Texas Supreme Court Paves Way for Trial by Zoom to Get its Trial by Fire
Starting October 1, Jury Trials Return to Texas Courts
One of the least talked about consequences of the coronavirus pandemic is that since March, most of the nation’s courts have been unable to hold trials. In Texas, that will soon change. After months of experimentation with video conferencing technology in pre-trial hearings, depositions, mock trials, and even some criminal trials, the Texas Supreme Court authorized courts to hold remote trials beginning October 1st.
While the coronavirus shut down much of the country earlier this year, it didn’t stop people from committing crimes, injuring one another, or businesses disputes from arising. It did close off the avenue that we’ve used for hundreds of years to resolve serious disputes, jury trials.
The absence of jury trials left many legal matters in limbo. Attorneys and judges quickly adapted to the pandemic by moving proceedings online, via videoconferencing. However, authorities barred the last step in the litigation process, a jury trial. That’s about to change.
How Will Zoom Jury Trials Work?
Since the threat of the coronavirus prevents large gatherings of people, especially in close quarters (e.g. in jury boxes), video-conferencing technology permits trials to go forward, while people maintain social distance.
Instead of going down to the courthouse to report for jury duty, potential jurors login to a Zoom conference set up by the court. For people who lack the necessary hardware to video conference, Texas courts will provide tablets that allow people to fulfill their duty.
Once logged into the court’s video conference, everything from jury selection to deliberation takes place just as it would if everyone were inside the courtroom. From jury selection to delivering a verdict, video conferencing software allows every part of the trial to proceed.
How Will Remote Trials Help?
Simply put, trial by video-conference will allow the courts to get back to work. Most people know that functioning courts are important to society, but may not be aware of how many things grind to a halt without courts.
The most obvious example of why trials need to move forward are criminal cases. There are numerous people across Texas who wait in jail for their day in court. There are also victims waiting for the state to provide justice for the crimes committed against them or their loved ones. Leaving those people in limbo for six months was a necessary step to prevent the spread of the coronavirus, but we can’t lock people up for extended periods of time without a jury’s say-so.
While not involving people’s freedom, the return of civil trials is just as important. In reaction to the economic disruption caused by the coronavirus and subsequent lockdowns, many businesses starting hoarding cash. A few even went so far as to stop paying their bills entirely.
People may ask, “How can a business just simply stop paying their bills?” Companies were able to employ this cynical strategy because at the end of the day, only a jury can compel a business to pay, whether it’s a bill or an insurance company payout to an injury victim. Without jury trials, society has no mechanism to make bad actors pay up.
One of the groups most affected by this situation were personal injury victims. The threat of a jury ordering a company to compensate victims for their losses is the strongest incentive for an insurance company to make a fair offer to an injured person or family that losses a loved one due to someone’s negligence.
I saw first-hand that as soon as jury trials were postponed, some insurance companies instantly withdrew settlement offers, or reduced them to pennies on the dollar. Particularly hard-hit were families that had lost a breadwinner. They not only didn’t have money coming in from their loved one’s death, but no way to hold accountable the people responsible for that death. This only occurred because the one tool that could make insurance companies do the right thing was taken away from them.
Thankfully, that is no longer the case.
What Problems Will Remote Trials Create?
Since Texas already conducted several remote trials, we know some of the drawbacks to video conference trials. The most obvious problem is the technical issues that delay the proceedings.
In the first trial, the judge had an initial pool of 30 jurors. Before jury selection was complete, that pool shrank to 24, due to technical issues such as unreliable internet connections. Even after the judge seated a jury, he had to dismiss a juror, because their internet began to act up.
All of these glitches added up to a longer trial. Instead of taking several hours, the first video conference jury trial lasted all day. While it’s not ideal, it’s better than alternatives such as a continued ban on trials or in-person trials.
One potential issue that hasn’t been discussed is that remote trials could impact a verdict in subtle ways. Contrary to popular belief, very few trials pit an obvious bad guy against an unimpeachable good guy. As a result, many trials come down to which witnesses the jury finds more credible.
That’s where trial by video conference potentially changes things. Determining credibility is as much about how someone says something as what they say. Tone of voice, body language, and general demeanor all give jurors information, which helps them determine who is credible and who is not. Unfortunately, video-conferencing doesn’t capture as much of this non-verbal information as an in-person trial.
The classic example of technology changing how people perceive an event is the Kennedy-Nixon presidential debates from 1960. People who watched the debates on television believed that Kennedy won, whereas people who listened on the radio believed that Nixon had the better of it. The difference between the information a juror receives in a remote trial versus an in-person trial will not be as extreme as the difference between what television conveys versus radio, but an attorney who doesn’t adapt to the new medium can cost their clients.
Initially, it’s likely that the attorneys who make better use of the new format will do better than those who treat the trial like an in-person trial.
Are Video Conference Trials Here to Stay?
Presently, the guidance issues by the Texas Supreme Court only covers October 1st through December 1st. Texas courts will certainly use video trials for at least 2 months. Given that a coronavirus vaccine is unlikely to be widely available by December 1st, it’s possible that the court will extend remote trials for some time.
But what happens when the coronavirus pandemic ends? The general assumption is that life will go back to how it was before the virus. There are reasons to believe that this assumption might not be correct.
For starters, one big issue that courts face are people who simply ignore their jury summons. While it’s a small sample size, so far it appears that more people show up for jury duty when they can do it from home. It’s too early to know whether this is because logging in from home is more convenient or if people just have less to do given the shutdowns. But if remote trials increase the jury pool, it’s a strong argument in their favor.
Another factor that may keep remote trials going after the crises is the sheer size of Texas. In some areas, judges, attorneys, jurors, and litigants must drive for hours to reach a courthouse. The convenience for everyone involved certainly bolsters the likelihood that video conference jury trials are here to stay.
Lastly, maintaining a court system is expensive, particularly building new courts for Texas’ growing population. On top of that, no branch of government is as underfunded as the courts. If remote trials prove satisfactory to everyone involved, there’s a good chance that the cost savings of video conference trials will lead to more of them in the future.
Those are just some of the reasons that the next two months in Texas have the potential to determine what trials will look like for the next hundred years.