Stephen Susman, partner at Susman Godfrey.

Before COVID-19, civil jury trials were on the decline. Will the pandemic wipe them out altogether?

That's what Stephen Susman fears—but the legendary plaintiffs lawyer and Susman Godfrey co-founder has an idea for a solution: virtual jury trials.  

Susman, 79, is the executive director of the Civil Jury Project at NYU School of Law—the only academic center in the country dedicated to studying civil jury trials. From that perch, he's well-situated to think big about how to save civil jury trials, which he says now face "an existential threat."

I had the chance to speak with him on Monday about his work with the project (which he and his wife fund), and what it would take to actually try cases in front of juries via Zoom or a similar platform.

Susman laid out grim pre-coronavirus statistics: Federal judges presided over less than two civil jury trials on average in 2018, he said. (In 1962, the number was 10.) When jurors are summoned, only about 30% of them actually show up—and that was before the pandemic. Good luck convincing people once the country opens back up to sit in close proximity to a bunch of strangers for days or weeks on end, and for virtually no pay.

At the moment, almost all jury trials are indefinitely suspended, "but when all the jurors come back, they're going to be needed for criminal trials. Those will take precedence," Susman said. "There will be no jurors left for civil cases. If we want jury trials in civil cases, we have to do it virtually."

In recent days Susman said he's been discussing the idea with an ad hoc group of eight or so federal and state court judges, sketching out what the protocol and process might look like. 

Already, appellate courts are hearing oral arguments via Zoom, trial courts are holding select (non-jury) proceedings remotely, and lawyers of all stripes are doing virtual depositions. 

But jury trials present some particular challenges, such as how to handle summons, selection, supervision and deliberations. 

In some ways, summons might be the trickiest. Would the pool effectively be limited to people who have computers with cameras and high speed connections? Or perhaps people could log in at a local library branch?

It's not necessarily a problem, Susman notes. After all, legal scholars have concluded that specialized juries in patent cases, for example, would be consistent with both the Seventh Amendment right to jury trial and the Fourteenth Amendment guarantee of equal protection. 

As for voir dire, conducting it via Zoom strikes Susman as easy enough, with the prospective juror, lawyers and judge all on the call. 

Once jurors are selected, the court could give them loaner laptops for the duration of the trial, Susman said. (Much in the way my daughter's high school issues all students Chromebooks for the year, to make sure everyone is working off the same platform.)

As for supervision, Susman acknowledged judges might have concerns about this. For example, would jurors be more tempted to do their own internet research if they're watching the trial from home?

"But jurors in civil cases are not sequestered at night anyway," Susman noted. Studies show that 95% of jurors follow the judge's instructions not to do research or post about the case on social media, he said. 

As for making sure the jurors pay attention to the proceedings, their faces would be onscreen, so the judge could tell if anyone dozed off or wandered away. Also, jurors could be required to click on prompts periodically to make sure they're not off visiting other websites surreptitiously.

Deliberations would be a private Zoom conference call hosted by the jury foreperson.

"This would revolutionize the way cases are tried," Susman said. "Why go to the courthouse? Jurors hate it … There's no parking, it's inconvenient."

Overall, the technical challenges strike Susman as eminently surmountable. Jury consultants such as Magna Legal Services, for example, already offer virtual mock trials with surrogate jurors, he notes. 

(Here's how Magna describes its service: "We take great strides to ensure that the mock jurors match those you are likely to see at trial. The selected surrogate jurors log into Magna's virtual courtroom from their personal work space via a secure link and password. They then observe live presentations of the case given by trial counsel, which can take various forms depending upon the focus of the research.")

If a private company can sell mock trials decided by online jurors, surely the court system could do it for real.

"The real problem," Susman said, "will be getting the lawyers to agree."

In any given dispute, one side is typically eager to have its day in court—and the other side is not. Those slow-walking lawyers would have little incentive to agree to a speedy virtual trial if insisting on an in-person jury buys their client a year or two of delay. 

But Susman said Judge Lorna Propes in Chicago told him she might have a pending dispute where both parties are game to litigate before a virtual jury. 

Besides, Susman added, "The first judge and lawyers who do it will be famous."