Thursday, May 28, 2020

The “New Normal” In Litigation Might Not Be That “New”

The COVID-19 pandemic has nearly every industry reconsidering what “normal” actually means. And, as the pandemic continues, attorneys must adapt to the circumstances. While many courts have begun utilizing technology, none have held a virtual trial until now. In Collin County District Court, lawyers picked a jury to hear a case by videoconference.1 This case could set the stage for courts throughout the nation to consider following in Texas’ footsteps. Even the U.S. Supreme Court has begun to hear oral arguments by teleconference. However, it is important to note the differences in these cases versus that of a typical jury trial. Still, “normal” for litigators will soon, if it hasn’t already, include setting up home or office studios in order to hold videoconferences and teleconferences for their clients.

According to the National Center for State Courts, five of the most common efforts state courts are taking to combat the coronavirus include restricting or ending jury trials, generally suspending in-person proceedings, restricting entrance into courthouses, granting extensions for court deadlines, and encouraging or requiring teleconferences and videoconferences in lieu of hearings.2 However, as the country begins to reopen, implementing procedures for jury trials has varied depending on the state.

Most of the courthouses across the country have suspended jury trials. However, each state is dealing with the pandemic differently. In Arizona, in-person proceedings may begin June 1st, but local judges may determine how in-person proceedings should be phased in. Meanwhile, Texas is encouraging the use of videoconferencing to keep cases moving forward. On April 9th, Chief Justice Nathan Hecht of the Supreme Court of Texas held an interview with Thomas Reuters discussing the changes that Texas has implemented.

One of those changes includes utilizing Zoom to conduct jury trials. When asked about how Chief Justice Hecht envisioned a post-pandemic world, Chief Justice Hecht described what many others in the legal profession have expressed:
After the pandemic, lots of hearing will be held remotely. It’s easy to do, you’d get a specific time, if you do have to wait, you could put everything on mute and go on about your business. Trips to the courthouse are definitely going to be affected. We’ll then have to reexamine why we need courthouses. We’ll have to think about that because some things are more intensely in-person than other things, like jury trials, but some things are not. We’ll have to look at working at home…I’m getting memos, draft opinions, draft dissents from my colleagues, from the law clerks, every hour. People are actually working very hard. If they can do that, why shouldn’t they? … I think there’ll be a lot of changes.3
Chief Justice Hecht is not the only one considering practical changes to litigation. On May 14th, New Jersey announced the creation of a new virtual grand jury pilot program.4 The pilot program will be used to determine whether the New Jersey Judiciary expands remote grand juries to additional counties and state grand jury proceedings. The technology will be similar to the formats the New Jersey Judiciary currently uses for virtual hearings but will employ additional security measures to safeguard the rights and privacy of defendants, witnesses, victims, and jurors. As of May, the New Jersey Judiciary has conducted more than 23,000 virtual proceedings involving more than 189,000 participants.5 While states are leading the charge, federal courts are not far behind.

For the first time in U.S. history, the United States Supreme Court allowed the public to listen to oral arguments remotely.6 Historically, the US Supreme Court does not allow cameras or simultaneous audio broadcasts in the courtroom. However, earlier this May, the U.S. Supreme Court heard arguments regarding a trademark dispute case by teleconference. Justices asked questions in order of seniority and only a few technical issues were experienced.7 While the U.S. Supreme Court didn’t go as far as providing live video, as the Texas Supreme Court did earlier this month, it’s difficult to justify not continuing to hold oral arguments through teleconference.

The Second Circuit and the Seventh Circuit courts announced in late March that they would hold all oral arguments by teleconference. And, now that the U.S. Supreme Court has held oral arguments by teleconference, the opportunity to expand this practice to all courts has never been so strong. Still, district courts have been reluctant to hold jury trials through videoconference or teleconference. However, the Collin County District Court case proved that holding video conference jury trials is possible.

The takeaways from the Collin County District Court were as expected.8 First, like all trials, there is a chance for a few hiccups. Here, one of the prospective jurors wandered off-screen and could be heard talking on the phone. Second, walking jurors through how to set up their audio and video correctly was not as difficult of a task as some may have thought. Third, approaching the bench by way of a “breakout room” was mostly a success - minus the wandering prospective juror. And, fourth, and arguably most notable is that this case was a one-day summary jury trial. Yet, the question remains, will video conference trials become future practice beyond the pandemic?

Many law firms are already preparing for post pandemic hearings to remain virtual. As Chief Justice Hecht of the Texas Supreme Court explained, if hearings can be successfully held through video conference or teleconference, then why shouldn’t they? However, video conference jury trials present multiple legal concerns. Some of these difficulties include whether virtual trials would deprive defendants of their constitutional right to confront witnesses, an impartial jury, due process of law, and effective counsel. Moreover, ensuring high-speed internet so defendants and witnesses could appear would be problematic. These issues are difficult to overcome, especially in the face of a pandemic.

While hearings might shift towards video conferences and teleconferences, jury trials still have a long way to go. Although Texas proved that a one-day video conference summary trial was possible, there is little reason to believe that a jury trial that takes place over a week, or longer, would see the same level of success. Moreover, the issues on appeal would pave the way for the U.S. Supreme Court to make the final decision on whether constitutional rights could be upheld through video conference jury trials. Therefore, the “new normal” for litigators might not be that “new” after all. While attorneys might need to begin setting up home or office studios in order to hold videoconferences and teleconferences for their clients, virtual jury trials have many hurdles to overcome before litigators should expect any major changes.

1 Nate Raymond, Texas Tries a Pandemic First: A Jury Trial by Zoom, Thomas Reuters Technology News (May 18, 2020),
2 National Center for State Courts,
3 Meera Gajjar, 'The American Justice System Will Never Be The Same': Texas Supreme Court Chief Justice Nathan Hecht, Thomas Reuters COVID-19 (April 24, 2020),
4 Peter McAleer & Maryann Spoto, Judiciary Launches Virtual Grand Jury Pilot Program, Richard J. Hughes Justice Complex (May 14, 2020),
5 Id.
6 Robert Barnes, Supreme Court Takes Modest But Historic Step With Teleconference Hearings, The Washington Post Courts & Law (May 4, 2020),
7 Id.
8 Angela Morris, Hold Please? Juror Takes Phone Call as Texas Tests First Jury Trial Via Zoom, Legaltech News (May 18, 2020),

Author Christopher M. Wise is an attorney and the Managing Member of Wise Law, LLC in Louisville, Kentucky. He focuses on contractor-subcontractor litigation and property law.

No comments:

Post a Comment