created to examine institutional racism in the New York State court system recently released a report describing racial and ethnic disparities on the bench, a lack of diversity in hiring, and a toxic culture among court officers. The Equal Justice in the Courts task force, run by former U.S. Secretary of Homeland Security Jeh Johnson and commissioned by Chief Judge Janet DiFiore in June, was a four-month project. The report asks court leaders to establish a “zero tolerance” policy against discrimination and racism, to install comprehensive bias training programs, and to increase diversity in hiring throughout the court system. The report also called on court leaders to assign an independent monitor to assess and report on the court system’s implementation of the recommendations. Chief Judge Janet DiFiore has appointed Human Rights Campaign President Alphonso David to this position.

The report has spurred many groups, including organizations representing judges and bar associations, to share their concerns. For example, in August, the Judicial Friends Association, an organization representing more than 200 New York judges of color, released a report on institutional racism in the New York State court system that they had submitted to the Commission on Equal Justice in the Courts. The Judicial Friends Association’s report described racial and ethnic disparities in judicial leadership, described hurdles that stand in the way of equal justice for Black and Latino defendants, and made suggestions for handling pervasive biases. The report highlights disparities at all levels of the criminal justice system, including a jury selection process that strikes potential jurors based on their negative interactions with law enforcement or their support for the Black Lives Matter movement. In the report’s conclusion, the Judicial Friends Association wrote: “We trust that our efforts to reveal the sources of these vital issues and our recommendations offering tangible solutions for lasting, maximum impact, will assist the Commission in fulfilling its mission to examine the existing policies, practices and initiatives and recommend revisions and improvements to combat racial bias and discrimination within the courts.”

* * *

What change will result from the efforts of these eight state courts, as well as others, remains to be seen. We hope that they will succeed in identifying needed change, determining plans to effectuate the needed change, and executing their plans to bring about change.

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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Covid, the Court, and the Future of the Jury Trial

November 13 and 20

As I mentioned in the introduction, the Summit is a joint effort between the Online Courtroom Project and the National Institute for Trial Advocacy. Each day is four hours in length covering four topics.

In addition to the Civil Jury Project, here are the other sponsors for the Summit:

Here is the schedule for Day One:

Friday, November 13, 2020 (all times are Eastern Standard)

1:00 – 1:10pm - Introduction and Update

Speaker: Richard Gabriel, President, Decision Analysis, Inc., and Founding Board Member of Online Courtroom Project, Los Angeles, CA

Goals of the conference: to provide tools, resources, skills and a forum for the courts and attorneys to discuss the best approach for in-person and online court proceedings:

• Overview of what courts are doing around the country

• Outline the challenges and concerns with in-person and online jury trials

1:10 – 2:00pm - Panel 1: Practical Tips for In-Person Trials

Moderator:

Ken Broda-Bahm, PhD., Senior Litigation Consultant, Persuasion Strategies, Denver CO

Panel:

David Slayton, Administrative Director, Office of Court Administration, Austin, TX

Hon. Kerry W. Meyer, Hennepin County District Court, MN

Cory Buland, Susman Godfrey, Gastonbury, CT.

•The science of the coronavirus

•Effective ways to social distance and layout the courtroom

•How masks affect communication in in-person trials

•Different courtroom options – conference centers, movies theaters, gyms, etc.

•Safe practices for health checks and cleaning facilities

•How to manage case volume in a courthouse

•How to manage trial if staff, attorneys, clients, or jurors become sick or exposed

•How empathy and emotion work in a masked and socially distanced trial

•Successful methods for presenting evidence and arguments in a masked and socially distant environment

2:00 – 2:55pm - Panel 2: Practical Tips for Hybrid and Online Trials

Moderator:

Hon. Mark A. Drummond (Ret.)

Panel:

Hon. Matthew W. Williams, King County Superior Court, WA

Hon. Jo-Lynne Q. Lee, Alameda County Superior Court, Department 18, San Francisco CA

Coreen Wilson, Partner, Weick Wilson, PLLC., Seattle, WA

Kenneth R. Friedman, Partner, Friedman | Rubin, Bremerton, WA

•Best use of online questionnaires

•Best voir dire practices - (Group vs. Individual) and (Judge and attorney questioning)

•How to handle peremptory and cause challenges

•Use of alternates

•Preparing witnesses for online testimony

•Preparing cross-examination in online trials

•Use of exhibits and demonstrative aids in remote trials

3:05 – 4:00pm- Panel 3: Practical Tips for Complete Online Trials

Moderator:

Karen A. Lisko, PhD., Senior Litigation Consultant, of Perkins Coie, Phoenix, AZ

Panel:

Hon. Emily Miskel, 470 District Court, Collin County, TX

Hon. Pamela Gates, Presiding Civil Department, Maricopa County, AZ

Hon. Nicholas Chu, Justice of the Peace, Precinct Five, Travis County, TX

Ricky Raven, Partner, ReedSmith, Houston, TX

•Judicial pre-trial conferences

•Attorney preparation

•Instructions for jurors on participating meaningfully in online jury service

•Types of cases that will and won’t work for online trials

•Ability to streamline cases for online trials

•Opening statements and closing arguments

•Attorney presentation and persuasion skills in an online forum

•How empathy and emotion work in online trials

•Securing and enabling online jury deliberations

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

Here is the schedule for Day Two:

Friday, November 20, 2020 (all times are Eastern Standard)

Short presentations followed by Q&A skill sessions with participants.

1:00 – 1:55pm - Session #1: Practical Tips for Judicial and Attorney Trial Planning

Moderator:

The Hon. Lisa M. Rau (Ret.), Owner, Resonate Mediation and Arbitration, LLC, Philadelphia, PA

Panel:

Hon. Brad Seligman, Alameda County Superior Court, San Francisco, CA

Dave Ongaro, Managing Partner, Ongaro PC, San Francisco, CA

Hon. Jennifer D. Bailey, Eleventh Judicial Circuit of Florida, Miami, FL

•Understanding the law regarding in-person masked trials and online trials

•Jury instructions for jurors to enhance attention and lessen distraction

•Which cases work for in-person or for online trials

•Agreements on trial schedules and protocols

•Motions related to assisting the court in conducting in person or online trials

2:00 – 2:55pm - Session #2: Practical Tips for Technical Expertise and Technology

Moderator:

Jim McMillan, Principle Court Technology Consultant, National Center for State Courts, Williamsburg, VA

Panel:

Professor Frederick Lederer, Chancellor Professor of Law and Director of the Center for Legal & Court Technology (CLCT) at William & Mary Law School, Williamsburg, VA

David W. Bartee, Director, Court Technology Office, Fairfax County, VA

Ted Brooks, Litigation-Tech LLC, Los Angeles, CA

•The technology needed for online trial practice – hardware and software

•Understanding the new medium

•Internet connections needed for online trials

•How to equip jurors or parties that may not have proper equipment or internet connections

•Different screen views and use of rooms

•Training needed for staff to manage courtroom technology

•Troubleshooting options

3:05 - 4:00pm Session #3: Practical Tips for Online Presentations

Moderator:

Christopher J. Dominic, President & Senior Consultant, Tsongas Litigation Consulting, Inc., Portland, OR

Panel:

Alicia Aquino, Founder, Aquino Trial Services, San Diego, CA

Lisa DeCaro, Founder, Courtroom Performance, Inc., Golden, CO

Carol B. Sowers, Communication Consultant, New York, NY

•How to effectively communicate on camera vs. in-person

•How to deliver persuasive opening statements and closing arguments online

•How to effectively conduct direct and cross examinations in an online forum

•How to effectively use demonstrative and trial exhibits to visually illustrate the evidence and your story of the case

•How to keep jurors (and the judge) engaged in your case

4:05 – 5:00pm – Session #4: Best Practice for Online Jury Selection

Moderator:

Dr. Jeffrey Frederick, Director, Jury Research Services Division at National Legal Research Group, Inc., Charlottesville, VA

Panel:

Hon. Matthew W. Williams, King County Superior Court, WA

Jennifer M. Smitrovich, Principal/Owner, Favros Law, Seattle, WA

Austin K. Yancy, Associate, ReedSmith, Houston. TX

•Online questionnaires

•Establishing jury selection procedures

•Administration of the selection process

•Attorney preparation for the selection process

•Voir dire design and question design

•Making cause and peremptory challenges

We will be participating in the summit and will also be attending every session. We will report on the Summit in our December newsletter. In the meantime, we hope you had a Happy Halloween, that you have a great Thanksgiving and should anything come across your desk that will help us advance the ball on reinstating jury trials, please send your thoughts our way.

Thank you,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director