By Robert Hirschhorn and Lisa Blue

Law360 (April 29, 2020, 5:27 PM EDT )

Robert Hirschhorn

Lisa Blue

Two unintended but not surprising consequences of the stay-in-place orders issued throughout most of the United States are that many, many people are suffering from anxiety, depression and agoraphobia. And while courthouses throughout the nation are still conducting court business to a limited degree, jury trials have come to a screeching halt. Trials that were in progress have been adjourned and judges will either attempt to resume the trial at some point in the not-too-distant future or will have to declare a mistrial and start all over.

The COVID-19 pandemic has wreaked havoc on our judicial system, our jury trials and most importantly, on our jurors. This new reality will adversely impact the restart of jury trials in our country. This article will set forth six recommendations for making jurors feel safe and secure when they are called upon to serve as potential jurors.

1. Letter of Assurance From the Chief Administrative Judge

Everyone that has a computer, smartphone or mailbox has received some type of COVID-19 update that explains what the company or agency is doing to keep customers or people safe. A similar letter must accompany the summons for jury duty.

Potential jurors rightfully are entitled to know what the courts are doing to make sure they will not be exposed to the coronavirus. Jurors will be reluctant to do their civic duty unless they can be unequivocally assured that their health and safety will not be in harm's way.

2. Hardship Questionnaire That Accompanies the Summons for Jury Duty

When potential jurors received their summons for jury duty in the past, many of them only thought about the inconvenience that performing this important civic duty would cause. In the post-COVID-19 world, many jurors are going to feel outright fear and terror at the thought of going to the courthouse, being in a large group of people, and having to potentially serve on jury for who knows how long a period of time. Just the prospect of this will be paralyzing to a substantial number of our prospective jurors.

It's important for the jury administrators throughout our country to recalibrate the show rate of citizens they have summonsed. We believe for at least six months or a year, many more potential jurors are going to be unwilling, unable or simply afraid to serve as a juror. Under the unique circumstances we now find ourselves and our court system, we believe that the jury administrators and courts would be better off finding out at the front end whether a potential juror is strongly predisposed to not serving as a juror.

Before our current climate, it made sense to send out the summons, have the jurors come to the central jury room and make determinations regarding hardship at the courthouse. That made sense because the vast majority of people had absolutely no fear of going out and mingling or sitting with a large group of strangers.

That is simply not the case today. People were told to stay at home, people only went out for absolute necessities. The restrictions will soon be slowly lifted but the cloud of fear will take a while longer to dissipate.

If the courts use the old technique of making jurors come down to the courthouse, there are going to be many angry and scared people that will potentially taint and frighten other jurors. Until we can get back to some semblance of normalcy and confidence, we believe jury administrators need to take the extraordinary step of determining which potential jurors are absolutely unable or unwilling to serve as a potential juror.

We are recommending that a simple, one-question questionnaire accompany every jury duty summons. Depending on the jurisdiction, the simple questionnaire can either be filled out online as would their juror information card, or the potential juror would fill it out, sign it and returned the questionnaire to the courts via an accompanying postage paid envelope. Below is the questionnaire that we are proposing:



3. Availability of Gloves, Masks and Hand Sanitizer

When members of the community show up for jury duty, temperatures need to be taken, gloves and masks need to be handed out before they enter the courthouse for security screening, and hand sanitizer needs to be available throughout the building.

Because of the asymptomatic qualities of this deadly virus, these are the minimum precautions that need to be taken to make sure our jury pools believe that the court system is treating health concerns just as seriously as security concerns are treated. Until there is a vaccine, the health protocol has to be just as vigorous as the security protocol.

4. One-Day or One-Trial Jury Service

A number of courts throughout our nation have petit jurors serve for a set period of time. In many of these jurisdictions, potential jurors will show up on the first day and if they are not chosen to serve on a jury, they are instructed to call in each night to see if their service will be needed the next day.

This is a vast improvement over the old system where jurors were required to show up at the central jury room each day and just wait around to see if they were needed for another trial. But as much as our system has improved the process, the current trying time requires us to move in a different direction.

A number of courts subscribe to the "One Day, One Trial" model, which means that people are not required to come to court for more than one day of jury duty — unless they are assigned to a courtroom for jury selection — or serve on a trial more than once every 12 months. We believe, for the benefit of our jurors, every court should adopt this model until people again get comfortable with being in a confined space with a number of strangers.

If you want a higher percentage of your prospective jurors to show up for jury duty, they need to know right off the bat that their jury service will be fulfilled by the end of the day or the end of the trial.

5. Six-Person Juries

Many courts throughout our nation still have civil cases decided by a 12-person jury. To have any real prospect of restarting our jury trials, the time has come to reduce the size of our seated juries. While pundits and experts can argue and disagree on whether smaller juries are better or worse for the judicial system, we believe that the engine that drives our trials are juries.

The COVID-19 pandemic has created a very realistic threat to our fundamental right to a trial by jury, if vast numbers of citizens are afraid or unwilling to perform their civic duty. Until now, jury duty meant that citizens had to sacrifice some time and some money to serve. Most jurors were willing to make that sacrifice for the good of their community and country. The possibility of also having to sacrifice one's health is simply asking too much for many jurors.

It crystal clear that to balance these competing interests — the system's healthy need for citizen participants versus the citizen's need to protect their health — the 12-person jury must be replaced by the six-person jury.

In Texas, civil litigation is divided into county courts and district courts. County courts seat six jurors and district courts empanel 12. In many of the larger municipalities in Texas, the county courts do not have monetary limitations; thus for venue purposes, a substantial injury case could be filed in either county court or district court. The result has been that cases filed in county courts are typically tried quicker, and there is no empirical data showing that county court verdicts are significantly higher or lower than a similar case being tried in a district court.

Therefore, for the well-being of our jurors and our cherished right to a jury trial, all civil courts in our great nation need to follow the lead of some states as well as the federal courts and have civil cases decided by juries of six.

6. Shorter Trials

Jury trials are time-consuming and expensive propositions. They are one of the cornerstones of our democracy and freedom but they are an inconvenience at least and a severe hardship at worst for many of our jurors.

The answer is not professional jurors or dismantling the jury system. Rather, the answer is shorter trials. Most participants are all for shorter trials. The judge, the court personnel, the parties and, most importantly to us, the jurors, all favor full, fair and efficient trials.

We have been involved in a number of cases where the amount in controversy was in the tens and even hundreds of millions of dollars, and the cases were tried in 12 to 15 hours per side! While that may seem like a Ripley's fact, the truth is many cases, even very large cases, can be tried in a week or less.

Our view is that for the next six to 12 months (and maybe even longer depending on the state), it is going to be very difficult to get citizens to answer the call for jury duty. People are conditioned and programmed to wanting to know when events that are important to them will begin and end. That's why airlines, trains and buses tell passengers departure and arrival times, it's why all sports have some type of clock, schools have class periods, and why church services have programs.

If we want to manage the expectations of prospective jurors, and have a higher percentage of them show up for jury service and be willing to serve on a jury, we need to give more consideration to the commitment made by the jurors when calculating the length of a trial. We believe that the vast majority of routine trials can be tried in a week — day 1 is jury selection and opening statements, days 2-4 is trial, day 5 is closing arguments and jury deliberations.

It takes some getting used to, and it definitely requires more organization, preparation and prioritization, but the benefit is that cases will get to trial much quicker and, just as important, you will have more jurors willing to serve and they will be more focused on the case.

We realize that not every case can be tried in a week. There are a plethora of factors that impact the length of trial — complexity of issues, number of witnesses, parties and causes of action. But just consider this, if a patent case involving hundreds of millions of dollars can be tried in 15 hours per side — as has been our experience — surely your case can as well.

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Robert Hirschhorn is a trial consultant and attorney at Cathy E. Bennett & Associates Inc.

Lisa Blue is an attorney at Baron and Blue PLLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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