The COVID-19 pandemic has impacted the legal profession with a wide range of issues, particularly for areas of litigation with an increasing backlog of cases in already bottle-necked trial dockets. In an attempt to mitigate those issues, Florida Chief Justice Charles Canady has authorized the use of remote technology in civil jury trials, an intriguing and ambitious endeavor that will present many challenges.
In a order issued May 21, 2020, the chief justice called for a pilot program “to establish the framework and identify the logistics of trying cases remotely.” AOSC20-31 reads, in part: “…the selection of case(s) by the circuits should be based upon the case being conducive to a remote proceeding, and all parties must consent to participate in the pilot program.”
The pilot program will be limited to civil cases in no more than five of the state’s 20 judicial circuits. A special COVID-19 workgroup that the chief justice appointed in April will select the circuits and develop requirements for virtual trials. Circuits must report their findings and recommendations to the State Courts Administrator no later than July 31st.
During a recent address to the Board of Governors, Chief Justice Canady acknowledged growing levels of concern since the pandemic forced him to suspend jury trials in an order issued March 13, 2020. He acknowledged the problems the moratorium on jury trials causes. “I recognize that a lot of things can’t get decided until we have jury trials…[e]ven things that aren’t going to actually go to trial won’t get determined until there is an immediate prospect of a jury trial…that’s just the way our system works.”
Presently, all jury trials are suspended until July 1, 2020. With the looming uncertainties around the nation’s recovery from COVID-19, it is not unfathomable (and may be inevitable) that the court extends the suspension beyond the current deadline. Chief Justice Canady has acknowledged that it is still too early to predict when the suspension will be lifted, given the need for courts to prepare for a possible resurgence of the virus in coming months.
Many jurisdictions, including Florida, have implemented virtual trials for certain types of bench trials, such as commercial litigation practices. However, Florida Bar leaders recognize that a jury trial is a different beast than a bench trial, and jury trials present a different set of challenges. Members of both the plaintiff and defense bars see the potential of virtual trials, but both sides have expressed concerns.
From the defense perspective, there is the concern that a “remote” juror will have less apprehension and be more willing to punish an otherwise nameless/faceless corporation. Another concern is that it will be even more difficult to keep jurors fully focused in complex matters, particularly those relying heavily on scientific evidence. Keeping jurors focused in a live setting can be challenging, and it is unclear how a court could ensure that jurors remain focused during a trial when they are at least partially beyond the view of the court. For example, what is to keep a juror from scrolling to other websites on their tablet or from simply multi-tasking while serving from home?
While the Court’s willingness to think outside of the box is appreciated, and probably necessary to some extent, it will be interesting to see how the experiment of virtual jury trials develops. For more information about how courts are adjusting to the novel challenges presented by the COVID-19 pandemic, contact Hanson Horn, Partner, at HHorn@cookgrouplegal.com.