Some studies suggest social distancing guidelines will be present well into 2022. Workplaces, restaurants and public restrooms are some of the most concerning environments for the spread of COVID-19. Courtrooms might not be making headlines, but, I assure you, dozens of people were crammed in a small courtroom this past January. I was there. I’m a trial lawyer. And now, nobody can have a jury trial. What does a trial lawyer do without trials?
It’s important to remember local courts are not always on the forefront of technological advances. While federal courts have had e-filing for years, local courts have not embraced e-filing, if they’ve permitted it at all. Some courtrooms are equipped with technology, but the judges are still reluctant to use it. Lawyers and judges alike are having to embrace technology in ways we have never imagined. For the trial lawyer, the thought of having a jury trial with social distancing is as foreign as the USA without the constitution. Try as I might, I just can’t wrap my mind around conducting jury selection with a mask on.
I’m here to start the conversation. Or at least keep the conversation going. Like it or not, we have to have trials in the midst of a pandemic. The Louisiana State Bar Association has offered free continuing education courses online over the course of the statewide shutdown. One of the greatest online courses I have yet to attend was this past week, and the subject matter was Jury Trials in a COVID World. The speaker was a trial consultant, Betty Dunkum, and the first trial consultant I have ever met. By looking at what other states are doing, we can generate a comprehensive list of “Best Practices,” and be prepared for trials in a reasonable timeframe. Betty Dunkum is assisting us in figuring out what other states are doing and what issues we might expect as we attempt to conduct jury trials in the future.
If you’ve never been called for jury duty, you’re missing out. Although many people dread jury duty, you’ll find the people who serve as jurors often appreciate the experience. It’s a long and sometimes boring journey from jury selection to opening arguments, but it is fascinating if you get to see it through to the end. If you’ve been to court in Houma, you know the courtrooms are either really big (one is) or really small (the rest of them). The large courtroom is so large it is often used for mock trials and middle school field trips. The smaller courtrooms are often overflowing with members of the community on any given court date. In fact, members of the public often get turned away because there is simply not enough room to accommodate the onlookers along with the people who have been ordered to appear.
FORESEEABLE PROBLEMS AND SUGGESTED SOLUTIONS
Now, with the COVID-19 outbreak in mind, you may wonder how they will pack the courtrooms. Or unpack the courtrooms. You can’t just ask everyone to wear a mask and ignore the other social distancing guidelines. There is guidance to suggest that we should seat people six feet apart in the courtroom. Imagine a six-year-old’s dance class where the dance instructor has used electrical tape to put an ‘X’ where each child should stand, often at arm’s length apart. That’s what you may see when we return to court. Instead of arm’s length apart, you may see the ‘X’ six feet apart. Spoiler alert: small courtrooms cannot accommodate very many people sitting six feet apart.
We can and should screen people before they enter the courthouse, thereby limiting the ongoing exposure to the virus. Here’s a novel idea: stagger court appearances. There’s no law that says you have to appear in court at 9 a.m. Another piece of advice from the trial consultant: limit the number of people in the courtroom. Consider different spaces for holding court. Alternate spaces in your community may be available if you’re open to it. Consider stadiums, coliseums, or auditoriums. Friends, onlookers or supporters should not be allowed physically to appear in court, but can watch public courtroom proceedings on a live feed, streaming on the internet. Leave the doors open to minimize human contact with door handles. Sanitize frequently and between cases, especially the witness stand and counsel podium.
More advice has come out considering making time for all the court cases that are backlogged. Maybe we should consider extended hours for court? Would it kill us to work longer shifts, including evenings, overtime and weekends, if necessary? Few people realize the magnitude of the court’s dockets. There is much work to be done and the cases are piling up even more so due to the the statewide shutdown.There will be so many people coming to court, we might want to consider using pagers. Just imagine you’re at the Outback Steakhouse waiting for a coveted table for four. It’s also been suggested that we utilize retired judges and create more opportunities to handle matters in court. If you cannot make headway on your list of pending cases, consider calling in some reinforcements.
There is so much advice here, your head might be spinning. Mine was. Then I realized, I’m putting the cart before the horse. Nobody is willing to set trial dates yet. So, if we don’t have a trial date, why rush the “how?” Let’s figure out all the ifs, ands, and buts. Then we can pick a trial date. That strategy is terrible. I understand the need for sorting out details and slowly getting back to some semblance of normal. But we cannot deny the constitutional right to trial indefinitely. Or can we? A recent article on Law.com posed the same question, albeit not a question at all: COVID-19 Cannot Be the Death Knell of the American Jury Trial.
CRIMINAL TRIALS MOVING FORWARD
The advice of Betty Dunkum and other experts is to prioritize criminal trials. This is because of the obvious deprivation of freedom involved. If the defendant is in custody and they have a constitutional right to a speedy and public trial, we should prioritize that over a run-of-the-mill personal injury case. Often overlooked is the State’s right to a speedy and public trial. Victims and society at large both have an interest in getting the case resolved and moving on with their lives. The question remains, though: will there be jurors willing to serve? We should first let the public know that we understand their concerns and that we are taking precautions around the courthouse. Include a statement of safety protocols with the jury summonses. Have a public forum. See what concerns the general public has surrounding jury duty. We may utilize questionnaires like never before.
If you’ve been called for jury duty in Lafourche Parish, I’m sure you’ve seen the jury questionnaire. It’s full of basic inquiries including family size and occupation. A more thorough questionnaire may include health screening and hardship questions to resolve before anyone steps foot into the courthouse. There is the possibility of using electronic jury questionnaire systems such as eJuror or iJuror. Members of the community can answer questions online rather than having the court personnel and attorneys sift through paper copies of questionnaires, which is a nightmare. Online questionnaires sound like a dream. Another great use of technology is an automated phone system. Excusals are a given in some circumstances, and deferrals may be given as a matter of right for the first-time juror. Second deferrals, however, may be given only for good cause. Let’s automate some of the things that have traditionally been handled on the morning of trial.
Potential jurors have traditionally been ordered to appear at 8:30 a.m. on a particular day. What if we opened up other areas for them to wait rather than having all of them wait in the same small courtroom? There are unused auditoriums in several schools spread across the parish. There are often unused courtrooms as well. We just have to think outside the box. Imagine a world where a hundred potential jurors can wait at home for a text saying that they’ve been chosen for a voir dire panel. They would have the responsibility of electronically checking in from their respective homes. The deputy clerk of court or bailiff would mark them “present,” and then the random drawing of names would begin. When the panels are chosen, they can be directed to come to the courthouse at a specific date and time.
Some potential jurors would be concerned about sitting in close proximity with others during a pandemic, civic duty be damned. Those at high risk for contracting the virus may want to stay home more now than ever. How does that affect the parties’ right to have a jury that is representative of the community? Will we see healthy, middle age people showing up for jury duty and the absence of the immunocompromised and elderly? The court would need to reassure them that the health and safety of the public has been, and will continue to be, a priority in implementing these new procedures.
Is the jury box too small? Put the jury in the gallery. Where will the audience sit, you ask? Maybe consider streaming the trial online for public view instead of having onlookers appear in person. Utilizing plexiglass has been a new standard for most checkout counters, including post offices and grocery stores. The use of plexiglass isn’t limited to those public spaces, though. We can put plexiglass in front of the judges’ benches, around the witness stands, or around the bailiff stations. What if we used dividers to place between the jurors for their deliberation? Too much?
The deliberation process is the most concerning part of the jury trial for social distancing measures. You want the jury to be able to communicate comfortably. Some courts have considered utilizing larger spaces for jury deliberations. For those unfamiliar with the process, jury deliberations usually happen in a space similar to that of a conference room. There may be a coffee pot and a restroom included for the group of six to twelve people. Judges have been known to order in food to accommodate starving juries without delaying the deliberations. Add this pandemic to a conference table full of adults sharing donuts or pizza, and you’ve got a dilemma.
Experts have advised that enclosed spaces such as restaurants present a particular risk for the spread of the virus. The air circulation and the inevitable spread of particles are unavoidable in confined spaces. And wearing a mask is not feasible when you’re consuming a meal. Imagine a conference room where secrecy of the proceedings is paramount. It has to be a confined space. However, we don’t have to serve food in the confined space. Juries are allowed to go out to restaurants or to go home for lunch throughout the trial. This could be permitted during deliberations as well. Jurors are instructed not to discuss the case with anyone, not even each other, until they’ve heard all the evidence. A similar gag order could be added to the deliberations if and when juries have to leave the courthouse for meals.
And we don’t have to have the jury confined in a small space, either. We have to use our imaginations. What if we allowed the jury to deliberate in the courtroom and the attorneys and court personnel exited the courtroom for the duration of the deliberations? There are so many different ways that we can utilize the spaces we have to accommodate the current crisis. The problem is that we don’t seem to have the urgency of finding solutions. Where will the urgency come from if not from the trial lawyers?
MOUNTING PRESSURE OF A TRIAL DATE
The pressure of a pending trial encourages settlements. Any practicing attorney can tell you that cases are more likely to settle rather than going to trial. However, if the parties don’t have a trial date set, the cases sometimes make little to no progress. The reasons for settlement in both criminal cases (plea deals) and civil cases vary. It boils down to risk. There’s no predicting what will happen during a trial. If you want to avoid any risk of losing, you can often negotiate prior to trial. The pendency of trial encourages both sides to line up their witnesses and gather evidence. If your witnesses cannot be found or if your evidence is not amounting to what you thought it would … then you may be more likely to make a deal. And avoid a trial.
What if you have all these newfound COVID-19 precautions ready and the case settles at the last minute? Have you wasted a jury? Well, the criminal dockets have been prepared for this all along. Many criminal courts utilize “priority lists” to make sure more than one case is prepared to go to trial. This will be more important than ever due to the backlog of cases. If several incarcerated defendants await a jury trial, the last-minute plea deals should give the next man (or woman) on the priority list a chance to have their day in court.
Now, with all this in mind. Could we consider for a moment having a jury trial online? Is that even feasible? It could be. But you would need the consent of all parties. And you might need a bailiff or another security officer available to observe the jury functions. Juries come in many forms. One example is a grand jury, which requires a quorum, and investigates whether the state should pursue criminal charges or not. A grand jury’s proceedings are supposed to be secret. If you consider having a grand jury online, you would utilize a video conferencing tool with increased security measures. There are also concerns regarding the isolation of jurors if they’re appearing by video. They should not have distractions such as background noises or onlookers, including, but not limited to, toddlers and nosey teenagers.
Even if we are able to present evidence and testimony to a remote jury, it is highly recommended to have the jury deliberations held in one location. Remote jury deliberations would present a host of problems, not only for secrecy, but also for consensus. Often times juries will break out into smaller groups or have side conversations amongst themselves. This may not be possible if everyone is participating through video conferencing. Jury deliberations will likely continue to be held at the courthouse, but may be held in a larger area to maintain social distancing.
I’ve been in court recently where the opposing attorney objected to a proceeding being handled by simultaneous audio/visual transmission even though my client was incarcerated and consented to this use of technology for the hearing. What was the reason, you ask? Well, he thinks cross-examination is more effective in person. He insists on risking his health and that of everyone else so that he can intimidate in person.
The pandemic will likely present new and interesting problems for the trial lawyer. Suppose we have to present documents from afar? Suppose we have to make several copies of documents so as to not require the jury to share them and/or touch them after one another. Suppose we have to sanitize exhibits between witnesses. Suppose we have to cross examine from a web-cam. Suppose we have to be uncomfortable for a while. So be it.
Betty Dunkum of Victory Trial Consulting, LLC, https://www.victorytrial.com, presented Jury Trials in COVID World, an online continuing education course, on Thursday, May 14, 2020. This article, covering many of the same points as her presentation, was drafted with her permission.
COVID-19 Cannot Be the Death Knell of the American Jury Trial
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