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Loaner Laptops, Dry Runs: Virtual Federal Civil Trials on Tap

Sept. 29, 2020, 8:46 AM

The federal court covering Seattle is moving ahead with virtual jury trials in civil cases to help clear its docket backlog worsened by pandemic-driven courtroom delays.

The U.S. District Court for the Western District of Washington is believed to be one of the first, if not the first, federal court to proceed with a virtual jury proceeding since the virus disrupted the federal judiciary in March.

Zoom jury trials in civil cases are on the schedule beginning Tuesday, including one involving Holland America Lines, a unit of cruise giant Carnival Corp. The aim is to try to ease case backlogs so the court can then turn to stalled criminal jury trials once it determines they’re safe to resume in person.

Criminal trials are top of mind for judges faced with trying to manage their growing caseloads and balance courtroom safety with a criminal defendant’s rights of a speedy trial and to confront witnesses against them in court.

“The backlog is a big motivator because we can’t have people sitting in custody for months and months on end and not offer them a way to have their criminal trials heard,” said Marsha J. Pechman, a senior judge who spearheaded the court’s virtual jury plan.

Although there is hesitation to virtual criminal jury trials among many courts and litigators, it has been done on a very limited scale. A state court in Texas, for example, held a fully virtual trial in August in a misdemeanor traffic case.

The Western District of Washington, however, isn’t going there and also isn’t ready yet to follow federal trial courts in Minnesota, Connecticut, Rhode Island, Virginia, and other states that are starting up or preparing to resume in-person jury trials.

The Seattle area was hit early and hard by the coronavirus that’s so far infected more than 7 million people in the U.S., and killed over 200,000, according to Johns Hopkins University data.

Many federal courts closed to the public in the spring and restricted operations into the fall, exacerbating civil and criminal case backlogs. Western District judges are also shorthanded.

Justin Bernstein, director of the A. Barry Cappello Program in Trial Advocacy at UCLA School of Law, said virtual trials aren’t ideal, but they’re better than no jury trials.

“Particularly for civil jury trials, I think this makes sense to explore,” Bernstein said.

‘An Ideal Case’

The first trial set for Tuesday is a dispute over an injury aboard a cruise ship before Thomas S. Zilly, another senior judge on the Washington court. The second involves an insurance claim dispute before Pechman in October.

“It’s an ideal case for this process,” Zilly said of Tuesday’s proceeding.

The plaintiff claims she was hurt on a Holland America cruise after an employee opened a door and struck her causing a “traumatic brain injury,” according to court filings. She is seeking damages.

The plaintiff will tune in from California and witnesses will log on from all over the world, Zilly said. He expects 30 prospective jurors to show which they’ll whittle to eight to hear the case. The court needs at least six to reach a verdict.

Trial Access, Technology

The two planned trials may not be the last.

Until the virus is solved or there’s a vaccine and the court can safely bring people in, Zilly said “we’re going to be encouraging litigants to use this type of virtual courtroom to resolve their cases.”

But there are important considerations to moving juries virtually, those interviewed for this story said.

To address the question of whether virtual juries restrict access to people without technology, the court provided options.

Prospective jurors were asked whether they have the necessary equipment for home use or if they were willing to come to court, learn how to use its technology, and take that home temporarily.

“We thought it was a pretty low-risk that someone would take our laptop and not return it,” Pechman said. “I can’t think of a worse person to steal from than the federal judiciary.”

Courts also should be concerned about who’s appearing on screen and which participants can turn off their screen, Bernstein said. Another consideration is what happens when a juror’s feed cuts out or they miss a moment of the presentation.

“When you’re online, and someone loses connection for 30 seconds or a minute or two minutes, what do we consider too much?” Bernstein said. “One answer can make the difference in a trial.”

To avoid other potential hiccups, court planning included a mock virtual trial with lawyers in the first case before Zilly. The option allows litigants seeking juries an opportunity to move their cases forward.

Pechman said she gave parties in her upcoming case a choice of proceeding virtually, and if litigants want a civil jury trial in her courtroom going forward, that’s what it will be.

“I’ve simply told them, this is what I have to offer,” she said.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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