As a result of COVID, circuits around the country are experimenting with remote jury trials. Broward County Chief Circuit Judge Jack Tuter, along with the American Board of Trial Advocates, are leading the charge. The State, if not the country, is watching. How do you create a system that moves cases without jeopardizing the rights of the parties?
Besides the basic challenges of how to call witnesses and enter exhibits, what happens if there is a technology glitch (i.e. wifi goes out)? Worse yet, how can we ensure the jurors are not playing Mario Kart during closing arguments if there is no one to monitor their actions?
As a litigator, I can attest that remote meetings via Zoom can be quite advantageous for routine hearings such
as status conferences, discovery disputes, and even dispositive motions. Remote hearings save attorneys a tremendous amount of time. I have personally waited hours in a filled courtroom for a judge to say, “Hello, Mr. Snyder. Your motion for continuance was granted. I’ll see you in eight weeks.” These “time-drains” would be eliminated with remote hearings.
Jury trials, however, are a whole different animal.
Some parts of trials are already remote. In many civil trials, doctor’s testimony is presented via video. Although these videos must be edited to account for objections (and cost an arm and a leg), they are very efficient. Push play and sit down.
Juries many times do not appreciate the “controlled chaos” within the courtroom. Attorneys may spend hundreds, if not thousands of hours preparing for a trial. Even if the attorney knows the case “like the back of his hand” and has thought of every possible contingency, there are always unavoidable curveballs. To quote Ross Geller, attorneys must “PIVOT” and plow ahead. These “on-the-fly” adjustments are much more challenging on a ZOOM platform.
Jury trials are equal style and substance. Trial attorneys lend an air of gravitas to the proceedings. The best trial attorneys are orchestra conductors who seamlessly make dozens of strategic decisions on the fly like: (1) how close the stand to a jury; (2) when to make eye contact with a particular juror; (3) when to pregnant pause; (4) when to put a hand on their client’s shoulder; (5) when to smile/scowl; (6) when to object / how forcefully to object, and (7) when to just remain silent and let the witness sink their own case.
Non-verbal communications are sometimes more important than what is said. During my last criminal trial, I made eye contact with a juror during my cross examination of the lead detective. I knew right then and there my argument was gaining traction. The juror observed what I observed-the lead detective squirming in his chair and become visibly irate. I dug-in deeper and really pushed the issue. My client was acquitted. The juror was the foreperson. This connection would have been lost in a remote trial.
We may have the technology to conduct remote trials, but technology does not transfer the human emotion and connection – these are vital elements of a fair jury trial.
I do not envy the people who need to decide on when we get back to live trials and in what capacity. It is a delicate balance. With the support of our hard-working Judges and trial bar, Broward County is on the right-side of the curve. I am confident they will be able to come to a happy medium balancing technology with human elements.
By Philip Snyder, Esp.
Philip Snyder is a personal injury attorney at Lyons, Snyder & Collin.