Production by ALI and the Bolch Judicial Institute. Music is ‘Headway’ by Kai Engel, from the Free Music Archive, CC BY.
Sherri Carter, Clerk of the Los Angeles Superior Court
Judge Karen Caldwell, U.S. District Judge for the Eastern District of Kentucky
Judge Mark A. Drummond, Judicial Director of the Civil Jury Project at NYU School of Law and a retired judge for the 8th Circuit of Illinois
Judge Robin Rosenberg, U.S. District Judge for the Southern District of Florida
Judge Sam Thumma, Arizona Court of Appeals, Division One
Judge Vaughn Walker, mediator, arbitrator, and special discovery master and a retired Chief Judge of the U.S. District Court for the Northern District of California
- Host David F. Levi, director of the Bolch Judicial Institute and president of The American Law Institute, talks with judges and administrators about the future of trials, mediation, MDLs, and other court procedures that traditionally rely on in-person interactions.
- The judges discuss how jury trials might be impacted by the public health emergency, including plans for social distancing in court rooms, working with prison and law enforcement officials to ensure defendant and witness safety, how the makeup of juries might be affected, and whether videoconferencing could ever work for criminal trials.
- Panelists also discuss the promising possibilities of technology-aided proceedings that may outlast the pandemic, including videoconferencing for expert witness testimony, improved efficiency in court proceedings and workforce productivity, and opportunities to involve and train younger attorneys.
Listen to the podcast
- A resource guide for courts and judges
- Continuity of Court Operations During Public Health Emergency (guide published by Arizona state courts)
- Advocacy Through the Computer Screen: Best Practices for Effective Remote Advocacy (by Mark Drummond)
- Remote Advocacy: Representing Your Client during the Covid-19 Pandemic (NITA)
- The Permissibility and Constitutionality of Jury Trial by Video Conference (Civil Jury Project at NYU)
- Civil Jury Project at NYU School of Law May 2020 Newsletter (focuses on video conferencing for courts)
- Videocameras, Too, Can Lie, Or at Least Create Prejudice (The Wall Street Journal)
- Sample daily juror questionnaire (Eastern District of Kentucky)
- Sample potential juror questionnaire (Eastern District of Kentucky)
David Levi: Hello and welcome to Coping With COVID, a series jointly produced by the Bolch Judicial Institute at Duke Law School and The American Law Institute. In the series, we examine the impact of the COVID-19 on the legal system. I am David Levi, president of The American Law Institute, and director of the Bolch Judicial Institute.
By now, our courts, state and federal, have adapted much of their work to digital platforms. But some procedures or litigation events do not easily or obviously translate to the digital. Today we are talking to judges and court administrators about whether processes that traditionally rely heavily on in-person interaction, such as jury trials or mediations can be modified to accommodate social distancing. With me today on a wonderful panel of terrific people, we have Sherri Carter, who is the clerk of the Los Angeles Superior Court. Judge Karen Caldwell, the United States district judge for the Eastern District of Kentucky and chair of the Judicial Panel Multi District Litigation in the federal courts. Judge Mark A. Drummond is Judicial Director of the Civil Jury Project at N.Y.U. School of Law and a retired judge for the Eighth Circuit of Illinois. Judge Robin Rosenberg, the United States District Judge for the Southern District of Florida. Judge Sam Thumma, the Judge on the Arizona Court of Appeals and co-chair of the state court’s working group on Continuity of Court Operations. And Judge Vaughn Walker, a mediator and arbitrator, and a retired chief judge of the United States District Court for the Northern District of California.
Thank you all very much for joining me today. Why don’t we start with you, Vaughn, we’ll start with mediation. Mediation is often thought of as something that must be done in person and that the personal touch of the mediator might be thought important. And I know you’ve had some experience now with virtual mediation. Tell us what you learned from that experience and how well or poorly it worked.
Judge Vaughn Walker: Thank you, David. I think mediation is one of the processes of those that you mentioned, David, in which the video technology and remoting is going to be most useful. Let me explain what I mean. Because I think the use of video conferencing in mediations is going to have three fairly long-term effects on the process. First, the mediations can become more front loaded, and I’ll explain in a minute what I mean by that. Second, face-to-face mediations or all hands mediation sessions I think are likely to become less important in the future than they have historically been in the mediation process. And third, I think video technology, remoting can really enhance the value that the mediator brings to the process.
Now as you know, and as you described, it’s historically been thought that in order to have a successful mediation, you have to get everybody together. The lawyers on both sides of the case, possibly the clients, the insurers and so forth. You have to fog their glasses, and grab their lapels and try to bring a little sense to the situation. That isn’t always possible, people won’t always see the light at these sessions. And so, frequently mediation sessions become simply the first step in a process. The advantage of using remote technology, video conferencing at the very outset is that you can begin the dialogue about the case at a much earlier stage. Ordinarily, pre-mediation conferences are simply stage settings, scheduling the submission to the mediation statements, the time and place of the mediation, and who’s going to participate in all of that. But if you can bring everybody together through a video conference at the beginning, the ability to move into breakout rooms enables the mediator to have a discussion about the merits of the case in a way that historically is not possible in a telephone conference. As a result, I think you can kickoff the process much earlier and more effectively.
In addition, the mediator becomes a part of the dialogue about what should be in the mediation statement. Historically the mediation statements have simply been a regurgitation of the party’s litigation positions. And that isn’t always very helpful. But a robust conference live video at the beginning of the mediation process before any mediation face-to-face schedule is put in place, enables the mediator to have some real effective input in what is put in the mediation statements. So, I don’t think mediation sessions and all hands meetings are going to go away, I think we will still have those in many cases. But once in a while you might actually get a settlement out of a dialogue that’s kicked off at a pre-mediation conference. So the ability to move people in and out of rooms and dialogue individually with the parties is an enormous benefit that remote technology brings.
Now, we’re all somewhat resistant to using new technology. When this COVID situation started, I had a number of mediations immediately go off the calender. Lawyers said, “No, no, no.” They didn’t want to do anything via Zoom or other technologies. Low and behold after a matter of a few weeks, they started coming back. And we have been having mediations in settings just like this. And it’s worked extremely well and I think it’s going to be accepted widely in the bar in the future. So I think this is a permanent change in the process of the mediation world.
Levi: That’s so interesting. Robin, let’s take a look at another aspect of the pre-trial phase, which is case management. And you’ve been involved in a complex civil litigation, I think you were assigned an MDL case by Judge Caldwell’s panel just before the virus hit. And you made the decision to try to move it forward. And tell us how you’re using virtual case management tools and how you would evaluate them.
Judge Robin Rosenberg: Well thank you, David. And can I take this opportunity to say hello to Judge Caldwell and thank you, I think. I remember being in court the day the case was transferred to me on another matter and there was a phone message. My C.R.D. brought it into me and it was from Judge Proctor, and it said, “Be careful for what you ask for, “you just may get it.” ‘Cause I had been expressing an interest in an M.D.L. for a couple of years through the survey. So low and behold on or about February 6th, I was transferred the Zantac M.D.L., okay. So it’s my first M.D.L. First time trans free judge, Albeit, I’ve been sitting on the M.D.L. subcommittee for over a year, so I wasn’t completely new to the world of M.D.L.’s. But let me just tell you that what I thought would be an impossible task has become one of the most rewarding experiences I have had over the last three months with this M.D.L. And of course of my almost over five years as a federal judge and eight years as a state court judge.
So let me tell you about how this case has unraveled since February 6th. And not to miss a beat, if I am looking over at my notes, I just want to refresh my memory since so much has happened in a relatively short period of time. I guess I’ll start off by saying, yes it’s possible to manage a complex case such as an M.D.L., in this case Zantac during this COVID period. And in fact, I might say that one might even find that there are some management techniques that even work better . Because we’re all forced to work under unique circumstances. I was excited and eager to get going and so I researched and found when other M.D.L. judges would issue their first order, setting their initial conference, and try to follow in their track. And it looked like it was about four to six weeks out. So I had my initial conference at that point in person, scheduled for March 20th. Now again, this is February 6th, so we knew about COVID but it was still very early. And included in the pretrial order of course was the status conference for March 20th. And I was going to have leadership interviews as well, maybe the day before March 20th.
As things moved along, I issued a number of other orders, sort of unrelated to COVID, just to get the work moving. So that was putting a practice and procedures team in place, putting an initial Census team in place, just to get a group of people working until I was ultimately able to appoint leadership and have my initial conference. As we were getting closer to the initial conference date, I was getting increasingly concerned about the state of affairs. I think all of us were trying to manage on a day-to-day basis. What did COVID mean for bringing people into the courtroom? And had it been a conference of two, or four, or five, or 10, I may not have been as agitated as I was getting. But word was out with 68 applicants for leadership plus all of the other plaintiffs attorneys who wanted to watch the leadership interviews as well as the defense team, we were looking at 100 plus people coming into the courtroom, and I was not comfortable with that. I was not comfortable having these attorneys fly at that point and congregate in a confined space. Even though we still weren’t exactly sure what COVID meant for all of us.
So on March 13th, I decided to issue an order canceling the initial conference. As I said, it was apparent to me, I just couldn’t go forward in a manner in which I had set out. When I canceled the interviews in the status conference quite frankly, I had no idea what I was going to do. I didn’t even think about when I was going to reschedule, how I was going to reschedule. We were very much on the cusp of learning about new technology that was available. I worked very closely with our I.T. department. I appointed another team at that point, called the April Deliverables Team, that may be something new in the M.D.L. world, but boy they went to task and were working all throughout April as I was trying to figure things out. And I also set up on April 2nd, an initial census platform.
So initial census forms are new in the M.D.L. world, I’m not the first judge to use them. There have been a couple before me and we got that going. And once I realized that I was going to be able to get initial census data, that is data on every filed and unfilled case, that all of the applicants had as well as anyone else, so anyone who had filed a case had to fill out an initial census form and any leadership applicant had to put his or her unfilled cases complete an initial census form. So I was able to build a wealth of information not just about the 300 or so cases that are currently pending in front of me, but all of the other ones that are kind of waiting in the winds because appointing leadership entails, among other things, making sure you have a representative group of the different types of cases.
So ultimately I got the nerve up on April 3rd to issue a rescheduling order, whereby I scheduled my leadership interviews this past week on the 6th and 7th, and that is why I wasn’t available yesterday, because my leadership order went out, so I want to thank everyone for agreeing to meet on a Saturday. My leadership order did go out yesterday and I have my status conference and discovery conference next week. Let me just tell you, I don’t want to exceed my five minutes, but it went off without any glitches. And I think it took a team effort to do that. It took our I.T. department, it took my willingness to learn how to use the technology and get comfortable with it, we did use Zoom. We have many government accounts within our district now. They have ensured us that with passwords and with waiting room having to be admitted and other security measures, that I wasn’t going to get Zoom bombed. And again, if it was a smaller proceedings, okay. If you disrupt five people’s morning or day, not so bad, but 112? When this is their very first time seeing you? I was nervous, and in fact I confided that to all of the attorneys who appeared before me and I have been told in feedback that that put everybody at ease, because everybody was nervous about it. They were nervous about their interviews, but they were nervous about the technology.
And it was wonderful. 62 people ended up interviewing, and I have to say that it created a dynamic that I think is unlike any other interview process that may have taken place in the past, based on the feedback. Of course it’s my first M.D.L., so I can’t speak from personal knowledge, but when you can see as we all are, on a screen, there is a level of connectedness and intimacy because we are so close and yet so far away. Nobody was in the courtroom over those two days, but I was right there for them to see me and they were right there for me to see them, and everyone else could watch and see the stories that these 62 attorneys shared with me about their personal backgrounds and their professional backgrounds that they believed made them qualified to be appointed to leadership in this M.D.L.. I have many reflections and thoughts on it, but maybe I’ll wait, David, if that’s okay to —
Levi: Sure, thank you.
– Mention the comments.
Levi: That was extremely interesting Robin, thank you. Let’s go to what might be the elephant in our virtual room, which is the jury trial. And I know a lot of lawyers have contacted me and said they’re very concerned about what the courts are going to do or not do about jury trials. Judge Caldwell, Karen, we all appreciate these are big issues and you just completed an eight week jury trial in the era of the COVID Pandemic and we’re all extremely curious to know how that went and what steps you took to keep everybody safe.
Judge Karen Caldwell: Thank you, David. I think it’s first of all worth mentioning that this case began on February 24 before the COVID virus was really a problem in Kentucky. We started what we believed would be a six week trial. And our biggest concern was seating a jury that would be available to sit for six weeks, which is difficult under any set of circumstances. And of course, it was complicated further by the rise in cases, the spike in cases here in Kentucky. I think it’s also worthy of mention that four of the defendants and two of the lawyers were all from California. And they had come to Kentucky, escaping what was already a problem out there, thinking that we would get this case done. The case had been pending for two years, it was very important that we bring the case to trial. Two weeks into the case though, the Coronavirus presented a problem and we spent a long time, the lawyers and I, in many conversations about whether to proceed with the trial, to take a continuance and see if the numbers improved. But based on what we had seen nationwide, we knew the numbers would only continue to grow. So the question became, do we continue and if so, how?
I think first thing that we thought was important was taking the jury’s temperature literally and figuratively on this issue. So with agreement of counsel, I conducted an independent vior dire of the jurors. I took it on the record of course. We thought we’d be best if they just spoke with me and not with all eight lawyers who were participating in the case. I talked to them about safety measures that the court would take. I talked to them about their concerns for their family and friends and loved ones. I talked about would they be able to concentrate on the evidence as these numbers increased, and without exception, they all wanted to stay. And we had to impound 16 jurors. And I asked them also to give me advice on safety measures that we might take to make them more comfortable, and of course, I cautioned them that there was nothing that I could do to guarantee their safety throughout the trial, despite our best efforts.
So we set about using a large courtroom, we were using our ceremonial courtroom, which was very helpful. We limited access to the courthouse. We limited access to the floor on which the courtroom and jury assembly room were located. We also sealed the courtroom. Members of the public had to have permission to come into the courtroom, but we did have a live feed going down to another courtroom so that if anybody wanted to come in and hear the proceedings, they could. I reconfigured the jury area by putting a row of tables in front of the box with computer monitors on them. I also had another set of tables over beside the jury box with computer monitors so that we could have social distancing. We were fortunate to have three rooms available outside the courtroom so that jurors could be socially distant when they were engaged in their breaks. We basically sectioned off one side of the courtroom so that no one approached the jury. Even the witnesses would enter and walk behind my bench in order to get on the stand so that they would feel comfortable with the social distancing.
Everyone had hand sanitizers, tissues, and Clorox wipes available to them at all times. We offered the jurors masks, but they refused them saying they wanted us to preserve them for frontline workers. Can you believe that? That shows the dedication of this jury. We also ordered them all to shelter them at home, but offered to make them hotel accommodations in the event that they wanted to stay in a hotel. None of them took advantage of that. We also brought in their breakfast and their lunch with special packaging so that they could feel safe and secure in the preparation of their food. One of the concerns that the counsel raised was, will they grow more preoccupied or concerned as this trial moves on? So I did daily jury questionnaires in which I would invite the jurors to raise any concerns, ask them how they were doing, members of their family were doing, and so forth. And I do have copies of that available for everyone. Also, I advised all jurors and all parties that if anyone was feeling sick or symptomatic that they should not report to the courthouse, but rather should report to the jury officer. I gave daily instructions to jurors on health and safety practices.
We did use technology in some regards. I had used technology at pretrial, throughout most of the pretrial proceedings because these lawyers and can parties were in California. We used that very successfully, we used teleconference and minimized the number of times the Californians would have to travel to Kentucky. But by the time the trial was in the sixth week, we were in the defense case. And there was a travel ban. So the defendants, the experts, could not fly from California to Kentucky. So we took their testimony via livestream. It was very, very effective. Not only did it appear on the juror’s monitors, we had a huge monitor in the witness stand. We could see both counsel and witness. Anybody who was in the gallery could also see. We had no problems with the technology. The only thing that had to be done, was, some of you may know that during peak hours, the bandwidth was challenged. So we had to schedule that and reserve the time, but when you’re dealing with experts, that’s a little bit easier. I’m not sure that any of the lawyers would’ve agreed to have a fact witness testify by livestream, but for expert testimony, it was certainly very successful. I think we had about five witnesses appear via livestream. And in the feedback I received from jurors after the case, the jurors were very impressed and felt that they viewed the witnesses having testified live in court.
And I don’t want to take too much of our time here but let me just point out a couple of other things. We had to minimize bench conferences. That was probably the biggest challenge with so many lawyers. So I permitted limited speaking objections. We met before court every day over lunch, and after court every day to try to resolve any kinds of evidentiary issues. And then I had the proponent of the objection and the defender of the objection, of course, stand closest to me whenever we were dealing with objections.
I think that going forward, one of the most difficult aspects of managing a jury trial will actually be selecting a jury. I already had that jury selected. But because we had selected a jury for such a lengthy trial, many of the practices that I employed there would also apply to a jury trial during COVID crisis. And one of the ways that we managed that was through a very thorough and exhaustive jury questionnaire. So at least you could get rid of all the potential jurors who have health issues so you’re not dealing with that when you have to bring people to the courtroom.
But I will tell you this, we summoned 170 jurors to get 70. So and I expect that now with the COVID crisis, that you would probably have to summon maybe double that to get 70. I really don’t know, but that’s just a process you’d have to work through with your jury officer. But I think the takeaway from it is that although a criminal jury trial certainly requires the most hands-on personal experience, I do think that technology has a world if used well and planned carefully.
Levi: Thank you, that’s just so interesting. Might I ask, were any of the defendants in custody defendants?
Caldwell: No, it was very helpful. The defendants were not in custody.
– Okay, so–
Caldwell: The witnesses were.
Caldwell: And getting, that’s another sort of cautionary note that the bureau prison stopped transporting people during the trial. Luckily we had had them transported in well in advance. So I think judges need to be mindful that there are transportation issues for custodial defendants and witnesses.
Levi: Thank you. Judge Thumma, you’re co-chair of the Arizona State’s working group on continuity of operations and I know that you’re looking at how to keep criminal jury trial going. And there are lots of issues constitutional and otherwise. Can you tell us about what the working group has done and what you’re looking at in this respect?
Judge Sam Thumma: I’d be delighted to. Our report issued on the 1st of May and it’s at www.AZCourts.gov/COVID19. And I share that not because it’s the end of anything, but my hope is it’s the beginning of our continued wrestle with this beast that is the Coronavirus. And to follow up on Karen’s points, the first principle in the work group, which is the Plan B work group, recognizing Plan A left town when COVID-19 hit. But Karen’s right, we’re talking about managing contagion not eliminating. Eliminating requires some medical breakthrough that we all hope for. But until that happens, I think the courts need to do a whole bunch of smaller things to see what we can do to be creative and innovate and to ensure social distancing, use technology to eliminate those traditional face-to-face hearings and those big gatherings like jury summons issues.
The changes in jury trial management on the civil side I think lends itself more for far more creativity, given that certain doctrines don’t apply. But let me focus on criminal. There are about 100,000 criminal jury trials in the state court system every year, involving probably a million jurors give or take, and many more who are summoned. So our focus really needs to be on the new normal, that was one of the things our work group did. In this new world, how are we going to help ensure social distancing? And let me focus on just four points.
First in this new normal, remote grand jury proceedings using technology. There’s more freedom if you will in the grand jury. Context Confrontation Clause doesn’t apply, hearsay is admissible. And courts are doing that right now, including in our state in Arizona. Speedy trial rights is the second issue I wanted to talk about, the constitutional speedy trial issues, the Barker v. Wingo (407 U.S. 514 (1972)) factors. I think things are going to have to be really pretty bad for a lot longer before that would kick in. But there’s also state and local law, statutory and local rule speedy trial rights as well. Arizona can exclude time for example, based on extraordinary circumstances, that’s under rule (Rule 8.4(a)(4); 8.5(b)). And just like yesterday, our Chief Justice, Robert Brutinel issued Administrative Order 20-75 that does just that through August 1. So we have sort of the flexibility to be able to have those times.
The third point is reducing or eliminating peremptory strikes. And Bob’s administrative order yesterday did that. Reduced it from six to two per side in criminal cases. And for serious and other cases as well. And for serious criminal cases, that reduces by about 30% the number of qualified jurors that you need to pick a jury, which in turn has a ripple effect in the number of potential jurors that you need to get in the courtroom.
And then the final issue, and I’d love to tell you I have an answer and I don’t, is a Confrontation Clause. Of course the accused has the right to confront the witnesses against him or her. But let me toss this out. What if a jury trial involved the defendant, counsel, the judge, and witnesses in the courtroom, social distant of course, but remote jurors. But remote jurors. And who perhaps never physically were in the courtroom. Does that create a Confrontation Clause issue? Again I don’t have an answer. But the Confrontation Clause, the purpose of course is to rigorously test testimony and evidence, recognizing that when the defendant is in the room, witnesses may testify differently. Is that function really negated if the trial jury is remote? Does the Confrontation Clause direct that the jury has to be physically present? What testimonial evidence is set forth in Crawford is compromised by using a remote jury? And then again, even if the Confrontation Clause applied with full force, Maryland v. Craig (497 U.S. 836, 845 (1990)) has some exceptions.
Let me offer just two straight cases that I ran into for food for thought, and then a couple of resources, including some that mark’s colleagues have pulled together. State ex rel Montgomery v. Kemp, 239 Ariz. 332, 371 P.3d 660 (Ariz. Ct. App. 2016) — it’s an Arizona case so forgive me on that. A medically fragile victim was allowed to testify remotely from another state via two-way video under Maryland v. Craig. Now again, that’s a post-Crawford case. It was decided in 2016, but it also implicated victim’s rights under our state constitution. So neither of these cases are on all fours.
Another case though that was fascinating, Harrell v. State, 689 So.2d 400 (Fla. Ct. App. 1997). It’s a pre-Crawford case where two victims testified by satellite, a generation ago, right, from Argentina. And the Court of Appeals rejected defendant’s Confrontation Clause objection. The court of appeals said, “We could conduct satellite trials in a virtual courtroom while the jury deliberates in a secure cyber chatroom. Unfortunately the constitution does not address this specific issue.” Now, the Florida Supreme Court affirm pulled back a little bit, but significantly as well, the Eleventh Circuit on appeal denied habeas relief a few years later. So those are two straight thoughts.
The two resources, on May 4, 2020, really terrific memo called the Permissibility and Constitutionality of Jury Trial by Video Conference, by Michael Pressman and Michael Shammas. It’s posted on the web, and I commend it to you. It raises the issues, it doesn’t give those concrete answers that we all yearn for right now. And then of course, Professor Daniel Capra, reporter for the advisor committee on the Federal Rules of Evidence has long maintained a comprehensive list of the federal courts applying Crawford and analyzing those as well, that’s available in the agenda books for that committee, but thank you.
Levi: Thank you, that’s wonderful. Mark, your work has just been mentioned with praise that you direct a civil jury project and you’re looking at trying to preserve the civil jury. I know you’re working on how to transition a civil jury trial to an entirely digital platform, so tell us what some of the issues are that you’re looking it.
Judge Mark Drummond: I’ll be glad to, David. I’m going to hit share screen because I’ve got some slides I would like to share with the group.
– There it is.
Drummond: So, the issue with virtual trials is this, will the virtual trial give us the same level of justice as the in person trial? And the second inquiry is what can we do to make sure they do? So Judge Thumma talked about the constitutional considerations and the Confrontation Clause, I doubt that we’re going to be able to do criminal jury trials virtually. But I was glad to hear him say that we could break off other pieces. And I’ll return to that in just a minute. Civil’s easier, if the two attorneys agree to do a virtual trial, there’s no problem. The issue is whether one side objects to the virtual trial and whether under the state constitution as it’s set up, or the federal Constitution, which says that you can get a jury trial in civil cases, whether courts will say that a virtual trial passes constitutional muster on that. I believe that civil cases are turning to mediation and arbitration. If they’re agreed, we can certainly do a civil jury case. But if there’s disagreement, will the public courts say, “No, you were offered a trial, it was a virtual trial, but that is good enough in the civil arena.”
So Judge Thumma was talking about breaking off parts of the trial to satisfy constitutional muster for criminal cases. And that’s exactly what we’re doing at the Civil Jury Project. So we’re hoping to roll out a civil jury trial, virtual trial from start to finish, towards the end of May. The date hasn’t exactly been set. And we have broken it into three parts. We have trial lawyers, trial judges and academics working on, 1) jury selection, 2) protocols for the actual trial, and 3) jury deliberations. So you could have the case — Judge Caldwell talked about the questionnaire, where we send the questionnaire out. Jury selection is done virtually on a platform. And then instead of having 100 potential jurors come to the courthouse, you only have those who are chosen. They would hear the trial in person, whether it’s civil or criminal. But in civil they could also hear it virtually, in my opinion. And then they retire to their homes to deliberate on the verdict. I think probably if you just want to break one piece off in the criminal setting, jury selection would be the easiest to break off. There are some studies about how the dynamic of being in the jury room helps them arrive at verdicts.
So we’ve got these considerations that we’re dealing with. Can you achieve a cross section of the community by a virtual trial? I think the healthcare system has done a great job convincing all of us that we are truly heroes if we are staying home. I think the judicial system can also do the same. That you’ve saved lives by staying home during the pandemic. Now we need to reinvigorate, we need to bring back the jury trials. Can you help us out by being a juror at your dining room table? Judge Caldwell talked about how dedicated her jurors were. And the studies that we’ve done at the Civil Jury Project, people are apprehensive about jury duty, but once they do it, they are thrilled to be jurors. They have a sense of pride being jurors. And many say they would like the opportunity to do it again.
In addition, in this day and age where jurors have to get into a car, drive to a courthouse, pay for expensive parking, we have to pay the mileage in some cases — would it actually be cheaper to do virtual juries? Where all the court would need to do is to make sure there’s a level playing field on the technology. That every juror had the same technology to be able to see and hear the witnesses and deliberate.
And finally, the perception considerations. And I wear one hat as the director of the Civil Jury Project but my other hat is as a program director for the National Institute for Trial Advocacy. And we’re trying to address the issues of how to be an effective advocate through a computer screen. Judging credibility is harder on the screen. Ironically there’s more on the screen and also less on the screen. Where in person, you see how the person walks into the courtroom. You can see how hesitant they are to get onto the stand. You see their whole body, perhaps fingers drumming on the bench in front of them or perhaps a knee shaking. This is myopic, you only see their face. In addition there are problems with the platforms. For example, training witnesses as to where to look. I am trying to look into the camera so I can look you in the eye. But if the witness is on the stand and their attorney is in the lower corner, you could get this, that they’re not looking the jury in the eye. They’re answering the questions from the person who is in the lower corner.
Video affects information. You just need to go to television and Hollywood. They usually do shoots with a three camera setup. One is pointing from above, one is straight on, and one is from below. And all you need to do is do a search on camera angle and how that affects perception on metrics such as believability, trustworthiness, vulnerability, it matters. In addition it matters in terms of quantitative information. The dean of this is Edward Clapdigin. He wrote an article in his last book about the Columbia disaster and how PowerPoint was perhaps the worst way to deliver that information to the engineers. Because there were four levels of hierarchy and the forced calculation was on the lower level. In addition, PowerPoint can’t do scientific notation. So how to deliver the information to the jurors in the best manner possible or the most effective manner possible is one thing we’re looking at.
Levi: Thank you, Mark, that was super, super interesting. It was either Christopher Wren or Winston Churchill who said, “We build our buildings and then our buildings shape us.” And I think the same —
Drummond: Well exactly, exactly and the–
Levi: The same might be true here. The technology’s really going to potentially, as you say, it’d be a wonderful area of research. But we’ve had a very vivid demonstration of this in the Supreme Court arguments because they went to telephonic arguments and the arguments were very different then they were before. The lawyers said it was very different than the kind of free-for-all that we’ve become accustomed to the last 20 years or so. So this’ll be —
Levi: A great area for social science research in the future.
Drummond: And David, I apologize for interrupting, but your Wren analogy is apt because literally our courthouses will be shrinking with social distancing. So instead of bringing —
– Yeah you’re right.
Drummond: — 100 in, we’re only going to be bringing 20 or 25. So physically they’ll be the same size but literally they’ll shrink.
Levi: So Sherri, let’s talk to you. You’re right in the middle of it. I said you’re between the rubber and the road, or you’re in the crosshairs, or whatever. You’ve got to bring in panels, you’re in Los Angeles County. This is one of the largest judicial operations that we have in the nation. I think there are as many judges in Los Angeles County as there are in the entire federal system. And so you have a very, very big job. How’s it going?
Sherri Carter: Well there are a few challenges. Let me talk a little bit about jury trials. Probably the two biggest challenges with jury trials is first of all, ensuring enough jurors will actually show up to my 313 courtrooms and 39 courthouses throughout the county that will be doing criminal and civil jury trials. Before the pandemic, we had less than a 41% yield in our jurors. In 2019, we summoned 1.8 million jurors and of those, 744 thousand were qualified. After excuses for hardships 546 thousand were ready to serve.
When we open our doors in June and July for jury trials, we need to ensure that we issue enough summonses recognizing that many of those potential jurors will not get on buses or trains. And if they rely on public transportation, that’s going to be a problem. Many of our jurors are 65 years old or older and so we are collecting data now on our qualified jurors for 2019 to determine how many of them were 65 and older because we’re going to have to keep that in mind when we determine how many jurors to summon for June and July and beyond.
We are preparing materials now regarding the various actions that we’re taking in our courthouses to keep the jurors and others safe, and we will include that with our summons materials, as well as for public announcements. Probably the threshold concern is getting enough jurors there for the panels. A second concern is, if we get enough, how do we manage them due to the social distancing requirements? That’s particularly difficult in urban high-rise courthouses because the lobbies and the hallways can get crowded, and the elevators, many of our elevators will only fit four at a time. And so it will take a long time to get jurors up to those courtrooms that are up on the higher floors. None of our courtrooms — well very few, there might be a handful — are large enough for a standard jury panel to get there at one time, 35 or 40. And we have to be worried about jury deliberation rooms because they’re also too small, once you have your jury panel selected.
So what are we doing about some of those challenges? We’re moving to a virtual jury service. We have three options I’m going to talk to you about that we’re working on that should be ready in June, July, and beyond. We are going to have a virtual jury assembly room. Jurors will no longer come to jury assembly rooms. They will receive jury orientation 100% either online, telephonically, or in writing. We currently have what we call a My Jury Portal, where jurors can go online and request extensions in their jury service and so on. We are going to enhance that to allow us to send reminders, to send pre-screening questionnaires, notices, and confirmation about their trial dates. And so we’re going to try to do more and more with our My Jury Portal. For those people who are either unable or uncomfortable with technology, we will have a live jury call center where a juror can call and actually get assistance.
Once we have the dates of those trials, we are going to randomly assign panels to the courtrooms. And we’re going to do that in waves, or in sub panels at designated times during the day. So you might need, and it’s going to be dependent on the size of those individual courtrooms. I have facility staff now measuring all 580 courtrooms throughout our county. But for the 313 that do jury trials, civil or criminal, part of that is to tell us how many jurors can show up in a wave. In some courtrooms it might be 10, in other courtrooms it might be 12. And so our system is being programmed so that once you’re randomly assigned to a panel and you know you’re going to go to Department Five in this particular courthouse, you might be at the 8:30 wave and then there will be 10 more at the 10:30 wave, and so on. And so we’re going to try to reduce the number that we send to the courtrooms, which will not be efficient for the judges and the attorneys, but that is really one of the only ways we can talk about trying to get jury panels going through jury impanelment.
We will also have jurors on call who have consented to be on call and who are agreeing that they will get to a courthouse within 90 minutes of receiving a text or an email. So that if a judge by 2 o’clock sees that there’s going to be a problem getting the number of jurors they need, there will be the ability where we can send out text messages or emails to get jurors to show up for maybe a 3 o’clock wave. So that they can try to get that panel finished by the end of the day.
Now the second thing we’re doing, which really is more for the civil side, is we are building a virtual voir dire program that will be available in August. Jurors will be randomly assigned to a panel and they will be sent a court hosted Webex link. They will log into that and sit in a virtual assembly room until the judge and the attorneys are ready for them in the courtroom. And then the judge has the ability to move the entire panel or small pieces of the panel over to the courtroom at a time. It allows the judge or the judge and attorneys to talk with one or more jurors privately, away from the other jurors. So if there are jurors who receive the invitation to participate this way and they are uncomfortable, they will have the ability to call the jury calling center that has live people to reserve a seat in the courtroom because again, we want to limit the number of people that go to courtrooms. So they would be able to show up and be part of one of the waves, but they will reserve a seat in the courtroom. Once the final panel is selected, the 12 plus any alternates, then those jurors would be directed to the courtroom at that time because they’ll be easier to manage.
I have to admit at this point that the civil lawyers are not overly excited about this program. So I am not expecting anyone to use it when it’s ready in August. We are going to continue to build it because if there is in fact a spike in the pandemic in the fall or in the winter like we’re hearing, it may be the only way we can impanel jurors in a civil case. So we will have it ready in August, we’re happy to share it with anyone who would like to see how it works. But so far, the lawyers are not overly thrilled about what we thought was an option for them to consider.
And then the last thing that we’re looking at for physical jury impanelment is we are looking at large venues that are within walking distance from courthouses. Music centers, convention centers, where we will have the judge and the courtroom staff come and in various courtrooms come and impanel jurors from one location where we can spread out more jurors. So the randomly assigned panels will go to that larger venue. And the judge and the courtroom staff will be down on the stage with appropriately spaced jury box and we will impanel numerous panels from that one location. And then the bailiff can walk them back to the courtroom once they’ve been selected. So those are a few things that we’re doing to help with the jury impanelment problems.
Levi: A lot going on. I’m wondering whether any members of our panel have reflections on anything they’ve heard so far? Particularly about jury trial proceedings. Anyone? Don’t be shy.
Drummond: There’s a judge in Chicago on our working group who believes that there’s a certain category of civil cases that they may agree to start hearing. She doesn’t believe that the large medical malpractice cases will be going, but she says the auto accident cases that are under a certain amount of money that if they want a jury trial, she envisions that there may be attorneys who would like to take that option. And we’re going to roll out hopefully this in May and she’s going to see if she has any takers. I can guarantee you the two attorneys who do the first virtual civil jury trial, our executive director said, “They will be famous.”
Levi: That’s funny.
Carter: I hope that works there because I think it’s going to be a really good option for those civil cases where the parties are willing to stipulate.
Levi: Sherri, are you seeing a lot of waiver now of jury trial and attorneys and clients are opting for bench trials? Either civil or criminal. Have you seen any of it?
Carter: Well we’re not doing any trials right now at all. We are only focusing on those statutorily mandated essential functions throughout our courthouses, and lawyers are talking a lot with judges about if we do elect to use non-jury trials, will we get preference on hearing dates? And so there’s some talk there that perhaps that would be a way to get the trials going without the juries, is if they have a preference on hearing dates.
Levi: Anyone else seeing this? When I was a judge, I handled a certain number of criminal cases through bench trial, sometimes it didn’t happen often but certainly civil there were a lot of bench trials. Sometimes there was no right to a jury trial if the government was the defendant of plaintiff. Anyone noticing any change yet? It may be too early.
Drummond: Well David, if I could jump in again. We’ve been doing some one-on-one coaching with attorneys and legal services who are representing tenants. And in some states if there’s an eviction, they’re entitled to a jury trial. And they are more than willing to do a jury trial virtually on behalf of their clients. And quite frankly, it may be the better route to go for virtual jury trial if you’re representing a tenant in an eviction case, especially during this era of the pandemic.
Levi: So I’d be interested to know whether the courthouses that you sit in or others that you’re aware of have started, Sherri just really spoke to this, have started to prioritize certain proceedings over other proceedings. With speedy trial act and that sort of thing as we start to come out, are the criminal cases and the criminal jury cases, are they going to displace other activities, some of which maybe can go on hold? But others of which like a custody dispute or something of the sort involve very pressing issues for people, how are we going to deal with this?
Thumma: David, our work group addressed exactly that, and the administrative order reflects it as well. And we kind of split things into three priorities. First is the motion, or the petition, or the request within a case that has priority. Ordered protection for example, things like that, child removal orders. So those kind of stand on their own. But within general case types and then within criminal, I’ll share with you what our work group ended up with, priorities in the following, starting with criminal, followed by juvenile, then mental health, then family court, and that really turns on whether there are children involved or not, if there are minor children, a higher priority. Probate and then civil and administrative matters. Now again, our Superior Court’s a court of general jurisdiction, so they cover everything. And within criminal, the priorities, and I hope these priorities make sense to all, but an in-custody defendant waiting trial has priority and then out-of-custody defendants facing felony charges pardon me, and then out-of-custody defendants facing misdemeanor charges. So those were the kind of priority set that our work group came up with.
Levi: And will you be reassigning judicial officers from division to division based on those priorities?
Thumma: The recommendation yes, and again, our superior courts are split family, juvenile, civil, criminal, it’s a rotational system, or in our smaller counties, we have counties with one judge, it’s sort of the courthouse is open and everything is there. But the recommendation is to expand capacity and ensure social distancing and I’m reading here, by temporarily reassigning judges to account for specific needs and that really is criminal, enlist retired judges, judges pro tem, and we historically have used judges pro tem as well. Focus on particularly scheduling interpreters and court reporters, a limited resource, a prized asset of the court system, and then consider staggered reporting and extended hours, including perhaps weekends and evenings, and maybe even temporary staff. Now that gets into fiscal issues, which the next fiscal year I don’t necessarily want to think about on a Saturday, but that absolutely is a work in progress, and is not going to be a delightful topic I think.
Levi: Will there be any kind of similar reshuffling in the federal system? Is that under consideration? May I ask our federal judges if they’ve heard of any such thing?
Caldwell: I’m not aware of it at this point. There is a, Director Duff has impaneled a jury trial working group. I think that we’ll probably be addressing that. I think most of the federal judges are on their own trying to use creative processes to keep the civil docket moving. It’s interesting I think, as was pointed out earlier, the civil docket gives you a lot more flexibility in what you can do and how you can encourage the lawyers. The lawyers can work remotely on their civil cases, and I have been spending a lot of time trying to dedicate at least two days a week to my civil docket in terms of getting the cases back on track, seeing what we can do to keep them moving. And in the case of the MDL, what can you do virtually? And so I think we just have a lot more tools available to be creative in moving those civil dockets. And again, I can’t emphasize the importance of mediation in keeping those cases moving along and the role of our magistrate judges or private mediators in the federal system.
Rosenberg: I want to echo just for a moment what Judge Caldwell is saying because I think it’s really, really important. I think it’s critical that we focus on how we are going to get back to trials, whether they’re virtual or not, whether they’re in the civil or criminal arena. Without a doubt, that’s a part of our job as judges, state and federal. But the truth is that trials themselves are not all that we as judges do. In the federal system now here in the Southern District of Florida, we do happen to have a lot of trials, maybe more so than in other districts. But nevertheless, the majority of our time is working on cases, on motions, status conferences, and so I think this is a wonderful opportunity for judges to become even more engaged, more engaged with lawyers and their cases and case management. We have more time in many respects. Even though some of us are incredibly busy, for example because of an MDL, but a lot of us have time that we didn’t have before to hold status conferences. Zoom is easy or whatever platform is available. I think we’ve gotten past those first few months when we were all scared, and we didn’t know, and things have settled a bit.
Safety and health come first always. And I think that when an attorney needs to be heard about safety and self preservation, at least in my view that comes first. But those who have gotten beyond that and have settled into the new norm, they want to actually keep busy. I know I, for among other reasons liking this MDL, it keeps me busy, it keeps me engaged. And I’ve been talking to a lot of lawyers lately. And they want to be kept engaged and busy. And so we can have more status conferences, especially we as federal judges are not known for bringing lawyers into the courtroom. Now is our opportunity to do it. We can give continuances and extensions, but I don’t grant them just, ‘you want 90 days, okay, no explanation.’ I want to know why do you need the 90 days? What can’t you do now that you [were] able to do before? Let’s talk about video depos. Let’s talk about the virtual mediation. These are all viable tools. And even though maybe we’re not at the point where we can bring lawyers into court to have a live trial or we’re not ready for the virtual trials, when the day comes when we are, those cases should be ready to go. Otherwise we as judges are going to suffer, the litigants will suffer, the lawyers will suffer. And we are back-ending problems that I think we have an obligation to manage on the front end.
And I’ll just say one more thing: This is an opportunity to train young lawyers. So whether the young lawyers are appearing on Zoom or not, I know when I had my two days of interviews, there were, I was told by a few of the applicants, a whole group of staff members, paralegals, and secretaries, lawyers, and associates were sitting able to watch the attorney present. How often does the team who actually does a lot of the work behind the scenes get the opportunity to at least see the associate or their partner at work in a courtroom, virtually so to speak, presenting to a judge. So I have welcomed that in this MDL, I have included younger lawyers in the leadership team, I’ve made it clear it’s a priority for me. I think we as judges and more senior attorneys, and all of us in the legal profession have an obligation to look after the next generation. And I think this is a perfect opportunity, maybe even a better opportunity than we’ve had before, and I feel very strongly about that.
Levi: Are we going to see a new era here when we can be just so much more efficient even if we have in-person trials, will we have learned a lot from these digital tools that we can preserve going forward?
Walker: Well I said it the outside David, I think the world of mediation is going to be forever changed. Mediation of course is probably the easiest of the various processes we’ve been talking about to adapt to this technology. Because it’s a consensual process in the first place. And so the hurdle or the obstacle to the use of technology in mediation is primarily the reluctance of lawyers and parties to a lesser degree to use these tools. But because we’ve been forced to use these tools as a result of the COVID pandemic, I think once you learn how to ride a bike, you never forget it. And once you learn how to use these technologies, you’re not going to forget it, and you’re going to see the advantages of it. So I think this is a permanent change in the whole structure of mediation, and the course of arbitrations it’s even easier to use video conferencing. Because you can certainly set arbitrators up in remote locations from the witnesses and the lawyers and so forth. It’s going to make all the difference in the world and these alternative dispute resolution processes.
Carter: In a state court system, we’ve used court hosted remote technology in a lot of areas that I hope will remain following the pandemic, because it means you don’t have to move people as much and we’ve got all of our dependency courtrooms now using remote technology, delinquency courtrooms for the matters permitted by law, probate conservatorships, mental health courts allowing the treating physicians to appear remotely for competency hearings, all of our criminal arraignments are now handling in 32 arraignment courtrooms from our police departments and sheriff substations. And when our civil courtrooms come back up for law and motion, they will be doing it remotely as well. So I hope that we can keep all those in place because it’s just a lot more efficient. It will help reduce the number of people coming into the courthouses.
And then I just want to say one thing that’s not directly related to what we’ve talked about, but 92% of my 46,000 employees are teleworking. And what we’ve found is many of those position classifications are just as efficient or more efficient working from a remote location. So I would like to keep that going rather than have them sit on a Los Angeles freeway for two hours to get down to the courthouse. And so I am hoping and confident that we will be able to keep many of those employees working remotely at a very high level.
Walker: Sherri I suggest we should not be buying stock in the courthouse building enterprise.
Carter: I think that’s right, I think that’s right.
Thumma: David, I also think there’s a real public service aspect to this as well. When I was in juvenile court, I’d hear sometimes 30 or 35 matters in a day. And I needed at least four attorneys and a case worker and the parties before I could call the case. And there were eight other courtrooms that needed the same attorneys. And so sometimes an 8:30 hearing, I couldn’t call until 11. Well that’s not very fair to anybody. The parties particularly who we’ve asked to have stable housing, and stable employment, and go to drug testing, and go to visitation, and go to counseling, and go to services. Oh and then come to court and wait to see a judge who can’t see him or her for two hours after their scheduled appointment. So I think they’re real opportunities. I was dealing with a service provider yesterday. They were busy, they said, “Hey we’ll call you back when we can talk to you.” And they did it and that was an hour and a half later. And that was okay, ’cause I could do other things. So maybe this is an opportunity to enhance public service along the way too.
Rosenberg: And I–
Levi: Well let’s– Go ahead.
Rosenberg: I think also to promote civility, and I’ll tell you why. I think it’s every judge’s dream when they see lawyers fighting a lot. And we all have our local rules that require meet and confer. But what does meet and confer really come down to these days? You’ll get a filing at 5 o’clock p.m. and they’ll say at 4:58 I sent a email to opposing counsel and I couldn’t reach them, so we couldn’t confer. Judges can now put in their orders, required meet and confer by Zoom. It is much harder to be disrespectful to somebody when you are looking at them, albeit virtually in the eyes by Zoom then shooting off a text or an email. And so I really think that this is an opportunity for people to communicate better and be more engaged, and be held accountable for their actions, vis a vie one another.
Walker: Furthermore Robin, you can require that the meet and confer session be recorded on Zoom.
– Oh yes.
– Good idea.
Levi: Yeah, and then they can show the judge.
Drummond: I agree with Judge Caldwell that this will virtually eliminate sidebars. Judge Tom Martin from Kansas has a rule, no sidebars. They take up everything during a break. ‘Cause I think attorneys will be more reluctant to make an objection on a virtual platform and say, “May we have a sidebar?” The virtual jurors, their shoulders will slump, and it’ll cut down on a lot of that. And as we all know, I think it’ll be a benefit to the attorneys virtual platforms. Attorneys think they can whisper in court and no one can hear them. Everyone can hear them, they’ve got nothing better to do. So if we do have sidebars, they’ll be more confidential and there will be fewer of them.
Carter: Oh the makeup of the jury, I think is going to be very different. And that worries me because the jury challenges are against the statutory jury commissioner, which is me, right. So the jury challenge is, I don’t know if the make-up will completely exclude 65 and older because they’re going to request an excuse because they’re at risk.
Carter: And we’re gathering that data now. I don’t know what number we’ll lose because of public transportation being a scary way. And I can’t even imagine in New York because you need public transportation in New York.
Drummond: Well I was working with a New Mexico defense bar yesterday on a webinar. And a lot of their defendants are Hispanic or Native American. And the Native American, the tribal leaders will not allow them off the reservation. So you’re going to cut that group out of jury service. And since the pandemic has disproportionately affected blacks and Hispanics, they have a legitimate reason to not want to come down to the courthouse. And that’s going to upset the balance on a representative jury pool.
Carter: So if we go to a virtual world and don’t give them options, which is why we’re trying really hard to have live calling centers and different ways to reserve a seat in the courtroom, we’ll lose people, assuming they can get there. Because if they don’t have internet or high speed internet, it won’t work anyway.
Caldwell: So true in rural areas.
Caldwell: In rural Eastern Kentucky, a lot of people don’t have internet service. One of the issues that has been raised by our magistrate judges, finding the technology a little difficult to use with the involvement of interpreters. Has anybody else experienced that?
Rosenberg: No, you can do that with Zoom.
– Zoom has a whole so–
– Or Webex.
Rosenberg: So I’ve done, yeah, I’m sorry I am not a representative of Zoom, I promise.
– Yeah, yeah. Remote technology, any of the platforms.
Rosenberg: Yeah, they have, and it’s simultaneous.
Rosenberg: Yeah, simultaneous, because we have a lot of illegal immigrant cases and a lot of them are time served. So I’ve been doing a lot of police sentencings and the Palm Beach County Jail’s been great, so they put the defendant at a laptop and they’re Zoomed in. They also allow the defense attorney to speak with the plaintiff in advance so they have their personal conversation first. And then everybody appears by Zoom. The probation officer, the court reporter, the interpreter, the defendant from the jail. I could, I’ve been coming to court because I’m the only one here, so it’s safe here. But yeah, not a problem at all. Not a problem.
– That’s huge. Every transportation event creates quarantines
– Afterwards. ‘Cause mixing the population is–
– Right, I didn’t want the marshals
– To have to go to the jail so I spent unparalleled hours. It’s like you’re working double time.
Rosenberg: Half my time has been, which is like a full-time job, on the technology to then actually do my job. So I’m exploding with it, but I’ve enjoyed it. Because I like technology, I’ve loved learning it, more about it, I’ve been so grateful. For example, the Palm Beach County Jail, they’re stretched. They’re dealing with all their state prisoners but that’s where the federal inmates are before they get sent off. And I tell you, they took down one of the visitation kiosks and they set up a little area there so that, and their people are moving them. They’re not charging us at this point, and so they can appear in court so our marshals don’t need to go over there. And so nobody’s leaving, nobody’s going back in. And everybody’s safe. And the time served defendants are getting their day and they’re getting out.
– Now that’s a different story where they’re going and how the whole —
– Detention progress is working. But you can only do so much —
– But we’re trying really hard.
Levi: I know you are. It’s interesting, there’s just so many issues. You’re going to see some crazy cases too where either with or without the court’s involvement, somebody thought they were in one of these chatrooms where nobody else could hear and then it turned out that the judge or somebody didn’t hit the right button, and everybody heard a confidential communication.
– That’ll be vexing.
– Well —
Rosenberg: Here’s my, my advice on that by the way, ’cause I do think chat can be a little confusing because if you’re chatting somebody and then someone else chats you, you’re thinking you’re responding to the other person, but you’re not. If you could have another tablet next to you and do it on Skype, so for example when I had a sentencing, I was communicating with a probation officer on a different tablet, on my iPad, which I have right here, when I’m on my laptop.
– And we were Skyping for that very reason.
– That’s true.
Drummond: We’ve been urging that they enter into stipulations. And actually change the code of professional responsibility, where you say to the judge before you start the trial or the hearing, “Your honor, we’ve stipulated that we have a professional responsibility that if there is a mistake made” — and it’s going to be by the judge, who mutes and doesn’t mute — “and if we overhear a conversation by the other attorney, or by you, we will notify the court immediately. And we will mute ourselves immediately.” And I think courts ought to pass administrative orders. And I think smart attorneys will offer that stipulation.
Levi: So let’s go around the room, so to speak, and just see what your parting comments are, any advice you have for lawyers, other judges, court personnel, citizens who are so interested in the rule of law in this country. What advice to you have? Just, say, 15 seconds of advice. Robin, let’s start with you.
Rosenberg: Well don’t be afraid of technology, we all need to embrace it. And it is actually helping us. And I think it’s important that the message be sent that the court systems are up and running. And justice is being carried out. It’s being carried out in a different way, but we all are working very hard to balance safety and health concerns with preserving justice as we all know it and want to continue with it. Things have not come to a halt. We are working, but we do need to be more open minded, I suppose, about the ways in which we do it.
Levi: Sherri, parting words.
Carter: I would say to just know that the courts are working really hard to make it a safe place to come back. So we need jurors to come back, we need to get back to our next normal, so please to work with us and follow the instructions and the rules that the judges and the courts are producing so we can work together to get to our next normal.
Levi: Judge Caldwell.
Caldwell: Well I think the roll of public servants has never been greater. And for judges and courthouse staff or lawyers and participants to recognize the importance of their service to our system of justice and it’s preservation.
Drummond: Yes, I’ve got two messages, one for the attorneys and one for the potential jurors. And I’ll just quote our executive director, Steve Susman, who is a legendary trial lawyer who told the attorneys that the first two of you who decide to do this will be famous. So I would urge the attorneys to consider this. And for our citizens, we are putting your safety first. One way that you can help is to respond to a virtual jury summons. You’ll do it from your dining room in the safety of your own home, and we are a big believer in the jury system. People are apprehensive about it, but once they sit and realize that this is a system that is the greatest ever devised, actually, they leave the courthouse, and they’ll leave the virtual courthouse with a sense of pride.
Thumma: Sure, and my focus for these notes are sort of within the courthouse — judicial officers, court staff, everyone that helps make dockets sing — it’s just embrace change. We’re not always as good about that as we should be, and I’m looking internally for that more than anything else. Be creative. The ideal, the perfect should be our goal. But if something’s pretty good, let’s not discard it as not being perfect. Innovation, how we can innovate and use technology to do things that we just couldn’t before. And then really look to the new normal, not for how we get back to how we used to do things six months ago. And to me that’s essential for a couple reasons. One, we’re not going to fix this gap until we get that big medical fix, if we’re trying to look at how we did things last fall. And then secondly, even after that comes, and man I hope that comes soon, but we’re going to lose opportunities to improve what we’ve been doing, time-worn issues looked at through new eyes with new perspective. We can improve in the long run, even after that medical fix comes.
Walker: What having to use these new tools does for us, is it makes us focus on what is really essential and important in the processes. And that I think is the lesson that will come out of this. We will learn what we can do without, and we will learn what we must have in order to make the system work properly. And I think that discipline that is forced upon us now is in the long run going to be very helpful.
Levi: Thank you all so much, for taking the time to talk with me today, and with one another. You’re a very creative, wise, and forward looking group. And really, I took a lot of inspiration from it. You are working in unprecedented times and doing so with vision, understanding that the courts are essential to our democracy and that we have to find ways to continue to operate while doing the best that we can to protect public health and safety.
This has been Coping With COVID, a podcast and video series, produced by the Bolch Judicial Institute at Duke Law School and the American Law Institute. I’m David Levi, thanks for joining us.