Trials and Litigation in the Era of COVID-19: Verdict via Zoom (IV): A Look at the First Fully Virtual Civil Jury Trials in New Jersey

By: Chad M. Moore, Amelia R. Lyte

Trials and Litigation in the Era of COVID-19

This series explores various issues relating to the reopening of Courts in New Jersey in the shadow of COVID-19, including the intersection of safety measures and the rights of litigants.

Verdict via Zoom (IV): A Look at the First Fully Virtual Civil Jury Trials in New Jersey

New Jersey’s first hybrid virtual jury trial was quickly followed by the State’s two fully virtual trials. The first took place in Gloucester County on February 9 and 10, 2021 before Judge Timothy Chell.[1] The second in Passaic County on February 10, 2021 before Judge Frank Covello. [2] Both of these cases involved car accidents where each defendant admitted fault for causing the respective accidents. Much like the hybrid trial conducted in Monmouth County that same week, these two cases were not particularly complicated with no experts testifying, agreed upon documentary evidence, and minimal testimony. However, unlike the hybrid trial, these proceedings were conducted entirely on zoom. Consequently, they were very different from the hybrid trial and will undoubtedly provide a guide for future virtual proceedings.

From the beginning, the format of the fully virtual trials were somewhat jarring. Each of the parties and the judge were pictured in little boxes on the screen rather than in a courtroom. Presentation, while always important, mattered even more in this format. The way parties chose to frame themselves within the shot, their backgrounds, the lighting, the microphone systems, and other stylistic and technical choices made huge differences. Unlike in a physical courtroom, the parties had much more control over what the jury saw; much like the difference between a stage play and a movie. In a stage play, the audience can look wherever they want on the stage. In a movie, the filmmaker can control exactly what the audience sees. While a normal trial could be compared to a stage play, this virtual format worked much like a movie with some parties taking more advantage of this new format than others. A big problem was that it was sometimes difficult to hear or understand the witnesses and attorneys, particularly when they were wearing masks. Technically, the trials had additional problems. For one, it was unclear what the jury was actually seeing based on the recorded footage from the trials. In zoom, parties can be viewed in a gallery setting as a bunch of equal sized tiles next to one another, or they can be viewed with the current speaker taking up the entirety of the screen. Both formats presented problems. In gallery view, the speaker appeared smaller and it could be difficult to focus solely on them. Conversely, when only the speaker was visible, it was jarring to constantly switch back and forth between the questioner and the witness. Sometimes, the screen did not change quickly enough and you could not see the witness actually responding to the question and would only heard their answer. Needless to say, there are multiple issues to iron out. Any attorney or party looking to do a fully virtual trial will have to consider these issues.

Beyond the technical aspects of these fully virtual trials, many of the other elements were similar to the hybrid trial. The proceedings were very condensed with only two witnesses in each case and many of the main issues stipulated, leaving causation of the injuries and damages as the primary issues. Again, there were no testifying medical experts. The parties provided the jury with the medical records, reports, and “hearsay” evidence for them to evaluate along with a glossary of medical terms. The jurors were given as much court supervised time as they needed to go over the medical materials (unlike in the hybrid trial where they had 25 minutes). This was distinct from deliberation with the jurors unable to communicate with each other. Additionally, counsel in both these cases took their time during closing arguments to walk the jury through the medical records given, again, the lack of testifying doctors to explain them. The trial in Gloucester county lasted a few hours stretched over two days while the Passaic county trial lasted only one day. It bears repeating that these short timeframes are not typical of jury trials. Both juries ultimately found in favor of the respective defendants after about an hour of deliberation.

These two first fully virtual trials, as well as the prior hybrid trial, were valuable learning experiences. Constituents may see an increased use virtual trials as the Courts and attorneys become more accustomed to the technology and the platform. Clients should be aware of the shortcomings and complexities of presenting and preparing a case in this format. Hoagland Longo has prepared and conducted virtual trials, hybrid trials, and fully remote court proceedings. Should you need assistance or guidance please feel free to contact our office.

[1] The trial was recorded and is available to be seen on YouTube at the following links: YouTube (Day 1) and Gloucester Civil Judge Chell McWhite vs Ford L 6 19 (Day 2) - YouTube (Day 2)

[2] The trial was recorded and is available to be seen on YouTube at the following link: Passaic Jury Virtual Trial Civil - YouTube