May 7, 2020

Although California trial courts currently remain closed to the public, behind the scenes, stakeholders across the legal community are busy brainstorming protocols for jury trials that follow social distancing guidelines so that courts can resume jury trials as quickly as possible. Our firm recently began developing ideas for these new, socially distanced trials, based on our experience consulting on record preservation issues during trial, litigating posttrial motions, and preparing the record on appeal.

Trial Exhibits. To establish a clear record, one possible approach would be to use a set of password-protected Dropboxes with defined folders into which the parties could upload exhibits. Different folders could be designated for exhibits that are stipulated, objected to, excluded by the court, and, as trial proceeds, admitted. To minimize the exchange of paper or binders between counsel, the clerk, and witnesses during trial, exhibits could be projected directly from a computer accessing the Dropbox folders, and the admitted evidence folder could be made available on laptops to jurors during deliberations. After trial, anyone who wishes to appeal would easily be able to add pertinent exhibits to the appendix on appeal without collecting and processing additional paper.

Jury Instructions. The same procedure could be used with jury instructions, using separate electronic subfolders for agreed-upon and objected-to instructions, the instructions the court rejects, and the instructions the court gives. During deliberations, the jurors can view the Dropbox subfolder with the final, given instructions on a laptop.

Sidebars. Social distancing requirements will make impossible the “whisper” or “huddle” sidebars conducted in courtrooms while the jury is present, but each court may be able to designate an area that is close to the courtroom, such as the judge’s chambers or an adjacent jury deliberation room, where the court and counsel can go to hold a sidebar while standing apart. Reporters could provide microphones and then remain in the courtroom to transcribe the sidebars by listening with headphones. A less technology-intensive alternative could be to develop a simple, uniform protocol (even a Judicial Council form) on which parties can summarize their sidebar arguments and the court can state its ruling. Filing that form would preserve the record for appeal.

Public Access. To reduce crowds inside the courtroom, courts could consider allowing the press and other participants to monitor trial remotely through a closed circuit camera or scrolling real-time text transcription display. The prospect of witnesses testifying remotely presents many concerns, but if that is permitted, courts should prevent the possibility that the witnesses could view something off camera that would influence his or her testimony (e.g., real time coaching via text messages). Courts could also encourage the use of bench trials, by, for example, offering priority trial dates to parties who stipulate to a bench trial.

Post trial. Post trial proceedings can be conducted remotely through electronic filings and telephonic or videoconference hearings. To avoid unnecessary ex parte practice, the court and the parties should work together as soon as a verdict is returned to set a briefing schedule and, where possible, a single hearing date for all posttrial, costs, and attorney fees motions.

Each of these ideas raises further questions, and many details will need to be ironed out, but these considerations provide a starting point for ensuring that when jury trials do resume, they facilitate access to justice while protecting public health and safety.