Austin lawyer Carl Guthrie has felt a range of emotions—hope, concern, worry—about being the first defense lawyer to try a criminal case from voir dire to verdict in a completely virtual format.

But overall, he is resolved because of one fact: It's his client who picked the virtual jury trial.

"Regardless of whether we as client representatives and defense attorneys, in particular, want it to happen. If the train is rolling, we have to get on board, or we get left behind," said Guthrie, co-founder of the nonprofit Texas Poverty Law Project.

Guthrie's client, who faces a Class C misdemeanor traffic ticket, is scheduled for a four-hour remote trial over Zoom on Aug. 11 in Travis County Justice of the Peace Pct. 5 Judge Nicholas Chu's courtroom in Austin. It will be closely followed Aug. 19 by a weeklong civil jury trial over Zoom in 57th Civil District Judge Antonia "Toni" Arteaga's courtroom in San Antonio.

"I'm excited about doing something new, and hopefully, being a good representative of the Texas judiciary," said Chu, who plans to stream his trial on YouTube.

Arteaga said she would love to have in-person jury trials but had to recognize where the community is at in terms of the coronavirus outbreak.

"I personally did not want to mandate that someone show up for jury duty when today mandating someone to appear in public place with 11 other people could have very dire repercussions. We don't want to do that. At the same time, our job is to keep the wheels of justice turning," Arteaga said.

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First in the world?

Zoom summary jury trial On May 18, judges and lawyers in Texas picked a jury over Zoom for a "summary jury trial" proceeding, which is an alternative dispute resolution process. Photo: Zoom

Local court leaders say that Chu and Arteaga's trials are going to be the first remote criminal and civil jury trials in Texas and the United States—possibly even the world. However, courts across the state have used Zoom for bench trials since April, and a Texas court in May tested Zoom for a nonbinding alternative dispute resolution proceeding called a summary jury trial. The two upcoming remote jury trials will be different—the verdict is binding.

"We expect that there will be a backlog of jury trials when courts begin holding jury trials again," said an email by David Slayton, administrative director of the Texas Office of Court Administration. "By testing out the ability to conduct jury trials virtually, we provide another option to dispose of cases that might be appropriate for this method. We hope to learn from the virtual jury trials and issue guidance to other courts on how to successfully conduct a virtual trial."

Slayton noted that the court administrative office received a grant and spent just under $10,000 to purchase iPads with cell service, preloaded with Zoom, for any jurors who say they don't have what they need.

"The equipment will be delivered to the jurors' homes for use, or to a common location for use," Slayton said, adding that the iPads will be returned, cleaned, and loaned out to new jurors for future virtual jury trials.

Chu said his staff has asked potential jurors about their devices and Internet connection, so the court can provide technology if needed.

He said he anticipates some things will be the same as an in-person trial, like the juror check-in process and reading jurors the rules of the trial.

"I think what will be different is there's just a lot of narration that will have to be involved with the trial," Chu said. "Like if I say, 'Go that way,' you will know where I'm pointing if you are in person. But if I have to send them to a Zoom breakout room, I have to tell them ahead of time."

Chu added that his biggest challenge as the judge will be making sure that the jurors in front of their computers do not step away or check their email.

"All the things we think are totally normal in virtual meeting spaces, are habit, we cannot do in a virtual jury trial setting," he noted.

Arteaga, the San Antonio district judge, said she expects Zoom to change the typical group dynamics that play out during an in-person trial.

"There's nothing like experiencing a week together in the same courtroom. The attorneys, the judge, even my staff, and those 12 jurors—they get to know each other," she said. "They are not going to have that, to the same extent."

But she added that she still feels that skilled trial lawyers will be able to blossom using the remote format.

"Skilled trial attorneys are skilled trial attorneys," she said. "It doesn't matter, in my opinion, if it's in a courtroom, live in person, or virtually on a screen."

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Planning ahead

Like in Chu's court, Arteaga is making sure potential jurors have access to devices and Internet connections. She and a committee of four other district judges have put their heads together to figure out how to translate all of the things that happen in an in-person jury trial into a remote format, for example, how to do juror strikes or get exhibits to the jury.

"There will be a lot more planning ahead," said Arteaga.

She doesn't yet know which case she will choose for trial. Arteaga said five civil cases are ready to go, and the attorneys have all been notified. The cases were picked as possibilities because the trials will take no more than a week, and the parties have agreed to use a six-person jury.

Guthrie, the lawyer for the Class C misdemeanor defendant, said that he's heard defense lawyers discuss concerns with the remote trial format. They question if they can effectively do their jobs as trial advocates using the new medium. Lawyers also have concerns about their clients' constitutional rights, and whether the technology will run smoothly.

"The only way we fix things is to try. I think the legal system is lagging behind the world in technology," Guthrie said. "Hopefully, we can provide access to a lot more people than are getting it now. Or perhaps it backfires horrifically. But we never know until we try."

Related stories:

Now Trending in Texas: Full-Blown Bench Trials Via Zoom

Juror Walks Off to Take Phone Call as Texas Tests First Jury Trial Via Zoom

The Jury and the Screen: Judges, Lawyers Reflect on Texas' Experimental Zoom Jury Trial