June Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 6 | Issue 6

June - 2021

Opening Statement

Dear Colleagues,

We hope this newsletter finds you and yours doing well as we slowly recover from the pandemic. We know that for many, life will never be the same. Our thoughts are with those who have suffered.

In some areas our jury trial system may never be the same. As we have written often, the one aspect of remote jury trials that may last past the pandemic is remote jury selection. It makes sense in terms of saving time and resources for all. There is also mounting anecdotal evidence that it increases diversity in the jury pools.

With that in mind, we offer our first article by one of our Judicial Advisors, Judge Catherine Shaffer, from King County, Washington. For judges and others interested in the actual mechanics of doing remote jury selection she provides a practical and specific how-to guide to the process. Moreover, she provides three compelling reasons why she would like to keep remote jury selection, even after the pandemic. One purpose of our Project is to help courts around the country with these procedures and we thank her for taking the time to share her expertise.

Next, we provide a piece by our Research Fellow, Michael Pressman, on challenges to remote jury trials. For judges and court systems around the country we will try to keep current on decisions in this area. The opinion by Judge Marsha J. Pechman, United States District Judge for the Western District of Washington, provides a thorough review of a remote civil jury trial she conducted and her reasoning for denying a challenge to that process. Some time ago we spoke with Judge Pechman about remote trials and she is truly a leader in giving litigants access to justice through this means.

This past month we met virtually with members of The Canadian Juries Commission, which is a national not-for-profit organization in Canada representing and supporting Canadians on jury duty and coroners inquests. Through this collaboration we hope to share ideas on how we can best support jurors who are summoned to the courts in both countries. We will report on our work in upcoming newsletters.

Here are our goals for this year and I plan on keeping these up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:

1. We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.

2. If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.

3. We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, save time and help cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.

Some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive and representative cross-section of the community.

4. Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.

If you would like to be involved in any of our goals listed above please feel free to email me directly at markd56.md@gmail.com.

Sincerely,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director

Upcoming Events

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An Old Judge Learns a New Trick: Virtual Voir Dire

By Judge Catherine Shaffer

Helpful Editor: Judge Matthew Williams

I have a feeling that I am not the only trial judge who has often remembered during the past year the ancient curse, “May you live in interesting times.” Certainly, one of the most unprecedented developments of the year has been the transformation of voir dire in my courtroom.

In February 2020 I had no idea what “Zoom” was. Today, Zoom, whether it is fully remote or a hybrid which has some jurors on screen, some in the courtroom, is the voir dire method that we use to impanel both criminal and civil juries here in King County, Washington.

Our court is a large one. We have three courthouses, 53 judges, and over 10 commissioners. Unlike some courts, we never really closed during the pandemic.

We are a court of general jurisdiction with a diverse case load of felony criminal cases, civil cases with amounts in controversy over $100,000, cases involving real property disputes, family law cases, dependency cases, involuntary treatment cases, and juvenile cases.

Of course, we followed our state Supreme Court orders temporarily suspending in-person jury trials for a couple of short periods in 2020. Even then, we continued to handle urgent hearings and motions. We rapidly learned that many hearings could be handled remotely, while still managing others in person (with appropriate safety protocols).

With pandemic precautions in place, our courthouses are now fully operational, and we are very busy tackling the criminal trial backlog typical of all trial courts these days, as well as managing our usual caseload of other cases.

Our court’s pandemic precautions include, but are not limited to, deep cleaning, a mandatory mask policy, required social distancing at all times, including in our elevators, hand sanitizer dispensers, electronically delivered working papers, many hearings via telephone and Zoom, and more.

These precautions have a direct effect on our jury trials. In our criminal cases, we are selecting jurors via Zoom, and then having those jurors report in person to their assigned court. In many of our civil cases, the assigned judge has ordered a completely virtual trial from beginning to end.

Some of our courtrooms that are used for jury trials are currently reconfigured so that jurors sit, socially distanced, in what used to be the spectator’s gallery and the well of the court, while the attorneys and parties sit, socially distanced, in our jury box area. Jury recesses and deliberations take place in another “buddy” courtroom or a large conference space where jurors can remain socially distanced. If we have many spectators, we can open up a third “buddy” courtroom to create a closed-circuit broadcast. Some of our judges also create “closed circuit” zoom meetings for spectators, and some of our judges even live stream their proceedings on YouTube.

For those jurors who actually have to come to our downtown courthouse, we offer the option of ordering lunch in for them. We are also reimbursing parking for jurors who do not opt to use public transportation.

Our jury selection procedure has been completely revamped and our juror summons and juror website have both been reformatted so that jurors have a sense of what to expect when they are actually called to serve.

I will try to take you on a tour of jury selection these days via the criminal case I am currently trying.

When the case was assigned to my court, our first order of business was to figure out our schedule, including the schedule for jury selection. The parties had only brief preliminary motions, so we knew we would be ready to start screening a jury panel by the next day. I requested 100 jurors in my initial juror list. Meanwhile the parties reviewed and together tweaked for the case my standard electronic questionnaire for jurors. Generally, we ask prospective jurors for the following:

1. The brief biographic information we used to collect when jurors reported in person for jury duty;

2. Optional questions about juror diversity/minority group affiliation;

3. COVID and general health screening questions;

4. The juror’s ability to use Zoom;

5. Case specific questions bearing on possible bias;

6. Whether the juror is asking to be excused, and if so for what reason.

We use MS-Forms instead of Doodle or other on-line questionnaires, because MS-Forms provides a professional and secure means for jurors to answer preliminary questions. We’ve also found that MS-Forms is easy to tweak to add case-specific questions, and it allows us to collect the juror responses into an Excel spreadsheet that the court and all parties can review electronically.

The questionnaires do, of course, reveal a great deal of information, and we do preserve the juror responses for our court record, so we refer to jurors from the time they return the questionnaires by juror number, not name. (As to how jurors are numbered, many courts sort the responses and assign numbers randomly. In my court, the jurors all respond almost immediately, so assuming we get advance express agreement of all parties, they are numbered in the order they respond.)

It only takes a few hours at most to receive the jury responses. I used to worry that we would be inadvertently screening out disadvantaged jurors because of a “digital divide.” This has proved to be a non-issue. Pretty much everyone seems to be able to manage Zoom through some device. As one of my colleagues frequently says, “More people own cell phones than cars or bus passes.” We provide technical coaching from court staff, and it is vanishingly rare for a juror to actually come down to the courthouse in person for voir dire, though of course we provide that option.

Once the questionnaire responses are in, the lawyers and I together review the health and hardship requests. We also look at any jurors who indicated they could not be impartial. We screen out those we’ve decided to defer or excuse. This screening with the lawyers and parties takes about an hour and a half to two hours for a 100-person venire.

As we screen the jurors, I sort those we are not excusing into groups of 16 to 18. We’ve found that 18 is the maximum number we can realistically see on a Zoom screen, along with the court and counsel and the defendant. We schedule each of these groups of 16 to 18 as a “panel” we will question for a half day.

For example, in my current case, the case started on Monday afternoon. We sent out our questionnaires the next morning and we screened them Tuesday afternoon. We scheduled three Zoom panels, for Wednesday morning and afternoon, and Thursday

morning. As this is a criminal case, the lawyers, the defendant and I were all present in the court, along with any spectators or jurors attending in person, for each panel. The lawyers, defendant and I, but no jurors, were also present in the court after the panel sessions were all concluded, for the exercise of peremptory strikes. All jurors were then alerted as to whether they were on the jury, and if so given instructions to report on Monday morning for opening statements. The rest we released.

The format of Zoom voir dire panels is basically the following:

1. I greet the 16-18 jurors on the screen and introduce them to myself, my staff and the parties. We swear them in.

2. I tell the panel the Zoom rules. In summary, I let them know they are in court (albeit virtually) and the same rules apply that always have for being a courtroom for jury selection: no doing anything else, making sure they are in a private location and not distracted, alerting us of any technical problems right away, not communicating with anyone else during the session in any form including electronically, and no recording or screen-shots of the session.

3. I tell the panel the usual voir dire rules that we would tell an in-person panel: the roles of judge and jury, the criminal standard of proof and requirement of unanimity, the prohibitions on talking about or researching the case, etc.

4. If the parties have requested it, I ask additional BRIEF general questions which relate directly to the case.

The remaining time in the session is divided between the parties in 20-minute rounds. This always ends up being plenty of time for counsel to talk to the 16-18 juror candidates. At the very end of the session, I explain again when and how we will let the jurors know who will be on the jury, thank them, and specify the numbers of jurors we will keep on the call for individual questioning.

Those individually questioned are jurors who 1) had private information they did not want to discuss with others present; 2) are waffling on their ability to be fair; 3) think they have heard of the case/witnesses; or 4) asked to be excused and were not. This small group is placed in the Zoom waiting room and then brought back into the main Zoom “courtroom” and questioned one at a time.

As we work our way through the panels, I do a little math. Normally I impanel 13 or 14 jurors for a trial. In criminal cases, each side gets a maximum of 6 peremptory challenges. (Although our Supreme Court has issued an emergency order that allows us to limit peremptory challenges to 3 per side).

So during the panels I do the math: 13 jurors plus 12 strikes is 25. 14 plus 12 strikes is 26. As we do the panels, and the lawyers pass on jurors for cause, I remind them when we know we have the first 13/14, and when we have gotten to 25 or 26 jurors, we have enough jurors for them to exercise their peremptory strikes.

In Washington State we have a codified, but much stronger, version of Batson (GR 37) that provides that if the court “determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” So, I remind the lawyers in the breaks when jurors are not present of those jurors who have identified as or who appear to be from minority backgrounds. I also remind lawyers that I screen peremptory challenges against what I have seen and heard of voir dire to make sure diverse jurors are not being struck based on that status.

In my current case, which will take about three weeks to try, we had enough jurors to pick at the end of our second panel.

The peremptory challenge hearing (after all the voir dire had been completed) took place as it normally does. The lawyers and reviewed the first 14 jurors together outside the presence of any juror. The State struck a juror, moving the next juror in numerical order into the first fourteen. Then the defense struck a juror from that group, and so we proceeded.

In my court, if a party accepts the panel (as the defense did at one point) they cannot challenge anyone in that group of 14 later, but they can challenge new jurors joining the group of 14 as the other side continues to challenge. Once both sides have accepted or the challenges are exhausted, whichever happens first, we have a jury.

Finally, my law clerk/ bailiff gives the selected jurors the logistics on reporting and tells the other jurors they are excused with our thanks.

We have periodically gotten objections to our virtual jury selection procedure, particularly from our criminal and civil defense bar. None of those motions to date have been found by any judge on our court to be meritorious.

Once they get started, most lawyers seem comfortable with virtual voir dire. I have noticed that even in my criminal cases, no one is really bothering any more to challenge the virtual voir dire procedure. It works.

I like this procedure very much, for three significant reasons. First, our jurors are so much more relaxed and forthcoming than they used to be when we called them to the court in person. Second, they are actually easier to see and monitor on the screen than live in the courtroom. Third, and most importantly from my point of view, we have greatly enhanced the diversity of our jury pools by using this procedure.

In responding to the pandemic, we seem to have lowered a very big barrier for our jurors to respond to their summonses. It is a slightly slower process than when we called jurors in person for mass gatherings in our jury rooms and courtrooms. But I think this process is worth it because of its benefits. Although I look forward to returning my jury to the non-socially distanced jury box and again giving them the use of my courtroom’s attached jury room, I hope we do not return to live jury selection in the future.

I wish I had fascinating, funny anecdotes to tell you about virtual voir dire, which might be an enjoyable way to wind up this article. But the only real excitement we ever have is dealing with technical glitches, which turn out to be not very challenging. We have learned in my court that virtual voir dire is simply a very convenient, informative, and effective way to screen and select a jury that truly represents our community.

The Honorable Catherine Shaffer is a Judicial Advisor to the Civil Jury Project and a judge on the King County (Washington) Superior Court.

A Report on Two Courts Confronting Challenges to the Legality of Remote Jury Trials and Remote Jury Selection

By Michael Pressman

Various courts throughout the country have been conducting full jury trials remotely, and other courts have conducted jury selection remotely even when the trial that follows is held in person. Accordingly, and unsurprisingly, courts have begun to confront motions and appeals from parties seeking to set aside verdicts arising out of trials where some or all of the proceedings were remote--with these parties arguing that the remote proceedings were either unconstitutional or otherwise impermissible. This piece provides a brief report on two recent examples of this--one where an appeal is pending before the New Jersey Supreme Court, and another where Judge Marsha J. Pechman, United States District Judge for the Western District of Washington, issued an opinion on a post-trial motion that raised these issues. With respect to the latter, we will include a full excerpt of the relevant portion of Judge Pechman’s opinion.

New Jersey:

The New Jersey Supreme Court will soon be deciding whether it is unconstitutional to conduct remote jury selection during the current pandemic. The court will be deciding this in New Jersey v. Dangcil, case number 084990, an appeal by a criminal defendant who was prosecuted for attempted arson this past fall. Although the trial itself was held in-person, the jury selection process took place remotely in October. The defendant initially brought an emergency challenge to the use of remote jury selection at that time, but the emergency challenge was denied vis-à-vis the emergency basis; the court said, however, that the defendant could challenge the use of remote jury selection after the trial had concluded. With the trial now having concluded, however, the defendant re-issued his challenge, and the court stated that “Defendant’s motion for direct certification is granted, limited to [D]efendant’s challenge to the hybrid virtual / in-person jury selection procedure.” Briefing of the issue is currently under way, and oral argument (before the New Jersey Supreme Court) is scheduled for June 29th. We, at the Civil Jury Project, will be monitoring the results and will report on the decision.

Western District of Washington:

Judge Marsha J. Pechman, United States District Judge for the Western District of Washington, recently issued an opinion in Goldstine v. FedEx Freight, Inc., 2021 U.S. Dist. LEXIS 46478 (W.D. Wa. Mar. 11, 2021), a civil case for which she had conducted a fully remote eight-day jury trial. In her opinion, she denies post-trial motions from both parties and also provides other findings and conclusions. Relevant for our purposes is the fact that one of the arguments in the defendant’s post-trial motion is that the remote trial violates the Seventh Amendment, Rule 43(a) of the Federal Rules of Civil Procedure, and the court’s “General Order No. 15-20.” Judge Pechman denied both of the post-trial motions in full, and, accordingly, she denied the defendant’s arguments that the remote trial violated the defendant’s rights. Rather than summarizing the portion of Judge Pechman’s opinion that addresses the question of whether the remote trial violated the defendant’s rights, we provide the full three-page excerpt here. We do so because we think it constitutes a valuable blueprint that can be helpful to courts that are currently addressing these issues and to courts that are considering conducting remote jury trials or other remote proceedings. We commend Judge Pechman for her trailblazing efforts in the context of remote jury trials--both with respect to this opinion and with respect to her tireless work in this domain throughout the pandemic. What follows is the excerpt from her opinion in Goldstine v. FedEx Freight, Inc. (beginning at *33).

* * *

FedEx argues that the remote jury trial violated the Seventh Amendment and Rule 43(a), as well as General Order No. 15-20. The argument is legally and factually untenable.

Both Rule 77(b) and 43(a) permit the Court to convene a jury trial by contemporaneous video conferencing technology. See Liu v State Farm Mut. Auto. Ins. Co., No. 18-1862-BJR, Dkt. No. 83, 2020 U.S. Dist. LEXIS 237718 (W.D. Wash. Dec. 17, 2020); Gould Elecs. Inc. v. Livingston Cty. Rd. Comm'n, 470 F. Supp. 3d 735, 738 (E.D. Mich. 2020). First, Rule 77(b) provides that "[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom." (emphasis added). This admonishment permits a flexible definition of open court. Trials may be conducted in a non-traditional [*34] manner when "exigencies make traditional procedures impracticable." Gould, 470 F. Supp. 3d at 738. In times of crises, like hurricanes and floods, courts have adapted and held court in unusual places. Second, Rule 43(a) provides that "[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Like Rule 77(b), Rule 43(a) affords flexibility when circumstances dictate something other than in-court proceedings.

The Court enjoys broad discretion to determine whether good cause and compelling circumstances exist under Rules 77(b) and 43(a) to conduct remote civil jury trials. Thomas v. Anderson, 912 F.3d 971, 977 (7th Cir. 2018) ("[U]nder Rule 43(a), the judge has discretion to allow live testimony by video for 'good cause in compelling circumstances and with appropriate safeguards.'") cert. denied 140 S. Ct. 533, 205 L. Ed. 2d 334 (2019); see also Gould, 470 F. Supp. 3d at 740 ("Determining whether good cause and compelling circumstances exist is a matter left to the court's discretion."). "The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place." Fed. R. Civ. P. 43(a) advisory committee's note to 1996 amendment. [*35]

Good cause and compelling circumstances existed to conduct the jury trial remotely through the Court's video conferencing platform—Zoom.Gov. The reasons were multifactorial. On February 29, 2020 Governor Jay Inslee declared a state of emergency in Washington in response to the COVID-19 pandemic. See Proclamation of the Governor No. 20-05 (Feb. 29 2020). Shortly after, the Court issued General Order No. 01-20, continuing all civil and criminal in-person matters "[g]iven the significant number of identified and projected cases of COVID-19 in this District and the severity of risk posed to the public. . . ." General Order No. 01-20 at 2. By late Fall 2020, the COVID-19 pandemic continued to disrupt the normal operation of the Court and quotidian routines throughout Washington. And on October 2, 2020, the Court issued General Order No. 15-20—in effect at the start of the trial—which stated, in part:

In the last two months, the daily number of positive cases, hospitalizations, and deaths have significantly decreased in the Western District of Washington. This, combined with the deployment of Courthouse procedures designed to reduce the spread of COVID-19, now allows for a limited number of [*36] individuals to safely enter these facilities for critical in-person criminal proceedings. However, limiting the size and frequency of gatherings remain critical to preventing serious injury and death from COVID-19.

General Order No. 15-20 at 1. The General Order continued the restriction on in-person criminal and civil matters, but stated that "Remote video proceedings are permitted in civil cases, including jury trials with jurors participating remotely." Id. at 2. This Order applied at the time of this trial. Additionally, the Court's public elevators were out of service at the time of trial, making the Court's 14th floor courtroom inaccessible to some and impractical for everyone. To put it mildly, exigencies existed requiring nontraditional methods of conducting the trial.

The Court went to lengths to provide adequate safeguards so that the parties to the remote jury trial received a fair trial. Well before this trial, the Court convened a committee to study the potential of using the Zoom.Gov platform to conduct remote civil jury trials during the COVID-19 pandemic. The Court's Committee studied the practical and technical safeguards that could be put in place to provide a fair proceeding [*37] to litigants. The Committee also worked to ensure that jurors who lacked access to technology, training, or the internet could participate. After gathering data and conducting a mock remote civil jury trial, the Committee issued a detailed set of procedures for both Court staff and participating attorneys to follow. A copy of the handbook issued for attorneys that was in effect at the time of the trial is appended to this Order as Appendix A. The Court also issued an order in this case setting the standards for the remote jury trial, including as to witness and exhibit preparation and the conduct of counsel. (See Order for Remote/Virtual Civil Jury Trial (Dkt. No. 284).) And the Court discussed the remote trial process at length with counsel during several pretrial conferences. (See Dkt. No. 267, 283, 293.)

The remote jury trial process implemented in this District works effectively to reproduce the core components of a civil trial. The Zoom.Gov platform permits the instantaneous transmission of live video testimony to all parties and jurors. It allows the parties to pose questions to witnesses and interpose objections. It also allows the Court to make rulings on objections, hold side [*38] bars, and excuse the jury to deliberate in a "virtual" jury room where jurors can each view admitted exhibits on their own device. The platform also enables jurors to ask questions of the witnesses, which helps [assess] whether the jurors are paying attention to the proceedings. During this trial, the Court employed two courtroom deputies to monitor the proceedings and juror attention. Jurors and the Court are able to assess witness demeanor and credibility in much the same way as happens in open Court—with the added benefit of seeing faces head-on.

To convene a jury for this case, the Court summoned 100 potential jurors, 31 of whom participated in voir dire. As part of the juror orientation and prior to voir dire, the Court required the jurors to complete a questionnaire that the parties prepared. And to accommodate requests from counsel, the Court conducted two rounds of voir dire so that counsel could view all jurors on a single computer monitor. After these voir dire rounds and allowing the parties to make for-cause and peremptory challenges, the Court empaneled 8 jurors. The Court then read the preliminary jury instructions and the eight-day trial commenced. The parties put on 14 [*39] live witnesses who appeared on screen without masks and whose facial expressions and demeanor could be readily discerned. All eight jurors participated in the eight-day trial. While there were issues with internet connectivity impacting jurors and both parties, the Court found the delays were not undue when compared to typical delays inherent in in-person trials. The Court and its two courtroom deputies monitored the jurors to ensure they were paying attention. The jury showed its attention by asking pertinent and detailed questions of each witness. And while the jurors were appearing remotely from their homes, the Court found that the jurors took their role seriously and none showed signs of distraction. After the parties' closing arguments, the Court read the final set of instructions to the jury and sent them to the virtual jury room to deliberate where each juror had unfettered access to review the admitted exhibits. After more than a full day of deliberations, the jury returned its verdict. The Court polled each juror and confirmed the verdict was that of each juror.

FedEx's motion fails to demonstrate how the remote civil jury trial violated the Seventh Amendment, Rule 43 or General Order No. 15-20. [*40] As demonstrated above, the process provided all of the necessary safeguards under the Seventh Amendment and Rule 43. And it abided by General Order No. 15-20's explicit permission to hold remote civil jury trials. See General Order No. 15-20 at 2. FedEx's opening motion fails to provide any evidence to support the arguments presented and the Court finds it unconvincing. In its reply, FedEx offered a lengthy declaration from one of its three trial attorneys, Medora Marisseau. Though the declaration could be stricken because it should have been filed with the opening brief, the Court considers and responds to it.

First, counsel complains that she was unable to communicate with her client during the trial because they were physically separated. (Marisseau Decl. ¶ 5 (Dkt. No. 387).) But this "problem" was of counsel's own creation. Nothing in the Court's pretrial orders required counsel and client to be in separate rooms. The remote jury trial handbook advised counsel that "Witnesses, counsel, and parties should be in locations that are suitable for trial." Handbook at 4. The handbook specifically stated:

Counsel should confer regarding the following issues and advise the Court of any agreements or issues to be resolved:

• [*41] The equities for witness and counsel participation in the Zoom trial, including whether:

▪ the part(ies) may be in the same physical space as their counsel.

Handbook at 4. Neither before nor during trial did Counsel raise any concern about being unable to be in the same location as her client, despite this admonition. And throughout the trial, FedEx's representative appeared to be in the same room as one of the trial team attorneys. Had it been important to share the same room, counsel should have made arrangements to accommodate her own preferences. At the very least, counsel should have raised the concern with the Court before or during trial rather through a post-trial declaration.

Second, counsel claims she could not effectively communicate with jurors and witnesses because she could not read their reactions and because she could not focus on witnesses and the jury at the same time. (Marisseau Decl. ¶ 6.) The Court is unconvinced. First, the technology used allowed counsel to create her own rapport with jurors and witnesses in much the same way as occurs in person. The Court found engaging with jurors and witnesses straightforward and gauging reactions and demeanor easy. Second, Counsel's statement [*42] overlooks the fact that in an in-person trial, counsel would not be able to simultaneously focus on a witness and the jurors any more effectively than she could on Zoom.Gov. In both settings, counsel must shift focus between the witnesses and the jury. And in the courtroom, the faces of witnesses and jurors will be far smaller than they appear on Zoom.Gov. Moreover, had the Court been able to conduct the trial in-person, witnesses and jurors would have most likely been wearing masks, making assessments of demeanor far more difficult than on Zoom.Gov where they were mask-less.

Third, counsel claims "[t]he technology also limited my ability to assert objections" because her objection was not heard due to a "built-in delay" or because she was muted. (Marisseau Decl. ¶ 8.) This contention borders on frivolous. Counsel was fairly presented with every opportunity to make her objections on the record. If counsel had muted her own microphone or did not hear her objection go through due to her claim of "built-in delay," then she should have made every effort to put her objection on the record even if it came mid-answer or interrupted the questioning. Indeed, the Court's Order on the Remote Trial [*43] specified that counsel should also raise her hand to make objections. (See Dkt. No. 284 at 6.) If counsel's objections do not appear in the record, their absence is fairly attributable to counsel's failure to act and cannot be blamed on the technology.

Fourth, counsel claims that her opposing counsel used objectionable demonstratives and that the record does not show their use because the proceedings were not "videotaped." (Marisseau Decl. ¶¶ 9-10.) The argument lacks merit. First, in-person civil trials are not recorded in this District, meaning that there would similarly be no audio/visual record. Second, counsel did, in fact, make objections to the use of demonstratives, many of which the Court sustained. Third, just as would be the case in an in-person trial, it is up to counsel to make objections as to non-verbal conduct on the record. Counsel's failure to make a complete record cannot properly be attributed to the remote nature of the proceedings. And counsel's complaints about a sketch used in closing fails to acknowledge that counsel made no objection to it during the argument. Counsel's late-conceived objection lacks merit.

Lastly, counsel contends that "every federal Zoom jury [*44] trial to date has resulted in million dollar plus verdicts." (Marisseau Decl. ¶ 14.) This is factually incorrect. Of the four remote civil jury trials the undersigned has [] conducted, this is the only one to result in a jury verdict over $1 million. One case ended mid-trial with a settlement, one trial resulted in a jury verdict below $1 million, and the jury in the final cases reached a verdict in favor of the defendants. Counsel's argument also fails to explain why it would be fair to compare this case to any of the others that have been tried remotely or in-person. Nor can one conclude from the size of a verdict alone whether the jury's award was based on an "anti-defendant" bias. Indeed, an award of $1 million may well be a mere fraction of the requested damages. The inaccurate data counsel cites does not convince the Court that there is any structural bias against defendants in the remote jury process.

The Court finds no legal or factual merit in FedEx's argument in support of its claim that the remote jury process was improper or unfair. It is the Court's firm belief that the trial abided by the dictates of the Constitution and Rules 43 and 77, and it was explicitly permitted by General [*45] Order No. 20-15. Proceeding remotely enabled the parties to seek resolution to two-plus-year-old case that had already been through one mistrial. The jurors gave FedEx their devoted attention and they reached the verdict they did based on the evidence and testimony presented and the skill of counsel. The Court finds no basis on which to grant FedEx's Motion, which it DENIES the Motion on this issue.

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.