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Law360 (April 29, 2021, 4:51 PM EDT )
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| Sozi Tulante |
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| Kimberly Branscome |
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| Emily Van Tuyl |
At roughly the one-year anniversary of many COVID-19-induced court closures, we examine how courts and parties have successfully transitioned to holding virtual civil jury trials in product liability cases, highlight some of the positive attributes of virtual proceedings and identify factors to consider for successfully trying cases with virtual components.
During the pandemic, formats of civil jury trials have varied widely, and have included fully in-person trials — with participants maintaining social distance and wearing personal protective equipment — as well as fully virtual trials and hybrid approaches.
Factors that may be considered by courts and parties in determining which format is most appropriate include applicable COVID-19 laws and guidelines; infection rates in the forum state, and in the home states of attorneys and witnesses; the ability of the courthouse to accommodate safety requirements of in-person trials, and technical requirements of virtual or hybrid trials; and the preferences of judges, jurors, parties, attorneys and witnesses.
Here, we focus on cases in the product liability context, where, as in other contexts, courts and parties have had to balance the interests of justice and public health to find workable solutions, including proceeding with virtual trials.
Virtual trials did not begin immediately at the start of the pandemic. In fact, the first fully virtual asbestos trial in the nation, in Ocampo v. Aamco Transmissions Inc. et al., did not begin until July 2020, in the Superior Court of Alameda County, California.[1] Over the defendant's objection, the court ordered a virtual trial via Zoom, and the defendant's emergency appeal seeking a stay of the trial was denied.[2]
During trial, the defendant also filed a notice of irregularities including that jurors were chronically inattentive by walking around, laying down and doing other work.[3] The defendant's misgivings were unfounded, as the jury later returned a defense verdict.[4]
In February of this year, Washington state's King County Superior Court held its own virtual asbestos trial, in Little v. Air & Liquid Systems Inc. et al.[5] In fact, in King County, all civil jury trials are proceeding virtually via Zoom, for now.[6]
During the pandemic, the King County Superior Court has conducted more virtual trials than any other court system in the country — over 300 virtual civil trials, including jury trials.[7] According to the presiding judge, the court is considering continuing aspects of its virtual civil jury trial system even after the pandemic.[8]
Numerous other courts are planning for virtual jury trials in 2021, within and outside of the product liability context. Indeed, based on its experience as likely the first U.S. federal court conducting virtual jury trials,[9] the U.S. District Court for the Western District of Washington has developed a handbook "to guide attorneys through the use of the ZoomGov platform for conducting virtual trials."[10]
Following that court's lead, other federal courts — in Florida, Kansas, Minnesota and Rhode Island — are preparing to hold their own virtual civil jury trials in 2021.[11] In fact, the districts of Minnesota and the Middle District of Florida have already held their first civil jury trials.[12]
Some state courts, too, have held and are planning for virtual proceedings. For example, New Jersey is planning for virtual jury trials in what it calls "straightforward cases" such as those with "a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses."[13]
A few hybrid jury trials had been held in New Jersey in October and November 2020, before in-person jury trials were suspended again due to worsening COVID-19 trends in the state.[14] In Texas, Judge Emily Miskel of the 470th district court of Collin County oversaw the first fully virtual jury trial in the nation on May 8, 2020, a nonbinding summary jury trial in an insurance dispute.[15]
Early on in the pandemic, the U.S. Supreme Court ordered that courts may "allow or require anyone involved" in any proceeding to participate remotely, without requiring a participant's consent, and "[s]ubject only to constitutional limitations" — authority that continues even today.[16] And Texas legislators are considering passing a law that would grant courts the same latitude even after the pandemic, and would require any court overseeing a virtual jury trial to "ensure all prospective jurors have access to the technology necessary to participate in the remote proceeding."[17]
The message from these courts is clear: Virtual and hybrid proceedings are here to stay, at least for the foreseeable future, and for certain types of cases. Although, like most trial attorneys, we are eager to return to the courtroom, we also see the potential for virtual trials to be a reasonable alternative in appropriate circumstances.
First, in virtual trials compared to in-person trials, the focus is likely to be more on the facts, and less on theatrics or emotions, which may not translate as powerfully to jurors observing on a computer. As a result, jurors may feel less of an emotional connection to witnesses, and may be less likely to direct any anger at a corporate defendant.
Trial attorneys may want to consider assigning one member of the trial team solely to observing jurors during trial, as it may be more difficult for the speaking attorney to monitor jurors' engagement, body language and facial expressions via a virtual platform than it would be in the courtroom.
Second, virtual jury selection may provide opportunities to get a fuller profile of potential jurors than the traditional in-person approach. For example, in some circumstances virtual questionnaires may be able to be sent out and returned well in advance of voir dire, giving attorneys more time to analyze jurors' responses and prepare before the voir dire process begins.
Furthermore, because jurors are participating in voir dire from the comfort of their homes, they may be more candid in their responses, and attorneys may be better able to connect with them.
Third, the virtual format may lead to greater engagement and understanding from jurors. Depending on the circumstances, jurors may have better access to and view of the evidence than they would during an in-person trial.
In some courtrooms, jurors may strain to hear witnesses testifying and see documents being displayed; but during virtual trials, jurors may have close up, direct views of that evidence through their own computer screens. And if the alternative is a masked in-person trial, one advantage of a virtual trial may be that facial expressions of attorneys, witnesses and jurors can be seen if they are not required to be masked.
Fourth, examining witnesses virtually offers opportunities to use new techniques, and apply tried-and-true techniques in a different way. In virtual trials, creatively using technology and demonstratives, and conducting crisp and focused witness examinations, may be even more important to keeping the jury's attention and effectively presenting evidence.
Trial attorneys may also want to spend time teaching their own witnesses to minimize distracting tics, and maximize the effective use of facial expressions and vocal inflection, to better communicate with the jury. Even the right lighting, background and camera angles can make a difference in how a witness's testimony and credibility are perceived.
Fifth, virtual proceedings may allow for participation from a more diverse array of jurors and attorneys.[18] The rate of return of jury summonses in some jurisdictions suggests that more people may be willing to serve on virtual juries than in-person juries,[19] potentially resulting in a venire more representative of the broader population.
Although a digital divide exists between those potential jurors who have access to reliable internet and the necessary technology to serve and those who do not, virtual participation may still result in a more representative jury if the technology and technological training necessary for jury service can be made available to all jurors. Indeed, some courts likely will require that technology and training to be provided to jurors.[20]
Virtual trials may also allow for more adaptable and diverse trial teams. For example, in some circumstances attorneys could participate from multiple remote locations, and some attorneys may not need to be present for the entire trial.
Sixth, virtual trials may provide judges with a much-needed mechanism for managing their dockets for as long as it is not feasible to hold in-person trials at a pre-pandemic pace[21] — and potentially even thereafter, given that some court researchers are expecting a post-pandemic surge in new civil case filings.[22]
Some judges have recognized other advantages with virtual proceedings, such as the fact that a judge can see testifying witnesses face to face, rather than from the side, as they sit at the witness stand.[23] Others have expressed a preference for in-person proceedings.[24]
It remains to be seen whether virtual jury trials will continue in product liability cases in the second half of 2021, or after the pandemic ends. But if they do, virtual trials present opportunities for judges to move through case backlogs created or exacerbated by the pandemic; for jurors to participate who may be unable or disinclined to do so in person, and for those who do participate, to better engage with the evidence; and for trial attorneys to adapt their existing skill sets to become even more effective and well-rounded advocates for their clients.
Sozi Pedro Tulante and Kimberly Branscome are partners, and Emily Van Tuyl is an associate, at Dechert LLP.
Dechert partner Sara B. Roitman and associate Monica Gorny contributed to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Ocampo v. Aamco Transmissions Inc. et al., Case No. RG19041182, Superior Court of California, Alameda County.
[2] Juliette Fairley, Appellate court denies Honeywell's appeal to stay asbestos trial by Zoom; Opening arguments Monday, So. Cal. Record, July 27, 2020, https://socalrecord.com/stories/543842157-appellate-court-denies-honeywell-s-appeal-to-stay-asbestos-trial-by-zoom-opening-arguments-monday.
[3] Ocampo v. Aamco Transmissions Inc. et al., Defendant Honeywell International Inc.'s Notice of Irregularities at Remote Jury Trial from July 27-29, 2020, filed July 29, 2020.
[4] Jenna Greene, "Guinea pigs": How Honeywell won nation's first Zoom asbestos trial, Thomson Reuters Westlaw Today, Sept. 18, 2020, https://today.westlaw.com/Document/Ibc957250f9e111ea8e48d387532371a6/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true.
[5] Little v. Air & Liquid Systems Inc. et al., Case No. 20-2-11266-6 KNT, Superior Court of Washington for King County. Cara Salvatore, Seattle Jury Clears Manufacturer in $27M Asbestos Suit, Law360, March 10, 2021, https://www.law360.com/articles/1363602/seattle-jury-clears-manufacturer-in-27m-asbestos-suit.
[6] Superior Court of Washington for King County, Emergency Order #31 re: Suspending In-Person Jury Trials for Civil Cases to April 26, 2021, filed March 26, 2021, available at https://kingcounty.gov/~/media/courts/superior-court/docs/COVID-19/FILED-Emergency-Order31-KCSC-210120503.ashx?la=en.
[7] Matt Markovich, King County Court shifts to virtual trials, potentially changing future of courtrooms, KOMO News, March 4, 2021, https://komonews.com/news/local/king-county-superior-court-shifts-to-virtual-trials-chips-away-at-massive-case-backlog.
[8] Id.
[9] See, e.g., Madison Alder, Zoom Trial Judge Recommends Jurors Get Time for Virtual Chitchat, Bloomberg Law, Oct. 9, 2020, https://news.bloomberglaw.com/us-law-week/zoom-trial-judge-recommends-jurors-get-time-for-virtual-chitchat ("U.S. District Court for the Western District of Washington has plans to use virtual jury trials to whittle down its backlog of civil jury trials and clear room on the calendar for in-person criminal trials whenever they can resume").
[10] Virtual Trials Bench & Jury: A Handbook for Attorneys, United States District Court for the Western District of Washington, available at https://www.wawd.uscourts.gov/sites/wawd/files/VirtrualTrialHandbookforAttorneys.pdf.
[11] Madison Alder, More U.S. Courts Plan Virtual Jury Trials to Move Civil Cases, Bloomberg Law, Feb. 10, 2021, https://news.bloomberglaw.com/us-law-week/more-u-s-courts-plan-virtual-jury-trials-to-move-civil-cases.
[12] Id.; see also United States Courts, As Pandemic Lingers, Courts Lean Into Virtual Technology, Feb. 18, 2021, https://www.uscourts.gov/news/2021/02/18/pandemic-lingers-courts-lean-virtual-technology.
[13] Supreme Court of New Jersey, Notice to the Bar: COVID-19 – Virtual Civil Jury Trials and January 7, 2021 Order, Jan. 7, 2021, https://www.njcourts.gov/notices/2021/n210107a.pdf?c=vyA; Supreme Court of New Jersey, Notice to the Bar: COVID-19 – Virtual Civil Jury Trials and February 1, 2021 Order, Feb. 1, 2021, https://www.njcourts.gov/notices/2021/n210203a.pdf?c=HHw; Supreme Court of New Jersey, Notice to the Bar: COVID-19 – Eleventh COVID-19 Omnibus Order, March 23, 2021, https://njcourts.gov/notices/2021/n210324a.pdf?c=8XU.
[14] New Jersey Courts, Virtual Civil Jury Trials During COVID-19, Jan. 2021, https://njcourts.gov/public/assets/virtualciviljurytrialscovid19.pdf?c=wzk.
[15] Office of Court Administration for the State of Texas, Jury Trials During the COVID-19 Pandemic: Observations and Recommendations, Aug. 28, 2020, at 9, https://www.txcourts.gov/media/1449660/jury-report-to-scotx-final.pdf.
[16] Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, March 13, 2020, https://www.txcourts.gov/media/1446056/209042.pdf; Supreme Court of Texas, Thirty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, March 5, 2021, https://www.txcourts.gov/media/1451833/219026.pdf.
[17] Katie Buehler, Texas Plans to Allow Remote Proceedings After Virus, Law360, Apr. 15, 2021, https://www.law360.com/articles/1374645/texas-plans-to-allow-remote-proceedings-after-virus (discussing Texas S.B. 690 and H.B. 3611).
[18] Matt Markovich, King County Court shifts to virtual trials, potentially changing future of courtrooms, KOMO News, March 4, 2021, https://komonews.com/news/local/king-county-superior-court-shifts-to-virtual-trials-chips-away-at-massive-case-backlog (Presiding Judge Rogers noting that for virtual trials, "the jury pool is far more diverse than it used to be and that's a really good thing").
[19] See Esquire Deposition Solutions, LLC, Advice on Virtual Jury Trials from Online Pioneers, JDSupra, Jan. 5, 2021, https://www.jdsupra.com/legalnews/advice-on-virtual-jury-trials-from-3033796/ (According to Judge Emily Miskel of the 470th District Court in Collin County, Texas, "people in her jurisdiction are more willing to serve on virtual juries than in-person juries. Before the COVID-19 pandemic, the yield on juror summons was 45 percent for in-person trials. With virtual juries, 86 percent of persons summoned have indicated an ability to serve"); The Florida Bar, The Key to Pulling Off the Fourth Circuit's Virtual Jury Trial Was the Court Tech Officers Who Served As "Remote Bailiffs," Aug. 13, 2020, https://www.floridabar.org/the-florida-bar-news/the-key-to-pulling-off-the-fourth-circuits-virtual-jury-trial-was-the-court-tech-officers-who-served-as-remote-bailiffs/ (In Florida's "first fully remote, binding civil jury trial" held in the Fourth Judicial Circuit in Duval County, "[o]f the 150 summonses that went out, 87 were returned, for a 58% response rate compared with the usual 50%").
[20] See, e.g., New Jersey Courts, Virtual Civil Jury Trials During COVID-19, Jan. 2021, https://njcourts.gov/public/assets/virtualciviljurytrialscovid19.pdf?c=wzk ("The Judiciary will provide standard technology to summoned jurors during the selection process and to all empaneled jurors. Samsung Galaxy tablets will be provided to empaneled jurors (with Broadband as necessary). Jurors who prefer to use their own technology may do so as appropriate"); Office of Court Administration for the State of Texas, Jury Trials During the COVID-19 Pandemic: Observations and Recommendations, Aug. 28, 2020, at 9, https://www.txcourts.gov/media/1449660/jury-report-to-scotx-final.pdf ("Courts wishing to conduct virtual jury trials should be required to ensure that all prospective jurors have access to technology with which to participate"); The Florida Bar, The Key to Pulling Off the Fourth Circuit's Virtual Jury Trial Was the Court Tech Officers Who Served As "Remote Bailiffs," Aug. 13, 2020, https://www.floridabar.org/the-florida-bar-news/the-key-to-pulling-off-the-fourth-circuits-virtual-jury-trial-was-the-court-tech-officers-who-served-as-remote-bailiffs/ ("To handle prospective jurors who lacked technology, court officials set up remote computer terminals at local libraries").
[21] See United States Courts, As Pandemic Lingers, Courts Lean Into Virtual Technology, Feb. 18, 2021, https://www.uscourts.gov/news/2021/02/18/pandemic-lingers-courts-lean-virtual-technology (quoting Hon. Marsha J. Pechman of the Western District of Washington: "I have no backlog. Every single case I had set in 2020 got tried in 2020. … I tell my fellow judges this may be the only way the wheels of justice will still turn").
[22] See Diane Robinson and Sarah Gibson, Court Statistics Project, National Center for State Courts, Pandemic Caseload Highlights, Court filings and dispositions, 2019-2020, March 22, 2021, https://www.courtstatistics.org/__data/assets/pdf_file/0022/61519/2020_4Q_pandemic.pdf.
[23] Tennessee State Courts, Judges Discuss Pros and Cons of Virtual Litigation, Jan. 19, 2021, https://www.tncourts.gov/news/2021/01/19/judges-discuss-pros-and-cons-virtual-litigation.
[24] Id.
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