Pilot OK’d for virtual civil jury trials

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A pilot project to test the viability of mandatory remote civil jury trials was authorized last week by a unanimous vote of the Minnesota Judicial Council.

The vote was taken at the same time the council agreed to extend the moratorium on in-person jury trials until March 15. However, the pilot project will not be part of the moratorium extension order from Supreme Court Justice Lorie Gildea.

Instead the vote authorized the Other Side Work Group, a Judicial Council subcommittee tasked with steering the courts’ response to the pandemic, to explore how the pilot project would work and report back with guidance.

The idea was suggested by Hennepin County Judicial District Judge Jamie Anderson during the council’s Jan. 14 hearing.

Anderson told other members that she has a few civil trials on her calendar block, which she anticipates would be one- or two-day affairs. They would be perfect candidates for remote jury trials, she said.

In reality, remote civil jury trials are already permitted under the current moratorium. Gildea’s Nov. 20 moratorium order—the one extended last week—permits “all proceedings in all case types” to be held remotely, except criminal jury trials and grand juries that have not been granted exceptions.

“My view of that is if there are parties and a judge willing to try a civil jury trial remotely, have at it,” Gildea told Anderson during the Judicial Council meeting.

The problem with that, Anderson replied, is that the parties won’t agree to remote civil jury trials. “They’re freaked out about it,” she said. “That’s where I am hoping I would have a little more leverage to make them do it. … But I don’t feel like I can now.”

5th Judicial District Court Chief Judge Michelle A. Dietrich called the idea “intriguing.” But she called for a “cheat sheet,” or guideline, that could be shared so judges would know how best to conduct the remote trials.

Gildea said some of that information is already available from other states where remote civil jury trials are already being restarted.

The Florida Supreme Court, for instance, piloted remote civil jury trials in five of its state judicial circuits beginning last June. On Jan. 7, the New Jersey Supreme Court followed suit, ordering virtual civil trials to begin on or after Feb. 1 in eight of the state’s 21 counties.

The issue arises at a time of big, pandemic-induced case backlogs. State Court Administrator Jeff Shorba told the Senate Judiciary committee last week that criminal case backlogs have grown by 33% from the beginning of the pandemic to Jan. 1. The situation isn’t quite as dire in the civil arena, where the backlog has only grown by about 6% over that time, he told senators.

Nonetheless, because the courts’ emphasis is cutting down the criminal-case backlog, civil cases tend to get lower priority. That emphasis won’t change, 7th Judicial District Court Judge Michelle Lawson said, even when in-person criminal jury trials re-commence in mid-March. She urged the council to approve the civil-trial pilot.

“They will continue to hang out there—especially in counties that don’t have facilities to accommodate more than one jury trial at a time,” Lawson said. “Those civil cases are not going to go anywhere unless we can handle them in a different way.”

Pine County District Court Judge Krista Martin, the chair of the Other Side Work Group, agreed. She said that a pilot project is a good idea that could have an extended shelf life. “It might be something we can put in place and could continue, even once we start doing in-person jury trials more robustly,” she said.

At first there was a suggestion that Judge Anderson alone be permitted to order parties in her cases to participate in remote civil jury trials. But her county’s Chief Judge Toddrick Barnette said he would like his entire district to be included.

6th District Court Chief Judge Michael J. Cuzzo and 10th District Court Assistant Chief Judge Elizabeth Strand said their counties, too, would be interested in taking part.

Ramsey County Chief Judge Leonardo Castro said that his district’s Judge Thomas A. Gilligan and Hennepin County District Court Judge Edward T. Wahl have already begun collaborating on Zoom civil jury trial protocols and guidelines. Martin asked him bring information on their efforts to the February Other Side Work Group session.

A question was raised about whether remote civil jury trials would involve jurors present in courthouses, but sitting at computer screens in isolated rooms, or whether they would be outside the courthouse, perhaps at home. Castro said he envisions them not going to the courthouse—but that pertinent rules would have to be in place.

“I actually envision … not bringing them in and putting them in different rooms,” he said. “But, rather, having them someplace with, obviously, very specific instructions on where they should be and where they can be—so we don’t have the dog or the cat or the naked husband or boyfriend walking through the screen.”

“Thanks for that visual that we are never going to get out of our heads,” Martin joked in response.

Gildea, noting what she called “a groundswell of support,” offered a motion to engage in remote jury proceedings “in a more muscular way” through a civil-case pilot, and to have the Other Side Work Group look into whether virtual civil trials can be made mandatory. The council approved it unanimously.

The Other Side Work Group is likely to meet and put findings together for Judicial Council review sometime before the council’s next hearing in mid-February.