Revised February Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 6 | Issue 2

February - 2021

Opening Statement

“While it is February one can taste the full joys of anticipation.

Spring stands at the gate with her finger on the latch.”

-Patience Strong

Dear Colleagues,

We enter the month of February with the hope that everything will be getting better. With that in mind, we begin with uplifting news from our colleagues in Argentina regarding the civil jury system becoming a reality in that country. Our Research Fellow, Michael Pressman, reports on the progress in the state of Washington on remote trials. We thank Judge Williams for sharing the remote trial resources with us, which we are posting on our website. We end with a fitting tribute to Steve Susman by Parker Folse, a partner at Susman Godfrey. We especially appreciate his kind comments about the Civil Jury Project at the end of his tribute to Steve.

In January I outlined our goals for this year and I plan on keeping those up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:

1. We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.

2. If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.

3. We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, time and help cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.

However, some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive representative cross-section of the community.

4. Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.

If you would like to be involved in any of our goals listed above please feel free to email me directly at [email protected].

Sincerely,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director

Upcoming Events

Due to the ongoing COVID-19 pandemic, all in-person events are canceled.

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News from the Civil Jury Project

By Hon. Mark A. Drummond (ret.), Executive/Judicial Director of the Civil Jury Project

People

Professor Issacharoff will be representing the Respondents in TransUnion v. Ramirez, likely to be argued in the Supreme Court in late March. The case involves an Article III challenge to a class action case, brought under the Fair Credit Reporting Act, that was tried to a jury.

We welcome Kaitlin Villanueva back from maternity leave and are glad to report that the entire family is doing well. Kaitlin has been with the Project from the beginning and it is great to have her back.

We were thrilled to be invited to attend the remote ceremony by the Ft. Lauderdale chapter of ABOTA where our long-time contributor Mitch Chester received the Trial Lawyer of the Year Award. It was well deserved and we thank Mitch for all of the contributions he made to our effort over the last year.

Our Research Fellow, Michael Pressman, has been invited to participate in a roundtable, Reimagining Jury Trials in a Pandemic, which Professor Valerie Hans, an Academic Advisor to the Project, has organized for the upcoming Law and Society Association meeting in May 2021.

I will be updating Steve’s chapter, Innovations to Improve Jury Trials in Texas, for ALM’s Texas Business Litigation. My focus will be adapting jury innovations to remote trials.

Civil Jury Trials Become a Reality in Argentina

Our June 2020 newsletter contained the piece, The Dawn of the Civil Jury Trial in Argentina, by Professors Andrés Harfuch and Juan Sebastián Lloret. Their article outlined the efforts by the Institute of Comparative Studies in Criminal and Social Sciences (INECIP) and the Argentine Association of Trial by Jury (AAJJ) to implement jury trials in criminal cases first, and their continued efforts to apply the jury system to certain civil cases.

Professor Harfuch has been kind to keep us informed of the progress and in September let us know that the Governor Jorge Capitanich of Chaco sent to the Legislature a Bill that would establish trial by jury for civil matters.

The Bill proposed a civil jury of twelve members, presided over by a judge who would instruct on the law and would require a general unanimous verdict. A special verdict in certain cases was also allowed. All jury trials would be oral and public trials. Hearings would be provided for both discovery and case management. A jury trial would be available for class actions, consumer rights collective disputes, tort cases of over half a million pesos, collective environmental and land disputes and any dispute involving the freedom of speech, belief or press.

The Bill also provided some built-in demographic provisions. It set a mandatory gender equality requirement of 6 women and 6 men and provided for an indigenous jury: if the plaintiff and the defendant belong to the Wichí, Moqoit or Qom Indigenous Peoples, the twelve jurors would be of that ethnic group.

We are thrilled to report that on December 16, 2020, the Bill was passed. I hesitate to try and capture the compelling story surrounding its passage, so please read about it here. It is spellbinding and a testament to those who secured its passage.

“It really helped that our 5-year experience with criminal juries in many important provinces was a complete success,” says Professor Harfuch. “We now face the challenge of crafting proper instructions, verdict forms and teaching adversarial litigation techniques to lawyers and judges who do not know what a public hearing is.”

We at the Civil Jury Project applaud Professor Harfuch and all those in Argentina who valued citizen involvement in making such crucial decisions as a jury of twelve.

The Hon. Mark A. Drummond (ret.) is the Executive / Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench as a trial court judge in Illinois for 20 years.

Remote Jury Trials: Reporting on Judge Matthew W. Williams's

Experiences in King County, Washington

By Michael Pressman, Research Fellow

I. Introduction

The Civil Jury Project recently had the opportunity to have a conversation with Judge Matthew W. Williams of King County (Washington) Superior Court, Department 41, regarding his (and his court’s) recent experiences with remote jury trials. Judge Williams, who (as always) was very generous with his time, offered to tell us about his experiences and impressions. He also offered to share with us (and with you, our readers) various documents and other materials that his court has developed in connection with remote jury trials--including four training videos for lawyers on how to conduct a remote trial from pre-trial to verdict. We want to thank Judge Williams and the judges of the King County Superior Court for their generosity, and we hope that readers throughout the country can learn from their experiences.

We begin with a brief background regarding Judge Williams’s (and his court’s) experiences with remote jury trials. Next, we describe and provide links to the items that he has shared with us and you. Then, and at greater length, we describe Judge Williams’s impressions based on his and his court’s experiences.

II. Background

King County in Washington State has been at the forefront of court systems’ use of remote technology from early on in the pandemic. In addition to various non-trial proceedings that have been carried out remotely, remote bench trials have been carried out by judges in Washington State (including King County) since July.

Throughout most of the year, however, jury trials that were carried out were largely held in person. Since August, the King County Courts have used remote voir dire for the in-person trials (as Judge Williams reported on in the October 2020 issue of our newsletter). In order to provide for appropriate social distancing, the trials themselves were held in courtrooms that had been reconfigured to allow the jury to be socially distanced. This reduced the number of spectators and often required the use of three jury rooms and a different courtroom for the jury to deliberate. Civil trials were held in a conference center in Bellevue Washington (just East of Seattle) pictured here. The King County Court converted the entire conference center into six courtrooms. King County continued with remote voir dire and in-person trials until the end of November 2020.

On November 30^th, as a result of a significant spike of cases of Covid-19, the court issued general orders halting all in-person jury trials. The ban on in-person jury trials for criminal cases has just been extended to February 12, 2021. The ban on civil in-person jury trials was extended until April 1, 2021. The no in-person jury-trial orders are re-examined every two weeks.

As a result of these orders, the court began fully remote jury trials in some cases. Many civil litigants jointly stipulated to remote trials. In some cases, one party advocates for a remote trial, and one objects. In those cases, the judge analyzes the nature of the case and the objections and balances those objections against the parties’ right to a timely resolution. The King County Court developed a template order for that analysis that orders the case to a remote jury trial even over the objection of one of the parties. Various information specific to the case in question gets filled in on the form order, including the considerations that were taken into account in ordering that the jury trial proceed remotely. Pre-trial preparation is key, and the court has a template pre-trial order that helps the parties get ready for the remote trial.

Judge Williams has now conducted three fully remote civil jury trials—one in November, one in December, and one in January. Although he has conducted the most number of remote trials, some of the other judges have conducted lengthier trials (one lasting 6 weeks). And there have been two hybrid criminal trials where—by stipulation—lawyers and witnesses were in the courtroom and jurors were remote.

Judge Williams made clear to us that, at the outset, he was very concerned about the concept of remote advocacy. (He proclaims to dislike and distrust all technology despite being one of the leaders in his court in determining how to manage the use of technology.)

He was not expecting the results that he and the other judges in Washington State have now experienced. These experiences will be discussed below, and they arise not only out of his and the other judges’ experiences, but also out of many interviews of attorneys and jurors that were carried out by the judges after the remote jury trials concluded.

According to Judge Williams, many of the benefits of remote jury trials are completely counterintuitive for judges and attorneys who have spent their careers in court. But he reports that the experiences of those attorneys and judges who have actually done a remote trial are undeniable. Judge Williams reports that he believes that it is unlikely that King County will return to a standard of in-person jury selection. He reports that the benefits of remote jury selection are just too great. He also reports that it is likely that remote jury trials will slowly replace the tradition of in-person jury trials. Again, he reports that the attorneys that have actually done such a trial report that the benefits are just too great to forgo. He is quick to report that he does not believe that in-person trials will ever be completely replaced, but that in 10 years in-person trials will be more of an exception than a norm.

III. Shared Resources

Judge Williams has provided us with seven items to share with our readership—each of which is posted on our website and linked to here:

1. The order that King County judges use regarding the jury trial proceeding remotely when the trial is carried out fully remotely (available here)

2. The pre-trial order that helps attorneys/parties get ready for a fully virtual trial (available here)

3. The juror questionnaire template that King County judges employ when jury trials are conducted with voir dire carried out remotely and the trial itself carried out in person (available here)

4. A template for pre-empanelment instructions for when voir dire is conducted remotely (available here)

5. A template for opening instructions for trials that are conducted fully remotely (available here). These instructions include both standard opening instructions, as well as instructions for the jury on how to participate in a remote trial.

6. PowerPoint slides that accompany opening instructions for trials that are conducted fully remotely (available here)

7. Four YouTube training videos for lawyers on how to conduct a remote trial from pre-trial to verdict ("REMOTE JURY TRIALS: From Pre-Trial to Verdict"). Each video is between 11 and 23 minutes long and covers a separate part of trial (available here).

IV. Judge Williams’s findings and impressions

As noted above, Judge Williams, a self-proclaimed non-lover of technology, was impressed by the many and substantial benefits of carrying out jury trials remotely. His main findings are described here. These findings are based on his own experience, the experiences of many of his colleagues, and the interviews of attorneys and jurors they have conducted after the conclusion of the remote jury trials of which they were a part.

A. Some preliminary thoughts

According to Judge Williams, not all cases are good for virtual trials—for example, if there is physical evidence that needs to be touched and which cannot be replaced by video.

According to Judge Williams, he and his bench mates have learned a lot. But he notes that this type of advocacy is very new. He notes that the practice of in-person advocacy has been part of our justice system for centuries, and that we only have about 9 months of experience with this new type of advocacy. He said “we are all novices”, and that he and his bench mates are continuing to work with their legal communities to refine their knowledge and their procedures.

According to Judge Williams, hybrid trials, where some participants are in the courtroom and some are not, is the worst of both worlds. He says that this is because everyone in the courtroom is masked and the camera is across the room. No one has a clear view of anyone’s faces. It has all of the downsides of a pandemic trial, and few of the benefits of a remote trial. (Going forward in this piece, however, we do not further consider hybrid trials, and we only discuss Judge Williams’s experiences regarding fully remote jury trials.)

B. Juror demographics

According to Judge Williams, there was an initial concern that the digital divide and technological divide (i.e., where some members of the population either lack the technological devices or the facility with technological devices to participate in remote jury service) would result in certain segments of society being excluded from jury service if jury selection is conducted remotely. Accordingly, there was a deep concern that the jury pool (people that participate in voir dire) would result in a remote jury trial that would not represent a fair cross-section of society.

According to Judge Williams, to the contrary, the courts are getting much more diverse jury pools. They are finding that rather than people being excluded from jury service, that more people have the ability to participate. Judge Williams notes that part of the reason for this is that, “we don’t preclude anyone from reporting in person, but we give the jurors the option to appear remotely.”

He credits this inclusive approach to the fact that his court finds different ways of accommodating jurors if they do not have access to a computer or a smartphone. Judge Williams notes that “more people own smartphones than cars, the key is to make sure we don’t exclude those people who don’t have either.”

In addition to allowing individual jurors to come to the courthouse if they want, the King County Court set up distanced workstations in their Courthouse Libraries. Following the lead of the Riverside California Superior Court, his department also acquired two refurbished I-Pads to serve as loaners if they were needed. Judge Williams reports no one has chosen to take advantage of either of these options. As Judge Williams says, different ways

exist in different jurisdictions for getting laptops or other devices to potential jurors to help address the digital divide, but the approach they are taking is one of them. Judge Williams also reports that more than one juror has used a tablet or smartphone—rather than a computer—to serve. While nothing is perfect, according to Judge Williams, this was far better than a socially distanced courtroom.

In addition, as to the individual demographic data from each trial, Washington State has a formal data gathering project about the demographics of juror service that is underway.

Despite the data not yet having been formally compiled, preliminary evidence does not support the existence of a digital divide that excludes potential jurors from the juror pool, and does not support the existence of a greater number of hardships requested by those over age 65.

According to Judge Williams, the biggest barrier to serving as a juror seems to be that not all people have a brick and mortar home address. Further, he’s finding that the people requesting hardships the most these days are parents who need to be with their kids who are at home due to the pandemic causing there to be remote schooling for children. Another category of people frequently seeking hardships are those who are scared about losing their jobs during the pandemic and who are worried that serving as jurors might risk their job security. As Judge Williams says, however, these concerns are pandemic-based and not digital-divide-based. Judge Williams notes that remote trials allow many of these jurors to serve, when they would not be able to report to a courthouse every day.

Judge Williams also adds that in the PowerPoint slide show he shows jurors how to use the controls of the remote platform and this makes things easier for those who might otherwise lack facility with the platform.

Judge Williams (and other members of his bench) feel that this increase in inclusivity is, by itself, a basis for the court to continue the use of remote voir dire. They are finding that in-person voir dire excludes important demographics and limits the ability of members of the community from serving.

C. Voir dire

Judge Williams is finding that voir dire conducted remotely differs in certain ways from in-person voir dire. He finds that voir dire is no longer a long opening argument; rather, it’s more intimate. The attorney and the jurors see each other as if they are three feet away from each other, and there is an enhanced ability to see each other’s facial micro-expressions. Remote voir dire has become less a presentation and more about questions. Further, it is more focused and specific because some of the basic topics have already been addressed with questionnaires. The lawyers go into the questioning already having a lot of background information about each juror. Judge Williams sees these various developments regarding voir dire to be very positive.

D. Juror participation during voir dire

Judge Williams has found that juror participation is much greater and freer when done remotely rather than when it is done in person. Judge Williams is finding that the jurors feel safer and more comfortable when they are in a safe place. Judge Williams reports jurors share more personal perspectives when voir dire is conducted remotely. He observed at least 10 instances where he didn’t think that the potential juror would have shared what they shared had voir dire been in person.

Judge Williams reports that another factor leading to greater participation by potential jurors during remote voir dire is that jurors have reported that they feel that remote platforms help level gender bias. Female jurors have reported being less intimidated by the fact that a man was speaking when the proceeding was occurring over remote technology than they would have been in person. Additionally, it was reported that it was harder for men to talk over women over remote technology than in person.

E. Greater connection and empathy between jurors and attorneys

Judge Williams observed that jurors reported a greater level of empathy for litigants after trial over remote technology than after in-person trials. He also reports that both attorneys and jurors reported a greater connection to each other over remote technology than has been the case in in-person trials. Further, Judge Williams reports that jurors and attorneys alike are reporting that they like remote trials—even those who report being hesitant about them at the outset.

F. Juror engagement throughout the trial

According to Judge Williams, he has observed and received reports that remote trials have led to enhanced engagement of jurors and an enhanced ability of jurors to understand exhibits. (These observations and reports, in particular, are among those that Judge Williams states that he would have not expected to be the case before carrying out remote jury trials.) Jurors are paying MORE attention and jurors turn out to be more focused and less distracted at home than they would be if in the courtroom. Judge Williams’s hypothesis is that when in the courtroom, although the judge and lawyers are comfortable, this is a foreign environment for the jurors, and as a result, their minds might be on other things while in the courtroom (even pre-pandemic); but at home, they are in a place that they find safe. Judge Williams reports that some jurors reported “I wasn’t worried about getting to the courthouse” and “I wasn’t worried about getting up early.” Judge Williams also reports that the jurors actually also do a good job of self-monitoring in terms of monitoring their fellow jurors and making sure that their fellow jurors follow the court’s instructions. He reports that both he and the lawyers also monitor the jurors, and if it appears that a juror is not paying attention, then he addresses the issue. He reports that it has only happened twice, and that both times, it was quickly spotted and fixed.

G. A more level playing field in terms of gender for jurors and attorneys

As mentioned above, Judge Williams heard it reported that jurors found there to be a leveling in terms of gender bias that was brought about by the remote platform. This was not only the case for juror participation during voir dire, but also during deliberations. Further, attorneys also reported this leveling effect in terms of gender bias in terms of their participation. With respect to jurors, the effect on gender bias, when combined with greater comfort in one’s own home, led to considerably greater juror participation.

H. Refining procedures and work still left to do

Judge Williams reports that his and his colleagues’ procedures are still being refined, as remote jury trials are still very new. There remains a lot to learn and lots of ways in which to improve. But, Judge Williams says, you need to get started somewhere; you won’t know the problems in your jurisdiction until you try it. As Judge William says: “Are there technology issues that need to be addressed and fixed? Yes. Are they insurmountable? No.” And, as he says, there are also technology issues that arise in in-person trials too. Just as these get solved in in-person trials, so too do the technological issues get solved when operating over a remote platform.

I. Additional thoughts

According to Judge Williams, another thing he noticed about remote jury trials is that an attorney's aggression doesn’t play well over zoom. Judge Williams described himself as an “aggressive trial attorney” when he was “in the well,” and he observed the distance and space in a courtroom “diffuses or absorbs” aggression or “sharpness.” However, in a remote trial, the lawyer is “3 feet” from the jurors. It just feels more intense. He reports that jurors especially dislike attorneys’ aggression over remote platforms.

Judge Williams notes that the skill sets to succeed as an advocate are somewhat different over remote platforms, and thus the nature of advocacy is likely to continue to change going forward. He described remote advocacy skill sets and in-person advocacy skill sets as existing “in parallel . . .as if the life of a trial attorney wasn’t already hard enough!”

Judge Williams believes that there will always be opportunities and the need for in-person advocacy. But he thinks there will come a time when remote trials will become the norm and in-person juries (at least in civil cases) will be the exception.

Despite all the benefits he sees in having remote jury trials, Judge Williams reports that he misses being around people in the way that he used to.

In sum, Judge Williams finds that what he has learned about the benefits of remote jury trials has been in many ways unexpected (from his perspective). At the outset, he understood the need, but was concerned about the expanded use of remote technology. He notes that he does not like technology, but that it is a tool that should not be feared, but managed.

According to Judge Williams, the findings regarding the benefits of remote jury trials are incontrovertible. Further, although he does think in-person trials will return post-pandemic, he does not think that his court will ever return to having in-person voir dire because the benefits of remote voir dire are too great.

* * *

We, at the Civil Jury Project, want to thank Judge Williams again for being so generous with his time and efforts, and for his willingness to share his materials with us—and for letting us provide them as a resource to our readers. We hope that others can learn from the experiences of Judge Williams and his court, and that the materials that he has shared with us and our readers can help judges and lawyers who are interested in remote trials.

Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.

Remembrance of Steve Susman

By Parker C. Folse

Over our third pandemic cocktail last night, my wife and I began talking about Steve Susman. His presence in our lives over 40 years was so strong that these conversations still bubble up like lava, unbidden, like every other force of nature, even though his physical presence is now gone.

She said her dominant impressions of Steve were cigars, wondrous but intimidating intelligence, intense engagement, and an extravagant sense of playfulness. She didn’t mention the “I can’t unsee” imagery of Steve striding down the aisle on a jolting bus ride in some remote location on a firm retreat decades ago, clad only in a Speedo and loudly laughing. But she has mentioned that story to me so many times, in a mixture of shock and wonder, that I felt compelled to include it here for the sake of completeness.

He gave up cigars too many years ago to count, and replaced them with blunts. He became slightly more modest in his attire, though his Spandex bike shorts didn’t leave much more to the imagination. The incandescent intelligence and wild sense of playfulness? That didn’t change at all. Nor did his ability to stride like a titan across the upheavals of the legal world, until the current cruelties of life took him down like some awful thunderbolt.

Where did the phrase “larger than life” come from? I did some research, and went down a deep rabbit hole with no clear answer, because the phrase was such a perfectly blazing banner for Steve Susman. But the time I spent in that fruitless chase would have been a laughable thing to Steve, who hated wasting his own time, or anyone else’s, except when he was at play in his own fields of Elysium.

He never said it, but it didn’t take long to figure out that Steve believed his own time, and that of his clients, was precious. The early death of his own father seemed to chase him, and his own regard for his own brilliance was such that he measured it out. And he constantly juggled so many balls that time wasted was the risk of balls being dropped, and damned if he was going to let that happen.

He thrashed himself, his colleagues, and his clients not to waste time, to keep everyone’s eyes on whatever the prize might be—and there was always a gigantic prize to be won, though in the early days of our firm, the prize was just to keep the lights on; a prize that Steve never lost sight of even after, through his prodigious talents, he had assembled enough wealth to buy multiple power utilities single-handedly.

All of us who learned how to try cases with him as legal children will never forget him. All of us who merely listened to his gravelly bark in firm meetings and marveled at his ability to cut through to the core of whatever issue might have been presented will never forget him. All of us who prospered within the organization he birthed, like Athena sprung from the brow of Zeus, will never forget him, and if we’re just custodians of his memory, neither will our children or our grandchildren, because their lives have all been radically altered by the force of his life.

The system of justice in the United States has been altered by him too. At first, it was shaken like an earthquake by his pioneering of class actions and other forms of contingent fee entrepreneurship in commercial litigation. Those upheavals changed the landscape in lasting ways, in part because Steve and his fervent students in our firm brought to the plaintiff’s practice the resumes, the intellectual rigor, and the straight-arrow ethics that many giant defense firms always bragged about. The rest of it was a tribute to relentless work ethic and the equally ceaseless desire of mavericks to prove not just that they belonged, but that they were better than the white-shoe elites, both of which Steve epitomized perfectly.

Steve turned the fledgling business he conceived into an astonishingly successful enterprise, but even that wasn’t enough for him. Steve was never “mildly” interested in anything. If something didn’t inspire his own passion, it just wasn’t worth bothering with. From music to movies to art, from jogging to skiing to cycling, lots of interests fueled the engine in his body and heart, but the most high-octane fuel was always, incomparably, the law, the art and science of trying lawsuits, and our firm.

He became a student of the slow death of jury trials and a public health expert in how to arrest the decline. Through the Civil Jury Project he founded and financed at NYU Law School, he embarked on a proselytizing mission that enlisted the aid of many hundreds of judges and thousands of practitioners around the country, the point of which was to save that critical feature of our public polity.

It would be a crying shame if his death sapped the energy of that mission. It needs to continue, even if no other single person could likely bring to the mission the remarkable combination of love for the trial practice, intellectual brilliance, and street-smarts that Steve Susman corralled within himself and kept letting out of the gate like wild horses.

All of us at Susman Godfrey will miss Steve Susman intensely. We know him better than most. It makes us treasure him all the more dearly.

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.