Now that the courts are beginning to get back to business, will we continue to have remote witnesses and juries? That's a great question, and we'd have a completely different answer had it not been for COVID-19. What we've just experienced is one of the fastest implementations of technology by the legal professions ever.
Technology, when used properly, can make you more effective and efficient in trial. It used to be a major strategic consideration whether to use TrialDirector and risk appearing as though you were spending too much money, or had very deep pockets as a defendant. Now, there is no justification for such an argument, as jurors clearly understand where the big bucks are being spent -- and it's not on a few PowerPoint slides. They might not understand the difference between slides and trial presentation software, but jurors do appreciate visuals.
So back to our question. The short and simple answer is yes and no.
Yes, we will continue to utilize remote appearances, especially in hearings, bench trials, and for cost-savings and convenience when expert witnesses are required to travel cross-country and spend a week or so in a nice hotel. Clients simply can't justify that.
U.S. District Judge Jed S. Rakoff of the Southern District of New York has said, “They will continue, particularly when there are out-of-town lawyers who don’t want to spend two days for one hour in court on a motion that they have to argue, the judges will continue to allow, and even encourage, Zoom conferences.” (See Here to Stay: Expect Remote Hearings to Become Post-Pandemic Fixture, Panelists Say, New York Law Journal)
No, it is not at all likely that anyone wants to have jurors appearing remotely, although recent studies have shown that the majority of potential jurors would prefer to serve remotely. Further, remote service options actually increase the diversity and size of the pool. At the very least, jurors should be able to handle all the preliminary duties remotely, including initial reporting, detailed questionnaires and even voir dire.
"It has been argued that online jury panels cannot be as diverse as a normal panel given the technology that a prospective juror would need to participate in an online trial. While we certainly experienced technology issues with a few of our prospective jurors, one must also consider the ease with which one can report for jury service. Rather than have to drive, take a bus, get a ride or otherwise find a way to travel to a central courthouse location, prospective jurors can participate as citizens from the comforts of their homes. Or, if they don’t have the proper technology, they can participate from the comforts of their local library. No system will be perfect for everyone. But, given the many people who have limited transportation options or disabilities that prevent mobility, online trials may, in fact, increase diversity and participation in our jury system." (See Online Courtroom Project Demonstration Trial)
Finally, many courts have purchased and installed remote video equipment. It isn't likely to be pushed back into the corner and never used again.
