By LCA Senior Fellow Edward R. Hugo, Tina M. Glezakos and Bina Ghanaat
As the pandemic continues to impact all aspects of public and private life, Superior Courts in California’s 58 Counties pursue divergent paths in conducting court proceedings, including civil jury trials. For example, the County of Los Angeles has taken a conservative approach, most recently delaying all civil jury trials to mid-2021: “[w]hile considering ways to expand its remote capacity to include remote jury trials, [the Los Angeles Superior Court] has observed numerous hurdles, which raise significant issues associated with the use of remote jury selection, remote juror participation during a trial, and remote juror deliberations – each with their own constitutional and statutory implications. [The Court] is investigating ways to develop remote voir dire, but other problems, such as evidentiary issues and maintaining the integrity of the trial process (including logistical interruptions or juror distractions), must be overcome through planning and the development of viable protocols.” (Franklin v. Superior Court, et al., Court of Appeal, State of California, Second Appellate, District One, Case No. B306827.)
In contrast, the Alameda County Superior Court continues to charge forward with all-virtual personal injury preference trials. The myriad novel substantive and procedural hurdles caused exclusively by the rush to remote justice in the face of Covid 19 are constantly unfolding in real time, requiring both litigants and courts to react and adapt after the fact without sufficient time to digest the potential loss of long-held due process safeguards. The jury selection process alone has demonstrated the plethora of unforeseen errors that can occur.
For example, during the first ever virtual voir dire process conducted by the Alameda Superior Court, Wilgenbusch v. American Biltrite, et. al., Case No. RG1902971, prospective jurors participating from their personal spaces were visibly distracted or even absent for stretches of time. One potential juror was exercising on an elliptical machine while another potential juror lay in bed and appeared to be asleep. Yet another juror left the screen during questioning to go to the kitchen and remove something from his stove top. To compound these issues, counsels’ ability to lodge objections to such behavior was hamstrung because they were inadvertently muted by the Zoom moderator with no real-time ability to alert the Court to these issues or lodge objections.
The best evidence that virtual voir dire problems will not improve over time comes from the subsequent virtual trials themselves. The fourth virtual trial to be conducted in Alameda, Reyes v. Johnson & Johnson, et. al., Case No. RG 20052391, where the voir dire was conducted over Zoom with more than 100 participants (1) provided the following examples:
“(The following proceedings were held in the virtual breakout room with counsel only outside the presence of the jury.)
THE COURT: Let’s just go on the record now.
We’ve had a discussion about one of the jurors, who is apparently in his car, and Mr. Hugo has asked that he come into our room and then I ask him and make a determination if there is a problem.
So wait. What’s happening? We’re leaving the breakout room. That’s not what we wanted.
THE CLERK: No?
THE COURT: We wanted him to come in here.
(Prospective Juror No. 54 entered the counsel-only breakout room.)
THE COURT: (Prospective Juror No. 54), you’re muted. I can’t hear you because you’re muted.
PROSPECTIVE JUROR NO. 54: Okay. Can you hear me now?
THE COURT: I can hear you now. How are you? As I’ve told the – I think I mentioned yesterday, we know each other. You’re in your car, which has caused some –
PROSPECTIVE JUROR NO. 54: Yes.
THE COURT: -- concern. And yesterday you seemed to be moving around and doing things and not really sitting still in the virtual jury box, so –
PROSPECTIVE JUROR NO. 54: Okay. I can explain that to you, if you like.
THE COURT: Sure.
PROSPECTIVE JUROR NO. 54: Yesterday, I took delivery of a Peloton, and it was planned months in advance. I’m sorry about that. I carried my iPad with me, and there was a brief moment that I wasn’t listening. It was during (Prospective Juror No. 3’s) testimony. Otherwise I was there.
The reason I’m in my car now is because there is a power outage here. The only place I have any battery power is in my car, and that’s the only place I have any, you know, telecommunications. So I’m okay for the moment.
THE COURT: Okay. I appreciate that. That explains it.
And Ms. (Clerk), why don’t we go back into session.
Thank you, (PROSPECTIVE JUROR NO. 54).
PROSPECTIVE JUROR NO. 54: Is that a problem?
THE COURT: It’s not a problem, but somebody noticed and asked me to inquire. I think that’s a good answer. Hopefully, the power outage isn’t going to knock out this whole proceeding, but --
PROSPECTIVE JUROR NO. 54: Yeah. There may be others. All of Montclair is out.
THE COURT: I appreciate your making the effort. Thank you. Have fun on your Peloton.
PROSPECTIVE JUROR NO. 54: Yeah.
THE COURT: Okay.
- HUGO: Do we have everybody else from Montclair with us? Do we have missing people today?
THE COURT: Let’s find out.
(The following proceedings were held in the virtual main room in the presence of the jury.
THE COURT: All right. Good morning, ladies and gentlemen. I’m sorry. I was unable to unmute myself. I see (the court reporter) is recording the proceedings.
This is Day 2 of jury selection, and the same 18 people are still being questioned, and we are up to (co-defense counsel) to resume.
- (CO-DEFENSE COUNSEL): I don’t know whether the jurors have already been reordered or not or whether I’m still having the problem. Do you know whether they have -- are they reordered on other people’s screens or just --
- (CO-DEFENSE COUNSEL): Not on mine, Mr. (co-defense counsel).
- (CO-DEFENSE COUNSEL): Does anyone have them in correct order or all 18 on the screen?
- HUGO: No. I’ve got seven.
- GHANAAT: I do not have them in exact order despite updating the Zoom application last night.
THE COURT: I think that’s correct. Could it be that the numeral sign in front of the number is preventing them from being lined up, because they’re not in order on the screen, and it hasn’t been forced.
Right now, I don’t see it that way.
So let’s hang on a second while we try to get the zoom screen organized.
- (CO-DEFENSE COUNSEL): Thank you, Your Honor.
Can you mute me for a minute.
THE COURT: Thank you.
- (CO-DEFENSE COUNSEL): Your Honor, through playing some juror bingo and moving their faces around, we, at least on our end, have temporarily been able to get people together on the screen. I don’t know if the other parties have or whether I should just proceed.
THE COURT: I don’t. Let me --
- HUGO: Judge, this is Edward Hugo. I wanted to indicate, I have eight jurors with me on my screen. Ms. Ghanaat has a different display with 18 random people, no offense to those people, just 18 not in the box. And Mr. Taheri (2) has yet another view.
THE COURT: All right. I’m going to --
UNIDENTIFIED VOICE: If the 18 try and unmute, that may put them in order of --
THE COURT: How about now?
- HUGO: Now I’ve got you in the middle with me and the Clerk and now only six jurors and Mr. (co-defense counsel).
- (PLAINTIFF’S COUNSEL): Whatever just happened, Your Honor, did reorganize them correctly on my screen.
- GHANAAT: It is correct for me as well now. Thank you.
THE COURT: Mr. (CO-DEFENSE COUNSEL), how about you?
- (CO-DEFENSE COUNSEL): I think I’m fine right now.
THE COURT: Why don’t we -- thank you Ms. (clerk).
So I apologize, ladies and gentleman. There are some glitches. We worked overnight trying to work on this. The problem was that you’re supposed to be able, by putting numbers in front of people, to have them be in order, and then we’re supposed to be able to, from the person who’s running the Zoom conference, force that view on everybody who’s participating. Some people may be using different devices other than computers, which causes a bit of a problem. But now I think we’re set to go.”
REPORTER’S TRANSCRIPT OF PROCEEDINGS, October 15, 2020, 997:19- 1002:16.
“MR. HUGO: Good morning.
So let me actually go back to -- like, it seems like a month ago.
But a week or so ago, when you were set to show up for the first time for jury duty, did you go to Hayward, by chance?
PROSPECTIVE JUROR NO. 15: I did -- no, not Hayward. No. I was in -- I went to --
- HUGO: Dublin?
PROSPECTIVE JUROR NO. 18: Yes.
- HUGO: What happened there?
PROSPECTIVE JUROR NO. 18: What do you mean, “What happened”?
MR HUGO: Did -- okay. Maybe my question wasn’t clear.
Did you try to show up for the voir dire process and not get on a computer or end up doing it by phone somehow?
PROSPECTIVE JUROR NO. 18: Oh, I see.
So I went the first day, and the second day, I did not see the email that was sent to me in order for me to access Zoom.
And so I went back to the Court, because I called and I was on hold for two hours. So I went back to the Court to find out if they can give me the link so I can access the Zoom meetings.
And so I waited until they gave me the link, and I logged in on my phone while I was driving back home and finished at the house on my phone.
And so now I have a link, and I’ve been logging in every day.
- HUGO: Please understand I'm not being critical. I'm just trying to find what happened. So did you miss the first two hours or so in the morning of the voir dire process because you had to drive to the courthouse?
PROSPECTIVE JUROR NO. 18: Yes -- I missed -- yes, I did on the second day, which was --
- HUGO: Okay. And then when -- can you give me a time -- approximate time of when you were first able to log onto Zoom on your phone?
PROSPECTIVE JUROR NO. 18: Roughly, around 11:30.
- HUGO: Okay. And then how long were you in the car?
PROSPECTIVE JUROR NO. 18: Probably about 40 minutes. That's how long it takes me.
- HUGO: I'd assume -- again, I'm not being critical. I assume you were more concerned about watching the road than the Zoom jury proceedings. Right?
PROSPECTIVE JUROR NO. 18: I was listening. Just don't ask me what was going -- what was being said word for word. But I was listening. And I tried to have by phone propped in a position where I can be seen. But, yes, I had to drive back.”
REPORTER’S TRANSCRIPT OF PROCEEDINGS, October 27, 2020, 2724:10- 2726:15.
Voir dire should not be conducted by trial and error. And, it is clear that virtual trials lead to real error. Given the limited transparency and control inherent in the virtual world, civil jury trials should be postponed until such time as they can be conducted fully in person, subject to applicable health standards. To accept anything else is to sacrifice the sanctity of our judicial proceedings as another victim of the pandemic.
(1). There were 104 “Participants” on the Zoom call. So, having the prospective jurors appear in numerical order was essential.
(2). Alex Tehari is Senior Counsel at Hugo Parker LLP
Edward R. Hugo and Tina M. Glezakos are Partners and Bina Ghanaat is Senior Counsel at Hugo Parker LLP. They were counsel for different defendants in the Wilgenbush and Reyes trials.
LCA Senior Fellow Edward Hugo is a trial attorney, appellate lawyer, litigator and litigation manager for cases involving products and premises liability, toxic torts, environmental claims, construction defect, personal injury, wrongful death, insurance, professional negligence, sexual molestation and criminal law. He is: a Certified Civil Trial Specialist, accredited by the State Bar of California; a “Board Certified Civil Trial Advocate”, National Board of Trial Advocacy; a “Board Certified Civil Pretrial Practice Advocate”, National Board of Trial Advocacy; Charter Fellow, Litigation Counsel of America; Charter Member, Institute of Trial Presentation, and is admitted to the California, Colorado, Hawaii, Oregon and Washington bars. He has also been retained as an expert witness and testified in trial, arbitration and deposition regarding: the duties of defense counsel, the effectiveness of defense strategies, the reasonableness of settlement values and defense costs, and insurance coverage issues.