Tuesday, July 14, 2020

Interesting Thoughts by Judge Richard B. Klein (ret.) On Trials in the Post-Covid-19 World

The Post-Coronavirus World -
Virtual or Not There Will Be Problems


Richard B. Klein (ret.)

July 7, 2020

(Reprinted here with permission)

Everybody has been talking about problems doing jury trials “virtually.” Grudgingly lawyers are coming around to the belief that online mediations and even online arbitrations actually work. Some actually think they are preferable. But most lawyers still are reluctant to consider online jury trials.

However, even if the courts open up and criminal jury trials don’t bump civil jury trials, there will be problems. A June 11 article in the New York Times entitled “Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic” reviewed some of the post-coronavirus jury trials. However, even if some “demonstration” jury trials work, I have doubts of anything on the scale needed would work.

I’m involved in a national effort called the Online Courtroom Project, analyzing how online trials could (or could not) work. One of its members, Colorado trial consultant Lisa DeCaro of Courtroom Performance, Inc., raised a number of problems now trying to do things the old way without online trials. 

There will be pressures from judges anxious to move the dockets to force truncated trials that might result and bias and will outlast the pandemic.

Some judges will tell lawyers they have a choice between waiting three to five years for their trial or reducing the number of jurors and the number of preemptory challenges.

No matter what precautions are taken, people over 65 years old and even under 65 will not want to sit in a courtroom (or jury room) for hours at a time – social distancing or not, masks or not. If people ducked jury duty before the virus, just wait until the next batch of summons go out. The Times reported that some states said people “at risk” – over 65 – can be excused. The reports generally are that even where only half those subpoenaed show up, now only 25%. And very few African-Americans or Latinos.

It is inevitable that some changes will be made in face of the pandemic. And the changes are likely to hang around long after the pandemic has ended.

Jurors themselves will probably have different attitudes. It is hard to figure what the reactions will be. Communication expert Glen G. Kuper, Jr., Ph.D., listed a number of them in his “Advantage” blog. [https://tsongas.com/blog-posts/preparing-trial-after-covid-19/]. I’m not sure whether or not they are right, but they do provide food for thought.

Jurors will be impatient since they lost so much time at work. Jurors generally are turned off when lawyers go on and on. Kuper thinks it will be worse after the lockdown time. But in any event it is important for lawyers to get to the point quickly.

Less sympathy for an economic loss. Many jurors may have suffered a significant loss of income in the shutdown. They may be less sympathetic to plaintiffs who only lost a few months of wages.

Skeptical views of medical damages. Jurors probably know people who have died of the virus or who were very sick for a significant period of time. Particularly when the juror or a friend or family member was sick and they did not get compensated, they may be hesitant to compensate others.

Different views of medical experts. Dr. Kuper thinks there will be different reactions to medical experts. Some jurors may think be more skeptical of experts. They will remember that the experts kept waffling on the virus. (For example, first they said don’t wear masks, then they said wear masks.) Also, some think the experts overstated the effects of the virus. Others may think the scientists were the only ones who made sense and the politicians were the ones without credibility. Either way, these reactions need to be explored in voir dire.Most of the plans to restore civil juries involve reconfiguring courtrooms. How does the lawyer communicate with jurors that are scattered six feet apart and may even be behind the lawyers? How does anyone judge credibility with someone talking through a mask?

The Times reported that in one case, a juror was reported to have tested positive for the virus, and in another, the prosecutor had a positive test. What happens next? Do you go with alternate jurors or scrap the trial since others have been exposed?

Urban jurisdictions are suffering huge declines in tax revenues. This has been compounded by the protests and subsequent vandalism and looting, not only adding to the lost revenue, but requiring large expenditures for police overtime and helping business recover. Many of the needed changes for the court system will be expensive. It took eight rooms to house one trial. The Times reports court administrators are trying to figure out how many people a jury box can hold, how to get jurors and others up and down on elevators that only will only take a few people at a time, where to install plexiglass barriers, how lawyers can talk to their clients six feet apart, what to do about masks, etc..

Between trying to close budget deficits and providing funding in response to the complaints of bad policing, where will court renovations cone in on the priority list? Certainly online trials are not a good alternative to our “traditional” trials. But our “traditional” trials well may be years away. The Times considered a criminal trial in Portland, Oregon, to have gone well. But the defense counsel said, “As smooth as this went, at no point would I ever advise a client to go through with it in these times.” So online trials (and online mediations and arbitrations) should not be considered as an alternative to the “traditional” trials but as an alternative to trials in the new normal, whatever that will look like.

Many people are making predictions as to what civil trials will look like a year from now. Most of them are wrong. The only prediction I will confidently make is that things will be different, and no matter which way things go, there will be lots of problems.

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