There are many famous quotes about the power of juries in a democracy. In our nation, the judiciary is a third branch of government and jury trials are essential to this branch fulfilling its functions. Now more than ever, we need juries to weigh in on pressing cases concerning our communities. Juries must be available to hear the cases of protesters charged with crimes. They need to consider the cases of workers fired due to safety concerns related to COVID-19. Juries are needed to hear cases of first responders, small business owners, and individuals.
Lawyers and judges cannot be the only people who decide these pressing matters. While many Americans are exercising their right and obligation to protest, our work as attorneys requires us to support democracy by retooling our skills to conduct remote trials. The courts are ready. Courts have been experimenting and working feverishly to find ways in which to keep the courthouse doors open. Now it is our turn.
Trial lawyers must now learn how to effectively advocate through a camera and screen. Yes, it’s scary to consider conducting voir dire over Zoom. It will no doubt be different and more challenging. We will need to learn how to create rapport over a screen. In some cases, we must learn to read body language through a mask. It will no doubt be hard. It will also be challenging. It will not be the same as advocating in person. But it won’t be any more difficult for attorneys than it was for the thousands of doctors, nurses, grocery store workers, and truckers whose worlds were turned upside down overnight and still worked non-stop to keep our country going.
Jury trials are not a luxury; they are a necessity. Every time we seek a case delay instead of an alternative method for hearing, we weaken our democracy and the public’s confidence in our judicial system. We must experiment now with remote trials. We must find alternatives that allow our courts to safely integrate fully representative jury panels back into the legal system. Demanding that justice wait until full blown in-person jury trials can come back like the old days is wishful thinking that ignores reality.
Many courts are doing the best they can within confined spaces by building Plexiglas partitions and redesigning courtrooms. Unfortunately, they have little money and few alternatives to address space and safety issues. In addition, courts do not have the ability to conduct testing or assure jurors they will provide their service without being exposed to health risks.
Jury trials that used to be held in a single courtroom now require 2-3 times the courtroom space to conduct the same trial. The live jury pool will likely be skewed in favor of those who can afford to leave the jobs to which they may have just now returned, have no one for whom they need to provide care, who are not themselves and do not live with someone in a vulnerable position, or who do not need to rely on public transportation. Despite these concerns, we will still have jurors willing to serve.
The judicial system will need to triage live jury trials and treat them as the scarce commodity they have become. That requires the rest of us to muster our creativity, learn new skills, and utilize as many remote advocacy alternatives as our clients and justice require.