As the courthouse doors clanged shut, the plaintiff bar and our clients watched helplessly as civil trials were pushed into the unforeseeable future, A general sense of gloom descended upon us. Now what, we wondered..
Three months later, little has changed in terms of resurrecting the civil trial. Various committees have been formed by the judges who are consulting with groups of attorneys. There have been whispers about zoom, or moving to the now unused convention center. Temporary stop gap measures to get us through the pandemic disaster. All requiring much secrecy because…well, because maybe if the brainstorming were to be made public everyone would know what a mess this is (hint: we already know this).
But what if instead of being the worst thing to ever happen to our civil justice system, this pandemic turned out to be the best.
The civil jury trial is an inefficient mechanism.
It is technologically antiquated.
Very few of the courts allow electronic exhibits.
Motions have to be brought (because defendants refuse) to allow testimony by live video feed – even of doctors in other states, or witnesses in other countries and even then courts will often deny these requests.
Some judges will not allow the opening statement to include the display of exhibits that will be introduced at trial anyway.
In King County Superior Court – there is typically one single solitary electrical outlet available in each courtroom for all of the lawyers to share.
The longest part of voir dire (choosing a jury) involves seeing which prospective juror has hardship (preplanned vacation, economic or other personal hardship excusing them from service). Not in actually exploring any real biases.
There are four and a half hours of actual trial time in a trial day. Of that 30 minutes is usually taken up with lawyers arguing motions before the judge or other housekeeping matters. Another 15 minutes is taken up with some other problem. So at best actual trial time is four hours or less a day.
There are hardly ever time limits so that even if plaintiff quickly puts on a witness, the defense can spend forever cross examining that person. Some judges allow not only redirect – but recross and re-redirect.
An example of an antiquated formality is seen in how to impeach a witness by a prior deposition. Here are the steps a lawyer needs to navigate: (1) elicit an answer that is in conflict with the prior statement; (2) ask the witness if they remember testifying on such a date in a deposition; (3) hand to the clerk a sealed envelope containing the original (not a copy) of the deposition; (4) wait for the clerk to open the envelope and mark the deposition with a number; (5) take the deposition back from the clerk; (6) hand a paper copy of the deposition transcript to the Judge so they can follow along; (7) hand a paper copy of the deposition to the witness; (8) wait for the defense to get to the page of the deposition you are going to be quoting from; (9) say the magic words – in your deposition didn’t you say this; (10) and after the witness says yes that’s what they said – impeach them by saying – well that is different than what you are now testifying to isn’t it – which is the correct answer – your testimony today or the testimony from your deposition.
Another example is qualifying an expert witness. I was in a trial where the defense lawyer spent one and a half hours asking the defense expert to list every school they had ever attended, every paper written, and every award ever received.
Our Courts Must Acknowledge that our world has changed this past century in ways that our trial system never contemplated. People process information differently largely due to the computer age. Plus there is the phenomena of the ever diminishing human attention span.
The law is a pedantic beast, stubbornly set in its ways. It loves its precedence. And resists change with a vengeance.
Enter the coronavirus. Drastic measures must be taken to get trials going again. Suddenly here is the opportunity of a lifetime. Our courts are presented with the prospect of being able to modernize civil trials for the long term. Here are my hopes:
- Voir dire by Zoom presided over by a Court Commissioner or Judge Pro Tem so that the Trial Judges can focus on the actual trials.
- Increase of jury demand fees. Currently a jury demand is $250 or less. This number is based upon nothing. Ninety percent (at least) of jury demands are filed by defense lawyers hired by insurance companies. Sliding scales of fees should be created based upon the complexity and type of the case. For example why should John Doe v. Jane Smith car crash case with a one week trial length have the same jury fee as a three month class action trial. Of course these fees would be waived if a party is indigent just as filing fees are waived now.
- Promote six person jury trials. Incentivize this option through rule making. For example demand for a 6 person jury is $1,000. Compared to $10,000 a 12 person jury. This would seriously help with social distancing in the short term
- Get rid of the ritualistic formalities of trial which add layers of confusion and wasted time.
- Require preadmission of exhibits except for those used in impeachment or to be created during trial.
- Abolish video perpetuation depositions unless someone has died – using video conferencing instead.
- Allow video conferencing of any witness.
- Standardize Requests for Admissions. Then impose substantial fees if the admission is denied but later proven. I.e. the reasonableness of medical bills where now defendants will force plaintiffs to bring in health care providers to prove their bills were actually issued.
- Create separate trial tracks for different categories of cases, i.e.: simple less than one week; simple more than one week; and complex.
- Work with counsel to dramatically shorten trials (which can only be done if antiquated formalities are truncated).
- Train all judges and staff in modern technology: powerpoint, adobepro, word, excel.
- Eliminate the requirement of providing hard copies of exhibit notebooks and trial briefs to the court in triplicate.
- Require all courthouses to accept and utilize electronic exhibits.
- Require all trial counsel to be technologically adept or require them to bring in tech assistance.
- Add an outlet.
- Encourage the efficient, creative and competent presentation of trials to juries, by any other means possible.
Photo: The last time we had a case meeting in my office pre -COVID19. February 26, 2020,