This is the third installment in a series. The webcast of “Tackling Virtual Jury Trials During COVID-19” is available in the NJICLE on-demand library. Read the other installments of this series at the NJSBA blog.
Sarah Gilson, of Maune Raichle Hartley French & Mudd in Oakland, Calif., who tried California’s first virtual civil trial during the pandemic—and one of the first in the country to go from jury selection to verdict—is convinced that completely virtual trials are the way to proceed.
“I can only encourage people to be willing to go straight virtual. I think it is the cleanest way to try your cases,” said Gilson, a panelist at the recent New Jersey Institute for Continuing Legal Education program “Tackling Virtual Jury Trials During COVID-19.”
Gilson, whose firm tries mesothelioma cases, discussed lessons learned from the trial in Alameda County last fall that initially began in a hybrid format with in-person and virtual elements.
“At the outset, we clung as much as possible to the traditional jury trial format that we’re all used to,” she said.
Under the COVID restrictions, only one courtroom in the entire county was large enough to accommodate a panel of 12 jurors and two alternates, court staff and one attorney per side.
“Luckily, at that point there was one defendant,” Gilson said.
Jurors were spread out in the round in the courtroom, seated behind the judge and counsels’ table, on folding chairs in the back corner, “anywhere we could stick them, really, as long as they were six feet apart,” she said.
The seating arrangement did not leave room for witnesses or the court reporter, who took everything down from another courtroom. Witnesses appeared remotely. With the exception of this trial, the courthouse was closed to the public.
Large screen TVs were installed around the courtroom at great expense so that everyone could have an unimpeded view.
“Very quickly we encountered a lot of technical difficulties dealing with the hybrid model,” Gilson said.
“There are audio issues when you are incorporating people live in a courtroom and video streaming. We had a lot of feedback, a lot of video lag. Even that small little lag between someone appearing on a screen and someone in person becomes an issue when you’re trying to interject objections and hear the court’s response and you have a court reporter who’s also at a distance writing everything down. It became very complex,” she said.
The hybrid format abruptly ended two weeks later, when a family member of a juror contracted COVID and they had to shut down the courtroom. Attorneys and court officials had three days to figure out how to continue the trial in a fully remote format.
The trial lasted three months—which Gilson said is long for an asbestos case—and was delayed in part because of the virtual format and in part because wildfires cut off power for a week.
Despite the length of the trial, Gilson said she is convinced jury trials can and should be virtual during the pandemic.
“It’s the foreseeable future of litigation right now, so you have to accept it with open arms. I don’t think it’s nearly as scary as one might fear,” she said.
The virtual jury trial cost less than most of the cases her firm tries, “which was a very surprising outcome for us” Gilson said.
Jurors spent a week on deliberations and were “incredibly engaged and focused,” she said.
“Uniformly, everyone appreciated being all virtual versus hybrid. No one—even though they were willing to do their civic duty—wanted to sit in a courtroom within six feet of other people,” Gilson said.
While some may try to draw the analogy that being in a courtroom during the pandemic is just as safe as being in your local grocery store, Gilson said, “I don’t know how many of us would choose to sit in a grocery store for six hours at a time if given the option right now.”
Jurors “really appreciate being able to do this in their own home. They took it very seriously. There was not much of a difference in how they received the information,” she said.
The jury’s verdict was in favor of her client on almost all of their causes of action, and awarded significant damages on all forms of damage they sought. Gilson said this indicated to her the jury was able to understand complicated expert testimony and to be reached on an emotional level, “all from a screen.”