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Jury Trials in the Covid-19 Pandemic

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Jury trials in Florida have been suspended since March 16, 2020, and as of early August, the Covid-19 pandemic shows no signs of abating. At a virtual meeting of the Florida Bar Board of Governors on July 17, in fact, Chief Justice Charles Canady indicated that it is “unrealistic” that jury trials will resume in the near term – either civil or criminal.

Notwithstanding, civil litigation continues. Lawyers across the state have become quick studies on how to conduct hearings remotely, and the courts have been largely successful in keeping cases on track in terms of pre-trial motions. The courts have also begun holding evidentiary hearings via videoconference – including non-jury trials.

Jury trials are another matter. While Chief Justice Canady created Florida’s Remote Civil Jury Trial Pilot Program on May 21, 2020, that program is in its infancy. To date, remote mock jury selection has taken place in Miami-Dade County and Broward County. In Miami-Dade County, the selected jurors reported in person for jury duty in a non-binding proceeding. Broward County has experimented with allowing jurors to appear for trial remotely. Four other circuits around Florida have also been invited to join the Chief Justice’s pilot program, though as of now, none of those circuits have reported on their efforts.

In truth, most civil cases rarely go to trial. According to statistics maintained by the Florida Courts, between June 2018 and June 2019, litigants filed over 227,000 circuit civil lawsuits, i.e., cases involving disputes exceeding $15,000. Compare that figure to the number of jury trials completed during the same time period – 753. It is likely that many more cases went to trial, as civil cases often settle during trial, and judges have the power to grant a directed verdict if a plaintiff fails to prove its case. Business cases rarely go to trial, and they likely represent a small fraction of these 753 cases. These statistics are a testament to the fact that most litigants rarely need the jury to resolve their case.

That being said, juries are fundamental in the American legal system. As Justice John Marshall Harlan wrote many years ago, “the trial by jury is a fundamental guaranty of the rights and liberties of the people.” Hodges v. Easton, 106 U.S. 408, 412 (1882). Both the Seventh Amendment to the U.S. Constitution and Article I, section 22, of the Florida Constitution guarantee the right to trial by jury. Federal Rule 39 and Florida Rule 1.430 mandate a jury trial in the event that any party to the case wants it. While the right can be waived, it is not one which can and should be given up lightly.

Nevertheless, the Covid-19 pandemic might be just one such circumstance that would weigh in favor of waiving a jury trial. While any efforts to continue litigation in a safe environment are laudable, it is not realistic at this point in time to believe that remote jury selection and Zoom trials can substitute for our tried-and-true litigation system. It will still take months, if not years, to perfect the process for holding a remote jury trial. The courts already face a five-month backlog in civil jury trials, and even if the courthouses opened next week, the backlog of criminal jury trials would most likely take priority over civil trials for the foreseeable future. In addition, while there are myriad studies about the psychology of juries and jury selection, no one really knows how that psychology plays out over videoconferencing – especially if these “Zoom jurors” remain at home during jury selection or the trial.

By contrast, as noted above, the courts have been successfully using videoconferencing in non-jury evidentiary matters – including trial – for the past five months. Further, while most parties and attorneys would rather present their case to a judge in person, the psychology “wild card” seems less concerning, given that a trial judge should already be familiar with the facts of the case and the applicable law.

Now, for the hard question: as a litigant, should I waive my right to a jury trial? As usual, the answer is, “It depends.” We often counsel clients with complex business cases to waive their right to a jury trial, as a judge can be better equipped to parse out complicated facts and apply them to the law. Of course, we also seek jury trials on behalf of our clients on a regular basis, depending on the specific facts, circumstances, and parties involved. In addition, as noted above, any party to a case may demand a jury trial, and the decision may be out of your hands. In the age of Covid-19, however, insistence on a jury trial raises the specter of an oft quoted principle: justice delayed is justice denied.

If you have a potential dispute that you’d like to discuss with us, give us a call. We can weigh the pros and cons of pursuing a jury trial during the Covid-19 pandemic with you.

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