National Institute for Trial Advocacy

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COVID, THE COURT AND THE FUTURE OF THE JURY TRIAL

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As courts around the country have struggled to continue operations in the face of the unprecedented coronavirus pandemic, each state and the federal courts have issued their own set of guidelines to try and resume trials. However, each jurisdiction, and each judge has also implemented their own set of practices, given their resources, staffing, budget, and judgement. While most of these national, regional, and individual practices have been conducted on a trial and error basis, the goal of this conference is to provide practical recommendations on procedures, resources, and skills for both courts and attorneys who are looking to conduct jury trials in this challenging time.

CLE credit will not be provided for this summit.


This conference is free of charge. In lieu of a registration fee, we ask that you consider making a charitable donation to everyoneon.org. This nonprofit's mission is to create social and economic opportunity by connecting low-income families to affordable internet service and computers and delivering digital skills trainings. When you make your donation, write in NITA OCP Summit in your donation order.  Donate today.


AGENDA

Introduction and Update

Speaker: Richard Gabriel
, President, Decision Analysis, Inc. and Founding Board Member of Online Courtroom Project, Los Angeles, CA

Goals of the conference: to provide tools, resources, skills and a forum for the courts and attorneys to discuss the best approach for in-person and online court proceedings:

• Overview of what courts are doing around the country
• Outline the challenges and concerns with in-person and online jury trials


Panel 1: Practical Tips for In-Person Trials

Moderator:
Ken Broda-Bahm, PhD.
, Senior Litigation Consultant, Persuasion Strategies, Denver CO

Panel:
David Slayton, Administrative Director, Office of Court Administration, Austin, TX
Hon. Kerry W. Meyer, Hennepin County District Court, MN
Cory Buland, Susman Godfrey , Gastonbury, CT.

•The science of the coronavirus
•Effective ways to social distance and layout the courtroom
•How masks affect communication in in-person trials
•Different courtroom options – conference centers, movies theaters, gyms, etc.
•Safe practices for health checks and cleaning facilities
•How to manage case volume in a courthouse
•How to manage trial if staff, attorneys, clients, or jurors become sick or exposed
•How empathy and emotion work in a masked and socially distanced trial
•Successful methods for presenting evidence and arguments in a masked and socially distant environment

Panel 2: Practical Tips for Hybrid and Online Trials

Moderator:
Hon. Mark A. Drummond (Ret.)

Panel:
Hon. Matthew W. Williams
, King County Superior Court, WA
Hon. Jo-Lynne Q. Lee
, Alameda County Superior Court, Department 18, San Francisco CA
Coreen Wilson
, Partner, Weick Wilson, PLLC., Seattle, WA
Kenneth R. Friedman, Partner, Friedman | Rubin, Bremerton, WA

•Best use of online questionnaires
•Best voir dire practices - (Group vs. Individual) and (Judge and attorney questioning)
•How to handle peremptory and cause challenges
•Use of alternates
•Preparing witnesses for online testimony
•Preparing cross-examination in online trials
•Use of exhibits and demonstrative aids in remote trials

Panel 3: Practical Tips for Complete Online Trials

Moderator:
Karen Lisko, PhD.
,
Senior Litigation Consultant, of Perkins Coie, Phoenix, AZ

Panel:
Hon. Emily Miskel
,
470 District Court, Collin County, TX
Hon. Pamela Gates
,
Presiding Civil Department, Maricopa County, AZ
Hon. Nicholas Chu
,
Justice of the Peace, Precinct Five, Travis County, TX
Ricky Raven,
Partner, ReedSmith, Houston, TX

•Judicial pre-trial conferences
•Attorney preparation
•Instructions for jurors on participating meaningfully in online jury service
•Types of cases that will and won’t work for online trials
•Ability to streamline cases for online trials
•Opening statements and closing arguments
•Attorney presentation and persuasion skills in an online forum
•How empathy and emotion work in online trials
•Securing and enabling online jury deliberations

Panel 4: Implications for Post-Covid Litigation and Trials

Moderator:
Reuben A. Guttman
, Founding Member, Guttman, Buschner & Brooks PLLC, Washington, DC

Panel:
William W. Fick, Founding Partner
, Fick & Marx LLP, Boston, MA
Hon. Luis Felipe Restrepo
, US Court of Appeals for the Third Circuit, Eastern District, Philadelphia, PA
Professor Scott Dodson
, James Edgar Hervey Chair in Litigation and Geoffrey C. Hazard Jr. Distinguished Professor of Law, UC Hastings School of Law, San Francisco, CA

•Constitutional challenges imposed by the pandemic – the confrontation clause and the speedy trial act
•How remote hearings will change law practices
•How remote witness interviews and depositions will change law practices
•How technology and remote practice will affect substantive procedural rules
•How remote ADR will change resolution practice
•How technology will affect litigation costs
•Increasing jury trial efficiency and juror satisfaction



Session #1: Practical Tips for Judicial and Attorney Trial Planning

Moderator:
The Hon. Lisa M. Rau (Ret.)
, Owner, Resonate Mediation and Arbitration, LLC, Philadelphia, PA

Panel:
Hon. Brad Seligman
, Alameda County Superior Court, San Francisco, CA
Dave Ongaro
, Managing Partner, Ongaro PC, San Francisco, CA
Hon. Jennifer D. Bailey
, Eleventh Judicial Circuit of Florida, Miami, FL

•Understanding the law regarding in-person masked trials and online trials
•Jury instructions for jurors to enhance attention and lessen distraction
•Which cases work for in-person or for online trials
•Agreements on trial schedules and protocols
•Motions related to assisting the court in conducting in person or online trials

Session #2: Practical Tips for Technical Expertise and Technology

Moderator:
Jim McMillan
, Principle Court Technology Consultant, National Center for State Courts, Williamsburg, VA

Panel:
Professor Frederick Lederer
, Chancellor Professor of Law and Director of the Center for Legal & Court Technology (CLCT) at William & Mary Law School, Williamsburg, VA
David W. Bartee
, Director, Court Technology Office, Fairfax County, VA
Ted Brooks, Litigation-Tech LLC, Los Angeles, CA
Noah Wick, National Director of Litigation Consulting, Seattle, WA

•The technology needed for online trial practice – hardware and software
•Understanding the new medium
•Internet connections needed for online trials
•How to equip jurors or parties that may not have proper equipment or internet connections
•Different screen views and use of rooms
•Training needed for staff to manage courtroom technology
•Troubleshooting options

Session #3: Practical Tips for Online Presentations

Moderator:
Christopher J. Dominic
, President & Senior Consultant, Tsongas Litigation Consulting, Inc., Portland, OR

Panel:
Alicia Aquino
, Founder, Aquino Trial Services, San Diego, CA
Lisa DeCaro
, Founder, Courtroom Performance, Inc. Golden, CO
Carol B. Sowers
, Communication Consultant, New York, NY

•How to effectively communicate on camera vs. in-person
•How to deliver persuasive opening statements and closing arguments online
•How to effectively conduct direct and cross examinations in an online forum
•How to effectively use demonstrative and trial exhibits to visually illustrate the evidence and your story of the case
•How to keep jurors (and the judge) engaged in your case

Session #4: Best Practices for Online Jury Selection

Moderator:
Dr. Jeffrey Frederick
, Director, Jury Research Services Division at National Legal Research Group, Inc., Charlottesville, VA

Panel:
Hon. Matthew W. Williams
, King County Superior Court, WA
Jennifer M. Smitrovich
, Principal/Owner, Favros Law, Seattle, WA
Austin K. Yancy, Associate, ReedSmith, Houston. TX

•Online questionnaires
•Establishing jury selection procedures
•Administration of the selection process
•Attorney preparation for the selection process
•Voir dire design and question design
•Making cause and peremptory challenges

“Every different phase of the spread of the virus has resulted in redefining procedures and whenever we change, then we have to sort of redefine and restructure.”

- Pamela Gates, civil presiding judge in the Superior Court in Maricopa County, Arizona, on keeping up with the constantly evolving onslaught of information about COVID-19.

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html

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