On Friday, April 23rd, we at the Civil Jury Project had the opportunity to watch a webcast entitled “The Online Courtroom Now and Post-Pandemic: Skills and Tools for Remote Advocacy,” which was provided by the National Institute for Trial Advocacy and the Online Courtroom Project. The webcast was moderated by Richard Gabriel, the founder of the Online Courtroom Project (and one of our Jury Consultant Advisors), and the panelists were the following three judges: Administrative Judge Jennifer Bailey of the 11th Judicial Circuit of Florida in Miami-Dade County, Judge Glenn Grant, the Acting Administrative Director of New Jersey courts, and Judge Matthew Williams of King County Superior Court in Washington State (one of our Judicial Advisors).
Over the course of the webcast, the three judges reported on their experiences with remote court proceedings in their respective jurisdictions, and they also answered a variety of questions about these experiences. All of the judges spoke with great optimism about the place of remote platforms in courts; according to them, not only are various concerns unfounded, but, in many ways, remote platforms provide substantial advantages—some that might have been expected, but also some that might have been unexpected. As all of the judges (and Richard Gabriel) point out, however, the use of remote platforms is a work in progress, and developing procedures for the use of remote platforms in courts is an exercise in problem solving. What seems clear, though, is that this endeavor is well worth it. The benefits are, and will continue to be, great—both now, amid the pandemic, and in the post-pandemic future.
This piece provides a summary of what was discussed during this informative webcast.
(For prior work that Judge Williams has done with us regarding remote proceedings, and for prior reporting we have done on Judge Williams's experiences regarding remote proceedings, see the October 2020 and February 2021 issues of our newsletter. In February 2021, Judge Williams also provided us with several valuable resources--pertaining to remote proceedings--to share with our readership. Each of these is posted on our website and can be accessed by clicking here.)
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Judge Williams
Judge Williams reports that his court, in King County, has been conducting virtual voir dire since July 2020 in all civil and criminal cases. For the first few months after July, the trials themselves were in person and social distanced. Then, when a surge hit in the fall, they ceased in-person jury trials and began to conduct fully remote proceedings. Since then, his court has conducted over 10,000 virtual hearings, 600 remote bench trials, and 111 remote jury trials.
Over the course of his experience with remote proceedings, Judge Williams has developed a wealth of knowledge about what works and what doesn’t. In the webcast, he provided us with a variety of key lessons, and he also debunked a variety of “the sky is falling” concerns.
Judge Williams’s key lessons:
1. Do not get lost in the technology. You don’t need particularly fancy technology. It’s still trial; do not make things more complicated than they need to be.
2. Be kind. Aggression doesn’t play well in this venue where people are three feet away from each other.
3. Be prepared. The spotlight is always on you. Be prepared and do not assume that the jury is ever looking away from you. Relatedly, Judge Williams says that training is critical. Training sessions helped the courts collaborate with the bar. Further, since these processes are new, various procedures and processes evolved during trainings as well.
According to Judge Williams, various “the sky is falling” challenges have turned out to be unfounded.
1. Digital divide concern
A concern raised about remote jury trials is that they might exclude certain portions of the population that lack the technology or skills to participate via this medium.
According to Judge Williams, his court has used remote technology as a way to enhance inclusion and it has not excluded anyone. This is because jurors are allowed to use virtual technology, but they are not required to. They can come into the courthouse and use court-provided devices to participate if they wish. As a result, what Judge Williams has found is that, instead of observing a socioeconomic or racial divide develop, the jury pool increased and it has become more diverse. People with children at home or people who are unable to take substantial time away from their jobs are now more able to participate than they would have been if participating remotely had not been a possibility.
2. Witnesses being coached
A concern some people have is that witnesses could be coached if trials are carried out over a remote platform.
According to Judge Williams, this concern is no greater than it would be in person. He says that the solution is simply to observe the witness, and he says that the judge can easily see where a witness’s eyes are. Further, he says, if one is suspicious that coaching might be going on, one can ask the witness to turn his or her computer around to provide a 360-degree view of the room.
3. Jurors being distracted
A concern is that, over a remote platform, jurors won’t pay as close attention and they will be distracted.
Judge Williams has discovered that the reality is exactly the opposite. He says that for in-person trials, the jurors are coming into a new and frightening environment and everything in the courtroom is distracting. They pay more attention, are more focused, and are more engaged when they are at home. And they also bond with the lawyers better over remote platforms because they can see the lawyers better.
4. Judging witness credibility
Some have a concern that over a remote platform it might be harder for jurors to assess witnesses’ credibility.
Judge Williams points out that, technically, the walking up to the juror box is not testimony. Further, as for the testimony itself, it’s a rare instance that one makes a credibility decision based upon information from the waist down. In addition, remote platforms allow for a much closer view of witnesses’ faces and micro-expressions. Many jurors who have taken part in both in-person trials and remote trials have reported to Judge Williams that they can judge credibility better over the remote platform than they can in person.
Where do we go from here?
According to Judge Williams, it will neither be possible nor desirable to go back to pre-pandemic procedures, and the remote trial will eventually become a part of courts’ toolboxes in all jurisdictions. He says that remote trials will continue to have a place in our courts, and this is simply because the benefits do, and will continue to, outweigh the downsides:
--Remote trials make court more accessible for citizens and thus increase the diversity of jury pools
--Jurors are more focused during remote trials
--Lawyers have greater control over their presentations during remote trials and this is something that lawyers like and will continue to like
--Remote trials are cheaper for the lawyers and for the clients and they are easier for the jurors. The economics of remote trials will drive their usage going forward.
On the whole, Judge Williams says that these important factors will wear down the arguments in opposition to remote trials.
Quoting Robert Lasnik, Senior U.S. District Judge for the Western District of Washington, Judge Williams said: “The people who are most opposed to doing Zoom jury trials . . . are people who have never tried to do one.”
Judge Bailey
Judge Bailey reports sharing many of Judge Williams’s observations about the use of remote platforms.
Although Florida doesn’t have the ability to force parties to go to trial over remote platforms, she says that the pre-selection process has been conducted over remote platforms to a great extent.
She has found that the venire is more diverse than before remote platforms were used, and she says that online technology is extremely pervasive. Relatedly, she has found not only that venires are more diverse, but also that there is a higher yield for jury service now. And, in some courts, the difference in yield has been extremely dramatic.
Judge Bailey reports that trials that are a hybrid between in-person and remote are common in Florida now, and witnesses are often appearing by remote platforms.
She echoes Judge Williams’s points about the concerns with remote platforms being overblown. And she says that technology problems do occur from time to time, but then they are dealt with successfully.
She says that some aspects of remote trials do require further figuring out—for example, how to handle witness sequestration and also coming up with good and streamlined procedures for evidence (rather than using various ad hoc and cobbled together solutions). She thinks that the courts need to work with vendors to develop a streamlined system for handling evidence.
As for performance over the remote platform, she says that it’s important to have affect in one’s voice because monotone voices make for particularly boring presentations over remote platforms. She also thinks we need to realize that “Zoom fatigue” is a real phenomenon and we should explore measures to counteract it.
On the whole, Judge Bailey is confident that although remote platforms will not fully replace in-person proceedings, remote platforms will remain as an “adjacent.” The benefits of having remote platforms as a possibility are great:
--Many more people—especially pro se parties—are able to come to their proceedings now. Beforehand, there were many who couldn’t skip work and wouldn’t be able to attend.
--There are also huge increases in participation in the jury system. This, she says, is very important for democracy and faith in justice.
--Another benefit of remote proceedings, she says, is transparency. People can now watch more proceedings. And this, she says, is important for communities and for the rule of law.
Judge Grant
According to Judge Grant, remote civil jury trials should absolutely be a part of our toolkit. He reports on what has been going on in New Jersey and on his observations about the process.
Judge Grant refers to what he likes to call the three “C”s and two “T”s:
Crisis: He says that the crisis is what led to the new remote procedures.
Collaboration and communication: These two things are key for having success implementing new remote procedures.
Transparency and training: He says we need these two things for remote jury trials to be effective.
In New Jersey, a post-pandemic planning committee was put together, and a proposal ultimately was approved by the court and published for comment. As a result, there ended up being two phases of the implementation of remote platform usage: In the first phase, beginning in February 2021, consent was required of all parties to a case for remote platforms to be used. In the second phase, beginning in April 2021, remote civil juries were to be used statewide, and there was no longer a requirement of consent of the parties.
Judge Grant reports that jury selection is 100 percent remote in the state now. And New Jersey doesn’t want anyone to be excluded—as also discussed above—so they provide tablets and broadband assistance to any jurors who do not already have access to these things. They also provide ongoing training, as necessary, for jurors as well.
As for more specifics about the proceedings themselves:
--Judge Grant says that there is an enhanced jury charge that addresses various topics specific to using a remote platform.
--He reports that there should also be a very robust pretrial case management conference, and an accompanying order. This is to make sure that everything about the procedures has been addressed in advance. The order memorializes everything about the remote processes. The pretrial conference also mentions the need for a test run with parties, attorneys, and witnesses. The court asks attorneys to test equipment and make sure there is a back up strategy in case technology fails. The pretrial order also addresses procedures regarding exhibits.
Other comments from Judge Grant:
--Preparation is particularly key.
--It’s challenging to have a streamlined process for admitting evidence. This is important. Like Judge Bailey, he thinks that we need to further develop processes for this area.
--His court is trying to collect experiences and feedback from attorneys and jurors. So far, both groups have indicated a strong preference for using remote platforms.
In sum, Judge Grant says that the reality here is that using remote platforms in the courts works. With preparation and training, this is a tool that can be used by the court and the bar to advance justice. The feedback is positive and he thinks we should have remote proceedings as an additional option going forward. Not as the only option, but as an additional option.
Questions and answers
After the judges’ initial presentations, Richard Gabriel, the moderator, then proceeded to ask the panelists various questions—many of which had been submitted by the webcast’s attendees.
Question about the use of online questionnaires
Judge Williams reports that his court has made great use of online questionnaires, and, as a result of using these, they have a lot of information before voir dire even begins. These questionnaires could be conducted online, by email, or by snail mail. As a result of these questionnaires, voir dire is now much more focused and much more effective.
Question about staff training issues
Judge Bailey says that, in terms of training, there is no need to reinvent the wheel, and there are lots of good training tools out there that can be used (either put out by Zoom itself or by courts in other jurisdictions that have acted already). She says that her court would often have daily Q&A sessions where people could come and ask questions if they were having problems, and this proved helpful as well.
Question regarding people who cannot afford the technology to participate remotely
Judge Grant says that his court has purchased tablets to make sure that no one is excluded. His court would provide tablets to people’s homes and also provide broadband technology when necessary. He says that it also is the case, however, that the digital divide is not as pervasive as one might think. But his view is that it’s an obligation that the government has to make sure everyone is afforded an opportunity to participate in the jury process. Accordingly, his court’s provision of technology to those who don’t have it addresses this.
Question regarding constitutional concerns
Judge Bailey says that we’ve already, beforehand, been allowing remote appearances in certain types of instances, so the question really is just about whether this should be expanded. Judge Grant says that his jurisdiction has decided that they’re not doing any remote criminal trials. Judge Williams says that the United States Supreme Court will ultimately have to decide these questions about what the Confrontation Clause requires.
Question regarding the future—what will the future hold and how will things evolve?
Judge Bailey reminds us that only 2 percent of cases go to trial. And she says that everyone wants to stay on remote platforms for short matters. It’s cheaper for clients; it’s not fair to have those shorter proceedings be in person; remote platforms are important for pro se parties who are often unable to skip work to come to court, but who might be able to attend via remote platforms; remote platforms are better for bench trials; your clients want to use remote platforms.
She says she won’t tell people that they can’t have a live jury trial, though. In conclusion, she thinks that remote technology has had a more significant effect on the court system than has anything else over the last fifty years.
Judge Grant says that remote platforms will continue to be very helpful for most shorter proceedings. Remote technology will also help attorneys attend multiple meetings across town when there might not previously have been time to attend all of them.
Judge Williams says that access to justice is greater now because of the possibility of using remote technology, and the key is inclusion and not exclusion. He observes that more people have cell phones than have cars or bus passes. Accordingly, the biggest barrier to access to justice is not technology.
Question regarding solemnity of the courtroom
Judge Bailey says that although there might be greater solemnity associated with a physical courtroom, many of the rituals carried out in a courtroom can also be carried out over a remote platform. In addition, things like Zoom backgrounds (e.g., of a photo of the courtroom) can make the remote proceeding resemble a proceeding in the courtroom more so than if the background were not used. There are various ways in which the sanctity of the court can be brought back in.
Additionally, she says that we need to remember what was great about the normal but also what was not great. There is reason to think that the drama of the courtroom might be flattened over a remote platform and that there might be more reliance on the facts and the law—rather than on the personalities. Further, reports show that remote platforms give a better opportunity for minorities and women to speak—because remote proceedings are more controlled.
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All of the judges spoke with great optimism about the place of remote platforms in courts; according to them, not only are various concerns unfounded, but, in many ways, remote platforms provide substantial advantages—some that might have been expected, but also some that might have been unexpected. As all of the judges (and Richard Gabriel) point out, however, the use of remote platforms is a work in progress, and developing procedures for the use of remote platforms in courts is an exercise in problem solving. What seems clear, though, is that this endeavor is well worth it. The benefits are, and will continue to be, great—both now, amid the pandemic, and in the post-pandemic future.
