New Jersey has become one of the first states in the country to roll out fully virtual jury trials. On January 7, 2021, New Jersey Supreme Court Chief Justice Stuart Rabner signed an Order setting the stage for the use of fully virtual trials in both criminal and civil matters. The two-phase process commenced with trials scheduled to begin on or after February 1, 2021 in the five (5) pilot vicinages of Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union. The second phase of the process will incorporate all remaining vicinages in the State and will commence on April 5, 2021. While phase one of the virtual trial process will be voluntary, consent will not be required in phase two.
Incorporating a virtual component into jury trials is not entirely new since the COVID-19 pandemic ravaged the country almost one (1) year ago. On July 22, 2020 Chief Justice Rabner entered an Order providing for the virtual selection of juries in civil and criminal matters. While jury selection would proceed remotely via videoconferencing platforms, the trial itself was conducted in-person with all parties, attorneys, and jurors present in the courthouse, albeit socially distanced, masked, and behind plexiglass barriers. The Court’s Order was promptly challenged by the defense in the first Bergen County criminal trial to proceed via virtual jury selection. The defense’s objection to virtual jury selection was overruled by the trial judge on September 28, 2020. The trial court’s decision was affirmed in remarkably expedited, interlocutory appeals by both the Appellate Division and New Jersey Supreme Court, on October 7, 2020 and October 16, 2020, respectively. Virtual jury selection did proceed in both criminal and civil matters on a limited basis in the latter half of 2020, until the Court again suspended all jury trials on November 16, 2020 in response to the second wave of COVID-19 cases.
The Chief Justice’s most recent order greatly expands upon the virtual jury selection process instituted last year and now incorporates all facets of the jury trial process. The new Order contemplates a fully remote trial setting in which the jurors, parties, attorneys, and the judiciary appear via videoconference. The Court has left open the possibility of a hybrid scenario in which jurors appear remotely while the remaining trial participants appear in-court. And, in fact, many Presiding Judges in the trial level courts in New Jersey have indicated a strong preference to holding hybrid trials, which allows the Court to maintain more control over the format of presenting evidence.
While recognizing the need to adapt to the COVID-19 pandemic and attendant backlog that it has created in our court system, many practitioners have expressed trepidation about fully remote trials. A significant number of experienced trial attorneys have concerns about the ability to truly relate to a jury in a fully virtual setting. Concerns have also been raised about whether jurors sitting in their homes with the attendant distractions will give the necessary attention to a virtual trial and can avoid improper influence from household members. In cases involving permanent or catastrophic personal injury arising from complex medical negligence, commercial automobile negligence, construction accidents, or premise liability, many attorneys want a jury to see their clients in-person to fully absorb the extent of their injuries. Conversely, many defense attorneys feel that the virtual setting will inhibit a full and unbiased jury deliberation process and that jurors may feel removed from the gravity of issuing large monetary awards.
Additionally, logistical concerns exist in presentation of exhibits and evidence. For instance, if operating in a fully remote environment, attorneys have not yet been told how they will be able to show witnesses exhibits remotely without prematurely publishing those exhibits to the jury before they are actually admitted into evidence. At the same time, there is an undeniable backlog in civil cases where litigants are waiting for their day in court, or the opportunity to engage in meaningful settlement discussions, which is inhibited by the lack of firm trial dates.
Since the Supreme Court’s Order on January 7, 2021, and as of the publication of this article, there have been three (3) civil jury trials that have proceeded to verdict and have been made available for viewing by the public:
- Delva-Dantel, Maria vs. Jayquan Henderson, MON-L-3667-18
- Bonnet, Louimene vs. Ryan Stuebe, PAS-L-1843-18
- McWhite, Elizabeth, et al. vs. Evan Ford, GLO-L-0009-18
All three cases went to trial the week of February 8, 2021. The cases were tried in Monmouth county, Passaic county, and Gloucester county, respectively.
These three cases were factually similar in many respects, which gives insight into the types of cases that the judiciary is looking to select for virtual trials. For instance, all three matters were personal injury cases arising from motor vehicle collisions in which liability against the defendant was conceded. All were “verbal threshold” cases in which the plaintiffs were seeking monetary compensation for pain and suffering damages. All three matters were tried with either a high-low agreement or cap on damages in place. All were tried on an expedited basis, meaning that the parties’ experts did not testify but rather the jurors were permitted to review and rely upon written reports from the experts and the plaintiff’s medical records. And, finally, none of the cases lasted more than 2 days, including jury selection and deliberations – in fact, only one (1) lasted more than a single day.
What we can glean from the texture of the cases that have thus far been selected for virtual trials is consistent with what many practitioners expected would be the situation; namely that, at least initially, the Court would be targeting simple cases that were not witness or evidence intensive. The stipulations also included certain safeguards against runaway monetary verdicts on non-economic, pain-and-suffering claims, which made it more likely the defendant would be willing to proceed to trial in this unique setting.
The major difference amongst the three tried cases is that Delva-Dantel v. Henderson was tried in a hybrid format whereas the remaining two cases were tried in a fully virtual format. In Delva-Dantel, the attorneys, witness, and trial judge Owen McCarthy, J.S.C. appeared live in the courthouse, while the jurors were selected and viewed the trial via videoconferencing. In Bonnet v. Stuebe and McWhite v. Ford all of the parties, jurors, and the trial judge appeared remotely via Zoom.
In Delva-Dantel the only witness who testified was the plaintiff herself. Her testimony, including direct and cross-examination, lasted less than ten (10) minutes. Testimony from the parties in Bonnet and McWhite lasted significantly longer but was still confined to one day.
Ultimately the jury in Delva-Dantel awarded plaintiff $120,000 for future medical expenses and $135,000 for her pain and suffering, though there was a high/low agreement in place that limited plaintiff’s recovery to $100,000. The juries in Bonnet and McWhite found that plaintiff’s injuries did not pierce the verbal threshold and they awarded the plaintiffs zero dollars.
Delva-Dantel, Bonnet, and McWhite serve as important litmus tests for virtual trials in New Jersey. First and foremost, the cases demonstrate that virtual trials in New Jersey can and will take place. Despite the brevity of the cases’ substance, these three vicinages were able to arrange for a fully remote jury pool of prospective jurors (no small feat), facilitate jury selection, and hold one to two-day trials resulting in unanimous jury verdicts. It is difficult to understate the effort that the judiciary as well as the participants in these trials put forth to make these trials happen. They should all be greatly commended.
The trials also, however, exposed some shortcomings of the virtual system. First, the Delva-Dantel case demonstrated some of the technological limitations in a hybrid-model trial. The setup in Delva-Dantel was such that only one, fixed-position camera was available to capture everything that occurred in the courtroom. And during opening statements and closing arguments, that one camera was pointed perpendicular to the TV screen displaying the jurors’ faces. The net effect was that while counsel were speaking to jurors during crucial openings and closings, the attorneys were unable to see the jurors in order to observe and gauge their reactions and body language. As a practitioner and trial attorney, I cannot overemphasize the importance of being able to see all the jurors during ever facet of trial – particularly when addressing them in openings and closings.
Second, the camera in Delva-Dantel always faced towards the front of the courtroom. The Zoom view in the Bonnet fully remote trial was set to “speaker view” such that only the person talking appeared on the screen. Thus, the plaintiff and defendant were largely outside of what the jury could see throughout the trials in Delva-Dantel and Bonnet. Jurors were deprived of the opportunity to make the casual courtroom observations that are believed to be highly imperative during live trials. In McWhite the Zoom trial was set to “grid” or “gallery” view, which showed all participants on the screen, albeit in much smaller boxes.
Third, there remains practical issues to exhibit and evidence presentation in remote settings. In Bonnett, for example, the defense attorney sought to cross-examine plaintiff with the transcript of her deposition that had been taken during discovery. But defense counsel obviously was not in the courtroom to show plaintiff the transcript and plaintiff did not have a copy in front of her. Fortunately, plaintiff was in a conference room at her attorney’s office and plaintiff’s counsel walked the transcript into the conference room. But suffice to say, even once she had the transcript, the exchange was disjointed and difficult to watch. In McWhite the defense attorney attempted to cross-examine plaintiff with her medical records but was again unable to show plaintiff these records. The result was that defense counsel read parts of the records to the plaintiff, which is arguably impermissible for the jury to have heard absent a more proper foundation or a stipulation as to the records authenticity and accuracy.
The lessons learned from Delva-Dantel, Bonnet, and McWhite will be vital as New Jersey litigators move forward in the world of virtual jury trials. At Weir Attorneys, we have often discussed the merits of trials conducted in a fully virtual fashion versus the hybrid model. Delva-Dantel has molded our thinking to favor a fully remote proceeding, which affords us the opportunity to exercise greater control over the remote environment from our newly constructed virtual trial room, which you can explore in our recent YouTube video. The quality of the audio and video feeds achieved from our virtual trial room, as well as the ability to observe the jury at all times on our three-monitor setup, appear superior to the lapel microphone and single, fixed camera equipment used in Delva-Dantel.
One way or another, the shape that remote trials take in New Jersey will unfold in the next several months as pilot counties continue to try cases virtually leading up to “phase II” in which all cases may be called in for virtual trial without consent of the parties. Undoubtedly practitioners who can adapt to the new trial environment stand to achieve a significant advantage over those who remain less prepared and less willing to adapt to the world of virtual law.
Rob Luthman, Esquire is a partner at Weir Attorneys and is certified by the New Jersey Supreme Court as a civil trial attorney. If you are an attorney who practices in or around Mercer County and are interested in learning more about virtual civil jury trials, please be sure to join the Mercer County Bar Association for its CLE on Virtual Civil Jury Trials held on March 16, 2021 in which Mr. Luthman and Mercer County Vicinage Presiding Civil Judge Douglas Hurd, PJ.Civ. will be speaking about virtual trials.