“Why litigate? Because dueling is frowned upon this day and time – and, of course, the ultimate outcome of litigation is less, shall we say, personally costly!” So, we litigate as a more civilized form of resolving disputes.. We even refer to what I do as “ ‘civil’ litigation”, although it isn’t always all that “civil”. What then happens if we can’t litigate; that is, if we can’t get to that critical part of the process, the jury trial, due to a pandemic? Presumably, we’ll eschew a return to dueling! Back in March I had a personal injury jury trial evaporate less than 72 hours before I was to begin picking a jury due to the Covid situation. The judge later offered us an opportunity to try the case via Zoom, but we did not feel we could properly present the case that way. For months we have had no jury trials. During this time, the courts have handled hearings and non-jury trials mostly via Zoom or Teams while simultaneously brainstorming on how to get back to those important jury trials.
Yesterday, I observed a panel of four Texas District Court judges from our four largest cities discuss current approaches. Houston has leased a coliseum and has already successfully used it to handle the jury selection in a civil case using its ample space and numerous other safety protocols. Once the panel is winnowed down to 12 jurors in the large arena, it is then possible to move back to the courthouse to complete the trial. I applaud that approach. I understood the judge from Travis County to say that by October, Travis County cases will proceed with Zoom trials whether the lawyers like it or not. One way or the other, the show must go on, so I’m tightening my seatbelt and packing my briefcase!
I’ll discuss some of the concerns I have with virtual jury trials in Part 2 of this series of posts. Stay tuned.