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Court Technology
Virtual Courtrooms in Miami
This morning we received this notice from state court in Miami (the Eleventh Judicial Circuit) where we have a case pending:
Coronavirus/COVID-19: Courthouses are closed for in-person hearings and trials based on public health advisories at the direction of the Florida Supreme Court. The Eleventh Judicial Circuit wants you safe at home.
We are establishing Virtual Courtrooms. Court hearings in your case that we can hold remotely via video or phone conference will be held on the Zoom platform, which is free to you. You will receive an email from the Court if we are proceeding with your hearing with the information you need to connect.
Trial by Webex, but Not Zoom?
Litigation by Zoom is not novel at this point. Depositions by Zoom, motions hearings by Zoom, bench trials by Zoom—it’s all become commonplace. While federal civil jury trials by Zoom have been rare, there have been many in various state courts. And while we know from our daily lives that other videoconferencing services are available (Teams, Webex, GoToMeeting, Collaborate), Zoom predominates in pandemic litigation.
It was curious, then, to see a ruling from the US Court of Federal Claims. Confronted with a routine discovery motion for leave to take depositions remotely pursuant to Federal Rule of Civil Procedure 30(b)(4), which requires such leave in the absence of a stipulation, Judge Charles Lettow wrote: “In the circumstances at hand, the court GRANTS leave for depositions to be taken either telephonically or by Webex. Zoom should not be used, absent proof that such use would be secure.”
It seems that the parties did not direct the court to Zoomgov.com:
The Jury Returns to D. Mass.
The US District Court for the District of Massachusetts held a Zoom update yesterday for the members of the D. Mass. bar. The chief judge and three other district judges reported about the success of four single-defendant criminal trials that have been held since trials began in this district.
While the judges felt the trials had been successful, they were clear that the protocols in place to prevent the spread of COVID-19 make jury trials much more difficult than pre-pandemic. One judge shared a story about a juror standing up on the second day of trial and announcing she had to vomit (which she then did). But the show went on: The other jurors showed up the next morning, the sick juror was excused but tested negative for COVID-19 and the jurors ultimately deliberated over the course of three days.
The judges urged lawyers involved in civil cases to advise their clients that they should consider bench trials or Zoom trials, or wait until conditions change to have trials. The court is working together to schedule cases for trial because only a certain number of courtrooms are available that are large enough for trials with social distancing. Judge Patti B. Saris reported that it took a day and a half to select the jury due to the number of restrictions. Comparing that with pre-pandemic trials where jury selection usually took between two and three hours, the takeaway is that trials will go much slower while observing these protocols.
Delaware Reopening Guidelines
Yesterday the US District Court for the District of Delaware issued eight pages of “Jury Restart Trial Guidelines.” It is guidance only; it lacks the force of law. Notably, it provides that all trials will be fully masked, except for witnesses, unless “another prophylactic measure is in place at the time, e.g., counsel speaking from a socially distanced location in the courtroom that can be readily cleaned prior to use by another.” Counsel are expected to clean the ELMO projector after each use. “Sidebars” will be handled by electronic transceiver. Exhibits will be digital to the extent possible. “In no case will contraband or firearms be provided to the jury.” The guidelines can be viewed here.
Trials Underway in San Francisco and Cleveland Courts
Most of the federal trials that have actually been held during the pandemic have been in rural locales. But yesterday, Judge William Orrick in San Francisco launched an in-person criminal jury trial in a mail-bombing case. Jury selection began with a SurveyMonkey questionnaire. The courtroom is closed to the public but the audio is being broadcast over Zoom to all interested observers.
Meanwhile, Cleveland saw its first pandemic jury trial end Friday after five days with the acquittal of an accused murderer. The state court trial was held in a large conference room in the county-owned Global Center for Health Innovation. Everyone was masked except for testifying witnesses. Jurors sat six feet apart behind a plexiglass shield and with shields between them.
New Jersey Appeals Court Stops First Pandemic Jury Trial
Earlier this week we told you that a New Jersey court was conducting voir dire partially by Zoom. The defendant objected that the process is unconstitutional because it yields a jury pool that is not a cross-section of the community. Now the court of appeals has halted the trial while it considers the issue. This result may be cited in criminal and civil jury trials nationwide, in both federal and state court. The issue of forming a representative jury pool in the midst of the pandemic has been worrying the judiciary for many months. Notably, the New Jersey Law Journal article on this case bears the headline “Appeals Court Halts State’s 1st Post-COVID-19 Jury Trial After Jury Selection Challenged.” But of course, we are not post-COVID-19. We are mid-COVID-19.
No Federal Jury Trials in Atlanta before 2021
The US District Court for the Northern District of Georgia entered a general order providing that there will be no criminal or civil jury trials before January 3, 2021. The court compared the public health situation now to that existing on March 16, 2020, when it issued its first coronavirus order at the beginning of the shut-down phase. The court observed that “the prevalence of COVID-19 within the District is far greater than it was on March 16, 2020.” The court further observed that the total number of deaths continues to rise, no vaccine or cure is available and there has been no change to the president’s declaration of national emergency. Interestingly, those observations are true of nearly every judicial district. Further, they will likely be true well past January 2021.
The court also notes:
Capabilities provided by technology, while helpful, are inadequate to offset the impediments currently confronted by counsel in this District. Other aspects of case preparation have been similarly impacted. As a result of Georgia’s level of COVID-19 infections and test positivity, witness travel has been problematic due to quarantine regulations in effect in many states that apply to persons traveling to and from Georgia. These circumstances and others have severely impeded if not prevented counsels’ ability to prepare for trial.
Look for this language to be cited in motions to continue trials in other districts.
New Jersey’s Zoom Jury Selection Process Is Challenged
New Jersey’s first jury trial of the pandemic is underway in Bergen County. It’s a criminal trial, with the defendant accused of trying to set fire to his ex-wife’s home. Voir dire began last week, beginning with Zoom-based voir dire. Now the defendant has moved to suspend the trial until alleged constitutional deficiencies can be corrected or until “normal” jury selection can resume. The defendant raises issues that the judiciary has been grappling with since the pandemic began, writing:
Bergen County’s implementation of electronic notifications, electronic jury questionnaire submissions, and Zoom-based voir dire has limited an entire socioeconomic group’s participation in jury service. Those who cannot afford a computer are eliminated from jury service because they cannot submit questionnaires. Others who cannot afford internet service are prevented from appearing at the initial stages of jury selection by Zoom. Furthermore, those who lost their jobs during the pandemic and never had to learn how to participate in a Zoom conference are at a technological disadvantage.
The unemployed and elder portions of the prospective jury pool are similarly impacted by the County’s shift to use of electronic procedures…The jury pool cannot represent a true ‘cross-section’ of the Bergen County community if these demographic groups are excluded.’’
