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Mandatory Online Jury Trials
from Publications
by crainbrogdon
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Originally posted on August 30, 2020on Voire Dire Magazine. Written by Attorney Quentin Brogdon.
COVID-19 poses an unprecedented challenge to our system of law. We will be defined in the years to come by how we meet the challenge. The answer to the challenge is not to implement mandatory online jury trials.
COVID-19 killed in-person depositions, inperson hearings, and in-person mediations, but we cannot allow COVID-19 to kill in-person jury trials.
Mandatory online jury trials is an idea whose time has no/ come because it could be the fina1 nail in the coffin of in-person jury trials.
The founders of our country created a sacrosanct Bill of Rights in the first 10 amendments of our Constitution. Three of those 10 amendments explicitly mention and protect jury trials. The Fifth Amendment provides for grand juries in criminal cases, the Sixth Amendment provides for jury trials in criminal cases, and the Seventh Amendment provides for jury trials in civil cases. Intact, the right to trial by jury is fundamental to all other rights in our Constitution. Thomas Jefferson recognized this when he wrote that the jury “is the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” The Texas Constitution likewise recognizes and protects the right to trial by jury providing that the “right of trial by jury shall remain inviolate.”
“How to get out of jury duty” will yield more than 10 million hits on Google. How could we ever allow something as fundamental and as important as the right to trial by jury to end up on life support, even before COVID- 19’v appearance? It did not happen overnight, and it did not happen entirely by accident. Let us first recognize that the conclusion that the jury trial faces potential imminent extinction is inescapable. Today, federal judges try less than one-third the number of civil jury trials that their counterparts tried in the early 1960s, and Texas state court judges try less than half the number of jury trials that their counterparts tried just 20 short years ago.
Some of the factors driving the jury trial to extinction arise out of purposeful, agendadriven actions by corporate interests. These include:
1) successive waves of “tort- reform” legislative and anti-jury public-relations efforts beginning in the 1980s, 2) a widespread push for binding arbitration, 3) an everincreasing elevation of the importance of pretrial motions, such as motions for summary judgment, motions to dismiss, and Daubert motions, and 4) pleading requirements that put form over substance. It is an ironic testament to the enduring power of the magic of the idea of the jury trial that the same corporations that hunted it almost to extinction do not want it to die off completely. These corporations treat the jury trial like a nuclear weapon that they want to have at their unique disposal to use when they
sue another corporation for millions or even billions of dollars, but they do not want the average citizen to have that same weapon available to hold a corporation accountable for wrongdoings.
Other factors driving the jury trial to extinction are not necessarily the result of any purposeful actions. These include: 1) the proliferation of pretrial discovery, 2) the increasing expense of jury trials, 3) the increasing use of pretrial mediations, 4) the apathy of the public about the right to trial by jury and the public’s ignorance about the potential extinction of the right, 5) the advent of an inexperienced, younger generation of trial lawyer s and judges who are uncomfortable trying messy, unpredictable jury trials, and 6) the rise of jury consultants who claim to be able to use scientific methods to predict the outcomes of jury trials without the unpredictability of an actual jury trial.
Now that COVID- 19 is here, the proponents of online jury trials focus on what we stand to gain from online trials. They argue that we gain the ability to keep the wheels of justice turning. Admittedly, that is an important consideration, but what price shout d we be willing to pay to keep those wheels turning? Some proponents even seem to argue that online trials are superior to in-person trials because online trials are more “efficient” and the use of close-up camera shots of the witnesses actually increases the jurors’ engagement and ability to discriminate between truth-telling and non-truth-telling witnesses. What is too often lost in the discussion is what we stand to lose with online trials.
What do we stand to lose with online jury trials? It begins with the ability to ensure that the court and the litigants keep the online jurors’ undivided attention. In our connected world, that is increasingly difficult, even in inperson jury trials. It is next to impossible when an online juror is sitting on a couch in their living room with both low-tech and high-tech distractions in the vicinity.
The second crucial thing that we lose in an online jury trial is a magical set of in-person connections and chemistries. These include connections and chemistries between 1) the judge and the jurors, 2) the lawyers and the jurors, 3) the clients and the jurors, 4) the witnesses and the jurors, and 5) the jurors themselves when they deliberate. A growing body of research confirms that many things happen when we interact face- to-face that do not happen when we interact through computer- mediated communications, even when those communications are video communications. Jury trials require lawyers to pick jurors and jurors to assess the credibility of witnesses by using very subtle verbal and nonverbal clues. Online jury trials greatly impede the ability of lawyers and jurors to achieve these fundamental tasks. Online jury trials also impede and distort jury deliberations. Jury deliberations in a traditional jury trial occur only as part of a magical in-person alchemy between jurors assembled together in close proximity, in one room, to arrive at one verdict. Any doubt about that can be dispelled by watching focus group jurors deliberate or by watching the Henry Fonda movie “Twelve Angry Men.”
The third crucial thing that we lose in an online jury trial is a diverse jury of the 1itig‹ints’ peers. Even at this late date in the internet revolution startling disparities continue to exist in the availability of the necessary computers and broadband internet access to facilitate a juror’s participation in an online jury trial. Online jury pools necessarily will be skewed toward higher socioeconomic groups than their in-person counterparts.
The fourth crucial thing that we lose in an online jury trial could be called “the solemnity of the occasion factor.” For jurors in an inperson jury trial, there is something solemn and awe- inspiring about being in a courthouse in very close proximity to the judge in a black robe, the lawyers, the parties, the witnesses, the trial exhibits, the bailiff, and the court reporter.
The death of the in-person jury trial at the hands of the online jury trial will ham not just litigants and our democracy, but it will also harm lawyers who try jury trials. Even before COVID- l9’s appearance, much was written about the decline in trial advocacy skills and the decline in civility between lawyers. The advent of the online jury trial will only accelerate both of these worrisome trends.
There is no doubt that the decline in trial advocacy skills in recent years is directly related to the fact that fewer and fewer lawyers and judges are trying fewer and fewer jury trials. Just as the “solemnity of the occasion” factor is lost for online jurors, so too will it be lost for a future generation of online trial lawyers. There can be no doubt that this will accelerate the ongoing loss of trial skills in the trial bar.
Online jury trials will accelerate a second worrisome trend: decreasing civility between lawyers. The decrease in civility within the bar has been driven in part by the transition of the practice of law torn being a profession into being a business. The growth in the size of the bar and the decrease in face- to-face interactions among lawyers also ha› e been large factors in the decrease in civility, however. It is much more difficult to be uncivil with a lawyer with whom you will have to stand in the same courtroom than it is to be uncivil with a lawyer with whom you will only ever have interactions through an online Zoom platform. COVID-19 poses an unprecedented challenge to our system of law. We will be defined in the years to come by how we meet the challenge. The answer to the challenge is not to implement mandatory online jury trials. Admittedly, there is a place for voluntary online jury trials as we feel our way through the darkness of COVID-19, but litigants should not be reguire6/ to submit to online jury trials. Too much is at stake, including the ongoing viability of the jury trial as a bedrock of our democracy and our system of justice. Mandatory online jury trials is an idea whose time has not come.
