Verdict: Jury unanimously finds in favor of remote trials

After nearly five months in trial, almost four of which were conducted remotely through Zoom, the San Bernardino jury in the Roundup trial, Stephens v. Monsanto, came to their verdict on December 9, 2021. The jury, in the end, heard closing arguments and deliberated in-person.

Recognizing that this was the first remote trial ever conducted in Southern California, Judge Frank Ochoa asked the jurors to return to the jury deliberation room after their verdict was delivered to provide feedback about their remote experience. For this debriefing, Judge Ochoa allowed Lee Popkin, a partner from Proskauer Rose LLP, and my senior associate, Melanie Palmer, to join him with the jurors. I'll let Melanie set the scene:

Following the jurors in a single file line down the back corridor of the courthouse and into the deliberation room, I felt like I was getting an exclusive, behind-the-scenes tour. Lee and I were the last to enter the room, and by the time we got there the jurors were all seated at tables that faced each other, like the inner-circle of a Socratic seminar. Name tag tents made of folded legal pad paper were displayed in front of each juror. Lee and I quickly sat in the furthest corner, forming the outer-circle of active listeners with Judge Ochoa. Spanning one of the walls was a large whiteboard that was the length of the room and covered in handwritten notes. Someone had tried to erase the notes, so the writing was mostly illegible, but the ink was too dry so only smudge marks remained. Even with just the smudges, I could see that they were mapping out the evidence presented during the trial.

As Judge Ochoa began posing questions to the jurors about their remote experience, I braced myself for short, monosyllabic answers that would satisfy the judge's questions but still get them out the door in time to beat rush-hour traffic. After all, the jurors had already given us almost five months on their time; it was understandable that they would want to resume their normal lives as soon as possible.

To my surprise, all 12 jurors openly engaged in the discussion. Two jurors started the conversation by exclaiming they "loved" the transition to Zoom. "Loved." And with that, the jurors went around the circle, each sharing with the group the benefits reaped from the conversion. The common theme underlying their comments -- remote trials eliminate many (dare I say all) of the hardships that prevent jurors from enjoying their service on the case.

To understand the full weight of the jurors' comments, it's worth a reminder that we had a very limited trial schedule: Monday through Thursday, 10:00 a.m. to 12:00 p.m. and 1:30 p.m. to 3:30 p.m. Once you account for sidebars, unexpected delays, and our regularly scheduled 15-minute morning and afternoon breaks, there was a lot of "downtime" in our jurors' days that they could not effectively utilize. The switch to remote proceedings allowed them to reclaim that time. In fact, a number of jurors were still working from home, so the switch to remote gave them the opportunity to fulfill their work obligations during court breaks without requiring them to work late into the night to make up for the lost time. And because all but two jurors were participating from the comfort of their own homes, there was "no heartburn" when an unexpected delay arose -- jurors could quickly resume their normal lives with just the stroke of a Chromebook key.

One juror shared that he took those opportunities to catch up on sleep. "A break? No problem. I just set my alarm for five minutes before the time we have to be back on Zoom, and I take a nap." While I have seen many jurors and perspective jurors nap at the courthouse, I have never known anyone to be happy about it, so this was a nice twist.

The switch to Zoom also removed many of the practical hardships that jury service imposes on jurors. The jurors were glad to drop the commute, during rush-hour traffic, to and from the courthouse. The endless searching for the elusive parking spot was not at all missed. One juror joked that parking around the courthouse is so scarce that he had to park his car in the next county and walk over to participate in in-person deliberations. Another juror joked that the switch to remote not only saved him money but it also saved his waistline because he made lunches from home instead of resorting to the limited takeout options near the courthouse.

To be fair, there were some negative comments, too. This jury seemed to understand the magnitude of being one of the first juries to have participated in a remote trial, and they weren't shy about sharing the various ways we could have improved the experience. According to the jurors, the slower processing speed and limited capability of the Chromebook hampered the presentation of evidence. A number of the younger jurors compared the Chromebook to their gaming computers, which they admitted is like comparing a Kia to a Tesla. Nonetheless, they strongly recommended using a system with greater bandwidth and a larger screen that allows jurors to simultaneously view, in equally sized windows, the witness and the displayed exhibit. In fact, when an exhibit is being displayed, the jurors should still be able to see the judge, all counsel, and the witness.

In terms of the actual presentation of witnesses, the jurors said camera angles are imperative. When a witness sits too close to the camera, jurors cannot see the witness' body language, hand gestures, other non-verbal cues, or whether the witness is looking at a document. The lesson here: embrace the wide angle. To preserve the formality of the courtroom setting, invest in a professional background. Some jurors commented that Judge Ochoa's virtual background of the court's official seal reminded them of the importance of their role as jurors and their duty to serve.

So, are in-person trials a thing of the past? According to these jurors, not exactly. Despite the many benefits of conducting trial remotely, many jurors felt it was incumbent that jury selection remain in-person. A juror explained that walking into the courthouse, seeing the grandeur of the courtroom, and observing the formalities of court proceedings helps impress upon the jurors the significance of their roles. Another juror replied that this could not be easily replicated with an entirely remote process.

Moreover, opening statements, closing arguments, and deliberations have to remain in-person. The jurors felt that these were critical times when there should be a free flow of information that should not be disturbed by any technical distraction or glitch. As the jurors all agreed on this final point concerning deliberations, I looked around the room and could see what they meant. Pointing to the smudged whiteboard and the circle they had created with their tables, one juror said, "we couldn't have done this on Zoom."

It's Kiesel again. When this jury was selected back in early August, none of us could have imagined that we would be forced to either declare a mistrial or move the entire process online. Further, when we started the trial, no other COVID protocols were required for the trial to commence aside from wearing masks. Even if we had employed all reasonable precautions, there was no guarantee that we could have prevented the courtroom outbreak in the first instance.

My ultimate takeaway from our five-month, mostly remote, trial: In these post-COVID times we must accept that the way we conduct jury trials may be forever changed, and we need to adapt accordingly by embracing technology and understanding its advantages and disadvantages.

As I am preparing for my next jury trial, delayed by well over a year in North County San Diego, the California Legislature has passed Senate Bill 241 (now Code of Civil Procedure Section 367.75) that permits remote appearances in civil cases. With witnesses spread throughout Southern California, Judge Cynthia Freeland has agreed to allow counsel to call witnesses remotely even though we will be engaged in an in-person trial. This decision is critical to the efficient operation of the court, the safety of all parties involved, and access to justice. There are at least a dozen witnesses whose testimony will last less than an hour and all of whom can and should testify remotely. The court will be configured with a top-of-the-line 75-inch LCD TV, which we can buy with the savings from the remote appearance of a single witness.

At the end of the day, the Stephens trial proves a remote trial is not only possible, but in some ways, it's preferable. The future is here. Let's embrace it and see where we go from here. 