Tunheim describes 1st remote civil jury trial

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Minnesota’s U.S. District Court Chief Judge John R. Tunheim last week conducted his court’s first-ever remote civil jury. By all accounts, things went well, with Tunheim and his staff getting high marks for thorough preparation.

“My understanding in talking to the lawyers is that it went very well, very smoothly,” said Anoka County Attorney Tony Palumbo. His staff represented defendants, including Anoka County Sheriff James Stuart, in the case.

ACLU of Minnesota attorney Ian Bratlie, who represented plaintiff Myriam Parada, agreed. But he also wants to learn whether jurors working at home might have fallen prey to distraction. And he wonders whether his client came across as well to a jury in a virtual environment as she might have in person.

Judge Tunheim spoke to Minnesota Lawyer after the trial on Jan. 29, to discuss his experience. He offers some advice for the state’s other courts, members of which watched how things went in Tunheim’s remote courtroom with keen interest. Here is an excerpt from that conversation.

Q: The jury in this case came back unanimous, correct?

A: They had to be unanimous — all eight. We had eight jurors in the case.

Q: Eight seemed like a funny number. How did that come up?

A: It’s our pandemic number, basically, for lack of a better term. We decided that for civil cases, we can have juries as small as six. And judges in federal court typically choose the number they want. They can have a 12-person jury or a six-person jury, or somewhere in between.

The reason that we chose eight was that in our trial courtrooms — one at each city — we took out half the 16 juror seats. So we’d have eight jurors. They would fit into the jury box if we had an in-person jury trial. Plus, you can lose up to two and still proceed with a jury of six. So that was the reason.

Q: At the Judicial Council recently, Judge [Leonardo] Castro said something very amusing — but I think it hits on an underlying concern that is quite real. He said that if we’re going to do remote civil jury trials, we need to make sure that some juror’s naked boyfriend doesn’t suddenly appear on screen. You didn’t have anything like that?

A: Nothing like that happened. It was all great. We had a uniform background for all the jurors, and that worked well — it was just a kind of a wooden-wall background. It worked just fine. We didn’t see anybody else.

Q: The state District Courts and appellate courts, I think it’s safe to say, watched your experience very closely. What kind of feedback would you offer them as they consider whether to go forward with this?

A: I think it’s important to plan carefully. We had a working group that included judges, staff, courtroom deputies, jury clerks — people who are involved in the process for us. And we met frequently.

We had detailed checklists of everything we needed to do. We put together a juror handbook, an attorney handbook and a staff handbook. And then we practiced, twice. We did a practice all internally, where we had volunteers from across the court serving as jurors, so we could see how it worked back and forth.

And then we had a final practice, during which we included the lawyers for both sides. So they had a chance to see how it would work in practice on Zoom.

Q: So practically a mock trial before the real thing?

A:  We didn’t get into the substance of the case at all, really. It was just sort of a technical practice, where I would ask some questions of prospective jurors, and we would see how they answered back and forth and kind of explain how the process was going to work.

We had the advantage of having spoken with a number of individuals in the Western District of Washington in Seattle, who had done several virtual jury trials. So we got the benefit of their experience. We modified that to fit what we wanted to do.

My advice is to plan carefully and practice.

The technology worked great. We used Zoom for the actual trial. We used Box.com for the exhibits. So the jurors could all have access to all the exhibits and that worked great. They used it in Washington and were impressed with the technology. It worked flawlessly. Once all the exhibits were determined to be admitted, we put them into a file, transferred them into Box.com and then gave the jurors access to it. Same with the instructions.

Q: One of the things that I know is a concern to some on the Judicial Council thinking about remote civil jury trials is where will the jurors be? How will they be set up? Will they be brought into the courthouse? Or will the court let them stay at home? As I understand it, these jurors were at home and apparently that worked?

A: They were all at home. When we sent out our questionnaires to them, we asked them what technology they had, and do they have a built-in camera in their computers. Then we asked them to run speed tests on their [internet] upload and download speeds and we had them write that in on their questionnaires.

We were prepared to bring an iPad out and set up a hotspot for someone who is a prospective juror, so that they would know how to use it. We didn’t have to do that because, fortunately, everybody that we called in had really sufficient technology from our point of view.

But if someone had just said, “I don’t have any computer, I just have a phone,” that sort of thing, we were capable of sending an IT person out with an iPad to set it up for them to use during the trial. And then we’d go get it, after the trial.

Q: Ian Bratlie said he hopes to poll some jurors. He’s concerned that, while the trial went well, he’s not sure it worked as well for his client as it might have. For instance, he feels her reception in person might have been better than on Zoom. Also, there was an issue with the virtual background she used, because she’s a person of color — there were times when she actually disappeared into the background. So he said they had to turn that off. Are you concerned, too, that the remote setup might come at some costs along those lines?

A: It isn’t the same as being in person, there is no question about that. But I don’t think there’s much lost.

If you have good technology, you can see the person testifying. You can see the attorney asking the question and the witness answering the question. It’s very clear. I mean, you have the person right there in front of you. And, of course, if you’re sitting at the other end of the jury box, you’re sitting half a courtroom away from the person. So you’re probably not capturing nuances as well as you might on Zoom.

So I think there are trade-offs back and forth. But at the same time, all the jurors had exactly the same view.

Q: I’ll ask you to prognosticate well into the future. Let’s say we’re back into a normal world. Did this work well enough that you think it ought to be preserved as a possibility, even post-COVID?

A: I think so. Yeah.

Say you’ve got a case — and this happens often — where you have experts or perhaps medical personnel from other parts of the country. Or even doctors that are really busy. Often times, you basically have a video deposition and that’s how the testimony is given. The ability to have someone sit in their office and testify on Zoom for half an hour, or however long it takes for their testimony to go, makes it a whole lot easier to get busy people in to testify in court.

And so there may be an advantage there. Because oftentimes we do get faced with a question of well, we just can’t get this witness in, we’re going to have to take a video deposition. Is that okay, judge, to do that?

We approve that, usually. But this gives a whole lot more flexibility. And I think that, particularly when we’re busy with a lot of things going on at once, it’s a good option for us.

I did a virtual bench civil trial last summer and half the witnesses were in Germany with interpreters. And I thought that went very, very well. It couldn’t have gone better. That would have been almost impossible to do if we weren’t willing to do that virtually.

I don’t see any downside to using Zoom for civil motion hearings — and criminal, as well, if the defendant agrees. We still have that authority under the CARES Act, though we may lose that when there’s no longer an emergency. But we surely can continue with civil.

Q: Is there anything else about this experience that you’re thinking about, but that I’m not asking you about?

A: No. I enjoyed it. We’re going to do a detailed follow-up questionnaire for the jurors so they can tell us anything that they want to. And we’re going to do a debrief among staff that participated. We’ll do our best to improve the process for the next one.

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