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Zoom Trial Judge Recommends Jurors Get Time for Virtual Chitchat

Oct. 9, 2020, 9:16 AM

The next time the federal district court in Seattle does a virtual jury trial, the court might give jurors more time to get to know each other, said Judge Thomas S. Zilly, who presided over the court’s first jury trial held by Zoom.

During a normal in-person trial, jurors restricted from talking about the case during recesses fill the time by talking to each other, discussing shared interests or even sharing cookies, Zilly said.

Jurors in the first virtual trial recently completed only had time to talk briefly in the breakout room and wound up slowing down deliberations since they first spent time getting to know each other.

“It’s a minor problem, but something we’ll work on for sure,” Zilly said.

That’s one lesson learned during the six-day trial that ended Oct. 7 in a verdict that awarded a woman who was injured on a cruise ship $1.35 million. The trial was perhaps the first virtual jury trial in federal court during the coronavirus pandemic. It also won’t be the last.

U.S. District Court for the Western District of Washington has plans to use virtual jury trials to whittle down its backlog of civil jury trials and clear room on the calendar for in-person criminal trials whenever they can resume.

The court doesn’t plan to hold virtual criminal trials due to constitutional concerns, including the right of defendants to confront witnesses. But Zilly said the court is considering using the virtual platform for jury selection in a criminal case. That could happen as soon as November.

“We’re very encouraged that this process can be used until we are able to return to the courthouse and try cases on a regular basis,” Zilly said.

The plaintiff’s counsel in the recently completed virtual trial was also happy with the format.

“It worked remarkably well and I’m impressed with the Western District of Washington for giving this a shot,” said David P. Roosa, an attorney at Friedman Rubin PLLP who represented the plaintiff.

Counsel for the defendant didn’t respond to a request for comment.

Improvements

Zilly and Roosa both said the trial went smoothly overall and worked similarly to the way an in-person trial would, but both pointed to areas for potential improvement.

Besides giving jurors more time to get to know each other, for example, Roosa said the court could also improve the system for admitting exhibits.

Roosa commended Zilly for helping ensure the trial started with a nearly complete exhibit list. But he said the system could be improved for admitting new exhibits during virtual cases going forward, Roosa said.

In a normal courtroom, attorneys can show an exhibit to a judge, opposing counsel, and witness and lay the foundation for admissibility before the jury sees it. “You can’t really do that in this setting,” he said. And during the virtual trial, exhibits were shown to everyone in the Zoom call at once.

That system worked fine in this case Roosa said, but may not work in cases where a document being shown wasn’t admitted or the jury was looking at something they shouldn’t be seeing.

Tech Issues

The trial also wasn’t without technical difficulties. Jurors dropped off the call in a couple of occasions, Zilly said. That included during closing arguments.

Preventing such glitches might be difficult when the cause is a juror’s internet connection. “I don’t think there’s really anything you can do to fix that from happening,” Roosa said.

Connectivity issues have occurred in other virtual jury trials, too. During a virtual trial in Texas, a juror using a court issued iPad lost connection right before the trial started and was replaced by an alternate.

The difficulties in the Seattle trial were resolved quickly and jurors reconnected, Zilly said. And he noted that in-person trials aren’t without their own set of disruptions; cellphones go off or jurors need to take breaks.

“So it was not unusual and I don’t think it impacted the presentation or the jury deliberations,” Zilly 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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