Will 2021 Bring Mandatory Remote Trials?

Courts across the country continue to struggle with the logjam that has been created by the pandemic. After months of no trials early in the spring, state courts in Seattle re-opened in August to hybrid civil jury trials where jury selection was conducted over Zoom, followed by an in-person trial. However, trials were shut down again in November when the state’s governor issued new guidelines to deal with the second surge of COVID-19.

Zoom jury trials are an option that have been tried by some courts across the country, but in most cases, these have only occurred when all parties involved in the matter agreed to it. However, this may change in 2021 as a federal judge in Seattle recently ordered a Zoom jury trial over the objections of the defendant.

In December, Judge Marsha Pechman from the Western District of Washington, ordered a Zoom jury trial for a police shooting case involving a lot of witnesses and experts. In that case, the defendant argued that a remote trial would violate its constitutional rights, but this argument was rejected by Judge Pechman. The case ultimately settled mid-trial before jury deliberations began.

This trial certainly had its hiccups, but Judge Pechman lauded its success despite those hiccups. For example, Judge Pechman directly addressed the issue of juror attentiveness in a Law360 interview, stating, “The other thing that quite surprised me is how attentive all the jurors were. People were saying, ‘Oh, they’re going to be sleeping in their beds. They’re not going to be paying attention.’ Well, I actually have a better view of them on Zoom [than in court] because they’re face-on. And our courtroom deputies were watching them to make sure nobody’s left their position, nobody’s off doing video games.”

Judge Pechman also addressed the concern of tech glitches in the same interview, brushing off the idea that these glitches create delays beyond those that occur during in-person trials: “I actually kept a record of how much time we lost with that sort of problem, and it really is not more than you lose with somebody missing their bus or can’t get through security or walking the jury into and out of the jury room if you have to have a bench consultation.”

This potentially sets a precedent that could embolden other judges facing a growing backlog of trials to push forward with remote trials over the objections of the parties involved. Notably, this push could uniquely impact civil jury trials, as judges have expressed uncertainty of the constitutionality of remote trials in criminal cases. In the same Law360 interview, Judge Pechman noted, “on the criminal side, you have to deal with constitutional provisions of right to confrontation, and that’s something that we don’t deal with on the civil side. And we don’t have any guidance. There’s no law out there about this.”

Consequently, it may be time for civil litigators to start preparing for the possibility that they will have to try their cases in ways they never have before despite the concerns they may have about the limitations and disadvantages of remote trials. Zoom jury trials are different in a number of ways, as we have noted in several blog posts in recent months. Here is a summary of recent posts that address these issues.

Zoom Glitches and Delays Are a Much Bigger Deal Than You Thought

5 Factors for Determining if a Remote Trial is Right for Your Client.

Key Insights You May Not Have Considered for Jury Selection Over Zoom

Dealing with Juror Fatigue in Zoom Trials