Some long-delayed civil jury trials may soon be heard by jurors, though not from inside a courtroom but by people seated in front of a laptop from the comfort of a couch in their living rooms.
The Vermont Supreme Court, which oversees the operations of the state’s judicial system, has established a one-year pilot project for remote civil trials.
Civil jury trials had been on hold for well over a year due to the Covid-19 pandemic.
The pilot project is limited to civil cases, with criminal cases still to be heard by jurors in person.
In order for the first remote civil trial to take place, the judge presiding over that case as well as the lawyers for the parties involved would all need to agree to take part.
The remote civil proceedings would take place with both jury selection and the trial held over the Webex video platform, with only the court recorder required to be in the courtroom.
The judiciary will provide a laptop to jurors who lack adequate equipment to participate, and the court where the trial takes place also must address how jurors who may lack internet access will be able to access it for both the jury draw and the trial.
“Jurors participating in this manner may be directed to report to a courthouse that has adequate space for the number of jurors needing accommodation or the plan may involve use of non-judiciary space available for juror use,” according to the protocols established for the pilot program.
“Jurors who are qualified for jury service will not be excused merely because they lack equipment or an internet connection,” the protocols state, adding, “For instance, a unit may work with a local college or university to provide dedicated space and internet access for jurors during jury draw and trial.”
To ensure public access to the proceedings, according to the protocols, judges have the discretion to either provide the Webex link to interested members of the media or the public, open the courtroom for video viewing of the trial on the Webex screen where it is permitted by Covid-19 restrictions, or order that the proceeding be livestreamed.
The pilot project calls for trial testimony to be limited to six hours per day “to avoid video fatigue.”
Jurors, according to the pilot project, “will be reminded of the policies on distractions, communication with others, and the need for privacy during deliberations.”
Vermont Supreme Court Associate Justice Karen Carroll served as the chair of the committee of people from inside and outside the judiciary in establishing 42 pages of protocols for holding remote civil trials.
Vermont Superior Court Judge Helen Toor presided over a mock civil trial held in May as part of the process in setting up the protocols.
Carroll said Friday that remote civil trials are simply an option.
The court system has previously approved moving forward with in-person trials in courthouses in Vermont meeting the needed space requirements to allow for social distancing and possessing the air-handling systems to address concerns raised by the coronavirus.
“We still have courtrooms in the state and courthouses that can’t hold a civil trial,” Carroll said, pointing to the Newfane courthouse in Windham County as one example.
Carroll said she didn’t have exact figures on the backlog of civil cases awaiting trial in Vermont.
“I’m sure it’s significant,” she said, adding there hasn’t been a civil trial since March 2020. “I just don’t know the numbers or which counties are worse than others.”
The judiciary, Carroll said, is not moving forward with remote criminal trials due to constitutional issues.
“In a criminal case, a defendant has a right to confront — a constitutional right — to confront witnesses,” Carroll said. “We thought it best to just begin with civil trials where that’s not an issue.”
Jerry O’Neill, a Burlington attorney, said Friday that while he appreciates the effort of trying to come up with a way to move civil trials forward, he isn’t sure holding them remotely is a workable option.
“I think it’s very smart of the court administrator’s office to look at every option available,” O’Neill said Friday. “I think that remote trials with people at home is problematic.”
He added, “You can’t be sure what people are doing, where they’re looking at devices, or whether they are looking up information.”
O’Neill also said he doubted many attorneys would voluntarily agree to take part in such proceedings.
“I don’t think there is much enthusiasm for it,” he said. “I think most people are going to be sufficiently skeptical of it.”
James Levins, a Rutland attorney who served on the committee that developed the protocols for remote civil jury trials in Vermont, said Friday that he would be willing to volunteer to take part in a virtual jury trial.
“I would encourage attorneys to take advantage of a jury trial virtually,” he said. “They have been done in other states, and I think they’ve been done successfully.”
He said not all civil cases lend themselves to taking place over a virtual platform, such as cases where identification is an issue or those that involve complicated documents and presentations. For those, he said, he would like to see implemented a system that allowed for a six-member, in-person jury.
Levins said he understands the skepticism of remote trials and whether people will be paying attention. But, he said, in some instances people may be more comfortable taking part remotely as jurors than if they have to sit inside a courtroom.
“Sometimes people are distracted inside a courtroom, too,” Levins said, adding, “It is terrific to have the ability to try a jury case virtually.”
He said for civil cases there is a need to move the process forward in protecting the rights of people bringing legal actions while also protecting the health of people.
“That’s the main goal of the virtual trial,” Levins said.
