When the COVID-19 pandemic took hold of our country back in March 2020, courts across the nation had little choice but to cease legal proceedings and trials out of safety concerns. As we’re on the verge of a new year, many courts are struggling to find a way to hold proceedings in a safe way. While some courts are slowly beginning to open and resume daily operations, others are taking a different approach: remote jury trials.  

During the past ten months, the legal industry looked on as bench trials, hearings, depositions, and even criminal jury trials were successfully conducted virtually through video conferences – with jurors as well as the attorneys and parties participating from their offices or homes 

The pandemic forces all participants into hard choices — choices they must make under great uncertainty.  

The simplest choice might be simply to wait on a trial until after the pandemic has eased and the world has returned more or less to normal. With the recent release of potential vaccines, that may be the safest course. And that choice may effectively be forced on many participants — especially people in civil lawsuits. The courts are backed up, especially with criminal cases. Generally, criminal cases are given priority in assigning trial dates. So, given the backlog of cases, it may be that many civil plaintiffs will have no choice but to wait an extra year or more for a trial date. For many plaintiffs, therefore, by the time a trial date becomes available, the pre-pandemic norm may have largely returned. 

For those plaintiffs who have the option of a trial before the pre-pandemic norm returns, the choice is difficult. Delay itself harms plaintiffs. But a trial in pandemic conditions poses risks, too. A pandemic-conditions trial can go one of two general ways: Either the trial is held in person, with COVID safety precautions; or the trial is held by videoconference. Both approaches create uncertainties and risks.  

An in-person trial under COVID conditions creates a serious risk of a skewed jury pool. The potential jurors who are especially cautious will be less likely to show up for jury service, less likely to be selected if they do show up, and less likely to be in the calm, attentive state of mind necessary for jury service if they do end up on the jury. So far at least, attitudes toward COVID risk seem to correlate with political and ideological attitudes. So, if COVID-cautious jurors are systematically unrepresented, that will likely mean a skewed jury. That’s a major risk, which any civil plaintiff should consider seriously. 

Remote jury trials by video conference likely ensure a jury that better represents the citizenry at large. But, of course, a video-conference trial creates serious practical problems. It can be hard enough to keep the attention of jurors when they’re sitting in the jury box. The problem grows greater when they’re sitting at home and can surf the web or text-message their friends on their phones during the trial. Similarly, we rely on jurors to assess the credibility of witnesses — in part by observing their body language. Witnesses on videoconference have faces and voices (which may be enough) but their body language stays mostly offscreen. These and other problems with videoconference trials raise serious concerns. 

For those plaintiffs forced to wait for a trial until the pre-pandemic norm returns, there are no hard choices to make. For those with a choice, the choice is hard, and there is no clear-cut rule to guide the choice.