Screen shot of proceedings in Griffin v. Albanese Enterprise Inc. Click here to watch the proceeding.
Jacksonville, FL— In another time, August’s roughly $354,000 award in a Florida battery trial may not have made a ripple in the news. Though the case's details were grim, an exotic dancer beaten by a pair of bouncers after being thrown partially clothed onto a cold nighttime street, the trial and its result would likely have been buried among the thousands of verdicts delivered by juries across the country before the coronavirus pandemic.
But this $354,000 verdict, handed down over Zoom video conference, made national headlines for what it represented. In a state especially ravaged by the coronavirus pandemic and where jury boxes have sat empty for months, that $354,000 award, believed to be the nation’s first binding verdict in a fully remote, state court jury trial, represented a pioneering return of civil jury proceedings during the coronavirus age.
And the trial, streamed voir dire to verdict, was the product of months of work by a Florida 4th Circuit Court team dedicated to exploring the bounds of remote litigation, and minimizing the pandemic’s impact on their court system.
“All of us have a passion for jury trials and making sure the 7th Amendment is protected,” Florida 4th Circuit Court Judge Bruce Anderson, who presided over the trial, said about the courthouse team responsible for the proceeding. “That’s the passion that’s driving us.”
In the aftermath of that historic verdict, many on that team spoke about the proceeding, its preparation, and their thoughts on the future of remote litigation as courts and the legal profession at-large continue to struggle with the staggering impact of coronavirus.
Turning on the Video After Covid Closed Off the Courthouse
Florida civil jury trials shut down on March 13 by state supreme court order, among the first waves of covid-related closures. Five months later, that broad shut-down continues. However, Jacksonville’s Duval County courthouse, in the state’s 4th Circuit, quickly adjusted to covid-related restrictions. Court employees soon became experts on Zoom teleconferencing, as in-person proceedings and transactions that had been so normal before the pandemic moved to remote appearance by video.
“Both the Clerk [of Courts’] role and the court system in general has been operating, I’m not going to say business as usual, but business as usual as possible,” Brian Corrigan, of the Duval County Clerk of Courts office, said, noting that passport processing, stopped by order of the federal government, is the only service completely shuttered by the pandemic. “We are literally offering every [other] service we did before,” Corrigan added. “Of course, it looks different.”
That turn to remote solutions extended to the court itself, where Judge Anderson, who had not heard of Zoom before March, has used the platform extensively since then for everything from hearings to bench trials. “A lot of us have had to learn a lot of things, kind of on our feet, adapting as we go,” Judge Anderson said. “I think that we’ve all collectively been able to do a great deal of good work using Zoom.”
But holding a remote jury trial, where dozens of prospective jurors would need to be both technologically savvy and maintain focus against an onslaught of at-home temptations, was a different world than working through a short hearing or quick bench trial.
Still, as prospects for a quick return to courtroom normalcy dimmed, the Florida Supreme Court announced a pilot project to study how remote trials could be run with jurors. A limited number of jurisdictions would be selected for the project, with circuits directed to submit their proposals on how they intended to proceed.
While most jurisdictions proposed a hybrid proceeding, conducting voir dire via teleconference before bringing jurors to the courthouse to hear the case in person, the 4th’s plan focused on a fully remote trial, with jurors and parties appearing via Zoom from start to finish.
Judge Anderson said the decision to propose a fully remote trial was based on both need and desire. Facing shortages of safety equipment, the 4th was uncertain they’d have the necessary plexiglass, face shields, and other gear needed to safely run a hybrid proceeding.
But also important, he said, was the chance to run a potentially first-of-its-kind remote trial that could test the boundaries of the video platform. “From the bench’s standpoint, I felt like it would be more interesting to try something that’s more challenging, so that’s why I wanted to go completely remote,” Judge Anderson said. “I felt like we would learn more about Zoom, and the limits of Zoom, if we try to push it to its limit and beyond.”
Ultimately the Fourth Circuit was one of five jurisdictions selected for the pilot program, with most circuits proposing a hybrid model. And while some other jurisdictions aimed for a non-binding decision, the 4th Circuit team wanted a trial that led to a binding verdict.
“We felt that, by doing that, all of us: the court personnel, the clerk’s office, the court, and the lawyers would take the process even more seriously,” Judge Anderson said. “When you raise that level and say, ‘ It’s a binding verdict, this is not a practice run, it’s not a dry run, it’s not an advisory opinion,’ that makes a difference.”
Mock Trials and Moving a Case Forward
Within days of their proposal being selected, the team launched a series of mock trials to test the Zoom platform, with attorneys from the American Board of Trial Advocates, or ABOTA, participating. Those trials were instrumental, Judge Anderson said, in refining their system. “The purpose of the mock trials was to see how far we could go with Zoom before it melted down, so to speak, and we had to rework the way we were doing things.”
But the state’s pilot project, and remote trials in general, have faced criticism from the trial bar. Morgan & Morgan’s John Morgan, told the Orlando Sentinel that his attorneys would advise clients not to participate, declaring every case appealable. Others have criticized remote trials as, by their nature, pulling only jurors who are electronically connected and technologically adept. Meanwhile, news stories have detailed claims of distracted jurors and technological snafus during other remote trials around the country.
Special Magistrate Corinne Hodak, who helped manage the proceeding, said the court was aware of that pushback as they prepared. “Most lawyers are understandably reluctant to pick a jury remotely or try a case remotely,” Hodak said. “It will be interesting to see as time passes and as lawyers are faced with the reality of picking jurors who have masks on and are socially distanced, whether that reluctance will change.”
On the other hand, Hodak, who is also President of ABOTA's Jacksonville Chapter, said organization members supported the 4th Circuit project with an eye toward improving it.
“Even though there were a variety of responses to the request for remote jury trials, ABOTA feels very strongly about supporting our local judiciary and the projects of our local judiciary,” she said. “We also felt that it was important that, if there were going to be remote jury trials, the lawyers be involved in the process, and informing the system, so that the system would work well, not only for the court and court personnel but also for the lawyers and litigants as well.”
But participating in mock trials doesn't carry the risk of litigating a remote case with a binding result. Judge Anderson said he considered between two and three dozen cases and interviewed their lawyers, looking for the perfect candidate for trial. The case needed to be relatively simple, featuring a narrow band of issues, relatively few experts and exhibits, and last no more than 2-3 days.
Most importantly, everyone involved, lawyers and parties, needed to sign on voluntarily and waive their right to appeal. Finding the right case was difficult. “Human nature is not to be the first one to do something,” Judge Anderson said. “No one wants to be the first one to test the water.”
Judge Anderson eventually found a strong candidate for the pioneering project: a battery case involving a former Jacksonville exotic dancer who had been beaten by two of the club’s bouncers. A default judgment had been entered against the club in 2019, leaving a 1-2-day trial on damages in which the plaintiff would be the only side offering evidence. And most importantly, the lawyer, Matthew Kachergus, and his client were willing to participate.
Kachergus, of Sheppard, White, Kachergus & DeMaggio, said the case’s posture, and the dim prospects to resolve the matter with a traditional trial anytime soon, fueled the decision to try the case remotely. “With covid, you aren’t going to see any jurors in the courtroom for God knows how long,” Kachergus told CVN separately after the trial, adding that he thought the pilot program would likely “be the only way we [were] going to be able to move the case for the foreseeable future, to try to get a judgment and collect.”
Building a Virtual Courthouse
Setting the virtual stage for the proceeding was just as important as selecting the appropriate case. Because everyone but Judge Anderson and a skeleton crew would appear remotely, the 4th Circuit IT team, overseen by Court Technology Officer Mike Smith, aimed to replicate a traditional courthouse and its atmosphere as closely as possible over Zoom.
Specific chat rooms were created as remote jury assembly rooms, check-in rooms, and side bar rooms, allowing jurors, attorneys, and the judge to move seamlessly from the virtual courtroom to other chat rooms as necessary. A locally developed electronic document platform was used to virtually transfer documents ranging from juror questions to verdict forms. No detail was too small: special Zoom backgrounds were even selected to ensure jurors’ backdrops would look uniform.
“My vision and goal was to create a remote courtroom and a process for the trial that looks and feels and sounds like a courtroom,” Judge Anderson said. “[The IT team was] successfully able to take my vision for what a remote trial would look like and convert it with the technology to make it work remotely.”
One key problem, however, was how to preserve juror privacy while complying with the state’s “Sunshine” Law, which requires proceedings remain open to the public. The court wanted to make the proceedings viewable by the public online without showing jurors’ faces. Courtroom Connect's CVN, which has streamed hundreds of trials in Florida and throughout the country, provided the answer, with a system that would obscure jurors’ faces before streaming on demand.
“When [CVN was] able to get involved, it allowed us to comply with the Sunshine Law, protect the privacy of the jurors, and have an unedited — except for the jurors’ faces — an unedited version of the trial that the public can watch and learn from,” Judge Anderson said. "Because of [CVN's] efforts," Judge Anderson added, "this project was not only possible, but also presented for the public to see."
Smith agreed, saying CVN handling that portion of the project allowed his team to focus on other tasks. “[CVN’s] contribution to this was huge,” he said. Because we do, still, in the 4th Circuit, want to protect the identities of the jurors. And I don’t think that’s been done anywhere else yet, so we were the first ones to do that. I don’t think we could have done it without [CVN’s] help. There’s absolutely no way my staff and I could have done that and everything else we were doing.”
Jury “Instruction:” Remote Trial 101
One key hurdle remained: the jurors themselves, who needed both to be able to manage the technology needed for the trial, and focused enough to avoid the inevitable distractions that would arise in their homes throughout the days-long proceeding.
The team addressed the problem by giving prospective jurors an in-depth education on the new process and the technology they’d be using. The clerk’s office created and sent questionnaires to those summoned to ensure they had devices that would work for the trial, along with links to videos and other information specifically created for the project, to minimize delays along the way. That messaging, which also stressed the gravity and historic nature of the proceeding, was aimed to help make the process as efficient as possible while setting the appropriate tone on juror behavior.
“It was basically a lot more communication with the jurors throughout the process,” Corrigan said. “But by doing it all in advance, it made it a lot more seamless. It was kind of a [situation where we said] ‘All right we’re at this stage, they get this communication; we’re at this [next] stage, they get this communication.’”
Beyond the multimedia information the clerk's office provided, the court’s technology team worked closely with prospective jurors throughout the process, from ensuring devices were able to run the necessary Zoom backgrounds, to troubleshooting connectivity issues. Staff even provided their personal cell phone numbers to prospective jurors so they could test devices and answer questions after-hours.
“What we were seeing in our mock trials was that we had a lot of lost time where we had this problem and that problem with technology, and then it looked very disjointed and disorganized,” Judge Anderson said. “But with this collaborative effort, it allowed us to be as smooth as possible in putting on the trial.”
James Muse, a Court Technology Officer who helped manage the process, said that while there were a number of hiccups with prospective jurors' equipment early on, the pool of those summoned, and the jurors ultimately selected after two days of voir dire, was exceptional. “The jurors in my opinion were amazing,” Muse said. “They were very receptive and they were willing to learn.”
Those jurors, and remote viewers, saw a proceeding that generally ran smoothly. Judge Anderson said two of the biggest snags occurred in the first day of jury selection and were quickly solved: a brief Zoom outage that IT bailiff Larry Ashley, the only person besides Judge Anderson in the courtroom, handled, and a scheduling issue in the first morning of voir dire that was ultimately resolved, before a day-long trial and a $354,000 verdict.
Post-Verdict: The Future of Remote Trials
The team is planning a second jury trial in September, where both plaintiff and defense will participate. While they're still reviewing juror surveys before settling on any adjustments, Judge Anderson said they are already looking into the ability to privately video record both sidebars and juror check-ins so that other courts can learn from their process.
Despite the trial’s successful conclusion, the proceeding was resource-intensive, Smith said. And while he said work on future remote trials could be more efficient, he and others on the team agreed it would be difficult to hold several, fully-remote trials at the same time, or remotely try much longer, more complex cases, with their current staff, budget, and process.
“Yeah, we could do it again, and we could do it over, and over, and over again,” Judge Anderson said, noting that hybrid trials such as the one the 11th Circuit successfully held in Miami, were also a future option. “But either way, we have to have enough human resources to do it…. I don’t foresee us being able to hire an army of people.”
However, Judge Anderson said in-depth questions on scaling could wait until after the second trial and the Circuit’s report due to the state in October. For now, the court remains focused on improving the proceeding itself.
“We’re more on the creative side than the budget side,” Judge Anderson said. “I like to think we’re more Pixar than we are ABC.”
“We’re a can-do group,” Hodak added.