By: Doug Rees
As with everything else in the world, civil litigation has been significantly impacted by the COVID-19 pandemic. Many facets of litigation have transitioned to virtual proceedings. Zoom depositions and mediations are now the norm. Many hearings, particularly in the larger metropolitan areas, are also being conducted telephonically or by Zoom. The one thing that has not seen a large scale transition to the virtual world, and for good reason, is jury trials. The format and unique nature of jury trials make it difficult to conduct them in a world of mask wearing and social distancing.
Jury trials by their very nature require a fairly large number of people to be gathered in a fairly small area. Anyone who has served on jury duty knows that jurors are essentially herded somewhat like cattle through the central jury room and to a courtroom as a member of a jury panel. Social distancing in such an environment would prove to be quite a challenge. Once a jury is selected, it is impossible to maintain social distancing in a standard jury box and very challenging to do so using the entire courtroom of most of the courtrooms in the state. It is also somewhat difficult to fathom a trial with lawyers, judges, parties, and particularly witnesses wearing masks. So much of the dynamics of a jury trial involve assessing the demeanor, credibility, and non-verbal communications of those involved. Much of that is lost when masks are covering the faces of parties and witnesses. Virtual trials have limitations for similar reasons, not to mention the fact that you can’t see everything that is going on through one camera. It is hard to imagine a traditional jury trial that would really allow for a full and just adjudication of a dispute to be conducted under such conditions.
A number of courthouses have been closed to the public for a period of time during the pandemic. Some remain so. The Texas Supreme Court has issued a series of orders generally prohibiting jury trials absent special approval from the appropriate administrative judge. The current order from the Supreme Court prohibits jury trials until after October 1, 2020. A handful of jury trials have taken place across the state in both state and federal courts over the last few months. They have implemented a variety of measures to allow for jury proceedings during these unusual times. Perhaps the biggest challenge has been to incorporate social distancing practices, particularly during jury selection and voir dire proceedings where large numbers of people are involved. Some of the measures employed in conducting those proceedings during this time have involved an increased use of juror questionnaires and conducting voir dire in alternative venues. Several courts have used local auditoriums and other facilities in order to conduct voir dire. In the trials that have been conducted, courts have also generally required participants to wear masks most, if not all, of the time and have required or at least strongly encouraged all documentary evidence be presented electronically.
Another area of concern for conducting jury trials during the pandemic has been the willingness of jurors to show up to serve for jury duty. There have been several polls conducted in an attempt to assess the willingness of people to serve. Not surprisingly, many people are concerned about appearing for jury duty. The majority of people want assurances about safety practices being employed before they are willing to consider serving on a jury. More people are willing to show up if they are assured that there will be temperature checks, testing, and mask requirements employed at the courthouse. The level of concern about appearing for jury duty is higher among minorities than it is among Caucasians. These factors of course raise concerns about the ability to seat a jury that comprises a cross-section of the community. Consideration has been given to conducting jury trials in a virtual setting and a handful of courts have tried it. The studies to date, however, show that a majority of people are concerned about receiving a fair and impartial trial in an online or virtual setting. Those studies have also shown that a slight majority of people would prefer not to resume jury trials until after a vaccine is available.
The Supreme Court has directed the Office of Court Administration (OCA) to study the prospect of conducting jury trials during the pandemic and to come up with recommendations for how trials might be conducted. The OCA finally issued its report just last week. As part of its analysis, the report chronicles the jury trials that have been conducted during the pandemic and discusses the measures that were used in conducting those trials. The report recommends that jury trials be allowed from October 1, 2020 until the end of the year under certain circumstances. The recommendation is to allow for jury trials in district and county courts only. The recommendations include requiring that procedures be employed to allow for social distancing at all times and that masks be worn by all participants throughout the entire proceedings. The recommendations make an exception for participants to remove their masks when speaking but require that they wear a face shield when doing so and only remove their mask when they are not mobile. The recommendations also require that any court conducting a jury trial have a written plan for doing so that has been submitted to the local administrative judge. Courts must allow any party that objects to proceeding with the trial the opportunity to do so. It will be interesting to see what the Supreme Court does with the OCA’s recommendation.
Like just about everything in these strange and unusual times, continuing to conduct jury trials has proved to be challenging. The wheels of justice have slowed down in many respects. This is particularly true and of particular concern in criminal matters. The right to a speedy trial has been impeded and there are a number of defendants sitting in jails who are awaiting their trial. The OCA makes particular note of this in its report in recommending that jury trials be allowed to proceed under the recommendations set forth. On the civil side, however, the need to move cases through to a final disposition is not as urgent. While the pace of moving cases may pick up some in the near future, we suspect that the majority of cases will continue to be delayed and put off until we get on the other side of the pandemic.