A Virtual Dilemma

For litigator Edward Hugo, the jury is not out on trials by Zoom: He wants them stopped

Published in 2020 Northern California Super Lawyers Magazine — August 2020

Edward R. Hugo practices civil litigation on the defense side at Hugo Parker in San Francisco. Wilgenbusch v. American Biltrite et. al. was the first California civil case to swear in a jury after the courts shut down in March over concerns about COVID-19.

Note From Juror #12:

Your Honor,

My intent is to insure that the process is completed in a fair and unbiased way. What I have observed and participated in is unique and unprecedented in Alameda County Superior Court as you have stated. Being [in] a virtual courtroom is challenging and I want to ensure that we complete this trial with the highest level of integrity and jurisprudence.

My concerns have arisen from the way we are addressing each question on the verdict form. The jury is trying to do a fair evaluation of each question[;] however it was, and is apparent that several jurors who received their binders on Thursday and Friday of last week decided to review the binders in detail and on Monday of this week started out the deliberations with strong opinions on what our responsibilities as a jury should be. I find that this issue made it extremely difficult for independent fact finding and unbiased consensus on key questions before us. In addition, the introduction of an excel spreadsheet by the presiding juror to track and monitor the verdict questions may have discouraged independent responses due to the fact that it was announced (by the creator of the spreadsheet) that we could capture concerns, questions, or issues related to a juror’s answer in the comments section on the spreadsheet and then address them later. But before we send a copy of it to the honorable judge upon his request, if requested, that the questions or concerns section should be deleted. In addition, the juror who created the spreadsheet seems to have a copy of the spreadsheet as well, including the formulas to do the apportionment.

Now if this is ok, then I’m fine with it. It is just a highly unusual situation and I prefer to operate out of an abundance of caution to successfully complete this trial. I remain committed to being a fair and impartial juror and firmly believe that I can and have been balanced in my evaluation of the facts. But I thought that you should be informed of how this process is working out.

Respectfully,

Juror #12

This deliberating juror’s “note” (a traditional writing handed to a bailiff has become an email in a virtual trial) from Sept. 23, 2020, is not based on hypothetical musings, but rather the actual experiences of a juror forced into virtual trial proceedings by the Alameda County Superior Court. Unlike most courts, Alameda continues to charge forward with all-virtual and hybrid-remote asbestos-related personal injury trials. In both instances, pre-trial and trial proceedings have been replete with irregularities, resulting in numerous requests for intervention by supervising appellate courts.

The myriad novel substantive and procedural hurdles caused exclusively by the rush to remote justice in the face of the pandemic are constantly unfolding in real time, requiring both litigants and courts to react and adapt after the fact without sufficient time to digest the potential loss of long-held due-process safeguards. From the jury selection process to the presentation and questioning of witnesses, the experiment of hastily conceived virtual jury trials has shown the plethora of unforeseen errors that can occur.

For example, during the virtual voir dire process conducted by the Alameda Superior Court, prospective jurors participating from their personal spaces were visibly distracted or even absent for stretches of time. One potential juror was exercising on an elliptical machine while another potential juror lay in bed and appeared to be asleep. Yet another juror left the screen during questioning to go to the kitchen and remove something from his stovetop. To compound these issues, counsels’ ability to lodge objections to such behavior was hamstrung because they were inadvertently muted by the Zoom moderator with no real-time ability to alert the court to these issues or lodge objections.

In the same trial, during cross-examination of the plaintiff, the judge ordered a side bar. The judge, all counsel, the clerk and the court reporter left the virtual “courtroom” and entered a virtual “side-bar,” leaving the plaintiff alone with the jurors in the “courtroom.” While unsupervised, the plaintiff joined a conversation with the jurors about virtual Zoom backgrounds and showed the jurors photographs that were stored on his personal computer. After ingratiating himself with his jury, the plaintiff stated: “I’m going to get out now before the judge comes back.” Approximately one minute later, the judge, all counsel, the clerk and the court reporter returned to the “courtroom” and cross-examination continued. The conduct was only discovered because the defendant had assigned a paralegal to watch the jurors at all times after the court denied defense counsel’s request to record the entire proceedings using Zoom’s recording function so that there would be a verbatim record of the trial.

Defendant’s subsequent motion for mistrial based on the ex parte interaction between the plaintiff and his jurors was denied, despite the fact that the court found that the “interaction between the jurors and the plaintiff was improper.”

The judge opined: “In evaluating the claim of misconduct, the court must examine the surrounding circumstances. This is the first ‘virtual trial’ conducted in Alameda County, the result of pandemic conditions which have made live court proceedings exceedingly problematic. … To avoid a repetition of any interaction between jurors and parties or witnesses in the future, the court has instructed the court clerk to place all jurors and witnesses in a Zoom ‘waiting room’ during any side-bar. In a waiting room, participants cannot see or talk to one another.”

Trials should not be conducted by trial and error. Given the limited transparency and control inherent in the virtual world, civil jury trials should be postponed until such time as they can be conducted fully in person, subject to applicable health standards. To accept anything else is to sacrifice the sanctity of our judicial proceedings as another victim of COVID-19.

—Tina M. Glezakos and Bina Ghanaat, partners at Hugo Parker LLP, contributed to this article.

Editor’s Note: Juror #12 was instructed to continue deliberating, and the trial ended up as a win for plaintiffs, though Hugo’s client settled just before opening statements.

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