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Trial Practice Update – June 2022

June 14, 2022

Wading Through the Trial Backlog: Advancing Judicial Economy in 2022

The COVID-19 pandemic has forced courts throughout the country to restrict or limit their operations for significant stretches of time.  While many initially thought these restrictions would be short lived, we are now entering year 3 of the pandemic and the emergence of the omicron variant has led to yet another round of orders restricting, limiting, or otherwise delaying in-person proceedings and trials. 

            One result of these restrictions on their ordinary operations is that courts throughout the country face an unprecedented backlog of trials.  This is particularly true for civil trials, which have, understandably, taken a back seat to criminal trials.  This practice update focuses on ways that courts have begun to address the backlog, including through reducing the size of juries, restricting preemptory challenges, requiring jurors to be vaccinated, and holding bench trials with direct testimony by affidavit.

            It is important for litigants to consider the ramifications of this backlog and ways in which they can assist courts (and clients) to efficiently press forward—as well as potential adaptations to trial strategy that should be made.


Reducing the Size of Juries

The pandemic has made it very difficult to select and sit juries.  Many prospective jurors have legitimate, significant health concerns, prefer to quarantine, and do not want to expose themselves to the possibility of contracting the COVID virus through jury service.  One step courts have already begun to implement is reducing the size of juries, either with or without the agreement of the parties.  A 6-person jury can be selected from a much smaller pool and can be more easily physically seated in a socially-distanced manner in a courtroom.  In Massachusetts, for example, the size of civil juries has been reduced from 12 to 6 irrespective of party consent.

            While this has alleviated many of the issues associated with the smaller jury pool, the order has caused many to question the impact smaller juries have on case outcomes.  For one, smaller juries can be more homogenous, and there is evidence that this homogeneity can result in more extreme outcomes.  One study found that six-person juries are four times more likely to return significantly high or low damage awards.  This makes logical sense—in a six-person jury, a single person can have more influence as they simply do not need to convince as many people of their position.  Furthermore, a more homogenous jury may lack diversity of thought, which would otherwise moderate its verdict as jurors work to compromise. 

            Studies employing mock jury exercises have also revealed that smaller juries tend to remember less than larger juries.  This is because a larger jury is likely to have at least one juror who recalls a fact that others do not.  It is that collective recall of the evidence that is lessened by having smaller juries.  In light of these studies, it is especially important to streamline your presentation to a smaller jury and employ consistent and simple themes. 


Peremptory Challenges

With smaller juries, preemptory challenges are also critical because each juror’s individual impact and influence is magnified.  But making this more challenging, another policy some courts have adopted is to reduce or suspend the number of peremptory challenges.  A COVID-19 working group established by the Supreme Court of the State of Arizona found that “in criminal trials involving a 12-person jury, suspending peremptory challenges would reduce by approximately 46 percent the number of qualified jurors necessary to select a [12-person] jury (depending on the number of alternates involved).”  Similarly, a Pennsylvania Jury Trial Working Group found that increased “for cause” dismissals of jurors for COVID-19 reasons could be mitigated by reducing the number of peremptory challenges in criminal and civil cases.  In Massachusetts, in tandem with seating 6-person juries, the Supreme Judicial Court ordered that each side be limited to 4 peremptory challenges. 

            While some courts have now relaxed limits on peremptory challenges that were imposed during the pandemic, depending on the course of future variants, courts may continue to impose, or renew, strict limits on the number of peremptory challenges. 


Fully Vaccinated Juries

To better ensure the safety of all court participants, courts are increasingly requiring that jurors be vaccinated.  Such orders can promote efficiency insofar as they may help to avoid outbreaks that would result in delays or even a mistrial, but they also reduce the size of the jury pool.  Challenges to these orders have had mixed success.  In a multidistrict action related to prescription opioids, the judge ordered that all jurors should be vaccinated.  In re Nat’l Prescription Opiate Litig., C.A. 1:17-md-02804 (N.D. Ohio 2021) at 3758.  After defendants objected, pointing out that at that time, vaccination data suggested that the order would exclude from the jury pool over 40% of the community, including a significant portion of minority groups and those with certain political views, the court reversed itself.  Id. at 3763 and 3766.  In another case, a criminal trial in Brooklyn, New York, the judge ruled, over the objection of defendants, that all jurors must be vaccinated.  Perhaps the most high-profile example is the Elizabeth Holmes trial, which, with the consent of the government and defense, was tried before a fully vaccinated jury—nine unvaccinated people were dismissed from the jury pool.

            Practitioners should consider unintended ways in which vaccination orders may impact a jury pool.  Such a requirement may unintentionally exclude individuals from certain ethnic or racial groups or who have political or religious views regarding vaccination status. 


Bench Trials with Virtual or Limited In-Person Testimony

In addition to changes that impact a juy’s size and pool, many courts are encouraging litigants to agree to bench trials.  One innovation on that front has been to allow litigants to choose virtual bench trials.  There are many opportunities presented by virtual trials and court presentations, particularly for attorneys who take the time to learn and master the technology. 

            It is incredibly important that, in thinking about whether to conduct a trial virtually, the parties fully understand the procedures to be applied and any gaps that could be problematic.  For example, will the procedures create circumstances that allow the witness to be coached by their off-camera attorney while “on the stand?”  Can you see where the witness is looking and what they are looking at?  Will the witness need to appear in an empty space or with a particular virtual background or will they be able to have materials (such as family pictures) in the background?  Additionally, will the witnesses be in a place where they have a strong internet connection and fully understand how to use the technology?  If not, a virtual proceeding can end up taking longer than an in-person proceeding and be full of frustrating breaks to resolve technical issues. 

            Helpfully, in February 2021, the New York State Unified Court System issued detailed Virtual Bench Trial Protocols and Procedures, noting that while “Virtual Bench Trials are, in all respects, identical to In-Person Courtroom Bench Trials … certain modifications are necessary regarding the presentation of testimonial, documentary, and physical evidence in order to safeguard accuracy and ensure reliability.”  See State of New York Unified Court System Virtual Bench Trial Protocols and Procedures at 3.  These detailed procedures address many of the above concerns, such as requiring witnesses to appear without virtual backgrounds and “from quiet and appropriate locations without background distractions.”  Id. at 4.  They state that witnesses “must be instructed by Counsel, and should be admonished by the Court, that written or oral communications of any kind … between a witness or party and Counsel for the witness during the Virtual Bench Trial testimony is strictly prohibited.”  Id. at 9.  They further state that “Communications between the witness and Counsel shall be restricted as if the Virtual Bench Trial were being conducted In-Person.”  Id. at 9-10.

            If the parties do not want to conduct the bench trial virtually, there are ways that courts can shorten in-person bench trials, such as by admitting direct testimony by affidavit, which reduces the time that witnesses are physically in the courtroom.  From a litigant’s standpoint, such an approach has advantages and disadvantages.  On the one hand, you can work with the witness to ensure their direct testimony is as accurate, clear and concise as possible.  On the other, a witnesses’ ability to tell a story may be more powerful when told live.  Additionally, if direct testimony is admitted by affidavit, it can be tricky for a witness to begin their in-person testimony with a cross-examination, without having an opportunity to get comfortable while being questioned by a familiar face.  And, if the direct testimony is exchanged in advance, as is often the case, attorneys can carefully craft and prepare their cross-examinations.


Gaining Efficiency Through Pretrial Motions

As courts seek to make trials more efficient in order to manage their dockets, litigants should put renewed focus into pursuing pretrial motions, such as motions in limine, that potentially will result in a more expeditious trial. Indeed, some states’ COVID-19 guidance expressly instructs judges to focus on pretrial motions and look for ways to streamline the issues to be addressed during the trial.  For example, the Alaska courts’ COVID-19 guidance expressly states that the “most effective way to optimize jury trial time is to address, and resolve, issues that can be anticipated before trial.  Accordingly, the focus should be on the pretrial motions and hearings to limit the scope of matters to be considered during the trial, avoid delay, and provide that trials are not unnecessarily lengthened.”  Similarly, Arizona’s COVID-19 guidance states that during pretrial conferences, various matters, including motions in limine, should be resolved and judges should focus on  “issues that will make trials more efficient, and, as a result, shorter.”