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New Report from NJSBA Pandemic Task Force Committee on the Resumption of Jury Trials Explores Issues, Makes Recommendations

November 17, 2020
Contact: Kate Coscarelli
New Report from NJSBA Pandemic Task Force Committee on the Resumption of Jury Trials Explores Issues, Makes Recommendations
Virtual civil trials should be voluntary to start, with central goal to ensure transparent, deliberative process that bolsters public confidence  
With civil jury trials on hiatus due to the COVID-19 pandemic, the New Jersey State Bar Association understands the importance of moving forward with civil jury trials to resolve matters for members of the public and businesses that have spent the past seven months in a holding pattern. At the invitation of the Judiciary, the Association’s Pandemic Task Force Committee on the Resumption of Jury Trials provided a series of recommendations, formed after researching options taking place around the country, that would accommodate civil jury trials in a virtual environment while ensuring that those trials are fair, just and produce a credible result.   
The Committee, composed of civil trial attorneys, criminal defense attorneys, county prosecutors and retired members of the Judiciary, sent its report to the Judiciary this month. It has previously released several reports and analysis on jury selection and the hybrid criminal jury trials that have been held in recent weeks.   
At its core, the NJSBA proposes an initial statewide, voluntary pilot program for virtual civil jury trials that will allow all parties involved in the judicial process to move forward with deliberate resolve and transparency to maintain the public’s confidence in the courts. The pilot project is intended to allow for the flexibility to make adjustments, when needed, before a more robust rollout of a virtual civil trial program. In producing its recommendations, one of the main goals of the Committee was to ensure that the same rules and procedures in place for in-person proceedings are maintained.   
“The NJSBA appreciates the opportunity to provide meaningful input as the pandemic requires us all to pivot in ways unimagined before to ensure that our judicial system can continue to move forward,” the report states. “We do not believe a virtual jury trial system should be mandated until all of the participants have an informed understanding about how a virtual trial will be conducted, and until some trials have actually happened on a voluntary basis. While lawyers and judges may participate in many jury trials in a given year, for most litigants their jury trial represents their one and final chance to resolve their dispute. It is critical that their ‘day in court’ be conducted under the best circumstances we can provide, with all necessary safeguards in place to ensure the rights of all parties are adequately protected and all opportunities available to present the best case possible.”   
The report examines a number of issues, including: how jurors will be chosen; how the Court will ensure that jurors attentively participate; how evidence will be presented – live or recorded; and how a jury will be expected to securely and privately deliberate to ensure a credible result that bolsters public confidence that a fair and meaningful resolution to disputes can be reached. In addition to those considerations, the Committee recommends the Courts conduct a robust survey following trials jurors in order to gather feedback with the aim of using it to improve the process in a way that allows the Judiciary to consistently and efficiently administer a fair trial.  
Here are key recommendations contained in the report:   
Jury selection: Virtual jury trials will only be successful if the parties are assured a panel of impartial jurors. This cannot be accomplished if traditional procedural protections are reduced or eliminated.
• Counsel must be present and involved during all stages of jury selection;   
• There must be no change to the number of peremptory challenges or the overall number of deliberating jurors; and   
• There must be a searching inquiry of all jurors for potential bias.
Presentation of Evidence: The Committee expressed an overarching concern about ensuring cases would be heard by a representative jury of the community that was not encumbered by the availability of technology and that there ought to be a standardization of platforms and training to ensure litigants stand on equal footing in their ability to present evidence. Some of the additional recommendations include:
• Every trial participant should have the same or an otherwise neutral virtual background;  
• Parties should receive step-by-step instructions for viewing evidence;  
• Judges should have two monitors; attorneys should try to have two monitors;  
• A technical assistant should hold trainings with the jury prior to proceedings;  
• Counsel should be allowed to agree on evidence presentation administered by a third-party vendor;  
• Witnesses should be placed in virtual waiting rooms;  
• Documents should be locked and files submitted in specific formats;  
• Sidebars should be held in virtual breakout rooms; and   
• Jurors should not be able to use chat functions.  
Survey: The NJSBA believes that a robust survey is needed following any virtual trials. It will be critical in developing a process that allows the Judiciary to consistently and efficiently administer a fair trial.
• The survey should target methods of presenting information so that attorneys and the Court can gain valuable feedback on the manner in which jurors prefer to receive information in a virtual trial setting.    
The NJSBA vowed to continue to be an active partner with the legal community and Judiciary to find a path forward.   
“We commend the Judiciary and the legal community for all that has been accomplished virtually up to this point. Calendar calls, motions, detention hearings and settlement conferences have all evolved. Further, we appreciate the extent to which many of the suggestions we have offered to date have been incorporated to best benefit the public and those of us entrusted with the responsibility to advocate on the public’s behalf. We have all learned many lessons since we were thrust into this new pandemic era last March… We will continue gathering information in the days ahead and expect to submit additional suggestions to the Judiciary.”
Read the full report and see the other reports of the Pandemic Task Force, including its reports on virtual criminal trials and law firm reopening issues at 
Committee on the Resumption of Jury Trials Members
William H. Mergner Jr., chair
Craig M. Aronow
Hon. Dennis F. Carey III, P.J.Cv. (Ret.)
Bina Desai
Michael G. Donahue
Kathleen Barnett Einhorn
Hon. Bradley Ferencz (Ret.)
Hon. Kenneth J. Grispin (Ret.)
Robert B. Hille
Reema S. Kareer
Brandon D. Minde
Brian J. Neary
Christopher M. Placitella

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