To the relief of many litigants whose trials have been delayed due to the ongoing COVID-19 pandemic, the New Jersey Supreme Court issued an order authorizing civil jury trials to resume virtually. The order sets out two phases for implementing the virtual trials.
During the first phase, which will begin on February 1st, virtual civil trials will start in Atlantic, Cape May, Cumberland, Gloucester, Salem, Monmouth, Passaic, and Union counties. The consent of both parties to proceed virtually will be required.
Virtual trials in each county will start with cases involving a single plaintiff and a single defendant with a “modest number of live witnesses” and will “focus on a limited number of issues in dispute.” More complex cases, such as professional malpractice or cases that require more than a few weeks to complete, will be scheduled only after one or more straightforward trials have been conducted in the county. To determine if a case is not suitable for virtual trial, the courts will consider operational factors like whether the evidence would be difficult to present in a virtual format or whether a case would require multiple interpreters for parties and witnesses.
On April 5th, as part of the second phase, virtual civil jury trials will expand statewide. During this phase, consent to proceed virtually will no longer be required. The order noted that the second phase will continue for as long as necessary based on the COVID-19 pandemic.
To minimize health risks, juror selection and participation will be completely virtual. The order emphasizes that judges should take a more lenient role during the voir dire to allow for more attorney participation. The model voir dire questions will also be expanded to address changes to the voir dire and trial format. This will include at least two open-ended questions that will probe the jurors’ understanding of the public health precautions that will be followed and their commitment to participate in a virtual trial.
To account for the possibility that jurors might experience technical problems or COVID-19 related issues that would prevent them from continuing with a trial, there will be up to two additional alternate jurors selected. If needed, the summoned jurors will be provided with tablets that they could use throughout the virtual selection process and trial.
Given the nature of virtual proceedings, the trial judge will provide an enhanced jury charge that will emphasize that jurors must give their full attention to the trial. As an additional precaution, jurors may be required to do a 360° video scan of their room to ensure that they are in a private setting.
The trial judge will conduct a comprehensive pretrial conference that will address the virtual trial protocols and procedures. During the pretrial conference, it will be determined which parties will be present in the courtroom and which will attend virtually. The judge and attorneys may agree to conduct “hybrid” trials, by which the judge, attorneys, and even witnesses could participate from the courtroom. However, given the possibility of a future executive order that limits or suspends indoor gatherings, the judge and attorneys should plan to continue the trial in a fully virtual format if needed.
The pretrial conference will also address the method of presenting evidence to the jury. Witnesses that will be testifying virtually will be required to swear or affirm that they will not communicate with or receive messages from anyone while testifying. The Director of the Administrative Office of the Courts will guide judges on the format for documents, images, pictures, and audio and video recordings.
Finally, a pretrial order will be entered memorializing the relevant features of the virtual trial.
This February will be the first time that civil jury trials take place in New Jersey since the beginning of the pandemic.
While these trials will be conducted in an entirely new format, judges, attorneys, and the parties have already been familiarizing themselves with virtual proceedings. The order noted that since the start of the pandemic there have been “more than 120,000 remote court events involving more than 1.45 million participants.” In addition, “more than 500 New Jersey residents have served as jurors in hybrid trials and virtual grand jury panels.”
As the pandemic continues to surge on nationwide, other state courts may adopt similar approaches to resume civil jury trials.